EXECUTION COUNTERPART
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SINCLAIR BROADCAST GROUP, INC.
and
SUBSIDIARY GUARANTORS
-----------------------------
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of May 20, 1997
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THE CHASE MANHATTAN BANK,
as Agent
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which
it is attached but is inserted for convenience only.
Page
Section 1. Definitions and Accounting Matters........................ 2
1.01 Certain Defined Terms................................. 2
1.02 Accounting Terms and Determinations................... 42
1.03 Classes and Types of Loans............................ 44
1.04 References to Date.................................... 45
Section 2. Commitments............................................... 45
2.01 Loans................................................. 45
2.02 Borrowings............................................ 46
2.03 Changes of Commitments................................ 47
2.04 Commitment Fees....................................... 48
2.05 Lending Offices....................................... 49
2.06 Several Obligations; Remedies Independent............. 49
2.07 Notes................................................. 49
2.08 Optional Prepayments and Conversions or
Continuations of Loans...................... 51
2.09 Mandatory Prepayments and Reductions of
Commitments................................. 52
2.10 Issuance of Letters of Credit......................... 55
Section 3. Payments of Principal and Interest........................ 60
3.01 Repayment of Loans.................................... 60
3.02 Interest.............................................. 62
Section 4. Payments; Pro Rata Treatment; Computations;
Etc......................................... 63
4.01 Payments.............................................. 63
4.02 Pro Rata Treatment.................................... 64
4.03 Computations.......................................... 65
4.04 Minimum Amounts, Etc.................................. 65
4.05 Certain Notices....................................... 66
4.06 Non-Receipt of Funds by the Agent..................... 67
4.07 Sharing of Payments, Etc.............................. 68
Section 5. Yield Protection, Etc..................................... 70
5.01 Additional Costs...................................... 70
5.02 Limitation on Types of Loans.......................... 72
5.03 Illegality............................................ 73
5.04 Treatment of Affected Loans........................... 73
5.05 Compensation.......................................... 74
(i)
Page
5.06 Additional Costs in Respect of Letters of
Credit...................................... 75
5.07 U.S. Taxes............................................ 76
5.08 Replacement of Lenders................................ 77
Section 6. Guarantee................................................. 78
6.01 Guarantee............................................. 78
6.02 Obligations Unconditional............................. 79
6.03 Reinstatement......................................... 80
6.04 Subrogation........................................... 81
6.05 Remedies.............................................. 81
6.06 Continuing Guarantee.................................. 81
6.07 Rights of Contribution................................ 81
6.08 Limitation on Guarantee Obligations................... 82
Section 7. Conditions Precedent...................................... 82
7.01 Effectiveness of this Agreement....................... 82
7.02 Initial and Subsequent Loans.......................... 88
Section 8. Representations and Warranties............................ 89
8.01 Corporate Existence................................... 89
8.02 Financial Condition................................... 89
8.03 Litigation............................................ 90
8.04 No Breach............................................. 90
8.05 Action................................................ 90
8.06 Approvals............................................. 91
8.07 Use of Loans.......................................... 91
8.08 ERISA................................................. 91
8.09 Taxes................................................. 91
8.10 Investment Company Act................................ 92
8.11 Public Utility Holding Company Act.................... 92
8.12 Indebtedness and Interest Rate Protection
Agreements.................................. 92
8.13 Hazardous Materials................................... 92
8.14 Subsidiaries, Etc..................................... 95
8.15 Broadcast Licenses.................................... 95
8.16 Property.............................................. 96
8.17 Ancillary Documents................................... 96
8.18 Film Obligations...................................... 96
8.19 Capitalization........................................ 97
8.20 True and Complete Disclosure.......................... 97
8.21 Tax Identification Numbers............................ 98
8.22 Program Services Agreements........................... 98
8.23 Options............................................... 98
8.24 Asset Use and Operating Agreements.................... 98
(ii)
Page
Section 9. Covenants of the Obligors................................. 98
9.01 Financial Statements.................................. 99
9.02 Litigation............................................103
9.03 Existence, Etc........................................103
9.04 Insurance.............................................104
9.05 Prohibition of Fundamental Changes....................105
9.06 Limitation on Liens...................................113
9.07 Indebtedness..........................................114
9.08 Investments...........................................116
9.09 Dividend Payments.....................................118
9.10 Interest Coverage Ratio...............................120
9.11 Fixed Charges Ratio...................................120
9.12 Capital Expenditures..................................121
9.13 Senior Indebtedness Ratio.............................121
9.14 Total Indebtedness Ratio..............................121
9.15 Film Cash Payments....................................122
9.16 No Guarantee of Senior Debentures.................122
9.17 Interest Rate Protection Agreements...................122
9.18 Subordinated Indebtedness.............................123
9.19 Lines of Business.....................................123
9.20 Transactions with Affiliates..........................124
9.21 Use of Proceeds.......................................124
9.22 Certain Obligations Respecting Subsidiaries...........125
9.23 Additional Subsidiary Guarantors......................125
9.24 Modifications of Certain Documents....................126
9.25 License Subsidiaries..................................126
9.26 Equity Issuance.......................................128
9.27 CRESAP................................................128
9.28 Program Services Agreements...........................129
9.29 Exercise of River City Options........................131
9.30 Limitation on Cure Rights.............................131
Section 10. Events of Default.........................................131
10.01 Events of Default; Remedies...........................131
10.02 Collateral Account....................................137
Section 11. The Agent.................................................138
11.01 Appointment, Powers and Immunities....................138
11.02 Reliance by Agent.....................................139
11.03 Defaults..............................................139
11.04 Rights as a Lender....................................140
11.05 Indemnification.......................................140
11.06 Non-Reliance on Agent and Other Lenders...............141
11.07 Failure to Act........................................141
11.08 Resignation or Removal of Agent.......................142
11.09 Consents under Certain Documents......................142
11.10 Collateral Sub-Agents.................................142
(iii)
Section 12. Miscellaneous.............................................143
12.01 Waiver................................................143
12.02 Notices...............................................143
12.03 Expenses, Etc.........................................143
12.04 Amendments, Etc.......................................145
12.05 Successors and Assigns................................148
12.06 Assignments and Participations........................148
12.07 Survival..............................................151
12.08 Captions..............................................152
12.09 Counterparts..........................................152
12.10 Governing Law; Submission to Jurisdiction.............152
12.11 Waiver of Jury Trial..................................152
12.12 Treatment of Certain Information......................152
12.13 Cure of Defaults by Agent or Lenders..................152
Schedule I - Indebtedness and Interest Rate Protection
Agreements
Schedule II - Hazardous Materials
Schedule III - Subsidiaries and Investments
Schedule IV - Broadcast Licenses
Schedule V - Film Obligations
Schedule VI - Tax Identification Numbers
Schedule VII - Program Services Agreements
Schedule VIII - Option Agreements
Schedule IX - Asset Use and Operating Agreements
Schedule X - Revolving Credit Commitments
Schedule XI - Tranche A Term Loan Commitments
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Tranche A Term Loan Note
Exhibit A-3 - Form of Tranche C Term Loan Note
Exhibit B - Form of Tranche C Term Loan Activation Notice
Exhibit C - Form of Amendment to Security Agreement
Exhibit D - Form of Affiliate Guarantee
Exhibit E - Form of Amendment to GDC Security Agreement
Exhibit F - Form of Asset Use and Operating Agreement
Exhibit G - Form of Consent and Agreement
Exhibit H - Form of Assignment and Acceptance
Exhibit I - Form of Amendment to Founders Subordination Agreement
(iv)
THIRD AMENDED AND RESTATED CREDIT AGREEMENT dated as of May
20, 1997, between:
SINCLAIR BROADCAST GROUP, INC., a corporation duly organized
and validly existing under the laws of the State of Maryland (the
"Borrower");
each of the Persons (as defined in Section 1.01 hereof)
identified under the caption "SUBSIDIARY GUARANTORS" on the signature
pages hereof or which, pursuant to Section 9.23 hereof, shall become a
"Subsidiary Guarantor" hereunder (individually, a "Subsidiary
Guarantor" and, collectively, the "Subsidiary Guarantors"; the Borrower
and the Subsidiary Guarantors being collectively referred to herein as
the "Obligors");
each of the Persons identified under the caption "LENDERS" on
the signature pages hereof or which, pursuant to Section 12.06(b)
hereof, shall become a "Lender" hereunder (individually, a "Lender"
and, collectively, the "Lenders"); and
THE CHASE MANHATTAN BANK, as agent for the Lenders (in such
capacity, together with its successors in such capacity, the "Agent").
WHEREAS, the Borrower, certain of the Subsidiary Guarantors,
certain of the Lenders (the "Existing Lenders") and the Agent are party to a
Second Amended and Restated Credit Agreement dated as of May 31, 1996 (as
heretofore modified and supplemented and in effect on the date hereof
immediately before giving effect to the amendment and restatement contemplated
hereby, the "Existing Credit Agreement"), pursuant to which: (a) certain of the
Existing Lenders committed to make Revolving Credit Loans (as defined in the
Existing Credit Agreement) and to issue or participate in Letters of Credit (as
defined in the Existing Credit Agreement) in an aggregate principal or face
amount not exceeding $250,000,000 at any one time outstanding, (b) certain of
the Existing Lenders committed to make Tranche A Term Loans (as defined in the
Existing Credit Agreement) in an aggregate principal amount not exceeding
$550,000,000, (c) certain of the Existing Lenders committed to make Tranche B
Term Loans (as defined in the Existing Credit Agreement) in an aggregate
principal amount not exceeding $200,000,000 and (d) one or more of the Existing
Lenders, at their option, could agree with the Borrower to make Tranche C Term
Loans (as defined in the Existing Credit Agreement) in an aggregate principal
amount not exceeding $200,000,000; and
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WHEREAS, the Borrower has requested that the Existing Lenders
(which include all of the Persons that on the date hereof are Lenders under, and
as defined in, the Existing Credit Agreement) and the Agent agree to amend and
restate the Existing Credit Agreement, and the Existing Lenders and the Agent
are willing to amend and restate the Existing Credit Agreement, in order to (a)
provide for Revolving Credit Loans and Letters of Credit to be made or issued in
an aggregate principal or face amount not exceeding $400,000,000 at any one time
outstanding, provided that the aggregate face amount of the Letters of Credit
shall not exceed $100,000,000 at any one time outstanding, (b) provide for
Tranche A Term Loans to be made in an aggregate principal amount not to exceed
$600,000,000, (c) provide for the repayment in full on the Restatement Effective
Date (as defined in Section 1.01 below) of the principal of and interest on the
Tranche B Term Loans, (d) provide, at the option of the Borrower and one or more
Lenders, for Tranche C Term Loans in an aggregate principal amount not exceeding
$400,000,000 and (e) provide for the other amendments to the Existing Credit
Agreement hereinafter set forth; and
NOW, THEREFORE, the parties hereto hereby agree that the
Existing Credit Agreement shall be amended and restated as of the date hereof
(but subject to Section 7.01 hereof) to read in its entirety as follows:
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the following
terms shall have the following meanings (all terms defined in this Section 1.01
or in other provisions of this Agreement in the singular to have the same
meanings when used in the plural and vice versa):
"Acquisitions" shall mean the River City License
Acquisitions, the Approved Acquisitions and the Other
Acquisitions.
"Additional Senior Subordinated Notes" shall have the meaning
assigned to such term in Section 9.07(c) hereof.
"Affiliate" shall mean any Person which directly or indirectly
controls, or is under common control with, or is controlled by, the Borrower
and, if such Person is an individual, any member of the immediate family
(including parents, spouse and children) of such individual and any trust whose
principal beneficiary is such individual or one or more members of such
immediate family and any Person who is controlled by any such member or trust.
As used in this definition, "control" (including, with its correlative meanings,
"controlled by" and
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"under common control with") shall mean possession, directly or indirectly, of
power to direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership interests, by
contract or otherwise), provided that, in any event, any Person which owns
directly or indirectly 5% or more of the securities having ordinary voting power
for the election of directors or other governing body of a corporation or 5% or
more of the partnership or other ownership interests of any other Person (other
than as a limited partner of such other Person) will be deemed to control such
corporation or other Person. Notwithstanding the foregoing, no individual shall
be deemed to be an Affiliate solely by reason of his or her being a director,
officer or employee of the Borrower or any of its Subsidiaries and the Borrower
and its Subsidiaries shall not be deemed to be Affiliates of each other.
"Affiliate Guarantee" shall mean the Affiliate Guarantee,
substantially in the form of Exhibit D hereto, between Cunningham, GDLP, KIG and
the Agent.
"Aggregate Consideration" shall mean, in connection with any
Acquisition, the aggregate consideration, in whatever form (including, without
limitation, cash payments, the principal amount of promissory notes and
Indebtedness assumed, the aggregate amounts payable to acquire, extend and
exercise any option, the aggregate amount payable under non-competition
agreements and management agreements, and the fair market value of other
Property delivered) paid, delivered or assumed by the Borrower and its
Subsidiaries for such Acquisition.
"Agreement" shall mean this Third Amended and Restated Credit
Agreement, as modified and supplemented and in effect from time to time.
"Amendment to Founders Subordination Agreement" shall mean the
amendment, substantially in the form of Exhibit I hereto, of the Founders
Subordination Agreement.
"Amendment to GDC Security Agreement" shall mean the
amendment, substantially in the form of Exhibit E hereto, to the GDC Security
Agreement.
"Amendment to Security Agreement" shall mean the amendment,
substantially in the form of Exhibit C hereto, of the Security Agreement.
"Ancillary Documents" shall mean the River City Acquisition
Documents, the Asset Use and Operating Agreements, the Julian Smith Documents,
the Carolyn Smith Documents, the
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Program Services Agreements, the Senior Subordinated Notes and the Senior
Subordinated Note Indentures.
"Applicable Commitment Fee Rate" shall mean 3/8 of 1% per
annum; provided that if the Total Indebtedness Ratio as at the last day of any
fiscal quarter of the Borrower shall fall within any of the ranges set forth
below then, subject to the delivery to the Agent of a certificate of a senior
financial officer of the Borrower demonstrating such fact prior to the end of
the next succeeding fiscal quarter, the "Applicable Commitment Fee Rate" shall
be reduced to the rate set forth below opposite such range during the period
commencing on the Quarterly Date on or immediately following the date of receipt
of such certificate to but not including the next succeeding Quarterly Date
thereafter (except that notwithstanding the foregoing, the Applicable Commitment
Fee Rate shall not as a consequence of this proviso be so reduced for any period
during which an Event of Default shall have occurred and be continuing):
Range of
Total Applicable Commitment
Indebtedness Ratio Fee Rate (% p.a.)
Greater than or
equal to 5.00 to 1 3/8 of 1%
Less than 5.00 to 1 1/4 of 1%
"Applicable Lending Office" shall mean, for each Lender and
for each Type of Loan, the "Lending Office" of such Lender (or of an affiliate
of such Lender) designated for such Type of Loan on the signature pages hereof
or such other office of such Lender (or of an affiliate of such Lender) as such
Lender may from time to time specify to the Agent and the Borrower as the office
by which its Loans of such Type are to be made and maintained.
"Applicable Margin" shall mean: (a) with respect to Base Rate
Loans, (i) 5/8% per annum for Revolving Credit Loans and Tranche A Term Loans
and (ii) the rate per annum for Tranche C Term Loans agreed to by the Borrower
and the Tranche C Lenders in the Tranche C Term Loan Activation Notice; and (b)
with respect to Eurodollar Loans, (i) 1 7/8% per annum for Revolving Credit
Loans and Tranche A Term Loans and (ii) the rate per annum for Tranche C Term
Loans agreed to by the Borrower and the Tranche C Lenders in the Tranche C Term
Loan Activation Notice; provided that if the Total Indebtedness Ratio as at the
last day of any fiscal quarter of the Borrower shall fall within any of the
ranges set forth below then, subject to the delivery to the Agent of a
certificate of a senior financial officer of the
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Borrower demonstrating such fact prior to the end of the next succeeding fiscal
quarter, the "Applicable Margin" for Revolving Credit Loans and Tranche A Term
Loans shall be reduced to the rate for the respective Type of Loan set forth
below opposite such range during the period commencing on the Quarterly Date on
or immediately following the date of receipt of such certificate to but not
including the next succeeding Quarterly Date thereafter (except that
notwithstanding the foregoing, the Applicable Margin for any such Loan shall not
as a consequence of this proviso be so reduced for any period during which an
Event of Default shall have occurred and be continuing):
Range of
Total Applicable Margin (% p.a.)
Indebtedness Ratio Base Rate Loans Eurodollar Loans
Greater than or
equal to 6.50 to 1 5/8% 1 7/8%
less than 6.50 to 1
and greater than or
equal to 6.00 to 1 1/4% 1 1/2%
less than 6.00 to 1
and greater than or
equal to 5.50 to 1 0% 1 1/4%
less than 5.50 to 1 and
greater than or equal
to 5.00 to 1 0% 1%
less than 5.00 to 1 and
greater than or equal
to 4.50 to 1 0% 3/4%
less than 4.50 to 1 and
greater than or equal
to 4.00 to 1 0% 5/8%
Less than 4.00 to 1 0% 1/2%
"Approved Acquisitions" shall mean (a) the consummation of the
acquisition of assets by the Borrower or any of its Subsidiaries pursuant to the
exercise of any or all of the WPTT Conversion Option, the Glencairn Options and
the WDBB Options, (b) the acquisition of stock or assets and assumption of
liabilities relating to WFBC-AM and WFBC-FM, Greenville, South Carolina and
WORD-AM, Spartanburg, South Carolina in accordance with the terms hereof by the
Borrower or any of its Subsidiaries pursuant to the exercise of either option
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granted to the Borrower or such Subsidiary under the Option Agreement dated as
of July 7, 1995, as amended, by and among Keymarket of South Carolina, Inc.
("Keymarket S.C.") and the Borrower (as assignee of River City), (c) the
acquisition of assets and assumption of liabilities relating to WSPA-AM and
WSPA-FM, Spartanburg, South Carolina in accordance with the terms hereof by the
Borrower or any of its Subsidiaries pursuant to the exercise of the option
granted to the Borrower or such Subsidiary under the Option Agreement dated as
of August 30, 1994, as amended, by and among The Spartan Radiocasting Company,
Inc. and the Borrower (as assignee of River City, which, in turn, is assignee of
Keymarket S.C.), (d) the acquisition of assets (or of the capital stock (or
other equity ownership interest) of the Person that owns such assets) and
assumption of liabilities relating to WPMR-AM and WKRF-FM, Tobyhanna,
Pennsylvania in accordance with the terms hereof, (e) the acquisition of assets
and assumption of liabilities relating to KUPN-TV Las Vegas, Nevada in
accordance with the terms and conditions under that Asset Purchase Agreement
dated January 31, 1997 by and between Channel 21, L.P. and KUPN, Inc. and (f)
the acquisition of assets (or of the capital stock (or other equity ownership
interest) of the Person that owns such assets) and assumption of liabilities
relating to WXWX-FM, Easley, South Carolina, and WXWZ-FM, Greer, South Carolina.
"Asset Use and Operating Agreements" shall mean (a) the
agreements listed in Schedule IX hereto and (b) with respect to each Owned
Station hereafter acquired by the Borrower, an Asset Use and Operating Agreement
entered into after the date hereof, as contemplated by Section 9.25 hereof,
between the Subsidiary of the Borrower that operates such Owned Station and a
License Subsidiary with respect to such Owned Station substantially in the form
of Exhibit F hereto, in each case as the same may be modified and supplemented
and in effect from time to time.
"Baker Employment Agreement" shall mean the Employment
Agreement dated as of April 10, 1996 between Barry Baker and the Borrower, as
the same may be modified and supplemented and in effect from time to time.
"Baker Stock Option Agreement" shall mean the Stock Option
Agreement dated as of April 10, 1996 between Barry Baker and the Borrower,
providing, among other things, for the right of Barry Baker to acquire 1,382,435
shares of the Borrower's Class A Common Stock on the terms and conditions set
forth therein, as the same may be modified and supplemented and in effect from
time to time.
"Base Rate" shall mean, for any day, the higher of (a) the
Federal Funds Rate for such day plus 1/2 of 1% per annum
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or (b) the Prime Rate for such day. Each change in any interest rate provided
for herein based upon the Base Rate resulting from a change in the Base Rate
shall take effect at the time of such change in the Base Rate.
"Base Rate Loans" shall mean Loans which bear interest at
rates based upon the Base Rate.
"Basic Documents" shall mean, collectively, this Agreement,
the Notes (if any), the Letter of Credit Documents, the Security Documents, each
Consent and Agreement and the Founders Subordination Agreement.
"BCF Percentage" shall mean, as of the date of the
consummation of any Other Acquisition, the ratio, expressed as a percentage,
obtained by dividing (a) the portion of Broadcast Cash Flow attributable to
Contract Stations for the twelve-month period ending on, or most recently ended
prior to such date by (b) Broadcast Cash Flow for such period. Solely for
purposes of this definition, the term "Contract Stations" shall be deemed not to
include any Station that is contemplated by the River City Acquisitions
Documents to be the subject of a River City License Acquisition.
"Broadcast Cash Flow" shall mean, for any period, the sum of
EBITDA plus Corporate Expense for such period.
"Broadcast Licenses" shall mean (a) the licenses, permits,
authorizations or certificates to construct, own, operate or promote the
Stations granted by the FCC, and all extensions, additions and renewals thereto
or thereof, and (b) the licenses, permits, authorizations or certificates which
are necessary or desirable to construct, own, operate or promote the Stations
granted by administrative law courts or any state, county, city, town, village
or other local government authority, and all extensions, additions and renewals
thereto or thereof.
"Business Day" shall mean (a) any day on which commercial
banks are not authorized or required to close in New York City and (b) if such
day relates to a borrowing of, a payment or prepayment of principal of or
interest on, or a Conversion of or into, or an Interest Period for, a Eurodollar
Loan or a notice by the Borrower with respect to any such borrowing, payment,
prepayment, Conversion or Interest Period, which is also a day on which dealings
in Dollar deposits are carried out in the London interbank market.
"Capital Expenditures" shall mean, for any period,
expenditures (including the aggregate amount of Capital Lease Obligations
incurred during such period) made by the Borrower or
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any of its Consolidated Subsidiaries to acquire or construct fixed assets, plant
and equipment (including renewals, improvements and replacements, but excluding
repairs) during such period computed in accordance with GAAP, but excluding any
such expenditures made as part of any Acquisition.
"Capital Lease Obligations" shall mean, for any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real and/or personal Property to the
extent such obligations are required to be classified and accounted for as a
capital lease on a balance sheet of such Person under GAAP (including Statement
of Financial Accounting Standards No. 13 of the Financial Accounting Standards
Board) and, for purposes of this Agreement, the amount of such obligations shall
be the capitalized amount thereof, determined in accordance with GAAP (including
such Statement No. 13).
"Capital Stock" shall mean, as to any Person, any and all
shares, interests, warrants, participations or other equivalents (however
designated) of corporate stock of such Person.
"Carolyn Smith Documents" shall mean the Term Note dated
September 30, 1990 of the Borrower payable to Carolyn C. Smith in the original
face amount of $6,700,000 and all agreements, documents or other instruments
providing for any Guarantee of all or any portion of such Term Note by any
Obligor, in each case as modified and supplemented and in effect from time to
time.
"Casualty Event" shall mean, with respect to any Property of
any Person, any loss of or damage to, or any condemnation or other taking of,
such Property for which such Person or any of its Subsidiaries receives
insurance proceeds, or proceeds of a condemnation award or other compensation.
"Chase" shall mean The Chase Manhattan Bank and its
successors.
"Class" shall have the meaning assigned to such term in
Section 1.03 hereof.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral Account" shall have the meaning assigned to such
term in Section 10.02 hereof.
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"Columbus Option Agreement" shall mean the Columbus Option
Agreement dated as of May 31, 1996 by and among the River City Sellers, as
Sellers, and the Borrower, as Option Holder, as the same shall be modified and
supplemented and in effect from time to time.
"Commitments" shall mean the Revolving Credit Commitments, the
Tranche A Term Loan Commitments and the Tranche C Term Loan Commitments.
"Common Participation Interests" shall mean the common equity
ownership interests in the Trust.
"Consent and Agreement" shall mean a Consent and Agreement
substantially in the form of Exhibit G hereto.
"Consolidated Subsidiary" shall mean, for any Person, each
Subsidiary of such Person (whether now existing or hereafter created or
acquired) the financial statements of which shall be (or should have been)
consolidated with the financial statements of such Person in accordance with
GAAP.
"Continue", "Continuation" and "Continued" shall refer to the
continuation pursuant to Section 2.08 hereof of a Eurodollar Loan from one
Interest Period to the next Interest Period.
"Contract Station" shall mean (a) each television or radio
station listed in Part B of Schedule IV hereto and (b) each television or radio
station that is the subject of an acquisition referred to in clause (b) of the
definition of "Other Acquisition" in this Section 1.01 consummated by the
Borrower or any of its Subsidiaries on or after the date hereof, in each case
referred to in the foregoing clauses (a) and (b) until such time, if any, as
such television or radio station becomes an Owned Station.
"Convert", "Conversion" and "Converted" shall refer to a
conversion pursuant to Section 2.08 or 5.04 hereof of Loans of one Type into
Loans of the other Type, which may be accompanied by the transfer by a Lender
(at its sole discretion) of a Loan from one Applicable Lending Office to
another.
"Converted Senior Subordinated Notes" shall have the meaning
assigned to such term in Section 9.07(h) hereof.
"Corporate Expense" shall mean, for any period, all general
and administrative expenses of the Borrower for such period. In the event that
any general or administrative expense of the type heretofore borne by the
Borrower is hereafter borne
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by any Subsidiary of the Borrower, such general or administrative expense borne
by such Subsidiary shall be deemed to be "Corporate Expense" for the purposes
hereof.
"Corporate Employee Stock Option Agreements" shall mean the
respective Stock Option Agreements dated as of April 10, 1996 between the
Borrower and the respective River City Corporate Employees, providing, among
other things, for the right of the River City Corporate Employees to acquire, in
the aggregate, not more than 691,218 shares of the Borrower's Class A Common
Stock on the terms and conditions set forth therein, in each case as the same
may be modified and supplemented and in effect from time to time.
"Credit Exposure" of a Lender shall mean the aggregate
outstanding principal amount of the Loans held by such Lender, the aggregate
unutilized amounts of the outstanding Commitment(s) of such Lender and the
aggregate amount of Letter of Credit Liabilities of such Lender.
"Credit Parties" shall mean the Obligors, Cunningham, KIG,
GDLP and GDC.
"CRESAP" shall mean CRESAP Enterprises, Inc, a Maryland
corporation.
"CRESAP Investment" shall mean the Investment permitted by the
proviso to Section 9.27(e) hereof.
"Cunningham" shall mean Cunningham Communications, Inc., a
Maryland corporation.
"Debt Service" shall mean, for any period, the sum, for the
Borrower and its Consolidated Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of the following: (a) all payments
of principal of Indebtedness (including, without limitation, the principal
component of any payments in respect of Capital Lease Obligations) scheduled to
be made during such period plus (b) all Interest Expense for such period plus
(c) fees and other expenses payable in connection with this Agreement for such
period (excluding such fees and expenses constituting transaction costs payable
on the Restatement Effective Date, but including agency fees).
"Default" shall mean an Event of Default or an event which
with notice or lapse of time or both would become an Event of Default.
"Designated Company" shall mean (i) KDSM, but only for so long
as KDSM owns no Property other than the Common
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Participation Interests, the Existing Preferred Stock, the capital stock of KDSM
Licensee, Property directly related to the operation of KDSM-TV, Indebtedness of
the Borrower permitted by Section 9.07(i) hereof and the profits and proceeds
generated by the aforementioned Property or (ii) New PPI Sub, but only for so
long as New PPI Sub owns no Property other than the New PPI Common Participation
Interests, the New PPI Preferred Stock, the capital stock of New PPI Sub
Licensee, Property directly related to the operation of New PPI Station,
Indebtedness of the Borrower permitted by Section 9.07(i) hereof and the profits
and proceeds generated by the aforementioned Property.
"Designated Employees Stock Option Plan" shall mean the
Incentive Stock Option Plan for Designated Participants providing for the right
of certain employees of the Borrower and its Subsidiaries to acquire, in the
aggregate, not more than 68,000 shares of the Borrower's Class A Common Stock.
"Disposition" shall mean any sale, assignment, transfer or
other disposition of any Property (whether now owned or hereafter acquired) by
the Borrower or any of its Subsidiaries to any Person excluding any sale,
assignment, transfer or other disposition of any Property sold or disposed of in
the ordinary course of business and on ordinary business terms.
"Dividend Payment" shall mean dividends (in cash, Property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any shares of any
class of stock of the Borrower or of any warrants, options or other rights to
acquire the same (or to make any payments to any Person, such as "phantom stock"
payments, where the amount thereof is calculated with reference to the fair
market or equity value of the Borrower or any of its Subsidiaries), but
excluding dividends payable solely in shares of capital stock of the Borrower.
"Dollars" and "$" shall mean lawful money of the United States
of America.
"EBITDA" shall mean, for any period, the sum, for the Borrower
and its Consolidated Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following for such period (subject
to Section 1.02(d) hereof): (a) net income for such period plus (b) taxes to the
extent deducted in determining net income for such period plus (c) depreciation
and amortization (including film amortization) for such period plus (d) Interest
Expense for such period to the extent deducted in determining net income for
such period plus (e) all other non-cash charges to the extent deducted in
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determining net income for such period minus (f) Film Cash Payments made or
scheduled to be made during such period minus (g) Corporate Expense to the
extent not deducted in determining net income for such period plus (h) the
Adjustment Amount (as defined below) for such period minus (i) non-cash revenues
to the extent included in net income for such period plus (j) Dividend Payments
made by the Borrower and its Subsidiaries as permitted by Sections 9.09(a)
hereof to the extent deducted in determining net income for such period or
included in determining Corporate Expense pursuant to the preceding clause (g)
for such period plus (k) Permitted Termination Payments (as defined in Section
9.28 hereof) to the extent deducted in determining net income for such period or
included in determining Corporate Expense pursuant to the preceding clause (g)
for such period plus (l) any WSYX Extension Payment made by the Borrower or any
of its Subsidiaries during such period to the extent deducted in determining net
income for such period minus (m) interest and other income to the extent
included in net income for such period minus (n) extraordinary gains to the
extent included in net income plus (o) extraordinary losses to the extent
deducted in determining net income for such period plus (p) dividends paid by
the Borrower on the Existing Preferred Stock and on the New PPI Preferred Stock
during such period, to the extent deducted in determining net income for such
period. For purposes of this definition, the "Adjustment Amount" for any period
shall mean: (a) if such period ends on or before June 30, 1997, $4,000,000 and
(b) if such period ends on or after June 30, 1997, $0.
"EBITDA Percentage" shall mean, as of the date of the
consummation of any sale or exchange of assets (or capital stock (or other
equity ownership interest)) contemplated by Section 9.05(d)(iv) hereof, the
ratio, expressed as a percentage, obtained by dividing (a) the portion of EBITDA
attributable to such assets for the twelve-month period ending on, or most
recently ended prior to such date by (b) EBITDA for such period.
"Environmental Affiliate" shall mean, as to any Person (the
"successor"), any other Person whose liability (contingent or otherwise) for an
Environmental Claim the successor may have retained, assumed or otherwise become
or remained liable for (contingently or otherwise), whether by contract,
operation of law or otherwise; provided that each Subsidiary of the successor,
and each former Subsidiary or division of the successor transferred to another
Person, shall in any event be an "Environmental Affiliate" of the successor.
"Environmental Claim" shall mean, with respect to any Person,
any notice, claim, demand or other communication (whether written or oral) by
any other Person alleging or asserting such Person's liability for investigatory
costs, cleanup costs,
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governmental response costs, damages to natural resources or other Property,
personal injuries, fines or penalties arising out of, based on or resulting from
(a) the presence, or Release into the environment, of any Hazardous Material at
any location, previously owned or leased by such Person and whether or not owned
or leased by such Person at the time such notice, claim, demand or other
communication is made or (b) circumstances forming the basis of any violation,
or alleged violation, of any Environmental Law.
"Environmental Laws" shall mean any and all Federal, state,
local and foreign statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
or other governmental restrictions relating to the environment or to emissions,
discharges, Releases or threatened Releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into the
environment including, without limitation, ambient air, surface water, ground
water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes.
"Equity Issuance" shall mean (a) any issuance or sale by the
Borrower or any of its Subsidiaries after the Restatement Effective Date of (i)
any capital stock, (ii) any warrants or options exercisable in respect of
capital stock (other than any warrants or options relating to capital stock of
the Borrower issued to directors, officers or employees of the Borrower or any
of its Subsidiaries pursuant to employee benefit plans established in the
ordinary course of business and any capital stock of the Borrower issued upon
the exercise of such warrants or options) or (iii) any other security or
instrument representing an equity interest (or the right to obtain any equity
interest) in the Borrower or any of its Subsidiaries or (b) the receipt by the
Borrower or any of its Subsidiaries after the Restatement Effective Date of any
capital contribution (whether or not evidenced by any equity security issued by
the recipient of such contribution); provided that Equity Issuance shall not
include (x) any such issuance or sale by any Subsidiary of the Borrower to the
Borrower or any Wholly Owned Subsidiary of the Borrower or (y) any capital
contribution by the Borrower or any Wholly Owned Subsidiary of the Borrower to
any Subsidiary of the Borrower.
"Equity Public Offering" shall mean a public Equity Issuance
by the Borrower of its common stock pursuant to a registration statement filed
under the Securities Act of 1933, as amended.
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"Equity Rights" shall mean, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or securities
convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, such Person.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or
business which is a member of the same controlled group of corporations (a)
described in Section 414(b) or (c) of the Code of which the Borrower is a member
and (b) solely for purposes of potential liability under Section 302(c)(11) of
ERISA and Section 412(c)(11) of the Code and the lien created under Section
302(f) of ERISA and Section 412(n) of the Code, described in Section 414(m) or
(o) of the Code of which the Borrower is a member.
"Eurodollar Base Rate" shall mean, with respect to any
Eurodollar Loan for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/16 of 1%), as quoted by the Agent at
approximately 11:00 a.m. London time (or as soon thereafter as practicable) on
the date two Business Days prior to the first day of such Interest Period for
the offering by Chase to leading banks in the London interbank market of Dollar
deposits having a term comparable to such Interest Period and in an amount
comparable to the principal amount of the Eurodollar Loan to be made by Chase
for such Interest Period. If Chase is not participating in any Eurodollar Loan
during any Interest Period therefor, the Eurodollar Base Rate for such Loan for
such Interest Period shall be determined by reference to the amount of the Loan
which Chase would have made or had outstanding had it been participating in such
Loan during such Interest Period.
"Eurodollar Loans" shall mean Loans that bear interest at
rates based on rates referred to in the definition of "Eurodollar Base Rate" in
this Section 1.01.
"Eurodollar Rate" shall mean, for any Eurodollar Loan for any
Interest Period therefor, a rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined by the Agent to be equal to the Eurodollar
Base Rate for such Loan for such Interest Period divided by 1 minus the Reserve
Requirement for such Loan for such Interest Period.
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"Event of Default" shall have the meaning assigned to such
term in Section 10.01 hereof.
"Excess Cash Flow" shall mean, for any period, the sum
(without duplication) of (a) EBITDA for such period minus (b) the sum (without
duplication) of (i) all Debt Service during such period plus (ii) all Capital
Expenditures made by the Borrower and its Subsidiaries during such period plus
(iii) the excess, if any, of the consolidated Working Investment of the Borrower
and its Consolidated Subsidiaries at the end of such period over the
consolidated Working Investment of the Borrower and its Consolidated
Subsidiaries at the beginning of such period (or minus the excess, if any, of
such Working Investment at the beginning of such period over such Working
Investment at the end of such period) plus (c) Film Cash Payments scheduled to
have been made, but not made, during such period minus (d) the aggregate amount
of fees paid by the Borrower and its Subsidiaries to CRESAP during such period
minus (e) the aggregate amount of Federal and state income taxes paid by the
Borrower and its Consolidated Subsidiaries, net of refunds, for such period
minus (f) the aggregate amount of dividends paid in cash in respect of Preferred
Stock during such period as permitted by Section 9.09 hereof.
"Existing Credit Agreement" shall have the meaning assigned to
such term in the first "WHEREAS" clause of this Agreement.
"Existing Letters of Credit" shall mean Letters of Credit (as
defined in the Existing Credit Agreement) that are outstanding on the
Restatement Effective Date.
"Existing Preferred Stock" shall mean (a) the 12 5/8% Series C
Preferred Stock, par value $0.01 per share, issued by the Borrower in connection
with the PPI Transaction and outstanding on the date hereof, having an aggregate
liquidation preference on the date hereof equal to $206,200,000 and (b) the
Series B Convertible Preferred Stock, par value $0.01 per share, issued by the
Borrower and outstanding on the date hereof.
"Existing Revolving Credit Loans" shall mean the "Revolving
Credit Loans" as defined in the Existing Credit Agreement that are outstanding
on the Restatement Effective Date before the prepayments required by Section
2.01(d).
"Existing Tranche A Term Loans" shall mean the "Tranche A
Loans" as defined in the Existing Credit Agreement that are outstanding on the
Restatement Effective Date before the prepayments required by Section 2.01(d).
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"Existing Tranche B Term Loans" shall mean the "Tranche B
Loans" as defined in the Existing Credit Agreement that are outstanding on the
Restatement Effective Date before the prepayments required by Section 2.01(d).
"FCC" shall mean the Federal Communications Commission (or any
successor entity).
"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 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 that (a) if the day for which such rate is to
be determined 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 (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such day shall be the
average rate charged to Chase on such Business Day on such transactions as
determined by the Agent.
"Film Cash Payments" shall mean, for any period, the sum
(determined on a consolidated basis and without duplication) of all payments by
the Borrower and its Subsidiaries made or scheduled to be made during such
period in respect of Film Obligations; provided that amounts applied to the
prepayment of Film Obligations owing under Prepayable Film Contracts shall not
be deemed to be Film Cash Payments. For the purposes of Section 9.15 hereof
only, (a) if the payment schedule for a Film Obligation is modified at no cost
(including, but not limited to, interest costs) to the Borrower or any of its
Subsidiaries, then the payments with respect to such Film Obligation shall be
deemed to be scheduled to be made pursuant to such modified schedule and (b) any
down payment on a Film Obligation shall be equally allocated over the term of
the payment period for such Film Obligation in amount per month during such
payment period equal to the amount of such down payment divided by the number of
months during such payment period. For the purposes of the definition of
"EBITDA" in this Section 1.01 only, Film Cash Payments for any fiscal quarter
shall be reduced by (a) $764,000, if such fiscal quarter ends on June 30, 1996,
(b) $386,000, if such fiscal quarter ends on September 30, 1996, and (c)
$668,000, if such fiscal quarter ends on December 31, 1996; provided that, if
Film Cash Payments are to be calculated for any portion of any such fiscal
quarter, the amount of the reduction specified in the foregoing clause (a), (b)
or (c), as the case may be, for such fiscal quarter shall be multiplied by a
fraction, the numerator of which shall be the number of days in the portion of
such
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fiscal quarter for which Film Cash Payments are to be calculated and the
denominator of which shall be the number of days in such fiscal quarter.
"Film Obligations" shall mean obligations in respect of the
purchase, use, license or acquisition of programs, programming materials, films,
and similar assets used in connection with the business and operations of the
Borrower and its Subsidiaries.
"Final FCC Order" shall mean an order of the FCC that is no
longer subject to reconsideration or review by the FCC or by any court or
administrative body.
"Fixed Charges Ratio" shall mean, as at any date, the ratio of
(a) EBITDA for the period of twelve consecutive full calendar months ending on
or most recently ended prior to such date to (b) the sum for such period of (i)
Debt Service plus (ii) Capital Expenditures plus (iii) the aggregate amount of
Federal and state income taxes paid by the Borrower and its Consolidated
Subsidiaries, net of refunds, during such period plus (iv) the aggregate amount
of fees paid by the Borrower and its Subsidiaries to CRESAP during such period
plus (v) Dividend Payments made as permitted by Section 9.09(b) and (c) during
such period plus (vi) the aggregate amount of WSYX Option Extension Payments
made during such period, except to the extent that such WSYX Option Extension
Payments were paid (x) out of 25% of Excess Cash Flow for each fiscal year of
the Borrower ending before the date of such payment (to the extent not otherwise
applied by the Borrower in accordance with the provisions of this Agreement),
(y) with the proceeds of the Loans or (z) by means of an Equity Issuance made
pursuant to the Columbus Option Agreement plus (vii) the WSYX Sale Price
Differential, if paid during such period, except to the extent such WSYX Sale
Price Differential was paid (x) out of 25% of Excess Cash Flow for each fiscal
year of the Borrower ending before the date of such payment (to the extent not
otherwise applied by the Borrower in accordance with the provisions of this
Agreement), (y) with the proceeds of the Loans or (z) by means of an Equity
Issuance made pursuant to the Columbus Option Agreement.
"Founders Notes" shall mean Indebtedness under the Julian
Smith Documents and Indebtedness under the Carolyn Smith Documents.
"Founders Subordination Agreement" shall mean the Second
Amended and Restated Founders Subordination Agreement dated as of May 31, 1996
between Carolyn C. Smith and the Agent, as the same shall be modified and
supplemented and in effect from time to time.
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"GAAP" shall mean generally accepted accounting principles
applied on a basis consistent with those which, in accordance with the last
sentence of Section 1.02(a) hereof, are to be used in making the calculations
for purposes of determining compliance with the terms of this Agreement.
"GDC" shall mean Gerstell Development Corporation, a Maryland
corporation.
"GDC Security Agreement" shall mean the Security Agreement
between GDC and the Agent, dated as of May 31, 1996, as the same shall be
modified and supplemented and in effect from time to time.
"GDLP" shall mean Gerstell Development Limited Partnership, a
Maryland limited partnership.
"Glencairn" shall mean Glencairn, Ltd., a Maryland
corporation.
"Glencairn Options" shall mean options for the purchase of all
of the issued and outstanding non-voting stock of Glencairn.
"Governmental Authority" shall mean 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, and any corporation or other entity owned or
controlled (through stock or capital ownership or otherwise) by any of the
foregoing.
"Guarantee" shall mean a guarantee, an endorsement, a
contingent agreement to purchase or to furnish funds for the payment or
maintenance of, or otherwise to be or become contingently liable under or with
respect to, the Indebtedness, other obligations, net worth, working capital or
earnings of any Person, or a guarantee of the payment of dividends or other
distributions upon the stock or equity interests of any Person, or an agreement
to purchase, sell or lease (as lessee or lessor) Property, products, materials,
supplies or services primarily for the purpose of enabling a debtor to make
payment of his, her or its obligations or an agreement to assure a creditor
against loss, and including, without limitation, causing a bank or other
financial institution to issue a letter of credit or other similar instrument
for the benefit of another Person, but excluding endorsements for collection or
deposit in the ordinary course of business; provided that in no event shall the
term "Guarantee" include any Program Services Agreement or any obligations under
any Program Services Agreement. The terms
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"Guarantee" and "Guaranteed" used as a verb shall have a correlative meaning.
"H and P Communications" shall mean H and P Communications,
Inc., a Nevada corporation, that on the date hereof owns 90% of the issued and
outstanding stock of WDBB.
"Hazardous Material" shall mean, collectively, (a) any
petroleum or petroleum products, flammable materials, explosives, radioactive
materials, asbestos, urea formaldehyde foam insulation, and transformers or
other equipment that contain polychlorinated biphenyls ("PCBs"), (b) any
chemicals or other materials or substances that are now or hereafter become
defined as or included in the definition of "hazardous substances," "hazardous
wastes," "hazardous materials," "extremely hazardous wastes," "restricted
hazardous wastes," "toxic substances," "toxic pollutants," "contaminants,"
"pollutants" or words of similar import under any Environmental Law and (c) any
other chemical or other material or substance, exposure to which is now or
hereafter prohibited, limited or regulated under any Environmental Law.
"Hedging Agreement" shall mean any swap agreement, cap
agreement, collar agreement, put or call, futures contract, forward contract or
similar agreement or arrangement entered into to protect against or mitigate the
effect of fluctuations in the price of the Borrower's publicly issued common
stock or in interest rates, foreign exchange rates or prices of commodities used
in the business of the Borrower and its Subsidiaries and any master agreement
relating to any of the foregoing.
"Immaterial Broadcast Licenses" shall mean Broadcast Licenses
(other than main transmitter licenses, auxiliary transmitter licenses (to the
extent in existence on the date hereof) and studio transmitter links (to the
extent necessary for the continued operation of the Stations), in each case
granted by the FCC, and extensions and renewals thereto or thereof) the absence
of which individually or together with all other such Broadcast Licenses could
not have a material adverse effect on the consolidated financial condition,
operations or prospects of the Borrower and its Consolidated Subsidiaries taken
as a whole.
"Indebtedness" shall mean, for any Person: (a) indebtedness
created, issued or incurred by such Person for borrowed money (whether by loan
or the issuance and sale of debt securities or the sale of Property to another
Person subject to an understanding or agreement, contingent or otherwise, to
repurchase such Property from such Person); (b) obligations of such Person to
pay the deferred purchase or acquisition price of Property or services, other
than trade accounts payable (other
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than for borrowed money) arising, and accrued expenses incurred, in the ordinary
course of business so long as such trade accounts payable are payable within 90
days of the date the respective goods are delivered or the respective services
are rendered; (c) Indebtedness of others secured by a Lien on the Property of
such Person, whether or not the respective Indebtedness so secured has been
assumed by such Person; (d) obligations of such Person in respect of letters of
credit or similar instruments issued or accepted by banks and other financial
institutions for account of such Person; (e) Capital Lease Obligations of such
Person; (f) Indebtedness of others Guaranteed by such Person; (g) obligations of
such Person under any non-competition agreement, consulting agreement or similar
agreement (other than the Baker Employment Agreement) entered into in connection
with any Acquisition; and (h) if the Aggregate Consideration payable by such
Person to extend and exercise any option acquired in connection with any Other
Acquisition (an "Extension and Exercise Price") exceeds 20% of the Aggregate
Consideration payable in connection with such Other Acquisition, such Extension
and Exercise Price; provided that in no event shall the term "Indebtedness"
include (i) Film Obligations of such Person, (ii) obligations of such Person
under any Program Services Agreement, (iii) the Preferred Stock (iv) obligations
of such Person to make WSYX Option Extension Payments or (v) the Guarantees by
the Borrower of the KDSM Senior Debentures and the New PPI Senior Debentures
prior to respective times that such Guarantees become effective; provided,
further, that upon the effectiveness of the Guarantee by the Borrower of the
KDSM Senior Debentures or the New PPI Senior Debentures, such Guarantee shall
constitute "Indebtedness" of the Borrower for all purposes of this Agreement.
"Initial FCC Order" shall mean an order of the FCC that is not
a Final FCC Order.
"In-Kind Preferred Stock" shall have the meaning assigned to
such term in the definition of "Other Preferred Stock" set forth in this Section
1.01.
"Interest Coverage Ratio" shall mean, as at any date, the
ratio of (a) EBITDA for the period of twelve consecutive full calendar months
ending on or most recently ended prior to such date to (b) Interest Expense for
such period.
"Interest Expense" shall mean, for any period, the sum, for
the Borrower and its Consolidated Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP), of the following (subject to
paragraphs (d) and (e) of Section 1.02 hereof): (a) all interest in respect of
Indebtedness accrued or capitalized during such period (whether
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or not actually paid during such period) plus (b) the net amounts payable (or
minus the net amounts receivable) under Interest Rate Protection Agreements
accrued during such period (whether or not actually paid or received during such
period) minus (c) all cash interest income received during such period. Any
reference herein to calculating Interest Expense for any period on a "pro forma"
basis shall mean that, for purposes of the preceding clause (a), (i) the
Indebtedness on the basis of which Interest Expense is so calculated shall mean
Indebtedness outstanding as of the relevant date of calculation after giving
effect to any repayments and any incurrence of Indebtedness on such date and
(ii) such calculation shall be made applying the respective rates of interest in
effect for such Indebtedness on such date.
"Interest Period" shall mean, with respect to any Eurodollar
Loan, each period commencing on the date such Eurodollar Loan is made or
Converted from a Base Rate Loan or (in the event of a Continuation) the last day
of the next preceding Interest Period for such Loan and ending on the
numerically corresponding day in the first, second, third, sixth or ninth
calendar month thereafter, as the Borrower may select as provided in Section
4.05 hereof, except that each Interest Period which commences on the last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing:
(a) if any Interest Period for any Revolving Credit Loan would
I otherwise end after the Revolving Credit Commitment Termination
Date, such Interest Period shall end on the Revolving Credit
Commitment Termination Date;
(b) no Interest Period for any Revolving Credit Loan may
commence before and end after any Revolving Credit Commitment Reduction
Date unless, after giving effect thereto, the aggregate principal
amount of the Revolving Credit Loans having Interest Periods which end
after such Revolving Credit Commitment Reduction Date plus such
Lender's Revolving Credit Commitment Percentage of outstanding Letters
of Credit that expire after such Revolving Credit Commitment Reduction
Date, shall be equal to or less than the aggregate amount of the
Revolving Credit Commitments scheduled to be outstanding after giving
effect to the reductions thereof to occur on such Revolving Credit
Commitment Reduction Date;
(c) no Interest Period for any Tranche A Term Loan may
commence before and end after any Tranche A Principal Payment Date
unless, after giving effect thereto, the
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aggregate principal amount of the Tranche A Term Loans having Interest
Periods which end after such Tranche A Principal Payment Date shall be
equal to or less than the aggregate principal amount of Tranche A Term
Loans scheduled to be outstanding after giving effect to the payments
of principal required to be made on such Tranche A Principal Payment
Date;
(d) no Interest Period for any Tranche C Term Loan may
commence before and end after any Tranche C Principal Payment Date
unless, after giving effect thereto, the aggregate principal amount of
the Tranche C Term Loans having Interest Periods which end after such
Tranche C Principal Payment Date shall be equal to or less than the
aggregate principal amount of Tranche C Term Loans scheduled to be
outstanding after giving effect to the payments of principal required
to be made on such Tranche C Principal Payment Date;
(e) each Interest Period which would otherwise end on a day
which is not a Business Day shall end on the next succeeding Business
Day (or, if such next succeeding Business Day falls in the next
succeeding calendar month, on the next preceding Business Day); and
(f) notwithstanding clauses (a) through (d) above, no Interest
Period shall have a duration of less than one month and, if the
Interest Period for any Eurodollar Loan would otherwise be a shorter
period, such Loan shall not be available hereunder for such period.
"Interest Rate Protection Agreement" shall mean a Hedging
Agreement providing for the transfer or mitigation of interest risks either
generally or under specific contingencies.
"Investment" shall mean, for any Person: (a) the acquisition
(whether for cash, Property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person or any agreement to make any such
acquisition (including, without limitation, any "short sale" or any sale of any
securities at a time when such securities are not owned by the Person entering
into such short sale); (b) the making of any deposit with, or advance, loan or
other extension of credit to, any other Person (including the purchase of
Property from another Person subject to an understanding or agreement,
contingent or otherwise, to resell such Property to such Person, but excluding
any such advance, loan or extension of credit having a term not exceeding 90
days representing the purchase price of programming, advertising, inventory or
supplies sold in the ordinary course of
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business); or (c) the entering into of any Guarantee of, or other contingent
obligation with respect to, Indebtedness or other liability of any other Person
and (without duplication) any amount committed to be advanced, lent or extended
to such Person.
"Issuing Bank" shall mean Chase.
"Julian Smith Documents" shall mean (a) the Term Note dated
September 30, 1990 of the Borrower payable to Julian S. Smith in the original
face amount of $7,515,000 and heretofore assigned to Carolyn C. Smith and (b)
all agreements, documents or other instruments providing for any Guarantee of
all or any portion of such Term Note by any Obligor.
"KDSM" shall mean KDSM, Inc., a Maryland corporation.
"KDSM Licensee" shall mean KDSM Licensee, Inc., a Delaware
corporation that owns no Property other than the Broadcasting Licenses relating
to KDSM-TV.
"KDSM Senior Debentures" shall mean the 11-5/8% Senior
Debentures due 2009 issued by KDSM in connection with the PPI Transaction and
outstanding on the date hereof, in an aggregate principal amount on the date
hereof equal to $206,200,000.
"KDSM-TV" shall mean KDSM-TV, a television broadcasting
station licensed to Des Moines, Iowa, and serving the Des Moines, Iowa area.
"KIG" shall mean Keyser Investment Group, Inc., a Maryland
corporation.
"KRRT-TV" shall mean KRRT-TV, a television broadcasting
station licensed to San Antonio, Texas and serving the San Antonio area.
"Letter of Credit" shall have the meaning assigned to such
term in Section 2.10 hereof, and shall include each Existing Letter of Credit.
"Letter of Credit Documents" shall mean, collectively, any
application for a Letter of Credit and any other agreements, instruments,
guarantees or other documents (whether general in application or applicable only
to such Letter of Credit) governing or providing for (a) the rights and
obligations of the parties concerned or at risk with respect to such Letter of
Credit or (b) any collateral security for any of such obligations, each as the
same may be modified and supplemented and in effect from time to time.
Credit Agreement
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"Letter of Credit Interest" shall mean, for each Revolving
Credit Lender, such Revolving Credit Lender's participation interest (or, in the
case of the Issuing Bank, the Issuing Bank's retained interest) in the Issuing
Bank's liability under Letters of Credit and such Revolving Credit Lender's
rights and interests in Reimbursement Obligations and fees, interest and other
amounts payable in connection with Letters of Credit and Reimbursement
Obligations.
"Letter of Credit Liability" shall mean, without duplication,
at any time, the sum of (a) the undrawn face amount of all outstanding Letters
of Credit plus (b) the aggregate unpaid principal amount of all Reimbursement
Obligations of the Borrower at such time due and payable in respect of all
drawings made under all Letters of Credit. For purposes of this Agreement, a
Revolving Credit Lender (other than the Issuing Bank) shall be deemed to hold a
Letter of Credit Liability in an amount equal to its participation interest in
all outstanding Letters of Credit and the aggregate unpaid principal amount of
all Reimbursement Obligations under Section 2.10 hereof, and the Issuing Bank
shall be deemed to hold a Letter of Credit Liability in an amount equal to its
retained interest in all outstanding Letters of Credit and the aggregate unpaid
principal amount of all Reimbursement Obligations after giving effect to the
acquisition by the Revolving Credit Lenders other than the Issuing Bank of their
participation interests under said Section 2.10.
"License Subsidiaries" shall mean, (a) with respect to each
Station that is an Owned Station on the date hereof, the Subsidiary of the
Borrower listed on Schedule IV hereto as the holder of the Broadcast Licenses
for such Owned Station and (b) with respect to any Owned Station hereafter
acquired by the Borrower or any of its Subsidiaries, the Subsidiary of the
Borrower formed, created, or acquired after the date hereof that holds the
Broadcast Licenses for such Owned Station.
"Lien" shall mean, with respect to any Property, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in respect of
such Property. For purposes of this Agreement and the other Basic Documents, the
Borrower or any of its Subsidiaries shall be deemed to own subject to a Lien any
Property which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement (other than an operating lease) relating to such Property.
"Loans" shall mean Revolving Credit Loans, Tranche A Term
Loans and Tranche C Term Loans.
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"Majority Revolving Credit Lenders" shall mean, subject to the
last paragraph of Section 12.04 hereof, Revolving Credit Lenders having at least
51% of the aggregate amount of the Revolving Credit Commitments or, if the
Revolving Credit Commitments shall have terminated, Revolving Credit Lenders
holding at least 51% of the sum of (a) the aggregate unpaid principal amount of
the Revolving Credit Loans plus (b) the aggregate amount of all Letter of Credit
Liabilities.
"Majority Tranche A Lenders" shall mean, subject to the last
paragraph of Section 12.04 hereof, Tranche A Lenders having at least 51% of the
aggregate amount of the Tranche A Term Loan Commitments or, if the Tranche A
Term Loan Commitments shall have terminated, Tranche A Lenders holding at least
51% of the aggregate unpaid principal amount of the Tranche A Term Loans.
"Majority Tranche C Lenders" shall mean, subject to the last
paragraph of Section 12.04 hereof, Tranche C Lenders having at least 51% of the
aggregate amount of the Tranche C Term Loan Commitments or, if the Tranche C
Term Loan Commitments shall have terminated, Tranche C Lenders holding at least
51% of the aggregate unpaid principal amount of the Tranche C Term Loans.
"Majority Lenders" shall mean, subject to the last paragraph
of Section 12.04 hereof, Lenders holding at least 51% of the aggregate amount of
the Credit Exposures of all of the Lenders outstanding at the time of
determination. For purposes of the foregoing calculations there shall be
excluded any Credit Exposure directly or indirectly held by the Borrower or any
of its Subsidiaries or any of their Affiliates following an assignment or
participation as contemplated by Section 12.06 hereof.
"Margin Stock" shall mean margin stock within the meaning of
Regulations G, U and X.
"Material Adverse Effect" shall mean a material adverse effect
on (a) the Property, business, operations, financial condition, liabilities,
prospects or capitalization of the Borrower and its Subsidiaries, or of the
Stations, taken as a whole, (b) the ability of any Person to perform its
obligations under any of the Transaction Documents to which it is a party, (c)
the validity or enforceability of any of the Basic Documents, (d) the rights and
remedies of the Lenders and the Agent under any of the Basic Documents or (e)
the timely payment of the principal of or interest on the Loans or the
Reimbursement Obligations or other amounts payable under any Basic Document.
"Material Third-Party Licensee" shall mean (a) each River City
Seller that holds a Broadcast License for any Contract
Credit Agreement
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Station, (b) each of Glencairn and its Subsidiaries if, and for so long as,
Glencairn or such Subsidiary, as the case may be, holds a Broadcast License for
any Contract Station, (c) each Person holding a Broadcast License for WPTT-TV, a
television broadcasting station licensed to Pittsburgh, Pennsylvania and serving
the Pittsburgh area, until such time, if any, that such station ceases to be a
Contract Station, (d) each Person holding a Broadcast License for KRRT-TV, until
such time, if any, that such station ceases to be a Contract Station, and (e)
each Person holding a Broadcast License for any Contract Station acquired
pursuant to an Other Acquisition for an Aggregate Consideration exceeding
$6,000,000.
"Mortgage" shall mean each mortgage, deed of trust or similar
instrument executed and delivered to the Agent prior to the date hereof, as
modified and supplemented and in effect from time to time.
"Multiemployer Plan" shall mean a multiemployer plan defined
as such in Section 3(37) of ERISA to which contributions have been made by the
Borrower or any ERISA Affiliate and which is covered by Title IV of ERISA.
"Net Assets" shall mean, with respect to any Subsidiary
Guarantor as at any date, an amount equal to the excess of the fair saleable
value of the assets of such Subsidiary Guarantor as at such date (without taking
into account the rights of such Subsidiary Guarantor under Section 6.07 hereof),
and excluding the value of the shares of stock owned by such Subsidiary
Guarantor in any other Subsidiary Guarantor party to this Agreement on such date
over the amount that would be required to pay the probable liabilities of such
Subsidiary Guarantor determined as at such date (excluding the obligations of
such Subsidiary Guarantor under Section 6 hereof) on all of its debts.
"Net Available Proceeds" shall mean:
(a) in the case of any Disposition, an amount (not less than
zero) equal to the amount of Net Cash Payments received by the Borrower
and its Subsidiaries in connection with such Disposition;
(b) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation
received by the Borrower and its Subsidiaries in respect of such
Casualty Event net of (i) reasonable expenses incurred by the Borrower
and its Subsidiaries in connection therewith and (ii) contractually
required repayments of Indebtedness to the extent secured by a Lien on
the Property to which such Casualty Event relates
Credit Agreement
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and any income and transfer taxes payable by the Borrower any of its
Subsidiaries in respect of such Casualty Event;
(c) in the case of any Equity Issuance, the aggregate amount
of all cash received by the Borrower and its Subsidiaries in respect of
such Equity Issuance net of reasonable expenses incurred by the
Borrower and its Subsidiaries in connection therewith; and
(d) in the case of any issuance of any Additional Senior
Subordinated Notes, the aggregate principal amount thereof net of
reasonable expenses incurred by the Borrower and its Subsidiaries in
connection therewith.
"Net Cash Payments" shall mean, with respect to any
Disposition, the aggregate amount of all cash payments (including, without
limitation, all cash payments received by way of deferred payment of principal
pursuant to a note or installment receivable or otherwise, but only as and when
received), and the fair market value of any non-cash consideration (excluding
non-cash consideration received in an exchange of Property permitted by either
of paragraphs (iv)(y)(B) and (v)(y)(B) of Section 9.05(d) hereof), received by
the Borrower or its Subsidiaries directly or indirectly in connection with such
Disposition; provided that (a) Net Cash Payments shall be net of (i) the amount
of any legal, title and recording tax expenses, commissions and other fees and
expenses paid by the Borrower and its Subsidiaries in connection with such
Disposition and (ii) any Federal, state and local income or other taxes
estimated to be payable by the Borrower and its Subsidiaries as a result of such
Disposition (but only to the extent that such estimated taxes are in fact paid
to the relevant Governmental Authority not later than three months (in the case
of Federal taxes) or nine months (in the case of other taxes) after the date of
such Disposition) and (b) Net Cash Payments shall be net of any repayments by
the Borrower or any of its Subsidiaries of Indebtedness to the extent that (i)
such Indebtedness is secured by a Lien on the Property that is the subject of
such Disposition and (ii) the transferee of (or holder of a Lien on) such
Property requires that such Indebtedness be repaid as a condition to the
Disposition of such Property.
"New PPI Common Participation Interests" shall mean the common
equity ownership interests in the New PPI Trust.
"New PPI Preferred Stock" shall mean Preferred Stock issued by
the Borrower in connection with the New PPI Transaction.
Credit Agreement
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"New Preferred Participation Interests" shall mean the
preferred equity ownership interests in the New PPI Trust.
"New PPI Senior Debentures" shall mean senior debentures
issued by New PPI Sub in connection with the New PPI Transaction.
"New PPI Station" shall mean a television or radio
broadcasting station that may be proposed by the Borrower and approved by the
Majority Lenders in their sole discretion after the Restatement Effective Date.
"New PPI Sub" shall mean a Wholly Owned Subsidiary of the
Borrower.
"New PPI Sub Licensee" shall mean a direct, Wholly Owned
Subsidiary of New PPI Sub that owns no Property other than the Broadcast
Licenses relating to the New PPI Station.
"New PPI Transaction" shall mean a transaction entered into by
the Borrower, New PPI Sub, the New PPI Sub Licensee and the New PPI Trust that
is structurally identical to the PPI Transaction in all material respects.
"New PPI Trust" shall mean a special purpose statutory
business trust formed after the Restatement Effective Date under the laws of
Delaware in connection with the New PPI Transaction, but only for as long as
such trust owns no Property other than the New PPI Senior Debentures and the
proceeds thereof.
"1995 Senior Subordinated Note Indenture" shall mean the
Indenture dated as of August 28, 1995 among the Borrower, certain of its
Subsidiaries and United States Trust Company of New York, as trustee, as the
same shall, subject to Section 9.24 hereof, be modified and supplemented and in
effect from time to time.
"1995 Senior Subordinated Notes" shall mean the 10% Senior
Subordinated Notes due 2005 issued by the Borrower under the 1995 Senior
Subordinated Note Indenture, as the same shall, subject to Section 9.24 hereof,
be modified and supplemented and in effect from time to time.
"1993 Senior Subordinated Note Indenture" shall mean the
Indenture dated as of December 9, 1993 among the Borrower, certain of its
Subsidiaries and First Union National Bank of North Carolina, as trustee, as the
same shall, subject to Section 9.24 hereof, be modified and supplemented and in
effect from time to time.
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"1993 Senior Subordinated Notes" shall mean the 10% Senior
Subordinated Notes due 2003 issued by the Borrower under the 1993 Senior
Subordinated Note Indenture, as the same shall, subject to Section 9.24 hereof,
be modified and supplemented and in effect from time to time.
"Notes" shall mean the Revolving Credit Notes, the Tranche A
Term Loan Notes and the Tranche C Term Loan Notes (in each case, if any).
"Other Acquisition" shall mean (a) the acquisition by the
Borrower or any of its Subsidiaries in accordance with the terms hereof of
substantially all of the assets (including, without limitation, Broadcast
Licenses) of a television or radio station in the United States in a single
transaction (i.e., not by means of the acquisition of an option for such assets
and the subsequent exercise of such option), (b) (i) the acquisition by the
Borrower or any of its Subsidiaries in accordance with the terms hereof of (x)
substantially all of the assets (other than Broadcast Licenses and other
Property required pursuant to the rules and regulations of the FCC to be sold in
connection with the transfer of such Broadcast Licenses) of a television or
radio station in the United States and (y) an option to acquire the Broadcast
Licenses and such other assets of such television or radio station and (ii) the
entering into by the Borrower or any of its Subsidiaries of an agreement
contemplated by clause (b) of the definition of "Program Services Agreement" in
this Section 1.01 with respect to such station, (c) the consummation of the
acquisition of assets by the Borrower or any of its Subsidiaries pursuant to the
exercise of an option referred to in the preceding clause (b)(y), together with
the termination of the related Program Services Agreement referred to in the
preceding clause (b)(ii) and (d) the acquisition of assets or capital stock (or
other equity ownership interest) of any Person pursuant to an exchange permitted
by Section 9.05(d)(iv)(y) hereof; provided that the term "Other Acquisition"
shall not include any Subject Acquisition. As used in this definition, the
acquisition of assets shall be deemed to include reference to the acquisition of
the voting capital stock (or other equity ownership interest) of the Person that
owns such assets and references to the acquisition and exercise of an option to
acquire assets shall be deemed to include the acquisition and exercise of the
option to acquire voting capital stock (or other equity ownership interest) of
the Person that owns such assets.
"Other Preferred Stock" shall mean the following Preferred
Stock issued by the Borrower, but if and only to the extent that the aggregate
liquidation preference of all such Preferred Stock shall not exceed $200,000,000
(excluding the aggregate liquidation preference of the In-Kind Preferred Stock)
Credit Agreement
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and the dividend for each share thereof shall not exceed 15% per annum of the
liquidation preference of such share: (a) Preferred Stock issued by the Borrower
after the date hereof (i) allowing the Borrower, at its option, with respect to
dividends accruing, accreting or accumulating on or before the fifth anniversary
of the date of initial issuance of such Preferred Stock, to pay such dividends
in lieu of cash by issuing additional shares thereof having an aggregate
liquidation preference equal to the amount of such dividends that are payable at
the time of issuance of such additional shares (such additional shares being
referred to herein as "In-Kind Preferred Stock"), (ii) which neither the
Borrower nor any of its Subsidiaries may be required to repurchase or redeem or
make sinking fund payments with respect to at any time or under any
circumstances before June 30, 2008, (iii) which are convertible into Converted
Senior Subordinated Notes as provided in Section 9.07(h) hereof or into the
Borrower's Class A Common Stock and (iv) the other terms and conditions of which
are satisfactory to the Majority Lenders, (b) any Preferred Stock (the
"Replacement Preferred Stock") issued in exchange for the Preferred Stock
referred to in the preceding clause (a) or the In-Kind Preferred Stock, provided
that such Replacement Preferred Stock shall have the same aggregate liquidation
preference as the Preferred Stock for which it is exchanged and satisfy clauses
(i) through (iv) of the preceding clause (a) and (c) New PPI Preferred Stock.
"Owned Station" shall mean (a) each television or radio
station listed in Part A of Schedule IV hereto and (b) any television or radio
station the Broadcast Licenses of which become owned by the Borrower or any of
its Subsidiaries on or after the date hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.
"Permitted Investments" shall mean, for any Person: (a) direct
obligations of the United States of America, or of any agency thereof, or
obligations guaranteed as to principal and interest by the United States of
America, or of any agency thereof, in either case maturing not more than 90 days
from the date of acquisition thereof by such Person; (b) certificates of deposit
issued by any bank or trust company organized under the laws of the United
States of America or any state thereof and having capital, surplus and undivided
profits of at least $500,000,000, maturing not more than 90 days from the date
of acquisition thereof by such Person; and (c) commercial paper rated A-2 or
better or P-2 or better by Standard & Poor's Ratings Services or Moody's
Investors Service, Inc., respectively,
Credit Agreement
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maturing not more than 90 days from the date of acquisition thereof by such
Person.
"Person" shall mean any individual, corporation, company,
voluntary association, partnership, joint venture, trust, unincorporated
organization or government (or any agency, instrumentality or political
subdivision thereof).
"Plan" shall mean an employee benefit or other plan
established or maintained by the Borrower or any ERISA Affiliate and which is
covered by Title IV of ERISA, other than a Multiemployer Plan.
"Post-Default Interest Condition" shall mean (a) the failure
by the Borrower to pay when due (whether at stated maturity, by acceleration, by
mandatory prepayment or otherwise) any principal amount of any Loan, any Note or
any Reimbursement Obligation, (b) the failure by the Borrower to pay when due
(whether at stated maturity, by acceleration, by mandatory prepayment or
otherwise) any other amount payable by the Borrower hereunder or under any Note
for more than three Business Days or (c) the existence of any other Event of
Default.
"Post-Default Rate" shall mean a rate per annum equal to the
Post-Default Margin (as defined below) plus the Base Rate as in effect from time
to time plus the Applicable Margin, provided that, as applied to principal of a
Eurodollar Loan, the "Post-Default Rate" shall be the Post-Default Margin plus
the interest rate for such Loan as provided in Section 3.02(b) hereof. For
purposes of this definition, the "Post-Default Margin" shall mean 2% per annum
or, if at the time of determination the Borrower has failed to pay when due
(whether at stated maturity, by acceleration, by mandatory prepayment or
otherwise) any amount payable by the Borrower hereunder or under any Note and
such failure shall be continuing, 5% per annum.
"PPI Guaranties" shall mean (i) the Parent Guarantee Agreement
dated as of March 12, 1997 between the Borrower and First Union National Bank of
Maryland, (ii) that certain Parent Debenture Guarantee to be provided by the
Borrower upon the occurrence of certain conditions as more fully set forth in
the Offering Memorandum dated March 12, 1997 for the issuance by the Trust of
its 11 5/8% Preferred Participation Interests, (iii) a Guarantee issued by the
Borrower in connection with the New PPI Transaction that is substantially
identical, mutatis mutandis, to the Guarantee referred to in the foregoing
clause (i) and (iv) a Guarantee issued by the Borrower in connection with the
New PPI Transaction that is substantially identical, mutatis mutandis, to the
Guarantee referred to in the foregoing clause (ii), in each case as the same
shall, subject to
Credit Agreement
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Section 9.24 hereof, be modified and supplemented and in effect from time to
time.
"PPI Transaction" shall mean the consummation on March 12,
1997 of the transactions described in Offering Memorandum dated March 5, 1997
for the issuance by the Trust of its 11 5/8% Preferred Participation Interests.
"Preferred Participation Interests" shall mean the preferred
equity ownership interests in the Trust.
"Preferred Stock" shall mean Existing Preferred Stock and
Other Preferred Stock.
"Prepayable Film Contract" shall mean a contract evidencing a
Film Obligation in which the amount owed by the Borrower or any of its
Subsidiaries under such contract exceeds the remaining value of such contract to
the Borrower or such Subsidiary, as reasonably determined by the Borrower.
"Prime Rate" shall mean the rate of interest from time to time
announced by Chase at its principal office as its prime commercial lending rate.
"Program Services Agreements" shall mean (a) the agreements
listed in Schedule VII hereto and (b) any agreement having a term of not less
than ten years entered into by the Borrower or any of its Subsidiaries (other
than License Subsidiaries) in accordance with Section 9.29 hereof as part of an
Other Acquisition relating to a Contract Station or in connection with a
disposition of property in accordance with Section 9.05(d)(iii) hereof, pursuant
to which agreement the Borrower or any of its Subsidiaries (other than License
Subsidiaries) will obtain the right to program and sell advertising on a
substantial portion of such Contract Station's inventory of broadcast time.
"Property" shall mean any right or interest in or to property
of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, and including all Broadcast Licenses.
"Quarterly Dates" shall mean the last Business Day of March,
June, September and December in each year, the first of which shall be the first
such day after the date of this Agreement.
"Registered Holder" shall have the meaning assigned to such
term in Section 5.07(a)(ii) hereof.
Credit Agreement
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"Registered Loan" shall have the meaning assigned to such term
in Section 2.07(f) hereof.
"Registered Note" shall have the meaning assigned to such term
in Section 2.07(f) hereof.
"Regulations A, D, G, U and X" shall mean, respectively,
Regulations A, D, G, U and X of the Board of Governors of the Federal Reserve
System (or any successor), as the same may be amended or supplemented from time
to time.
"Regulatory Change" shall mean, with respect to any Lender,
any change after the date of this Agreement in United States Federal, state or
foreign law or regulations (including, without limitation, Regulation D) or the
adoption or making after such date of any interpretation, directive or request
applying to a class of banks including such Lender of or under any United States
Federal, state or foreign law or regulations (whether or not having the force of
law and whether or not failure to comply therewith would be unlawful) by any
court or governmental or monetary authority charged with the interpretation or
administration thereof.
"Reimbursement Obligations" shall mean, at any time, the
obligations of the Borrower then outstanding, or which may thereafter arise in
respect of Letters of Credit, to reimburse amounts paid by the Issuing Bank in
respect of any drawings thereunder.
"Release" shall mean any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environment, including, without limitation,
the movement of Hazardous Materials through ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata.
"Relevant Corporation" shall have the meaning assigned to such
term in Section 7.01(a)(i) hereof.
"Reserve Requirement" shall mean, for any Interest Period for
any Eurodollar Loan, the average maximum rate at which reserves (including any
marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding one billion Dollars
against "Eurocurrency liabilities" (as such term is used in Regulation D).
Without limiting the effect of the foregoing, the Reserve Requirement shall
include any other reserves required to be maintained by such member banks by
reason of any Regulatory Change against (a) any category of liabilities which
includes
Credit Agreement
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deposits by reference to which the Eurodollar Base Rate is to be determined as
provided in the definition of "Eurodollar Base Rate" in this Section 1.01 or (b)
any category of extensions of credit or other assets which includes Eurodollar
Loans.
"Restatement Effective Date" shall mean the date on which the
Agent notifies the parties hereto that the conditions to effectiveness set forth
in Section 7.01 hereof shall have been satisfied or waived.
"Revolving Credit Commitment" shall mean, as to each Revolving
Credit Lender, the obligation of such Lender to make Revolving Credit Loans, and
to issue or participate in Letters of Credit pursuant to Section 2.10 hereof, in
an aggregate principal or face amount at any one time outstanding up to but not
exceeding the amount set opposite such Lender's name on Schedule X hereto or, in
the case of a Person that becomes a Revolving Credit Lender pursuant to an
assignment permitted by Section 12.06 hereof, as specified in the respective
instrument of assignment pursuant to which such assignment is effected (in each
case as the same may be reduced at any time or from time to time pursuant to
Section 2.03 hereof). The aggregate amount of Revolving Credit Commitments on
the date hereof is $400,000,000.
"Revolving Credit Commitment Percentage" shall mean, with
respect to any Revolving Credit Lender, the ratio of (a) the amount of the
Revolving Credit Commitment of such Revolving Credit Lender to (b) the aggregate
amount of the Revolving Credit Commitments of all of the Revolving Credit
Lenders. If, at the time of determination of the Revolving Credit Commitment
Percentage of any Revolving Credit Lender or Revolving Credit Lenders, the
Revolving Credit Commitments have terminated, such determination shall be made
upon the basis of the Revolving Credit Commitments as in effect immediately
prior to such termination.
"Revolving Credit Commitment Reduction Dates" shall mean (a)
the nineteen consecutive Quarterly Dates beginning on the Quarterly Date falling
on or nearest to March 31, 2000 and ending on the Revolving Credit Commitment
Termination Date.
"Revolving Credit Commitment Termination Date" shall mean the
last Business Day of December, 2004.
"Revolving Credit Lenders" shall mean (a) on the date hereof,
the Lenders having Revolving Credit Commitments on the signature pages hereof
and (b) thereafter, the Lenders from time to time holding Revolving Credit
Commitments, Revolving Credit Loans and/or Letter of Credit Liabilities after
giving effect to any assignments thereof permitted by Section 12.06 hereof.
Credit Agreement
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"Revolving Credit Loans" shall mean the loans provided for by
Section 2.01(a) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Revolving Credit Notes" shall mean the promissory notes
provided for by Section 2.07(a) hereof (if any), and all promissory notes
delivered in substitution or exchange therefor, in each case as the same shall
be modified and supplemented and in effect from time to time. The term
"Revolving Credit Notes" shall include any Registered Notes evidencing Revolving
Credit Loans executed and delivered pursuant to Section 2.07(f) hereof.
"River City" shall mean River City Broadcasting, L.P., a
Delaware limited partnership.
"River City Acquisition Documents" shall mean the River City
Asset Purchase Agreement, the River City Option Agreements, the Baker Employment
Agreement, the Baker Stock Option Agreement, the Corporate Employee Stock Option
Agreement, the Station Employee Stock Option Agreement and all other agreements
and instruments (together with any and all exhibits, annexes and schedules
thereto) executed and delivered in connection with the River City Non-License
Acquisition.
"River City Asset Purchase Agreement" shall mean the Amended
and Restated Asset Purchase Agreement dated as of April 10, 1996, as amended and
restated as of a date prior to the date hereof, by and between River City, as
Seller, and the Borrower, as Buyer, as the same shall be modified and
supplemented and in effect from time to time.
"River City Group I License Acquisition" shall mean the
acquisition by the Borrower or any of its subsidiaries, upon its exercise of any
option granted under the River City Group I Option Agreement, of the "License
Assets" referred to in the River City Group I Option Agreement used or held for
use by the River City Sellers with respect to a "Station" referred to in the
River City Group I Option Agreement and the assumption by the Borrower or such
Subsidiary of the "Assumed Liabilities" referred to in the River City Group I
Option Agreement with respect to such "Station".
"River City License Acquisitions" shall mean each River City
Group I License Acquisition and the WSYX Acquisition.
"River City Non-License Acquisition" shall mean the following
(a) (i) the transfer by River City to Borrower under the River City Asset
Purchase Agreement of the "Station Assets" referred to therein and (ii) the
assumption by the Borrower from River City of the "Assumed Liabilities" referred
to in the River
Credit Agreement
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City Asset Purchase Agreement, (b) the execution and delivery by the Borrower
and the River City Sellers of (i) the River City Group I Option Agreement, (ii)
the Columbus Option Agreement and (iii) a Program Services Agreement with
respect to each "Group I Station" referred to in the River City Group I Option
Agreement, (c) the execution and delivery by the Borrower and Barry Baker of the
Baker Employment Agreement and (d) the issuance by the Borrower to River City of
the Seller Stock.
"River City Group I Option Agreement" shall mean the Group I
Option Agreement dated as of May 31, 1996 by and between the River City Sellers,
as Sellers, and the Borrower, as Option Holder, as the same shall be modified
and supplemented and in effect from time to time.
"River City Option Agreements" shall mean the River City Group
I Option Agreement and the Columbus Option Agreement.
"River City Sellers" shall mean River City and River City
License Partnership, a Missouri general partnership.
"River City Corporate Employees" shall mean the Persons listed
in Schedule 2.5(d) to the River City Asset Purchase Agreement.
"Security Agreement" shall mean the Second Amended and
Restated Security Agreement between the Obligors and the Agent, dated as of May
31, 1996, as the same shall be modified and supplemented and in effect from time
to time.
"Security Documents" shall mean, collectively, the Security
Agreement, the Affiliate Guarantee, the GDC Security Agreement, the Mortgages
and all Uniform Commercial Code financing statements required by any of the
foregoing Security Documents to be filed with respect to the security interests
in personal Property and fixtures created pursuant thereto.
"Seller Stock" shall mean (a) the Borrower's Series A
Exchangeable Preferred Stock, par value $.01 per share, issued by the Borrower
to River City in connection with the River City Non-License Acquisition and (b)
the Borrower's Series B Convertible Preferred Stock, par value $.01 per share,
to be issued by the Borrower to River City in exchange for such Series A
Exchangeable Preferred Stock.
"Senior Indebtedness" shall mean Total Indebtedness other than
Subordinated Indebtedness.
"Senior Indebtedness Ratio" shall mean, as at any date, the
ratio of (a) Senior Indebtedness outstanding on such date to
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(b) EBITDA for the period of twelve consecutive full calendar months ending on
or most recently ended prior to such date.
"Senior Subordinated Note Indentures" shall mean the 1995
Senior Subordinated Note Indenture, the 1993 Senior Subordinated Note Indenture
and, after the respective issuances of the Additional Senior Subordinated Notes
and the Converted Senior Subordinated Notes, the respective indentures under
which the same are issued.
"Senior Subordinated Notes" shall mean the 1993 Senior
Subordinated Notes, the 1995 Senior Subordinated Notes and, after the respective
issuances thereof, the Additional Senior Subordinated Notes and the Converted
Senior Subordinated Notes.
"Smith Brothers" shall mean Frederick G. Smith, David D.
Smith, J. Duncan Smith and Robert E. Smith.
"Specified Number" shall mean, with respect to an Equity
Issuance, issuance of Additional Senior Subordinated Notes or Disposition, 270;
except that if the Borrower has, on or before the date falling 270 days after
the relevant Equity Issuance, issuance of Additional Senior Subordinated Notes
or Disposition, entered into a legally binding commitment (i) to use all or a
portion of the Net Available Proceeds of such Equity Issuance or Disposition as
provided in Section 9.26(c)(iii) or (ii) to use all or a portion of the Net
Available Proceeds of such issuance of Additional Senior Subordinated Notes as
provided in Section 9.07(c)(v), on or before the 90th day following such date,
the "Specified Number" shall mean 360 days with respect to all or such portion,
as the case may be, of such Net Available Proceeds.
"Station Employee Stock Option Agreements" shall mean the
respective Stock Option Agreements dated as of April 10, 1996 between the
Borrower and certain employees of the Borrower and its Subsidiaries, providing,
among other things, for the right of such employees to acquire, in the
aggregate, not more than 400,000 shares of the Borrower's Class A Common Stock
on the terms and conditions set forth therein, in each case as the same may be
modified and supplemented and in effect from time to time.
"Stations" shall mean the Owned Stations and the Contract
Stations.
"Subject Acquisition" shall have the meaning assigned to such
term in Section 9.05(d)(i) hereof.
"Subordinated Film Indebtedness" shall mean Film Obligations
of the Borrower and its Subsidiaries which are
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subordinated to the obligations of the Borrower and its Subsidiaries hereunder
on terms and conditions, and the other provisions of which are, satisfactory to
the Majority Lenders.
"Subordinated Indebtedness" shall mean (a) Founders Notes, (b)
Indebtedness under the Senior Subordinated Notes, (c) Subordinated Film
Indebtedness and (d) guarantees of the Indebtedness under the Senior
Subordinated Notes provided by any Subsidiary Guarantor under the Senior
Subordinated Note Indentures.
"Subsidiary" shall mean, for any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person. "Wholly Owned Subsidiary" shall mean any such corporation,
partnership or other entity of which all of such securities or other ownership
interests (other than, in the case of a corporation, directors' qualifying
shares) are so owned or controlled. Notwithstanding anything contained herein to
the contrary, (a) CRESAP shall be deemed to be a Subsidiary of the Borrower or
of a Subsidiary of the Borrower for all purposes of this Agreement except that
CRESAP shall not be required to be a Subsidiary Guarantor or to grant a security
interest in any of its Property, (b) KUPN, Inc. shall be deemed to be a
Subsidiary of the Borrower for all purposes of this Agreement except that KUPN,
Inc. shall not be required to be a Subsidiary Guarantor or to grant a security
interest in any of its property provided that it merges into a Subsidiary
Guarantor on or before June 15, 1997 and (c) no Unrestricted Company shall be
deemed to be a Subsidiary of the Borrower or of a Subsidiary of the Borrower for
purposes of this Agreement.
"Total Indebtedness" shall mean, as at any date, all
Indebtedness on such date of the Borrower and its Consolidated Subsidiaries
(determined on a consolidated basis without duplication in accordance with
GAAP).
"Total Indebtedness Ratio" shall mean, as at any date, the
ratio of (a) Total Indebtedness outstanding on such date to
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(b) EBITDA for the period of twelve consecutive full calendar months ending on
or most recently ended prior to such date.
"Tranche A Lenders" shall mean (a) on the date hereof, the
Lenders having Tranche A Term Loan Commitments on the signature pages hereof and
(b) thereafter, the Lenders from time to time holding Tranche A Term Loans
and/or Tranche A Term Loan Commitments after giving effect to any assignments
thereof permitted by Section 12.06(b) hereof.
"Tranche A Principal Payment Dates" shall mean the 30
consecutive Quarterly Dates beginning on the Quarterly Date falling on or
nearest to September 30, 1997 and ending on the Quarterly Date falling on or
nearest to December 31, 2004.
"Tranche A Term Loan Commitment" shall mean, as to each
Tranche A Lender, the obligation of such Tranche A Lender to make a single
Tranche A Term Loan in a principal amount up to but not exceeding the amount set
opposite the name of such Tranche A Lender on Schedule XI hereto (as the same
may be reduced from time to time pursuant to Section 2.03). The aggregate
principal amount of the Tranche A Term Loan Commitments on the date hereof is
$600,000,000.
"Tranche A Term Loan Notes" shall mean the promissory notes
provided for by Section 2.07(b) hereof (if any), and all promissory notes
delivered in substitution or exchange therefor, in each case as the same shall
be modified and supplemented and in effect from time to time. The term "Tranche
A Term Loan Notes" shall include any Registered Notes evidencing Tranche A Term
Loans executed and delivered pursuant to Section 2.07(f) hereof.
"Tranche A Term Loans" shall mean the loans provided for by
Section 2.01(b) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Tranche C Lenders" shall mean (a) on Tranche C Term Loan
Activation Date, the Lenders signatory to the Tranche C Term Loan Activation
Notice and (b) thereafter, the Lenders from time to time holding Tranche C Term
Loans and/or Tranche C Term Loan Commitments after giving effect to any
assignments thereof permitted by Section 12.06(b) hereof.
"Tranche C Principal Payment Dates" shall mean (a) the 26
consecutive Quarterly Dates beginning on the Quarterly Date falling on or
nearest to September 30, 1998 and ending on the Quarterly Date falling on or
nearest to December 31, 2004.
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"Tranche C Term Loan Activation Date" shall mean the date
designated as such in the Tranche C Term Loan Activation Notice.
"Tranche C Term Loan Activation Notice" shall mean a notice
substantially in the form of Exhibit B hereto.
"Tranche C Term Loan Commitment" shall mean, as to each
Tranche C Lender, on and after the Tranche C Term Loan Activation Date, the
obligation of such Tranche C Lender to make one or more Tranche C Term Loans in
an aggregate principal amount up to but not exceeding the amount set opposite
the name of such Tranche C Lender on the Tranche C Term Loan Activation Notice
under the caption "Tranche C Term Loan Commitment" or, in the case of a Person
that becomes a Tranche C Lender pursuant to an assignment permitted under
Section 12.06(b) hereof, as specified in the respective instrument of assignment
pursuant to which such assignment is effected (as the same may be reduced from
time to time pursuant to Section 2.03). The aggregate principal amount of the
Tranche C Term Loan Commitments on the date hereof is zero and shall not exceed
$400,000,000.
"Tranche C Term Loan Commitment Termination Date" shall mean
September 29, 1998.
"Tranche C Term Loan Notes" shall mean the promissory notes
provided for by Section 2.07(c) hereof (if any), and all promissory notes
delivered in substitution or exchange therefor, in each case as the same shall
be modified and supplemented and in effect from time to time. The term "Tranche
C Term Loan Notes" shall include any Registered Notes evidencing Tranche C Term
Loans executed and delivered pursuant to Section 2.07(f) hereof.
"Tranche C Term Loans" shall mean the loans provided for by
Section 2.01(c) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Transaction Documents" shall mean the Ancillary Documents and
the Basic Documents.
"Trust" shall mean Sinclair Capital, a special purpose
statutory business trust formed under the laws of Delaware in connection with
the PPI Transaction, but only for as long as Sinclair Capital owns no Property
other than the KDSM Senior Debentures and the proceeds thereof.
"Type" shall have the meaning assigned that term in Section
1.03 hereof.
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"U.S. Person" shall mean a citizen or resident of the United
States of America, a corporation, partnership or other entity created or
organized in or under any laws of the United States of America or any State
thereof, or any estate or trust that is subject to Federal income taxation
regardless of the source of its income.
"Unrestricted Companies" shall mean (i) the Designated
Companies, (ii) the Trust, (iii) the New PPI Trust, (iv) if and for so long as
KDSM is a Designated Company, KDSM Licensee and (v) if and for so long as New
PPI Sub is a Designated Company, New PPI Sub Licensee.
"WDBB" shall mean WDBB-TV, Inc., an Alabama corporation.
"WDBB Options" shall mean (a) the option granted by Cecil
Heftel to the Borrower to acquire 50% of the issued and outstanding stock of H
and P Communications, (b) the option granted by Carl Parmer to the Borrower to
acquire 50% of the issued and outstanding stock of H and P Communications, and
(c) the option granted by D&C, L.L.C. to the Borrower to acquire 10% of the
issued and outstanding stock of WDBB.
"WFBC-TV" shall mean WFBC-TV, a television broadcasting
station licensed to Greenville and Spartanburg, South Carolina and Asheville,
North Carolina and serving the Greenville, Spartanburg and Asheville areas.
"Working Investment" shall mean, as at any date of
determination thereof and for any Person, the excess of (a) the unpaid face
amount of all accounts receivable of such Person as at such date over (b) the
sum (determined without duplication) of (i) the unpaid amount of all accounts
payable of such Person at such date plus (ii) all accrued expenses of such
Person at such date (but excluding from accounts payable and accrued expenses,
the current portion of long-term debt and of Film Obligations as well as all
accrued interest and taxes).
"WPTT" shall mean WPTT, Inc., a Maryland corporation.
"WPTT Conversion Option" shall mean the Option Agreement dated
as of August 30, 1991 between WPTT and the Borrower (as successor by merger to
Commercial Radio Institute, Inc.), as the same may be modified and supplemented
and in effect from time to time.
"WPTT Convertible Debenture" shall mean the WPTT, Inc. 20-Year
Eight and One-Half Percent (8.5%) Convertible Subordinate Debenture Due 2011
dated August 30, 1991, payable by WPTT to the
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Borrower (as successor by merger to Commercial Radio Institute, Inc.) in the
original principal amount of $1,000,000.
"WSYX Acquisition" shall mean, with respect to the "Columbus
Station" referred to in the Columbus Option Agreement, the acquisition by the
Borrower or any of its Subsidiaries, upon its exercise of the option granted
under the Columbus Option Agreement with respect to the Columbus Station, of the
"Columbus Station Assets" referred to in the Columbus Option Agreement used or
held for use by the River City Sellers with respect to the Columbus Station and
the assumption by the Borrower or such Subsidiary of the "Assumed Liabilities"
referred to in the Columbus Option Agreement with respect to the Columbus
Station, all in accordance with terms and conditions of the Columbus Option
Agreement and shall include, if no Default has occurred and is continuing at the
time of the making of the payment thereof, (a) the payment by the Borrower or
such Subsidiary of WSYX Option Extension Payments and (b) the payment of the
WSYX Sale Price Differential.
"WSYX Option Extension Payments" shall mean each "Option
Extension Fee" payable by the Borrower or any of its Subsidiaries under Section
2.1(b) of the Columbus Option Agreement.
"WSYX Sale Price Differential" shall mean the amount payable
by the Borrower or any of its Subsidiaries under Section 11.1.C(b) of the
Columbus Option Agreement.
"WTTE-TV" shall mean WTTE-TV, Channel 28, a television
broadcasting station, licensed to Columbus, Ohio and serving the Columbus area.
1.02 Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered to
the Lenders hereunder shall (unless otherwise disclosed to the Lenders in
writing at the time of delivery thereof in the manner described in subsection
(b) below) be prepared, in accordance with generally accepted accounting
principles applied on a basis consistent with that used in the preparation of
the latest financial statements furnished to the Lenders hereunder (which, prior
to the first financial statements delivered under Section 9.01 hereof, shall
mean the financial statements referred to in Section 8.02 hereof). All
calculations made for the purposes of determining compliance with the terms of
this Agreement shall (except as otherwise expressly provided herein) be made by
application of
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generally accepted accounting principles applied on a basis consistent with that
used in the preparation of the annual or quarterly financial statements
furnished to the Lenders pursuant to Section 9.01 hereof (or, prior to the first
financial statements delivered under Section 9.01 hereof, used in the
preparation of the financial statements referred to in Section 8.02 hereof)
unless (i) the Borrower shall have objected to determining such compliance on
such basis at the time of delivery of such financial statements or (ii) the
Majority Lenders shall so object in writing within 30 days after delivery of
such financial statements, in either of which events such calculations shall be
made on a basis consistent with those used in the preparation of the latest
financial statements as to which such objection shall not have been made (which,
if objection is made in respect of the first financial statements delivered
under Section 9.01 hereof, shall mean the financial statements referred to in
Section 8.02 hereof).
(b) The Borrower shall deliver to the Lenders at the same time
as the delivery of any annual or quarterly financial statement under Section
9.01 hereof a description in reasonable detail of any material variation between
the application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
subsection (a) above, and reasonable estimates of the difference between such
statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of
compliance with the covenants set forth in Section 9 hereof, the Borrower will
not change the last day of its fiscal year from December 31 of each year, or the
last days of the first three fiscal quarters in each of its fiscal years from
March 31, June 30 and September 30 of each year, respectively.
(d) Except as expressly provided herein, (i) all calculations
made with respect to any period during which an Acquisition is consummated shall
be calculated on a pro forma basis as if such Acquisition had been consummated
on the first day of such period and as if any Indebtedness incurred or assumed
in connection with such Acquisition were outstanding throughout such period,
using such reasonable estimates and pro forma adjustments effected in accordance
with generally accepted accounting principles as the Borrower shall propose and
the Agent or Majority Lenders shall approve and (ii) all calculations made with
respect to any period during which a Disposition is consummated shall be
calculated on a pro forma basis as if any such Disposition had been consummated
on the first day of such
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period and as if any prepayments and reductions of Commitments actually made in
connection therewith had occurred on the first day of such period using such
reasonable estimates and pro forma adjustments effected in accordance with
generally accepted accounting principles as the Borrower shall propose and the
Agent shall approve; except that if the Borrower proposes any such adjustments
referred to in the foregoing clause (i) resulting from pro forma expense savings
with respect to EBITDA or Broadcast Cash Flow as a result of an Acquisition (x)
if the Agent or Majority Lenders do not object to such proposal within 30 days
after their receipt thereof, such proposal shall be deemed accepted and (y) if
the Agent or the Majority Lenders do object to such proposal within 30 days
after their receipt thereof, EBITDA or Broadcast Cash Flow, as the case may be,
for the relevant period shall be deemed for purposes hereof to be equal to the
sum of EBITDA or Broadcast Cash Flow, as the case may be, for the Borrower and
its Subsidiaries for such period plus the corresponding accounting items for the
Person or assets that are the subject of such Acquisition. Notwithstanding the
foregoing if, prior to giving effect to any proposed pro forma adjustments
arising from pro forma expense savings, a Default would occur as a result of an
Acquisition, such adjustment shall require approval of the Majority Lenders
prior to the consummation of such Acquisition.
(e) Except as otherwise expressly provided herein, all
financial statements and certificates and reports as to financial matters
required to be delivered to the Agent or the Lenders hereunder shall be
prepared, and all calculations made for purposes of determining compliance with
the terms hereof shall be made, as if the Unrestricted Companies were carried as
equity investments by the Borrower or the relevant Subsidiary of the Borrower;
provided that (i) earnings and other increases in the value of Unrestricted
Companies shall not increase earnings of the Borrower and its Subsidiaries
whether or not received by the Borrower or one of its Subsidiaries and (ii)
losses and other decreases in the value of Unrestricted Companies shall not
decrease earnings of the Borrower and its Subsidiaries; provided further that
any amounts received by the Borrower or any of its Subsidiaries from the
Designated Companies during any period shall be deemed to reduce Interest
Expense for such period.
1.03 Classes and Types of Loans. Loans hereunder are
distinguished by "Class" and by "Type". The "Class" of a Loan (or of a
Commitment to make a Loan) refers to whether such Loan is (a) a Revolving Credit
Loan, (b) a Tranche A Term Loan or (c) a Tranche C Term Loan, each of which
constitutes a Class. The "Type" of a Loan refers to whether such Loan is a Base
Rate Loan or a Eurodollar Loan, each of which constitutes a Type. Loans may be
identified by both Class and Type.
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1.04 References to Date. All references herein to "the date
hereof" and "the date of this Agreement", and similar references, shall mean May
20, 1997.
Section 2. Commitments.
2.01 Loans.
(a) Revolving Credit Loans. Each Revolving Credit Lender
severally agrees, on the terms and conditions of this Agreement, to make loans
to the Borrower in Dollars during the period from and including the Restatement
Effective Date to but excluding the Revolving Credit Commitment Termination Date
in an aggregate principal amount at any one time outstanding up to but not
exceeding the amount of the Revolving Credit Commitment of such Revolving Credit
Lender as in effect from time to time minus the aggregate amount of such
Revolving Credit Lender's Letter of Credit Liabilities. Subject to the terms and
conditions of this Agreement, during such period the Borrower may borrow, repay
and reborrow the amount of the Revolving Credit Commitments by means of Base
Rate Loans and Eurodollar Loans and may Convert Revolving Credit Loans of one
Type into Revolving Credit Loans of another Type (as provided in Section 2.08
hereof) or Continue Revolving Credit Loans of one Type as Revolving Credit Loans
of the same Type (as provided in Section 2.08 hereof).
(b) Tranche A Term Loans.
(i) On the Restatement Effective Date each Tranche A Lender
severally agrees, on the terms and conditions of this Agreement, to
make a single term loan to the Borrower in Dollars on the Restatement
Effective Date in a principal amount equal to the amount of the Tranche
A Term Loan Commitment of such Tranche A Lender. Thereafter, subject to
the terms and conditions of this Agreement, the Borrower may Convert
Tranche A Term Loans of one Type into Tranche A Term Loans of another
Type (as provided in Section 2.08 hereof) or Continue Tranche A Term
Loans of one Type as Tranche A Term Loans of the same Type (as provided
in Section 2.08 hereof). Tranche A Term Loans that are prepaid may not
be reborrowed.
(c) Tranche C Term Loans. The Borrower and all or certain of
the Lenders may, with the consent of the Agent, at any one time during the
period from and including the Restatement Effective Date to but excluding the
Tranche C Term Loan Commitment Termination Date agree that such Lenders shall
become Tranche C Lenders by executing and delivering to the Agent a Tranche C
Term Loan Activation Notice specifying the respective Tranche C Term Loan
Commitments of the Tranche C Lenders, the
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Tranche C Term Loan Activation Date, the rate of commitment fee, if any, payable
by the Borrower in respect of the Tranche C Term Loan Commitments, the
Applicable Margin for Tranche C Term Loans and otherwise duly completed. Each
Tranche C Lender severally agrees, on the terms and conditions of this
Agreement, to make one or more term loans to the Borrower in Dollars during the
period from and including the Tranche C Term Loan Activation Date to but
excluding the Tranche C Term Loan Commitment Termination Date in an aggregate
principal amount up to but not exceeding the amount of the Tranche C Term Loan
Commitment of such Tranche C Lender as in effect from time to time, provided
that in no event shall the proceeds of the Tranche C Term Loans be used for any
purpose other than to finance the consummation of the WSYX Acquisition and Other
Acquisitions and transaction expenses in connection therewith. Thereafter,
subject to the terms and conditions of this Agreement, the Borrower may Convert
Tranche C Term Loans of one Type into Tranche C Term Loans of another Type (as
provided in Section 2.08 hereof) or Continue Tranche C Term Loans of one Type as
Tranche C Term Loans of the same Type (as provided in Section 2.08 hereof).
Tranche C Term Loans that are prepaid may not be reborrowed. Nothing in this
Section 2.01(c) shall be construed to obligate any Lender to execute a Tranche C
Term Loan Activation Notice.
(d) Payment of Existing Loans. On the Restatement Effective
Date the Borrower shall borrow, and use the proceeds of, Revolving Credit Loans
and Tranche A Term Loans in a sufficient amount to, prepay in full the principal
of and interest on the Existing Revolving Credit Loans, the Existing Tranche A
Term Loans and the Existing Tranche B Term Loans and any amounts payable under
Section 5.05 of the Existing Credit Agreement in connection with such
prepayment.
(e) Limitation on Eurodollar Loans. No more than ten separate
interest periods in respect of Eurodollar Loans of a Class may be outstanding at
any one time, provided that prior to June 30, 1997, or such earlier date agreed
to in writing by the Agent, all Eurodollar Loans of any Class must have an
Interest Period of one month's duration and be coterminous with the Interest
Periods of all other Eurodollar Loans of such Class, and, to the extent that
prior to such date a Eurodollar Loan would not satisfy such conditions, such
Loan shall be made as or Converted into a Base Rate Loan.
2.02 Borrowings. The Borrower shall give the Agent notice of
each borrowing hereunder as provided in Section 4.05 hereof. Not later than 1:00
p.m. New York time on the date specified for each borrowing hereunder, each
Lender shall make available the amount of the Loan or Loans to be made by it on
such date to the Agent, at an account designated by the Agent, in
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immediately available funds, for account of the Borrower. The amount so received
by the Agent shall, subject to the terms and conditions of this Agreement, be
made available to the Borrower by depositing the same, in immediately available
funds, in an account of the Borrower maintained with Chase at its principal
office designated by the Borrower.
2.03 Changes of Commitments.
(a) The aggregate amount of the Revolving Credit Commitments
shall be automatically reduced to zero at the close of business on the Revolving
Credit Commitment Termination Date. In addition, the aggregate amount of the
Revolving Credit Commitments shall be automatically reduced at the opening of
business on each Revolving Credit Commitment Reduction Date set forth in column
(A) below to the amount (subject to reduction pursuant to paragraph (d) below)
set forth in column (B) below opposite such Revolving Credit Commitment
Reduction Date:
(A) (B)
Revolving Credit Commitment Revolving Credit Commitment
Reduction Date Falling on or Reduced to the Following
Nearest to: Amounts ($):
March 31, 2000 $390,000,000
June 30, 2000 $380,000,000
September 30, 2000 $370,000,000
December 31, 2000 $360,000,000
March 31, 2001 $339,250,000
June 30, 2001 $318,500,000
September 30, 2001 $297,750,000
December 31, 2001 $277,000,000
March 31, 2002 $256,250,000
June 30, 2002 $235,500,000
September 30, 2002 $214,750,000
December 31, 2002 $194,000,000
March 31, 2003 $173,250,000
June 30, 2003 $152,500,000
September 30, 2003 $131,750,000
December 31, 2003 $111,000,000
March 31, 2004 $ 83,250,000
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June 30, 2004 $ 55,500,000
September 30, 2004 $ 27,750,000
December 31, 2004 $ 0
(b) The Borrower shall have the right at any time or from time
to time (i) to terminate or to reduce the aggregate unused amount of the Tranche
A Term Loan Commitments or the Tranche C Term Loan Commitments, (ii) so long as
no Revolving Credit Loans or Letter of Credit Liabilities are outstanding, to
terminate the Revolving Credit Commitments and (iii) to reduce the aggregate
unused amount of the Revolving Credit Commitments (for which purpose use of the
Revolving Credit Commitments shall be deemed to include Letter of Credit
Liabilities); provided that (i) the Borrower shall give notice of each such
termination or reduction as provided in Section 4.05 hereof and (ii) each
partial reduction shall be in an aggregate amount at least equal to $5,000,000
and in integral multiples of $1,000,000 in excess thereof.
(c) The Commitments shall automatically reduce as provided in
Section 2.09 hereof.
(d) Each reduction in the aggregate amount of the Revolving
Credit Commitments pursuant to paragraph (b) above, or pursuant to Section 2.09
hereof, on any date shall result in an automatic and simultaneous reduction (but
not below zero) in the aggregate amount of the Revolving Credit Commitments for
each Revolving Credit Commitment Reduction Date (as reflected in column (B) at
the end of paragraph (a) above) after such date in an amount equal to the amount
of such reduction.
(e) The aggregate amount of the Tranche A Term Loan
Commitments shall be automatically reduced to zero at the close of business on
the Restatement Effective Date.
(f) The aggregate amount of the Tranche C Term Loan
Commitments shall be automatically reduced to zero at the close of business on
the Tranche C Term Loan Commitment Termination Date.
(g) The Commitments once terminated or reduced may not be
reinstated.
2.04 Commitment Fees.
(a) The Borrower shall pay to the Agent for account of each
Revolving Credit Lender a commitment fee on the daily average unused amount of
such Revolving Credit Lender's Revolving
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Credit Commitment (for which purpose the aggregate amount of any Letter of
Credit Liabilities shall be deemed to be a pro rata (based on the Revolving
Credit Commitments) use of each Revolving Credit Lender's Revolving Credit
Commitment), for the period from and including the date of this Agreement to but
not including the earlier of the date such Revolving Credit Commitment is
terminated and the Revolving Credit Commitment Termination Date, at a rate per
annum equal to Applicable Commitment Fee Rate.
(b) The Borrower shall pay to the Agent for account of each
Tranche C Lender a commitment fee on the daily average unused amount of such
Tranche C Lender's Tranche C Term Loan Commitment, for the period from and
including the Tranche C Term Loan Activation Date to but not including the
earlier of the date such Tranche C Term Loan Commitment is terminated and the
Tranche C Term Loan Commitment Termination Date, at a rate per annum equal to a
rate agreed to by the Borrower and the Tranche C Lenders and specified in the
Tranche C Term Loan Activation Notice.
(c) Accrued commitment fee shall be payable on each Quarterly
Date and on the earlier of the date the relevant Commitment is terminated and
either the Revolving Credit Commitment Termination Date or the Tranche C Term
Loan Commitment Termination Date, as the case may be.
2.05 Lending Offices. The Loans of each Type made by each
Lender shall be made and maintained at such Lender's Applicable Lending Office
for Loans of such Type.
2.06 Several Obligations; Remedies Independent. The failure of
any Lender to make any Loan to be made by it on the date specified therefor
shall not relieve any other Lender of its obligation to make its Loan on such
date, but (a) neither any Lender nor the Agent shall be responsible for the
failure of any other Lender to make a Loan to be made by such other Lender and
(b) no Lender shall have an obligation to any other Lender in respect of its
obligation to make any Loan hereunder. The amounts payable by the Borrower to
each Lender at any time hereunder and under the Note(s) (if any) payable to such
Lender shall be a separate and independent debt and such Lender shall be
entitled to protect and enforce its rights arising out of this Agreement and
such Note(s), and it shall not be necessary for any other Lender or the Agent to
consent to, or be joined as an additional party in, any proceedings for such
purposes.
2.07 Notes.
(a) Any Revolving Credit Lender may request that its Revolving
Credit Loans (other than Registered Loans) be evidenced
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by a single promissory note of the Borrower substantially in the form of Exhibit
A-1 hereto, dated the date hereof, payable to such Revolving Credit Lender in a
principal amount equal to the amount of its Revolving Credit Commitment as
originally in effect and otherwise duly completed.
(b) Any Tranche A Lender may request that its Tranche A Term
Loan (other than Registered Loans) be evidenced by a single promissory note of
the Borrower substantially in the form of Exhibit A-2 hereto, dated the date
hereof, payable to such Tranche A Lender in a principal amount equal to the
original amount of its Tranche A Term Loan Commitment and otherwise duly
completed.
(c) Any Tranche C Term Lender may request that its Tranche C
Term Loans (other than Registered Loans) be evidenced by a single promissory
note of the Borrower substantially in the form of Exhibit A-3 hereto, dated the
Tranche C Term Loan Activation Date, payable to such Tranche C Lender in a
principal amount equal to the original amount of its Tranche C Term Loan
Commitment and otherwise duly completed.
(d) The date, amount, Type, interest rate, and duration of
Interest Period (if applicable) of each Loan made by each Lender to the
Borrower, and each payment made on account of the principal thereof, shall be
recorded by such Lender on its books and, prior to any transfer of the Note (if
any) evidencing such Loan, endorsed by such Lender on the schedule attached to
such Note or any continuation thereof; provided that the failure of such Lender
to make any such recordation (or any error in making any such recordation) or
endorsement shall not affect the obligations of the Borrower to make a payment
when due of any amount owing hereunder or under such Note in respect of such
Loans.
(e) No Lender shall be entitled to have its Notes substituted
or exchanged for any reason, or subdivided for promissory notes of lesser
denominations, except in connection with a permitted assignment of all or any
portion of such Lender's relevant Commitment(s), Loan(s) or Note(s) pursuant to
Section 12.06(b) hereof and except as provided in clause (f) below (and, if
requested by any Lender, the Borrower agrees to so exchange any Note).
(f) Notwithstanding the foregoing, any Lender that is not a
U.S. Person and is not a "bank" within the meaning of Section 881(c)(3)(A) of
the Code may request the Borrower (through the Agent), and the Borrower agrees
thereupon, to record on the Register referred to in Section 12.06(g) hereof any
Loans of any Class held by such Lender under this Agreement. Loans
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recorded on the Register ("Registered Loans") may not be evidenced by promissory
notes other than Registered Notes as defined below and, upon the registration of
any Loan, any promissory note (other than a Registered Note) evidencing the same
shall be null and void and shall be returned to the Borrower. The Borrower
agrees, at the request of any Lender that is the holder of Registered Loans, to
execute and deliver to such Lender a promissory note in registered form to
evidence each such Registered Loan (i.e. containing the optional registered note
language as indicated in Exhibits A-1, A-2 or A-3 hereto, as the case may be)
and registered as provided in Section 12.06(g) hereof (herein, a "Registered
Note"), dated (i) the date hereof if such promissory note evidences Loans of any
Class other than Tranche C Term Loans or (ii) the Tranche C Term Loan Activation
Date if such promissory note evidences Tranche C Term Loans, in each case
payable to such Lender and otherwise duly completed. A Loan once recorded on the
Register may not be removed from the Register so long as it remains outstanding
and a Registered Note may not be exchanged for a promissory note that is not a
Registered Note.
2.08 Optional Prepayments and Conversions or Continuations of
Loans.
(a) Subject to Section 4.04(a) hereof, the Borrower shall have
the right to prepay Loans, or to Convert Loans of one Type into Loans of another
Type or Continue Loans of one Type as Loans of the same Type, at any time or
from time to time, provided that: (i) the Borrower shall give the Agent notice
of each such prepayment, Conversion or Continuation as provided in Section 4.05
hereof (and, upon the date specified in any such notice of prepayment, the
amount to be prepaid shall become due and payable hereunder); (ii) Eurodollar
Loans may be prepaid or Converted only on the last day of an Interest Period for
such Loans; and (iii) prepayments of Tranche A Term Loans or Tranche C Term
Loans under this Section 2.08(a) shall be applied to each of such Classes of
Loans (x) as between such Classes of Loans, pro rata in accordance with the
respective aggregate principal amounts thereof outstanding on the date of
prepayment and (y) as within such Classes of Loans, to the respective
installments thereof in the inverse order of their maturities.
(b) Notwithstanding anything contained herein to the contrary,
and without limiting the rights and remedies of the Lenders under Section 10
hereof, in the event that any Event of Default shall have occurred and be
continuing, the Agent may (and at the request of the Majority Lenders shall)
suspend the right of the Borrower to Convert any Loan into a Eurodollar Loan, or
to Continue any Loan as a Eurodollar Loan, in which event all Loans shall be
Converted (on the last day(s) of the respective Interest
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Periods therefor) or Continued, as the case may be, as Base Rate Loans.
2.09 Mandatory Prepayments and Reductions of Commitments.
(a) Casualty Events. Upon the date 270 days following the
receipt by the Borrower of the proceeds of insurance, condemnation award or
other compensation in respect of any Casualty Event affecting any Property of
the Borrower or any of its Subsidiaries or any Contract Station (or upon such
earlier date as the Borrower or such Subsidiary of the Borrower shall have
determined not to repair or replace the Property affected by such Casualty
Event), the Borrower shall prepay the Loans (and/or provide cover for Letter of
Credit Liabilities as specified in clause (f) below), and the Commitments shall
be subject to automatic reduction, in an aggregate amount, if any, equal to 100%
of the Net Available Proceeds of such Casualty Event not theretofore applied to
the repair or replacement of such Property, such prepayment and reduction to be
effected in each case in the manner and to the extent specified in clause (e) of
this Section 2.09. Notwithstanding the foregoing, in the event that a Casualty
Event shall occur with respect to Property covered by the Mortgage(s), the
Borrower shall prepay the Loans (and/or provide cover for Letter of Credit
Liabilities as specified in clause (f) below), and the Commitments shall be
subject to automatic reduction, on the dates, and in the amounts of the required
prepayments, specified in the Mortgage(s), if any. Nothing in this clause (a)
shall be deemed to limit any obligation of the Borrower or any of its
Subsidiaries pursuant to any of the Security Documents to remit to a collateral
or similar account maintained by the Agent pursuant to any of the Security
Documents (including, without limitation, the Collateral Account) the proceeds
of insurance, condemnation award or other compensation received in respect of
any Casualty Event.
(b) Issuance of Equity or Debt.
(i) Within the Specified Number of days after any Equity
Issuance by the Borrower permitted hereunder (other than the issuance
by the Borrower of Other Preferred Stock, the conversion of Other
Preferred Stock into the Borrower's Class A Common Stock and any Equity
Issuance made pursuant to the Columbus Option Agreement), the Borrower
shall prepay the Loans (and/or provide cover for Letter of Credit
Liabilities as specified in clause (f) below), and the Commitments
shall be subject to automatic reduction, in an aggregate amount equal
to 80% of such portion of the Net Available Proceeds thereof not
applied as required by Section 9.26(c)(iii) hereof, such prepayment and
reduction
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to be effected in each case in the manner and to the extent specified
in clause (e) of this Section 2.09.
(ii) Upon the issuance by the Borrower of the Other Preferred
Stock, the Borrower shall prepay the Revolving Credit Loans (and/or
provide cover for Letter of Credit Liabilities as specified in clause
(f) below) (but the Revolving Credit Commitments shall not be subject
to automatic reduction) in an aggregate amount equal to the Net
Available Proceeds thereof.
(iii) Upon the issuance of any Additional Senior Subordinated
Notes, the Borrower shall, within the Specified Number of days, prepay
the Loans (and/or provide cover for Letter of Credit Liabilities as
specified in clause (f) below), and the Commitments shall be subject to
automatic reduction, in an aggregate amount equal to such portion of
100% of the Net Available Proceeds thereof not applied as permitted by
Section 9.07(c)(v)(x) hereof, such prepayment and reduction to be
effected in the manner and to the extent specified in clause (e) of
this Section 2.09.
(c) Excess Cash Flow. Not later than the date 110 days after
the end of each fiscal year of the Borrower that ends in 1997 or thereafter and
on the last day of which the Total Indebtedness Ratio is greater than 5.0 to 1,
the Borrower shall prepay the Loans (and/or provide cover for Letter of Credit
Liabilities as specified in clause (f) below), and Commitments shall be subject
to automatic reduction, in an aggregate amount equal to the excess of (i) 50% of
Excess Cash Flow (as reported upon by independent certified public accountants
of recognized national standing on or before said date) for such fiscal year
over (ii) the sum of (x) the aggregate amount of prepayments of Tranche A Term
Loans and Tranche C Term Loans made during such fiscal year pursuant to Section
2.08 hereof plus (y) (if the Tranche A Term Loans and Tranche C Term Loans shall
have been paid or prepaid in full during such fiscal year) the aggregate amount
of the reductions of the Revolving Credit Commitments made during such calendar
year pursuant to Section 2.03(b) hereof, such prepayment and reduction to be
effected in each case in the manner and to the extent specified in clause (e) of
this Section 2.09.
(d) Sale of Assets. Without limiting the obligation of the
Borrower to obtain the consent of the Majority Lenders pursuant to Section 9.05
hereof to any Disposition not otherwise permitted hereunder, in the event that
the Net Available Proceeds of any Disposition (herein, the "Current
Disposition"), and of all prior Dispositions as to which a prepayment has not
yet been made under this Section 2.09(d), but in all events excluding
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Excluded Net Available Proceeds (as defined below), shall exceed $1,000,000
then, no later than five Business Days prior to the occurrence of the Current
Disposition, the Borrower will deliver to the Lenders a statement, certified by
a senior financial officer of the Borrower, in form and detail satisfactory to
the Agent, of the amount of the Net Available Proceeds of the Current
Disposition and of all such prior Dispositions and, concurrently with the
consummation of the Current Disposition, will within the Specified Number of
days, prepay the Loans (and/or provide cover for Letter of Credit Liabilities as
specified in clause (f) below), and the Commitments shall be subject to
automatic reduction, in an aggregate amount equal to 100% of the Net Available
Proceeds of the Current Disposition, such prepayment and reduction to be
effected in each case in the manner and to the extent specified in clause (e) of
this Section 2.09. For purposes of this Section 2.09(d) "Excluded Net Available
Proceeds" shall mean the first $5,000,000 of Net Available Proceeds from
Dispositions received by the Borrower and its Subsidiaries after the date
hereof.
(e) Application. Any amount (the "Applicable Amount") required
to be applied to prepay Loans or reduce Commitments as provided in the foregoing
clauses of this Section 2.09 shall be effected (except as expressly set forth
above) as follows:
(i) first, the Borrower shall prepay the Tranche A Term Loans and
Tranche C Term Loans in an aggregate amount equal to the Applicable
Amount, such prepayment to be applied (x) as between such Classes of
Loans, pro rata in accordance with the respective aggregate principal
amounts thereof outstanding on the date of prepayment (as calculated
after giving effect to all other payments and prepayments of principal
of such Loans on such date) and (y) as within each such Class of Loans,
to the respective installments thereof in the inverse order of their
maturities;
(ii) second, the Tranche C Term Loan Commitments shall be
automatically reduced by an amount equal to any excess of the
Applicable Amount over the aggregate principal amount of Loans prepaid
pursuant to the foregoing clause (i); and
(iii) third, the Revolving Credit Commitments shall be automatically
reduced by an amount equal to any excess of the Applicable Amount over
the aggregate principal amount of Loans prepaid and Commitments reduced
pursuant to the foregoing clauses (i) and (ii), and to the extent that,
after giving effect to such reduction, the aggregate principal amount
of Revolving Credit Loans, together with the aggregate amount of all
Letter of Credit Liabilities, would exceed the Revolving Credit
Commitments, the Borrower
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shall, first, prepay Revolving Credit Loans and, second, provide cover
for Letter of Credit Liabilities as specified in clause (f) below, in
an aggregate amount equal to such excess.
(f) Cover for Letter of Credit Liabilities. In the event that
the Borrower shall be required pursuant to this Section 2.09 or Section 3.01(a)
hereof to provide cover for Letter of Credit Liabilities, the Borrower shall
effect the same by paying to the Agent immediately available funds in an amount
equal to the required amount, which funds shall be retained by the Agent in the
Collateral Account (as provided herein as collateral security for the Letter of
Credit Liabilities) until such time as the Letters of Credit shall have been
terminated and all of the Letter of Credit Liabilities paid in full.
2.10 Issuance of Letters of Credit. Subject to the terms and
conditions of this Agreement, the Revolving Credit Commitments may be utilized
prior to the Revolving Credit Commitment Termination Date, upon the request of
the Borrower, in addition to the Revolving Credit Loans provided for by Section
2.01(a) hereof, by the issuance by the Issuing Bank of letters of credit (each,
a "Letter of Credit") for account of the Borrower or any of its Subsidiaries (as
specified by the Borrower), provided that in no event shall (i) the aggregate
amount of all Letter of Credit Liabilities, together with the aggregate
principal amount of the Revolving Credit Loans, exceed the aggregate amount of
the Revolving Credit Commitments as in effect from time to time, (ii) the
outstanding aggregate amount of all Letter of Credit Liabilities exceed
$100,000,000 or (iii) the expiration date of any Letter of Credit extend beyond
the Revolving Credit Commitment Termination Date. The following additional
provisions shall apply to Letters of Credit:
(a) The Borrower shall give the Agent at least five Business
Days' (or such shorter period as the Agent and the Issuing Bank may
agree) irrevocable prior notice (effective upon receipt) specifying the
Business Day (which shall be no later than 30 days preceding the
Revolving Credit Commitment Termination Date) on which each Letter of
Credit is to be issued and the account party or parties therefor and
describing in reasonable detail the proposed terms of such Letter of
Credit (including the beneficiary thereof) and the nature of the
transactions or obligations proposed to be supported thereby (including
whether such Letter of Credit is to be a commercial letter of credit or
a standby letter of credit). Upon receipt of any such notice, the Agent
shall advise the Issuing Bank of the contents thereof.
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(b) On each day during the period commencing with the issuance
by the Issuing Bank of such Letter of Credit (or in the case of an
Existing Letter of Credit, on the Restatement Effective Date) and until
such Letter of Credit shall have expired or been terminated, the
Revolving Credit Commitment of each Revolving Credit Lender shall be
deemed to be utilized for all purposes of this Agreement in an amount
equal to such Revolving Credit Lender's Revolving Credit Commitment
Percentage of the then undrawn face amount of such Letter of Credit.
Each Revolving Credit Lender (other than the Issuing Bank) agrees that,
upon the issuance of any Letter of Credit hereunder (or in the case of
an Existing Letter of Credit, on the Restatement Effective Date), it
shall automatically acquire a participation in the Issuing Bank's
liability under such Letter of Credit in an amount equal to such
Revolving Credit Lender's Revolving Credit Commitment Percentage of
such liability, and each Revolving Credit Lender (other than the
Issuing Bank) thereby shall absolutely, unconditionally and irrevocably
assume, as primary obligor and not as surety, and shall be
unconditionally obligated to the Issuing Bank to pay and discharge when
due, its Revolving Credit Commitment Percentage of the Issuing Bank's
liability under such Letter of Credit.
(c) Upon receipt from the beneficiary of any Letter of Credit
of any demand for payment under such Letter of Credit, the Issuing Bank
shall promptly notify the Borrower (through the Agent) of the amount to
be paid by the Issuing Bank as a result of such demand and the date on
which payment is to be made by the Issuing Bank to such beneficiary in
respect of such demand. Notwithstanding the identity of the account
party of any Letter of Credit, the Borrower hereby unconditionally
agrees to pay and reimburse the Agent for account of the Issuing Bank
for the amount of each demand for payment under such Letter of Credit
at or prior to the date on which payment is to be made by the Issuing
Bank to the beneficiary thereunder, without presentment, demand,
protest or other formalities of any kind.
(d) Forthwith upon its receipt of a notice referred to in
clause (c) of this Section 2.10, the Borrower shall advise the Agent
whether or not the Borrower intends to borrow hereunder to finance its
obligation to reimburse the Issuing Bank for the amount of the related
demand for payment and, if it does, submit a notice of such borrowing
as provided in Section 4.05 hereof. In the event that the Borrower
fails to so advise the Agent, or if the Borrower fails to reimburse the
Issuing Bank for a payment under a
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Letter of Credit by the date of such payment, the Agent shall give each
Revolving Credit Lender prompt notice of the amount of the demand for
payment, specifying such Revolving Credit Lender's Revolving Credit
Commitment Percentage of the amount of the related demand for payment.
(e) Each Revolving Credit Lender (other than the Issuing Bank)
shall pay to the Agent for account of the Issuing Bank at the Agent's
principal office in Dollars and in immediately available funds, the
amount of such Revolving Credit Lender's Revolving Credit Commitment
Percentage of any payment under a Letter of Credit upon notice by the
Issuing Bank (through the Agent) to such Revolving Credit Lender
requesting such payment and specifying such amount. Each such Revolving
Credit Lender's obligation to make such payment to the Agent for
account of the Issuing Bank under this clause (e), and the Issuing
Bank's right to receive the same, shall be absolute and unconditional
and shall not be affected by any circumstance whatsoever, including,
without limitation, the failure of any other Revolving Credit Lender to
make its payment under this clause (e), the financial condition of the
Borrower (or any other account party), the existence of any Default or
the termination of the Revolving Credit Commitments. Each such payment
to the Issuing Bank shall be made without any offset, abatement,
withholding or reduction whatsoever. If any Revolving Credit Lender
shall default in its obligation to make any such payment to the Agent
for account of the Issuing Bank, for so long as such default shall
continue the Agent may at the request of the Issuing Bank withhold from
any payments received by the Agent under this Agreement or any Note for
account of such Revolving Credit Lender the amount so in default and,
to the extent so withheld, pay the same to the Issuing Bank in
satisfaction of such defaulted obligation.
(f) Upon the making of each payment by a Revolving Credit
Lender to the Issuing Bank pursuant to clause (e) above in respect of
any Letter of Credit, such Revolving Credit Lender shall, automatically
and without any further action on the part of the Agent, the Issuing
Bank or such Revolving Credit Lender, acquire (i) a participation in an
amount equal to such payment in the Reimbursement Obligation owing to
the Issuing Bank by the Borrower hereunder and under the Letter of
Credit Documents relating to such Letter of Credit and (ii) a
participation in a percentage equal to such Revolving Credit Lender's
Revolving Credit Commitment Percentage in any interest or other amounts
payable by the Borrower hereunder and under such Letter of Credit
Documents in respect of such Reimbursement Obligation (other than the
commissions, charges, costs and
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expenses payable to the Issuing Bank pursuant to clause (g) of this
Section 2.10). Upon receipt by the Issuing Bank from or for account of
the Borrower of any payment in respect of any Reimbursement Obligation
or any such interest or other amount (including by way of setoff or
application of proceeds of any collateral security) the Issuing Bank
shall promptly pay to the Agent for account of each Revolving Credit
Lender entitled thereto, such Revolving Credit Lender's Revolving
Credit Commitment Percentage of such payment, each such payment by the
Issuing Bank to be made in the same money and funds in which received
by the Issuing Bank. In the event any payment received by the Issuing
Bank and so paid to the Revolving Credit Lenders hereunder is rescinded
or must otherwise be returned by the Issuing Bank, each Revolving
Credit Lender shall, upon the request of the Issuing Bank (through the
Agent), repay to the Issuing Bank (through the Agent) the amount of
such payment paid to such Revolving Credit Lender, with interest from
the date the Issuing Bank so returns such payment at the rate specified
in clause (j) of this Section 2.10.
(g) The Borrower shall pay to the Agent for account of each
Revolving Credit Lender (ratably in accordance with their respective
Revolving Credit Commitment Percentages) a letter of credit fee in
respect of each Letter of Credit at the rate per annum equal to the
Applicable Margin for Eurodollar Loans on the daily average undrawn
face amount of such Letter of Credit for the period from and including
the date of issuance of such Letter of Credit (or in the case of an
Existing Letter of Credit, on the Restatement Effective Date) (i) in
the case of a Letter of Credit that expires in accordance with its
terms, to and including such expiration date and (ii) in the case of a
Letter of Credit that is drawn in full or is otherwise terminated other
than on the stated expiration date of such Letter of Credit, to but
excluding the date such Letter of Credit is drawn in full or is
terminated (such fee to be non-refundable, to be paid in arrears on
each Quarterly Date and on the Revolving Credit Commitment Termination
Date and to be calculated for any day after giving effect to any
payments made under such Letter of Credit on such day). In addition,
the Borrower shall pay to the Agent for account of the Issuing Bank a
fronting fee in respect of each Letter of Credit in an amount equal to
1/4 of 1% per annum of the daily average undrawn face amount of such
Letter of Credit for the period from and including the date of issuance
of such Letter of Credit (i) in the case of a Letter of Credit that
expires in accordance with its terms, to and including such expiration
date and (ii) in the case of a Letter of Credit that is drawn in full
or is otherwise terminated other than on the stated expiration
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date of such Letter of Credit, to but excluding the date such Letter of
Credit is drawn in full or is terminated (such fee to be
non-refundable, to be paid in arrears on each Quarterly Date and on the
Revolving Credit Commitment Termination Date and to be calculated for
any day after giving effect to any payments made under such Letter of
Credit on such day) plus all commissions, charges, costs and expenses
in the amounts customarily charged by the Issuing Bank from time to
time in like circumstances with respect to the issuance of each Letter
of Credit and drawings and other transactions relating thereto.
(h) Promptly following the end of each calendar quarter, the
Issuing Bank shall deliver (through the Agent) to each Revolving Credit
Lender and the Borrower a notice describing the aggregate amount of all
Letters of Credit outstanding at the end of such quarter. Upon the
request of any Revolving Credit Lender from time to time, the Issuing
Bank shall deliver any other information reasonably requested by such
Revolving Credit Lender with respect to each Letter of Credit then
outstanding.
(i) The issuance by the Issuing Bank of each Letter of Credit
shall, in addition to the conditions precedent set forth in Section 7
hereof, be subject to the conditions precedent that (i) such Letter of
Credit shall be in such form, contain such terms and support such
transactions as shall be satisfactory to the Issuing Bank consistent
with its then current practices and procedures with respect to letters
of credit of the same type and (ii) the Borrower shall have executed
and delivered such applications, agreements and other instruments
relating to such Letter of Credit as the Issuing Bank shall have
reasonably requested consistent with its then current practices and
procedures with respect to letters of credit of the same type, provided
that in the event of any conflict between any such application,
agreement or other instrument and the provisions of this Agreement or
any Security Document, the provisions of this Agreement and the
Security Documents shall control.
(j) To the extent that any Revolving Credit Lender shall fail
to pay any amount required to be paid pursuant to clause (e) or (f) of
this Section 2.10 on the due date therefor, such Revolving Credit
Lender shall pay interest to the Issuing Bank (through the Agent) on
such amount from and including such due date to but excluding the date
such payment is made at a rate per annum equal to the Federal Funds
Rate, provided that if such Revolving Credit Lender shall fail to make
such payment to the Issuing Bank within
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three Business Days of such due date, then, retroactively to the due
date, such Revolving Credit Lender shall be obligated to pay interest
on such amount at the Post-Default Rate.
(k) The issuance by the Issuing Bank of any modification or
supplement to any Letter of Credit hereunder shall be subject to the
same conditions applicable under this Section 2.10 to the issuance of
new Letters of Credit, and no such modification or supplement shall be
issued hereunder unless either (i) the respective Letter of Credit
affected thereby would have complied with such conditions had it
originally been issued hereunder in such modified or supplemented form
or (ii) each Revolving Credit Lender shall have consented thereto.
(l) The Borrower hereby indemnifies and holds harmless each
Revolving Credit Lender and the Agent from and against any and all
claims and damages, losses, liabilities, costs or expenses that such
Revolving Credit Lender or the Agent may incur (or that may be claimed
against such Revolving Credit Lender or the Agent by any Person
whatsoever) by reason of or in connection with the execution and
delivery or transfer of or payment or refusal to pay by the Issuing
Bank under any Letter of Credit; provided that the Borrower shall not
be required to indemnify any Revolving Credit Lender or the Agent for
any claims, damages, losses, liabilities, costs or expenses to the
extent, but only to the extent, caused by (x) the willful misconduct or
gross negligence of the Issuing Bank in determining whether a request
presented under any Letter of Credit complied with the terms of such
Letter of Credit or (y) in the case of the Issuing Bank, the Issuing
Bank's failure to pay under any Letter of Credit after the presentation
to it of a request strictly complying with the terms and conditions of
such Letter of Credit unless such payment was enjoined by court order.
Nothing in this Section 2.10 is intended to limit the other obligations
of the Borrower, any Revolving Credit Lender or the Agent under this
Agreement.
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans.
(a) The Borrower hereby promises to pay to the Agent for
account of each Revolving Credit Lender the entire outstanding principal amount
of such Revolving Credit Lender's Revolving Credit Loans, and each Revolving
Credit Loan shall mature, on the Revolving Credit Commitment Termination Date.
In addition, if the aggregate principal amount of the Revolving
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Credit Loans, together with the aggregate amount of all Letter of Credit
Liabilities, shall at any time exceed the Revolving Credit Commitments, the
Borrower shall, first, pay Revolving Credit Loans and, second, provide cover for
Letter of Credit Liabilities as specified in Section 2.09(f) above, in an
aggregate amount equal to such excess.
(b) The Borrower hereby promises to pay to the Agent for
account of each Tranche A Lender the principal of such Tranche A Lender's
Tranche A Term Loan in thirty installments payable on the Tranche A Principal
Payment Dates as follows:
Tranche A Principal Payment Date
falling on or nearest to: Amount of Installment ($)
------------------------ -------------------------
September 30, 1997 16,500,000
December 31, 1997 16,500,000
March 31, 1998 16,250,000
June 30, 1998 16,250,000
September 30, 1998 16,250,000
December 31, 1998 16,250,000
March 31, 1999 17,500,000
June 30, 1999 17,500,000
September 30, 1999 17,500,000
December 31, 1999 17,500,000
March 31, 2000 22,500,000
June 30, 2000 22,500,000
September 30, 2000 22,500,000
December 31, 2000 22,500,000
March 31, 2001 22,500,000
June 30, 2001 22,500,000
September 30, 2001 22,500,000
December 31, 2001 22,500,000
March 31, 2002 22,500,000
June 30, 2002 22,500,000
September 30, 2002 22,500,000
December 31, 2002 22,500,000
March 31, 2003 22,500,000
June 30, 2003 22,500,000
September 30, 2003 22,500,000
December 31, 2003 22,500,000
March 31, 2004 18,000,000
June 30, 2004 18,000,000
September 30, 2004 18,000,000
December 31, 2004 18,000,000
If the aggregate principal amount of the Tranche A Term Loans made on the
Restatement Effective Date, is less than $600,000,000, the shortfall shall be
applied to reduce the foregoing installments ratably.
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(c) The Borrower hereby promises to pay to the Agent for
account of each Tranche C Lender the principal of such Tranche C Lender's
Tranche C Term Loan in twenty-six installments payable on the Tranche C
Principal Payment Dates as follows:
Tranche C Principal Payment Date
falling on or nearest to: Amount of Installment ($)
------------------------ -------------------------
September 30, 1998 8,000,000
December 31, 1998 8,000,000
March 31, 1999 5,000,000
June 30, 1999 5,000,000
September 30, 1999 5,000,000
December 31, 1999 5,000,000
March 31, 2000 6,000,000
June 30, 2000 6,000,000
September 30, 2000 6,000,000
December 31, 2000 6,000,000
March 31, 2001 7,000,000
June 30, 2001 7,000,000
September 30, 2001 7,000,000
December 31, 2001 7,000,000
March 31, 2002 8,000,000
June 30, 2002 8,000,000
September 30, 2002 8,000,000
December 31, 2002 8,000,000
March 31, 2003 9,000,000
June 30, 2003 9,000,000
September 30, 2003 9,000,000
December 31, 2003 9,000,000
March 31, 2004 61,000,000
June 30, 2004 61,000,000
September 30, 2004 61,000,000
December 31, 2004 61,000,000
If the aggregate principal amount of the Tranche C Term Loans outstanding at the
close of business on the Tranche C Term Loan Commitment Termination Date is less
than $400,000,000, the shortfall shall be applied to reduce the foregoing
installments ratably.
3.02 Interest. The Borrower hereby promises to pay to the
Agent for account of each Lender interest on the unpaid principal amount of each
Loan made by such Lender for the period from and including the date of such Loan
to but excluding the date such Loan shall be paid in full, at the following
rates per annum:
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(a) during such periods as such Loan is a Base Rate Loan, the
Base Rate (as in effect from time to time) plus the Applicable Margin
and
(b) during such periods as such Loan is a Eurodollar Loan, for
each Interest Period relating thereto, the Eurodollar Rate for such
Loan for such Interest Period plus the Applicable Margin.
Notwithstanding the foregoing, during any period that a Post- Default Interest
Condition exists (whether or not the same is thereafter cured), the Borrower
hereby promises to pay to the Agent for account of each Lender interest at the
applicable Post-Default Rate on any principal of any Loan made by such Lender
(whether or not then due), on any Reimbursement Obligation owing to such Lender
and on any other amount then due and payable by the Borrower hereunder or under
the Note(s) (if any) held by such Lender. Accrued interest on each Loan shall be
payable (i) in the case of a Base Rate Loan, quarterly on the Quarterly Dates,
(ii) in the case of a Eurodollar Loan, on the last day of each Interest Period
therefor and, if such Interest Period is longer than three months, at
three-month intervals following the first day of such Interest Period, and (iii)
in the case of any Loan, upon the payment or prepayment thereof or the
Conversion of such Loan to a Loan of another Type (but only on the principal
amount so paid, prepaid or Converted), except that interest payable at the
Post-Default Rate shall be payable from time to time on demand. Promptly after
the determination of any interest rate provided for herein or any change
therein, the Agent shall give notice thereof to the Lenders to which such
interest is payable and to the Borrower.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01 Payments.
(a) Except to the extent otherwise provided herein, all
payments of principal, interest and other amounts to be made by the Borrower
under this Agreement and the Notes (if any), and, except to the extent otherwise
provided therein, all payments to be made by the Borrower under any other Basic
Document, shall be made in Dollars, in immediately available funds, without
deduction, set-off or counterclaim, to the Agent at an account designated by the
Agent, not later than 1:00 p.m. New York time on the date on which such payment
shall become due (each such payment made after such time on such due date to be
deemed to have been made on the next succeeding Business Day).
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(b) Any Lender for whose account any such payment is to be
made, may (but shall not be obligated to) debit the amount of any such payment
which is not made by such time to any ordinary deposit account of the Borrower
with such Lender (with notice to the Borrower).
(c) The Borrower shall, at the time of making each payment
under this Agreement or any Note, specify to the Agent (which shall so notify
the intended recipient(s) thereof) the Loans, Reimbursement Obligations or other
amounts payable by the Borrower hereunder to which such payment is to be applied
(and in the event that it fails to so specify, or if an Event of Default has
occurred and is continuing, the Agent may distribute such payment to the Lenders
for application in such manner as it or the Majority Lenders, subject to Section
4.02 hereof, may determine to be appropriate).
(d) Except to the extent otherwise provided in the last
sentence of Section 2.10(e) hereof, each payment received by the Agent under
this Agreement or any Note for account of any Lender shall be paid by the Agent
promptly to such Lender, in immediately available funds, for account of such
Lender's Applicable Lending Office for the Loan or other obligation in respect
of which such payment is made.
(e) If the due date of any payment under this Agreement or any
Note would otherwise fall on a day which is not a Business Day such date shall
be extended to the next succeeding Business Day and interest shall be payable
for any principal so extended for the period of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise
provided herein:
(a) each borrowing of Loans of a particular Class from the
Lenders under Section 2.01 hereof shall be made from the relevant
Lenders, each payment of commitment fee under Section 2.04 hereof in
respect of Commitments of a particular Class shall be made for account
of the relevant Lenders, and each termination or reduction of the
amount of the Commitments of a particular Class under Section 2.03
hereof shall be applied to the respective Commitments of such Class of
the relevant Lenders, pro rata according to the amounts of their
respective Commitments of such Class;
(b) except as otherwise provided in Section 5.04 hereof,
Eurodollar Loans of any Class having the same Interest Period shall be
allocated among the relevant Lenders pro rata according to amounts of
their respective Commitments of such Class (in the case of the making
of
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Loans) or their respective Loans of such Class (in the case of
Conversions and Continuations of Loans);
(c) each payment or prepayment by the Borrower of principal of
Loans of any Class shall be made for account of the relevant Lenders
pro rata in accordance with the respective unpaid principal amounts of
the Loans of such Class held by them, provided that if immediately
prior to giving effect to any such payment in respect of any Loans of
any Class the outstanding principal amount of the Loans of such Class
shall not be held by the Lenders pro rata according to the amounts of
their respective Commitments of such Class in effect at the time such
Loans were made (by reason of a failure of a Lender to make a Loan
hereunder in the circumstances described in the last paragraph of
Section 12.04 hereof), then such payment shall be applied to the Loans
of such Class in such manner as shall result, as nearly as is
practicable, in the outstanding principal amount of the Loans of such
Class being held by the relevant Lenders pro rata according to the
amounts of their respective Commitments of such Class; and
(d) each payment by the Borrower of interest on Loans of any
Class shall be made for account of the relevant Lenders pro rata
according to the amounts of interest on such Loans then due and payable
to the respective Lenders.
4.03 Computations. Interest on Eurodollar Loans and commitment
fee and letter of credit fees shall be computed on the basis of a year of 360
days and actual days elapsed (including the first day but, except as otherwise
provided in Section 2.10(g) hereof, excluding the last day) occurring in the
period for which payable and interest on Base Rate Loans and Reimbursement
Obligations shall be computed on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed (including the first day but excluding the
last day) occurring in the period for which payable. Notwithstanding the
foregoing, for each day that the Base Rate is calculated by reference to the
Federal Funds Rate, interest on Base Rate Loans and Reimbursement Obligations
shall be computed on the basis of a year of 360 days and actual days elapsed.
4.04 Minimum Amounts, Etc.
(a) Except for mandatory prepayments made pursuant to Section
2.09 hereof and Conversions or prepayments made pursuant to Section 5.04 hereof,
each borrowing, Conversion and partial prepayment of principal of Loans shall be
in an amount at least equal to $1,000,000 and in integral multiples of $100,000
in excess thereof (borrowings, Conversions or prepayments of or into
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Loans of different Types or, in the case of Eurodollar Loans, having different
Interest Periods at the same time hereunder to be deemed separate borrowings,
Conversions and prepayments for purposes of the foregoing, one for each Type or
Interest Period).
(b) Anything in this Agreement to the contrary
notwithstanding, the aggregate principal amount of Eurodollar Loans having the
same Interest Period shall be in an amount at least equal to $10,000,000 and in
integral multiples of $500,000 in excess thereof and, if any Eurodollar Loans
would otherwise be in a lesser principal amount for any period, such Loans shall
be Base Rate Loans during such period.
4.05 Certain Notices. Notices by the Borrower to the Agent of
terminations or reductions of the Commitments, of borrowings, Conversions,
Continuations and optional prepayments of Loans, and of Classes of Loans, of
Types of Loans and of the duration of Interest Periods shall be effective only
if received by the Agent not later than 10:00 a.m. New York time on the number
of Business Days prior to the date of the relevant termination, reduction,
borrowing, Conversion, Continuation or prepayment or the first day of such
Interest Period specified below:
Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of the Commitments 2
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans 1
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the amount and Class
of the Commitments to be terminated or reduced. Each such notice of borrowing,
Conversion, Continuation or optional prepayment shall specify the Class of Loans
to be borrowed, Converted, Continued or prepaid and the amount (subject to
Section 4.04(a) hereof) and Type of each Loan to be borrowed, Converted,
Continued or prepaid and the date of borrowing, Conversion, Continuation or
optional prepayment (which shall be a Business Day). Each such notice of the
duration of an Interest Period shall specify the Loans to which such Interest
Period is to relate. The Agent shall promptly notify the Lenders of the
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contents of each such notice. In the event that the Borrower fails to select the
Type of Loan, or the duration of any Interest Period for any Eurodollar Loan
within the time period and otherwise as provided in this Section 4.05, such Loan
(if outstanding as a Eurodollar Loan) will be automatically Converted into a
Base Rate Loan on the last day of the then current Interest Period for such Loan
or (if outstanding as a Base Rate Loan) will remain as, or (if not then
outstanding) will be made as, a Base Rate Loan. All notices referred to in this
Section 4.05 shall be irrevocable, except that notices of the prepayment in full
of the Loans and the termination of Commitments furnished in anticipation of a
refinancing thereof may be revoked through and including the date specified for
such prepayment and termination if such refinancing does not occur on such date.
4.06 Non-Receipt of Funds by the Agent. Unless the Agent shall
have been notified by a Lender or the Borrower (the "Payor") prior to the date
on which the Payor is to make payment to the Agent of (in the case of a Lender)
the proceeds of a Loan to be made by it hereunder or (in the case of the
Borrower) a payment to the Agent for account of one or more of the Lenders
hereunder (such payment being herein called the "Required Payment"), which
notice shall be effective upon receipt, that the Payor does not intend to make
the Required Payment to the Agent, the Agent may assume that the Required
Payment has been made and may, in reliance upon such assumption (but shall not
be required to), make the amount thereof available to the intended recipient(s)
on such date and, if the Payor has not in fact made the Required Payment to the
Agent, the recipient(s) of such payment shall, on demand, repay to the Agent the
amount so made available together with interest thereon in respect of each day
during the period commencing on the date (the "Advance Date") such amount was so
made available by the Agent until the date the Agent recovers such amount at a
rate per annum equal to the Federal Funds Rate for such day and, if such
recipient(s) shall fail promptly to make such payment, the Agent shall be
entitled to recover such amount, on demand, from the Payor, together with
interest as aforesaid, provided that if neither the recipient(s) nor the Payor
shall return the Required Payment to the Agent within three Business Days of the
Advance Date, then, retroactively to the Advance Date, the Payor and the
recipient(s) shall each be obligated to pay interest on the Required Payment as
follows:
(i) if the Required Payment shall represent a payment to be
made by the Borrower to the Lenders, the Borrower and the recipient(s)
shall each be obligated retroactively to the Advance Date to pay
interest in respect of the Required Payment at the Post-Default Rate
(without duplication of the
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obligation of the Borrower under Section 3.02 hereof to pay interest on
the Required Payment at the Post-Default Rate), it being understood
that the return by the recipient(s) of the Required Payment to the
Agent shall not limit such obligation of the Borrower under said
Section 3.02 to pay interest at the Post-Default Rate in respect of the
Required Payment, and
(ii) if the Required Payment shall represent proceeds of a Loan to
be made by the Lenders to the Borrower, the Payor and the Borrower
shall each be obligated retroactively to the Advance Date to pay
interest in respect of the Required Payment at whichever of the rates
of interest specified in Section 3.02 hereof is applicable to the Type
of such Loan, it being understood that the return by the Borrower of
the Required Payment to the Agent shall not limit any claim the
Borrower may have against the Payor in respect of such Required
Payment.
4.07 Sharing of Payments, Etc.
(a) Each Obligor agrees that, in addition to (and without
limitation of) any right of set-off, banker's lien or counterclaim a Lender may
otherwise have, each Lender shall be entitled, at its option (to the fullest
extent permitted by law), to set off and apply any deposit (general or special,
time or demand, provisional or final), or other indebtedness, held by it or any
of its affiliates for the credit or account of such Obligor at any of its
offices, in Dollars or in any other currency, against any principal of or
interest on any of such Lender's Loans, Reimbursement Obligations or any other
amount payable to such Lender hereunder, that is not paid when due (regardless
of whether such deposit or other indebtedness is then due to such Obligor), in
which case it shall promptly notify such Obligor and the Agent thereof, provided
that such Lender's failure to give such notice shall not affect the validity
thereof.
(b) If any Lender shall obtain from any Obligor payment of any
principal of or interest on any Loan of any Class or Reimbursement Obligation
owing to it or payment of any other amount under this Agreement or any Note held
by it or any other Basic Document through the exercise of any right of set-off,
banker's lien or counterclaim or similar right or otherwise (other than from the
Agent as provided herein), and, as a result of such payment, such Lender shall
have received a greater percentage of the principal of or interest on the Loans
of such Class or Reimbursement Obligations or such other amounts then due
hereunder or thereunder by such Obligor to such Lender than the percentage
received by any other Lenders, it shall promptly
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purchase from such other Lenders participations in (or, if and to the extent
specified by such Lender, direct interests in) the Loans of such Class or
Reimbursement Obligations or such other amounts, respectively, owing to such
other Lenders (or in interest due thereon, as the case may be) in such amounts,
and make such other adjustments from time to time as shall be equitable, to the
end that all the Lenders shall share the benefit of such excess payment (net of
any expenses which may be incurred by such Lender in obtaining or preserving
such excess payment) pro rata in accordance with the unpaid principal of and/or
interest on the Loans of such Class or such other amounts, respectively, owing
to each of the Lenders, provided that if at the time of such payment the
outstanding principal amount of the Loans of any Class shall not be held by the
Lenders pro rata in accordance with their respective relevant Commitments of
such Class in effect at the time such Loans were made (by reason of a failure of
a Lender to make a Loan hereunder in the circumstances described in the last
paragraph of Section 12.04 hereof), then such purchases of participations and/or
direct interests shall be made in such manner as will result, as nearly as is
practicable, in the outstanding principal amount of the Loans being held by the
Lenders pro rata according to the amounts of such Commitments. To such end all
the Lenders shall make appropriate adjustments among themselves (by the resale
of participations sold or otherwise) if such payment is rescinded or must
otherwise be restored.
(c) The Borrower agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights of set-off, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct holder of Loans or other amounts (as the case
may be) owing to such Lender in the amount of such participation (or direct
interest).
(d) Nothing contained herein shall require any Lender to
exercise any such right or shall affect the right of any Lender to exercise, and
retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of any Obligor. If, under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a set-off to which this Section 4.07 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this Section 4.07 to
share in the benefits of any recovery on such secured claim.
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Section 5. Yield Protection, Etc.
5.01 Additional Costs.
(a) The Borrower shall pay directly to each Lender from time
to time such amounts as such Lender may determine to be necessary to compensate
it for any costs which such Lender determines are attributable to its making or
maintaining of any Eurodollar Loans or its obligation to make any Eurodollar
Loans hereunder, or any reduction in any amount receivable by such Lender
hereunder in respect of any of such Loans or such obligation (such increases in
costs and reductions in amounts receivable being herein called "Additional
Costs"), resulting from any Regulatory Change which:
(i) shall subject any Lender (or its Applicable Lending Office
for any of such Loans) to any tax, duty or other charge in respect of
such Loans or its Note(s) (if any) or changes the basis of taxation of
any amounts payable to such Lender under this Agreement or its Note(s)
(if any) in respect of any of such Loans (excluding changes in the rate
of tax on the overall net income of such Lender or of its Applicable
Lending Office for any of such Loans by the jurisdiction in which such
Lender has its principal office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate for such Loan) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender (including any of such Loans or any
deposits referred to in the definition of "Eurodollar Base Rate" in
Section 1.01 hereof), or any commitment of such Lender (including the
Commitment of such Lender hereunder); or
(iii) imposes any other condition affecting this Agreement or its
Note(s) (if any) (or any of such extensions of credit or liabilities)
or its Commitment.
If any Lender requests compensation from the Borrower under this Section
5.01(a), the Borrower may, by notice to such Lender (with a copy to the Agent),
suspend the obligation of such Lender to make or Continue Eurodollar Loans, or
to Convert Base Rate Loans into Eurodollar Loans, until the Regulatory Change
giving rise to such request ceases to be in effect (in which case the provisions
of Section 5.04 hereof shall be applicable), provided that such suspension shall
not affect the right of such Lender to receive the compensation so requested.
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(b) Without limiting the effect of the provisions of paragraph
(a) of this Section 5.01, in the event that, by reason of any Regulatory Change,
any Lender either (i) incurs Additional Costs based on or measured by the excess
above a specified level of the amount of a category of deposits or other
liabilities of such Lender which includes deposits by reference to which the
interest rate on Eurodollar Loans is determined as provided in this Agreement or
a category of extensions of credit or other assets of such Lender which includes
Eurodollar Loans or (ii) becomes subject to restrictions on the amount of such a
category of liabilities or assets which it may hold, then, if such Lender so
elects by notice to the Borrower (with a copy to the Agent), the obligation of
such Lender to make or Continue, or to Convert Base Rate Loans into, Eurodollar
Loans hereunder shall be suspended until such Regulatory Change ceases to be in
effect (in which case the provisions of Section 5.04 hereof shall be
applicable).
(c) Without limiting the effect of the foregoing provisions of
this Section 5.01 (but without duplication), the Borrower shall pay directly to
each Lender from time to time on request such amounts as such Lender may
determine to be necessary to compensate such Lender (or, without duplication,
the bank holding company of which such Lender is a subsidiary) for any costs
which it determines are attributable to the maintenance by such Lender (or any
Applicable Lending Office or such bank holding company), pursuant to any law or
regulation or any interpretation, directive or request (whether or not having
the force of law and whether or not failure to comply therewith would be
unlawful) of any court or governmental or monetary authority (i) following any
Regulatory Change or (ii) implementing any risk-based capital guideline or
requirement (whether or not having the force of law and whether or not the
failure to comply therewith would be unlawful) heretofore or hereafter issued by
any government or governmental or supervisory authority implementing at the
national level the Basle Accord (including, without limitation, the Final
Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve
System (12 CFR Part 208, Appendix A; 12 CFR Part 225, Appendix A) and the Final
Risk-Based Capital Guidelines of the Office of the Comptroller of the Currency
(12 CFR Part 3, Appendix A)), of capital in respect of its Commitment or Loans
(such compensation to include, without limitation, an amount equal to any
reduction of the rate of return on assets or equity of such Lender (or any
Applicable Lending Office or such bank holding company) to a level below that
which such Lender (or any Applicable Lending Office or such bank holding
company) could have achieved but for such law, regulation, interpretation,
directive or request). For purposes of this Section 5.01(c) and Section 5.06
hereof, "Basle Accord" shall mean the proposals for risk-based capital framework
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described by the Basle Committee on Banking Regulations and Supervisory
Practices in its paper entitled "International Convergence of Capital
Measurement and Capital Standards" dated July 1988, as amended, modified and
supplemented and in effect from time to time or any replacement thereof.
(d) Each Lender shall notify the Borrower of any event
occurring after the date of this Agreement that will entitle such Lender to
compensation under paragraph (a) or (c) of this Section 5.01 as promptly as
practicable, but in any event within 45 days, after such Lender obtains actual
knowledge thereof; provided, that (i) if such Lender fails to give such notice
within 45 days after it obtains actual knowledge of such an event, such Lender
shall, with respect to compensation payable pursuant to this Section 5.01 in
respect of any costs resulting from such event, only be entitled to payment
under this Section 5.01 for costs incurred from and after the date 45 days prior
to the date that such Lender does give such notice and (ii) each Lender will
designate a different Applicable Lending Office for the Loans of such Lender
affected by such event if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole opinion of such
Lender, be disadvantageous to such Lender, except that such Lender shall have no
obligation to designate an Applicable Lending Office located in the United
States of America. Each Lender will furnish to the Borrower a certificate
setting forth the basis and amount of each request by such Lender for
compensation under paragraph (a) or (c) of this Section 5.01. Determinations and
allocations by any Lender for purposes of this Section 5.01 of the effect of any
Regulatory Change pursuant to paragraph (a) or (b) of this Section 5.01, or of
the effect of capital maintained pursuant to paragraph (c) of this Section 5.01,
on its costs or rate of return of maintaining Loans or its obligation to make
Loans, or on amounts receivable by it in respect of Loans, and of the amounts
required to compensate such Lender under this Section 5.01, shall be conclusive,
provided that such determinations and allocations are made on a reasonable
basis.
5.02 Limitation on Types of Loans. Anything herein to the
contrary notwithstanding, if, on or prior to the determination of any Eurodollar
Base Rate for any Interest Period:
(a) the Agent determines, which determination shall be
conclusive, that quotations of interest rates for the relevant deposits
referred to in the definition of "Eurodollar Base Rate" in Section 1.01
hereof are not being provided in the relevant amounts or for the
relevant
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maturities for purposes of determining rates of interest for
Eurodollar Loans as provided herein; or
(b) with respect to Loans of any Class, the Majority Revolving
Credit Lenders, the Majority Tranche A Lenders or the Majority Tranche
C Lenders, as the case may be, determine, which determination shall be
conclusive, and notify the Agent that the relevant rates of interest
referred to in the definition of "Eurodollar Base Rate" in Section 1.01
hereof upon the basis of which the rate of interest for Eurodollar
Loans of such Class for such Interest Period is to be determined are
not likely adequately to cover the cost to such Lenders of making or
maintaining Eurodollar Loans for such Interest Period;
then the Agent shall give the Borrower and each Lender prompt notice thereof,
and so long as such condition remains in effect, the Lenders shall be under no
obligation to make additional Eurodollar Loans, to Continue Eurodollar Loans or
to Convert Base Rate Loans into Eurodollar Loans and the Borrower shall, on the
last day(s) of the then current Interest Period(s) for the outstanding
Eurodollar Loans, either prepay such Loans or Convert such Loans into Base Rate
Loans in accordance with Section 2.08 hereof.
5.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain Eurodollar
Loans hereunder (and, in the sole opinion of such Lender, the designation of a
different Applicable Lending Office would either not avoid such unlawfulness or
would be disadvantageous to such Lender), then such Lender shall promptly notify
the Borrower thereof (with a copy to the Agent) and such Lender's obligation to
make or Continue, or to Convert Loans of any other Type into, Eurodollar Loans
shall be suspended until such time as such Lender may again make and maintain
Eurodollar Loans (in which case the provisions of Section 5.04 hereof shall be
applicable).
5.04 Treatment of Affected Loans. If the obligation of any
Lender to make Eurodollar Loans or to Continue, or to Convert Base Rate Loans
into, Eurodollar Loans shall be suspended pursuant to Section 5.01 or 5.03
hereof, such Lender's Eurodollar Loans shall be automatically Converted into
Base Rate Loans on the last day(s) of the then current Interest Period(s) for
Eurodollar Loans (or, in the case of a Conversion required by Section 5.01(b) or
5.03 hereof, on such earlier date as such Lender may specify to the Borrower
with a copy to the Agent) and, unless and until such Lender gives notice as
provided below that
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the circumstances specified in Section 5.01 or 5.03 hereof which gave rise to
such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have
been so Converted, all payments and prepayments of principal which
would otherwise be applied to such Lender's Eurodollar Loans shall be
applied instead to its Base Rate Loans; and
(b) all Loans which would otherwise be made or Continued by
such Lender as Eurodollar Loans shall be made or Continued instead as
Base Rate Loans and all Base Rate Loans of such Lender which would
otherwise be Converted into Eurodollar Loans shall remain as Base Rate
Loans.
If such Lender gives notice to the Borrower with a copy to the Agent that the
circumstances specified in Section 5.01 or 5.03 hereof which gave rise to the
Conversion of such Lender's Eurodollar Loans pursuant to this Section 5.04 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Loans of the same Class made by
other Lenders are outstanding, such Lender's Base Rate Loans of such Class shall
be automatically Converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Eurodollar Loans, to the extent necessary so
that, after giving effect thereto, all Loans of such Class are allocated among
the Lenders pro rata (as to principal amounts, Types and Interest Periods) in
accordance with their respective Commitments.
5.05 Compensation. The Borrower shall pay to the Agent for
account of each Lender, upon the request of such Lender through the Agent, such
amount or amounts as shall be sufficient (in the reasonable opinion of such
Lender) to compensate it for any loss, cost or expense which such Lender
determines is attributable to:
(a) any payment, mandatory or optional prepayment or
Conversion of a Eurodollar Loan made by such Lender for any reason
(including, without limitation, the acceleration of the Loans pursuant
to Section 10 hereof) on a date other than the last day of the Interest
Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any of the conditions precedent
specified in Section 7 hereof to be satisfied) to borrow a Eurodollar
Loan from such Lender on the date for such borrowing specified in the
relevant notice of borrowing given pursuant to Section 2.02 hereof.
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Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
which otherwise would have accrued on the principal amount so paid, prepaid or
Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan which would have commenced on the date specified
for such borrowing) at the Eurodollar Rate for such Loan for such Interest
Period over (ii) the amount of interest which otherwise would have accrued on
such principal amount at a rate per annum equal to the interest component of the
amount such Lender would have bid in the London interbank market for Dollar
deposits of leading banks in amounts comparable to such principal amount and
with maturities comparable to such period (as reasonably determined by such
Lender).
5.06 Additional Costs in Respect of Letters of Credit. Without
limiting the obligations of the Borrower under Section 5.01 hereof (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any government
or governmental or supervisory authority implementing at the national level the
Basle Accord there shall be imposed, modified or deemed applicable any tax,
reserve, special deposit, capital adequacy or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder and the result shall be to increase the cost to any Lender or
Lenders of issuing (or purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any Letter of
Credit hereunder or reduce any amount receivable by any Lender hereunder in
respect of any Letter of Credit (which increases in cost, or reductions in
amount receivable, shall be the result of such Lender's or Lenders' reasonable
allocation of the aggregate of such increases or reductions resulting from such
event), then, upon demand by such Lender or Lenders (through the Agent), the
Borrower shall pay immediately to the Agent for account of such Lender or
Lenders, from time to time as specified by such Lender or Lenders (through the
Agent), such additional amounts as shall be sufficient to compensate such Lender
or Lenders (through the Agent) for such increased costs or reductions in amount.
A statement as to such increased costs or reductions in amount incurred by any
such Lender or Lenders, submitted by such Lender or Lenders to the Borrower
shall be conclusive in the absence of manifest error as to the amount thereof.
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5.07 U.S. Taxes.
(a) The Borrower agrees to pay to each Lender that is not a
U.S. Person such additional amounts as are necessary in order that the net
payment of any amount due to such non-U.S. Person hereunder after deduction for
or withholding in respect of any U.S. Tax imposed with respect to such payment
(or in lieu thereof, payment of such U.S. Tax by such non-U.S. Person), will not
be less than the amount stated herein to be then due and payable, provided that
the foregoing obligation to pay such additional amounts shall not apply:
(i) to any payment to a Lender hereunder (other than in respect of
a Registered Loan) unless such Lender is, on the date hereof (or on the
date it becomes a Lender as provided in Section 12.06(b) hereof) and on
the date of any change in the Applicable Lending Office of such Lender,
delivers to the Borrower and the Agent a duly completed and executed
Form 1001 (relating to such Lender and entitling it to a complete
exemption from withholding on all interest to be received by it
hereunder in respect of the Loans) or Form 4224 (relating to all
interest to be received by such Lender hereunder in respect of the
Loans), or
(ii) to any payment to any Lender hereunder in respect of a
Registered Loan (a "Registered Holder"), unless such Registered Holder
(or, if such Registered Holder is not the beneficial owner of such
Registered Loan, the beneficial owner thereof), on the date hereof (or
on the date such Registered Holder becomes a Lender as provided in
Section 12.06(b) hereof) and on the date of any change in the
Applicable Lending Office of such Lender, delivers to the Borrower and
the Agent either (x) a duly completed and executed Form W-8, together
with an annual certificate stating that (A) such Registered Holder (or
beneficial owner, as the case may be) is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code, and (B) such Registered
Holder (or beneficial owner, as the case may be) shall promptly notify
the Borrower if at any time, such Registered Holder (or beneficial
owner, as the case may be) determines that it is no longer in a
position to provide such certificate to the Borrower (or any other form
of certification adopted by the relevant taxing authorities of the
United States of America for such purposes), or (y) if such Registered
Holder is not entitled to deliver a Form W-8, a duly executed and
completed Form 1001 or Form 4224, or
(iii) to any U.S. Tax imposed solely by reason of the failure by
such non-U.S. Person to comply with applicable
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certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity or
connections with the United States of America of such non-U.S. Person
if such compliance is required by statute or regulation of the United
States of America as a precondition to relief or exemption from such
U.S. Tax.
For the purposes of this Section 5.07(a), (w) "Form 1001" shall mean Form 1001
(Ownership, Exemption, or Reduced Rate Certificate) of the Department of the
Treasury of the United States of America, (x) "Form 4224" shall mean Form 4224
(Exemption from Withholding of Tax on Income Effectively Connected with the
Conduct of a Trade or Business in the United States) of the Department of the
Treasury of the United States of America (or in relation to either such Form
such successor and related forms as may from time to time be adopted by the
relevant taxing authorities of the United States of America to document a such
Form relates), (y) "Form W-8" shall mean Form W-8 (Certificate of Foreign Status
of the Department of Treasury of the United States of America) and (z) "U.S.
Taxes" shall mean any present or future tax, assessment or other charge or levy
imposed by or on behalf of the United States of America or any taxing authority
thereof or therein.
(b) Within 30 days after paying any amount to the Agent or any
Lender from which it is required by law to make any deduction or withholding,
and within 30 days after it is required by law to remit such deduction or
withholding to any relevant taxing or other authority, the Borrower shall
deliver to the Agent for delivery to such non-U.S. Person evidence satisfactory
to such Person of such deduction, withholding or payment (as the case may be).
5.08 Replacement of Lenders. The Borrower may, at any time,
replace (a) any Lender that has requested compensation from the Borrower
pursuant to Section 5.01 or Section 5.07 hereof, (b) any Lender that fails to
make a Loan or to pay to the Agent for the account of the Issuing Bank the
amount of such Lender's Revolving Credit Commitment Percentage of any payment
under a Letter of Credit under the circumstances contemplated by Section 12.04
hereof or (c) any Lender that does not agree to any request by the Borrower for
a consent, approval, amendment or a waiver hereunder that requires the consent
or approval of all of the Lenders, by giving not less than ten Business Days'
prior notice to the Agent (which shall promptly notify such Lender), that it
intends to replace such Lender (a "Replaced Lender") with respect to its rights
and obligations (including, without limitation, its Loans and Letter of Credit
Interest outstanding and its Commitments) as a "Lender" under this Agreement and
such Replaced Lender's Notes (if any) (collectively, the "Transferred
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Interest") with one or more banks or other financial institutions (including,
but not limited to, any other Lender or an affiliate of any Lender) selected by
the Borrower and acceptable to the Agent and the Issuing Bank (each, a
"Replacement Lender"). Upon the effective date of any replacement under this
Section 5.08 (and as a condition thereto), (i) the Borrower shall pay or cause
to paid to the Replaced Lender an amount equal to all principal, interest, fees
and other amounts (including, without limitation, all amounts payable under
Section 5.05 hereof as if such Lender's Loans were being prepaid in full on such
effective date) then owing to such Replaced Lender hereunder and such Replaced
Lender's Notes (if any) in respect of the Transferred Interest (all or a portion
of which amount may constitute consideration for an assignment by such Replaced
Lender of all or a portion of the Transferred Interest) and (ii) such Replaced
Lender shall assign to each Replacement Lender (without representation, warranty
or recourse whatsoever) a portion of the Transferred Interest specified by the
Borrower, whereupon (x) each Replacement Lender shall become a "Lender" for all
purposes of this Agreement having the Commitments in the amount of such Replaced
Lender's Commitments assumed by it and all of the rights and obligations under
this Agreement of "Lender(s)" holding the Transferred Interest and (y) such
Replaced Lender shall cease to be responsible or liable for, and shall cease to
be entitled to the rights and benefits of, all or any portion of the Transferred
Interest (except that such Replaced Lender shall continue to benefit from the
obligations of the Borrower to such Replaced Lender under Sections 2.10(g),
2.10(l), 5.01, 5.05, 5.06, 5.07, 12.03 and 12.13 hereof and the obligations of
the Subsidiary Guarantors to such Replaced Lender under Section 6.03 hereof, and
the obligations of such Replaced Lender under Section 11.05 hereof shall survive
such replacement, in each case to the extent relating to events or circumstances
that occurred or existed on or before the date of such replacement).
Section 6. Guarantee.
6.01 Guarantee. The Subsidiary Guarantors hereby jointly and
severally guarantee to each Lender, each Affiliate of any Lender and the Agent
and their respective successors and assigns the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the principal of
and interest (whether or not allowable as a claim in a bankruptcy case of which
the Borrower is the subject) on the Loans made by the Lenders to, and the
Note(s) (if any) held by each Lender of, the Borrower, all Reimbursement
Obligations and all other amounts from time to time owing to the Lenders or the
Agent by the Borrower under this Agreement and under the Notes (if any), and
under any Hedging Agreements and by any Credit Party under any of the other
Basic Documents, in each case strictly in accordance
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with the terms thereof (such obligations being herein collectively called the
"Guaranteed Obligations"). The Subsidiary Guarantors hereby further jointly and
severally agree that if the Borrower shall fail to pay in full when due (whether
at stated maturity, by acceleration or otherwise) any of the Guaranteed
Obligations, the Subsidiary Guarantors will promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Guaranteed Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
6.02 Obligations Unconditional. The obligations of the
Subsidiary Guarantors under Section 6.01 hereof are absolute and unconditional,
joint and several, irrespective of the value, genuineness, validity, regularity
or enforceability of the obligations of the Borrower under this Agreement, the
Notes (if any) or any other agreement or instrument referred to herein or
therein, or any substitution, release or exchange of any other guarantee of or
security for any of the Guaranteed Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this Section 6.02 that the
obligations of the Subsidiary Guarantors hereunder shall be absolute and
unconditional, joint and several, under any and all circumstances. Without
limiting the generality of the foregoing, it is agreed that the occurrence of
any one or more of the following shall not affect the liability of the
Subsidiary Guarantors hereunder which shall remain absolute and unconditional as
described above:
(i) at any time or from time to time, without notice to the
Subsidiary Guarantors, the time for any performance of or compliance
with any of the Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or the Notes (if any), or any other agreement or instrument
referred to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this
Agreement or the Notes (if any), or any other agreement or instrument
referred to herein or therein shall be waived or any other guarantee of
any of the
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Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with;
(iv) any lien or security interest granted to, or in favor of, the
Agent or any Lender or Lenders as security for any of the Guaranteed
Obligations shall fail to be perfected;
(v) any of the Guaranteed Obligations shall be determined to be
void or voidable (including, without limitation, for the benefit of
any creditor of any Credit Party) or shall be subordinated to the
claims of any Person (including, without limitation, any creditor of
any Credit Party);
(vi) the Borrower shall be insolvent on the date hereof or shall
become insolvent on the date that any Loan is made; and
(vii) the execution and delivery of a Tranche C Term Loan
Activation Notice providing for the activation of Tranche C Term Loan
Commitments in any amount.
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Agent or any Lender exhaust any right, power or remedy or proceed against the
Borrower under this Agreement or the Notes (if any), or any other agreement or
instrument referred to herein or therein, or against any other Person under any
other guarantee of, or security for, any of the Guaranteed Obligations.
6.03 Reinstatement. The obligations of the Subsidiary
Guarantors under this Section 6 shall be automatically reinstated if and to the
extent that for any reason any payment by or on behalf of the Borrower in
respect of the Guaranteed Obligations is rescinded or must be otherwise restored
by any holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise and the Subsidiary
Guarantors jointly and severally agree that they will indemnify the Agent and
each Lender on demand for all reasonable costs and expenses (including, without
limitation, fees of counsel) incurred by the Agent or such Lender in connection
with such rescission or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
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6.04 Subrogation. The Subsidiary Guarantors hereby jointly and
severally agree that until the payment and satisfaction in full of all
Guaranteed Obligations and the expiration and termination of the Commitments of
the Lenders under this Agreement they shall not exercise any right or remedy
arising by reason of any performance by them of their guarantee in Section 6.01
hereof, whether by subrogation or otherwise, against the Borrower or any other
guarantor of any of the Guaranteed Obligations or any security for any of the
Guaranteed Obligations.
6.05 Remedies. The Subsidiary Guarantors jointly and severally
agree that, as between the Subsidiary Guarantors, on the one hand, and the
Lenders and the Agent, on the other hand, the obligations of the Borrower under
this Agreement and the Notes (if any), may be declared to be forthwith due and
payable as provided in Section 10 hereof (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section 10)
for purposes of Section 6.01 hereof notwithstanding any stay, injunction or
other prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against the Borrower and that, in the event of
such declaration (or such obligations being deemed to have become automatically
due and payable), such obligations (whether or not due and payable by the
Borrower) shall forthwith become due and payable by the Subsidiary Guarantors
for purposes of said Section 6.01.
6.06 Continuing Guarantee. The guarantee in this Section 6 is
a continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
6.07 Rights of Contribution. The Subsidiary Guarantors hereby
agree, as between themselves, that if any Subsidiary Guarantor (an "Excess
Funding Guarantor") shall pay Guaranteed Obligations in excess of the Excess
Funding Guarantor's Pro Rata Share (as hereinafter defined) of such Guaranteed
Obligations, the other Subsidiary Guarantors shall, on demand (but subject to
the next sentence hereof), pay to the Excess Funding Guarantor an amount equal
to their respective Pro Rata Shares of such Excess Funding Guarantor's payment.
The payment obligation of any Subsidiary Guarantor to any Excess Funding
Guarantor under this Section 6.07 shall be subordinate and subject in right of
payment to the prior payment in full of the obligations of such Subsidiary
Guarantor under the other provisions of this Section 6 and such Excess Funding
Guarantor shall not exercise any right or remedy with respect to such excess
until payment and satisfaction in full of all of such obligations. For the
purposes hereof, "Pro Rata Share" shall mean, for any Subsidiary Guarantor, a
percentage equal to the
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percentage of such Subsidiary Guarantor's Net Assets as of the Valuation Date
(as defined in the next sentence) of the aggregate Net Assets of all of the
Subsidiary Guarantors as at such date. For purposes of the preceding sentence,
the "Valuation Date" shall mean the date hereof; provided that, if the Agent
requests from time to time that the Subsidiary Guarantors ratify and confirm
their respective obligations under this Section 6, they shall promptly do so
pursuant to an instrument reasonably satisfactory to the Agent and the Valuation
Date shall mean the date of the latest such ratification and confirmation to
occur at the request of the Agent after the date hereof.
6.08 Limitation on Guarantee Obligations. In any action or
proceeding involving any State corporate law, or any State or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor under
Section 6.01 hereof would otherwise, taking into account the provisions of
Section 6.07 hereof, be held or determined to be void, invalid or unenforceable,
or subordinated to the claims of any other creditors, on account of the amount
of its liability under said Section 6.01, then, notwithstanding any other
provision hereof to the contrary, the amount of such liability shall, without
any further action by such Subsidiary Guarantor, as the case may be, any Lender,
the Agent or any other Person, be automatically limited and reduced to the
highest amount which is valid and enforceable and not subordinated to the claims
of other creditors as determined in such action or proceeding.
6.09 Instrument for the Payment of Money. Each Subsidiary
Guarantor hereby acknowledges that the guarantee in this Section 6 constitutes
an instrument for the payment of money, and consents and agrees that any Lender
or the Agent, at its sole option, in the event of a dispute by such Subsidiary
Guarantor in the payment of any moneys due hereunder, shall have the right to
bring motion-action under New York CPLR Section 3213.
Section 7. Conditions Precedent.
7.01 Effectiveness of this Agreement. The effectiveness of the
amendment and restatement of the Existing Credit Agreement provided for hereby
is subject to (i) the execution and delivery of an execution counterpart of this
Agreement by each Person stated to be a party to this Agreement and (ii) the
receipt by the Agent of the following documents and evidence, each of which
documents (and, in the case of certificates containing attachments, such
attachments) and all of which evidence shall, except as expressly specified
below, be satisfactory in form and substance to the Agent and, to the
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extent specified below, to each Lender (provided that, if such conditions
precedent shall not have been satisfied on or before June 30, 1997, this
Amendment and Restatement shall have no force or effect, regardless of whether
such conditions precedent are thereafter satisfied):
(a) Authority. The following evidence and documents, each of
which documents shall be certified as indicated below:
(i) (x) a copy of the charter, as amended, of each Credit
Party that is a corporation and each general partner of each
Credit Party that is a partnership (each such Credit Party and
general partner being referred to as a "Relevant Corporation")
certified by the Secretary of State of its jurisdiction of
incorporation, (y) a certificate as to the good standing of
and charter documents filed by such Relevant Corporation from
such Secretary of State, dated as of a recent date and (z) a
certificate as to the good standing or qualification to do
business of such Relevant Corporation from each jurisdiction
in which the nature of the business conducted by such Relevant
Corporation makes such qualification necessary and where
failure so to qualify would have a Material Adverse Effect;
(ii) a certificate of the Secretary or an Assistant
Secretary of each Relevant Corporation, dated the Restatement
Effective Date and certifying (w) that attached thereto is a
true and complete copy of the by-laws of such Relevant
Corporation as in effect on the date of such certificate, (x)
that attached thereto is a true and complete copy of
resolutions duly adopted by the board of directors of such
Relevant Corporation authorizing the execution, delivery and
performance of such of the Basic Documents to which such
Relevant Corporation and/or the partnership of which such
Relevant Corporation is a general partner, as the case may be,
is or is intended to be a party and the extensions of credit
hereunder, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect, (y)
that the charter of such Relevant Corporation has not been
amended since the date of the certification thereto furnished
pursuant to clause (i) above, and (z) as to the incumbency and
specimen signature of each officer of such Relevant
Corporation executing such of the Basic Documents to which
such Relevant Corporation and/or the partnership of which such
Relevant
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Corporation is a general partner, as the case may be, is
intended to be a party and each other document to be delivered
by such Relevant Corporation and/or the partnership of which
such Relevant Corporation is a general partner, as the case
may be, from time to time in connection therewith (and the
Agent and each Lender may conclusively rely on such
certificate until it receives notice in writing from such
Relevant Corporation);
(iii) a certificate of another officer of each Relevant
Corporation as to the incumbency and specimen signature of the
Secretary or Assistant Secretary, as the case may be, of such
Relevant Corporation; and
(iv) a certificate of the Secretary or an Assistant
Secretary of each general partner of each Credit Party that is
a partnership, dated the Effective Date, and certifying (x) as
to the names of all of the Persons that are partners in such
partnership and (y) that attached thereto is a true and
complete copy of the partnership agreement forming such
partnership as in effect on the date of such certificate.
In lieu of any of the evidence or documents referred to in the
foregoing provisions of this Section 7.01(a) (other than Section
7.01(a)(ii)(x)) heretofore furnished to the Agent under the Existing
Credit Agreement, the Borrower may furnish or cause to be furnished to
the Agent a certificate of the Secretary or any Assistant Secretary of
the Relevant Corporation to the effect that such evidence or documents
have not been modified since the respective dates they were so
furnished and that they remain in full force and effect on the
Restatement Effective Date.
(b) Officer's Certificate. A certificate of a senior officer
of the Borrower to the effect set forth in clauses (a) and (b) of the
first sentence of Section 7.02 hereof (excluding references to
representations and warranties under the Founders Subordination
Agreement) and including calculations demonstrating in reasonable
detail compliance with Section 1008(a) of the 1995 Senior Subordinated
Note Indenture and Section 1008(a) of the 1993 Senior Subordinated Note
Indenture after giving effect to the borrowings and prepayments
hereunder to be made on the Restatement Effective Date.
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(c) Opinions of Counsel.
(i) Opinion of Counsel to the Obligors. An opinion of
Thomas & Libowitz, P.A., counsel to the Obligors.
(ii) Opinion of Counsel to Chase. An opinion of
Milbank, Tweed, Hadley & McCloy, special New York counsel to
Chase.
(d) Notes. Duly completed and executed Notes for each Lender
requesting such Notes pursuant to Section 2.07.
(e) Affiliate Guarantee. The Affiliate Guarantee, duly
executed and delivered by KIG, Cunningham, GDLP and the Agent.
(f) Amendment to Security Agreement. The Amendment to Security
Agreement, duly executed and delivered by each Obligor and the Agent.
(g) Amendment to GDC Security Agreement. The Amendment to GDC
Security Agreement, duly executed and delivered by GDC and the Agent.
(h) Interest, Fees and Expenses under Existing Credit
Agreement. Evidence that the Borrower shall have paid to the Agent all
accrued and unpaid interest, fees and expenses owing by the Borrower
under the Existing Credit Agreement.
(i) Program Services Agreements. A certificate of a senior
financial officer of the Borrower certifying that (i) attached thereto
are true and complete copies (including all modifications and
supplements) of each Program Services Agreement to which the Borrower
of any of its Subsidiaries is a party on the Restatement Effective Date
(other than Program Services Agreements heretofore furnished to the
Agent under the Existing Credit Agreement that have not been modified
since the respective dates that they were so furnished ("Previously
Furnished Program Services Agreements")), (ii) attached thereto is a
list of all Previously Furnished Program Services Agreements to which
the Borrower or any of its Subsidiaries is a party on the Restatement
Effective Date and (iii) each such Program Services Agreement so
attached or so listed is in full force and effect.
(j) Network Affiliations. A certificate of a senior financial
officer of the Borrower certifying that (i) for each Station that is an
Owned Station on the Restatement
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Effective Date, the Borrower or any of its Subsidiaries has entered
into a network affiliation agreement with Fox Broadcasting Company or
the United Paramount Network (or other network satisfactory to the
Agent) for the carriage of programming over the facilities of such
Station, (ii) attached thereto are true and complete copies (including
all modifications and supplements) of each such network affiliation
agreement to which the Borrower or any of its Subsidiaries is a party
on the Restatement Effective Date (other than network affiliation
agreements heretofore furnished to the Agent under the Existing Credit
Agreement that have not been modified since the respective dates that
they were so furnished ("Previously Furnished Network Affiliation
Agreements")), (iii) attached thereto is a list of all Previously
Furnished Network Affiliation Agreements to which the Borrower of any
of its Subsidiaries is a party on the Restatement Effective Date and
(iv) each such network affiliation agreement so attached or so listed
is in full force and effect.
(k) Asset Use and Operating Agreements. A certificate of a
senior financial officer of the Borrower certifying that (i) the
Borrower or Subsidiary operating each Owned Station and the respective
License Subsidiary have executed and delivered an Asset Use and
Operating Agreement with respect to such Owned Station, (ii) attached
thereto are true and complete copies (including all modifications and
supplements) of each Asset Use and Operating Agreement to which the
Borrower of any of its Subsidiaries is a party on the Restatement
Effective Date (other than Asset Use and Operating Agreements
heretofore furnished to the Agent under the Existing Credit Agreement
that have not been modified since the respective dates that they were
so furnished ("Previously Furnished Asset Use and Operating
Agreements")), (iii) attached thereto is a list of all Previously
Furnished Asset Use and Operating Agreements to which the Borrower or
any of its Subsidiaries is a party on the Restatement Effective Date
and (iv) each such Asset Use and Operating Agreement so attached or so
listed is in full force and effect.
(l) Solvency Analysis. A certificate of a senior financial
officer of the Borrower certifying that, as of the Restatement
Effective Date and after giving effect to the initial extension of
credit hereunder and to the other transactions contemplated hereby, (i)
the aggregate value of all Properties of the Borrower and its
Subsidiaries at their present fair saleable value (i.e., the amount
which may be realized within a reasonable time, considered to be six to
eighteen months, either through collection or sale at the
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regular market value, conceiving the latter as the amount which could
be obtained for the Property in question within such period by a
capable and diligent businessman from an interested buyer who is
willing to purchase under ordinary selling conditions), exceeds the
amount of all the debts and liabilities (including contingent,
subordinated, unmatured and unliquidated liabilities) of the Borrower
and its Subsidiaries, (ii) the Borrower and its Subsidiaries will not,
on a consolidated basis, have an unreasonably small capital with which
to conduct their business operations as heretofore conducted and (iii)
the Borrower and its Subsidiaries will have, on a consolidated basis,
sufficient cash flow to enable them to pay their debts as they mature.
(m) Insurance.
(i) Certificates of insurance evidencing the
existence of all insurance required to be maintained by the
Borrower and its Subsidiaries pursuant to Section 9.04 hereof
and the designation of the Agent as the loss payee, or
additional insured, as appropriate, thereunder to the extent
required by said Section 9.04 in respect of all insurance
covering tangible Property, such certificates to be in such
form and contain such information as is specified in said
Section 9.04;
(ii) A certificate of a senior financial officer of the
Borrower setting forth the insurance obtained by it in
accordance with the requirements of Section 9.04 and stating
that such insurance is in full force and effect and that all
premiums then due and payable thereon have been paid; and
(iii) a written report, dated reasonably near the
Restatement Effective Date, of Maury Donnelly & Parr, or any
other firm of independent insurance brokers of nationally
recognized standing, as to such insurance and stating that, in
their opinion, such insurance adequately protects the
interests of the Agent and the Lenders, is in compliance with
the provisions of said Section 9.04, and is comparable in all
respects with insurance carried by responsible owners and
operators of Properties similar to those covered or
contemplated to be covered by the Mortgages.
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(n) Amendment to Founders Subordination Agreement. The
Amendment to Founders Subordination Agreement, duly executed and
delivered by Carolyn C. Smith and the Agent.
(o) Other Documents. Such other documents as the Agent or any
Lender or special New York counsel to Chase may reasonably request.
The obligation of any Lender to make its initial extension of credit hereunder
is also subject to the payment by the Borrower of such fees as the Borrower
shall have agreed to pay or deliver to any Lender or the Agent in connection
herewith, including, without limitation, the reasonable fees and expenses of
Milbank, Tweed, Hadley & McCloy, special New York counsel to Chase, in
connection with the negotiation, preparation, execution and delivery of this
Agreement and the other Basic Documents and the making of the Loans hereunder
(to the extent that bills for such fees and expenses have been delivered to the
Borrower).
7.02 Initial and Subsequent Loans. The obligation of the
Lenders to make any Loan to the Borrower upon the occasion of each borrowing
hereunder (including the borrowing on the Restatement Effective Date), and the
obligation of the Issuing Bank to issue any Letter of Credit hereunder, is
subject to the conditions precedent that, both immediately prior to the making
of such Loan or issuance of such Letter of Credit and also after giving effect
thereto:
(a) no Default shall have occurred and be continuing;
(b) the representations and warranties made by the Borrower in
Section 8 hereof, and by each Credit Party and Carolyn C. Smith in each
of the other Basic Documents to which such Person is a party, shall be
true and complete on and as of the date of the making of such Loan or
issuance of such Letter of Credit with the same force and effect as if
made on and as of such date (or, if any such representation and
warranty is expressly stated to have been made as of a specific date,
as of such specific date); and
(c) the Borrower shall be in compliance with the terms and
conditions of each Senior Subordinated Note Indenture.
Each notice of borrowing by the Borrower or request for a Letter of Credit
hereunder shall constitute a certification by the Borrower to the effect set
forth in the preceding sentence (both as of the date of such notice or request
and, unless the Borrower otherwise notifies the Agent prior to the date of such
borrowing or issuance, as of the date of such borrowing or issuance) and, in the
case of any borrowing of any Revolving Credit Loan or
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request for any Letter of Credit, shall include calculations demonstrating in
reasonable detail, and, if requested by the Agent, a certificate from (i) the
trustee under the 1995 Senior Subordinated Note Indenture confirming compliance
with Section 1008(a) of the Senior Subordinated Note and (ii) the trustee under
the 1993 Senior Subordinated Note Indenture confirming compliance with Section
1008(a) of the 1993 Senior Subordinated Note Indenture, in the case of each of
the foregoing clauses (i) and (ii) after giving effect to such borrowing or the
issuance of such Letter of Credit. If the Majority Revolving Credit Lenders, the
Majority Tranche A Lenders or the Majority Tranche C Lenders, as the case may
be, notify the Agent prior to the proceeds of such borrowing being made
available to the Borrower or prior to the issuance of such Letter of Credit (as
the case may be) that there is a reasonable basis to doubt the accuracy of the
calculations referred to in the preceding sentence, such borrowing or such
issuance (as the case may be) shall not occur.
Section 8. Representations and Warranties. The Obligors
represent and warrant to the Lenders and the Agent that:
8.01 Corporate Existence. Each of the Borrower and its
Subsidiaries: (a) is a corporation, partnership or other entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization; (b) has all requisite corporate or other power, and has all
material governmental licenses, authorizations, consents and approvals necessary
to own its assets and carry on its business as now being or as proposed to be
conducted; and (c) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify would have a Material
Adverse Effect.
8.02 Financial Condition. The Borrower has heretofore
furnished to each of the Lenders consolidated and consolidating balance sheets
of the Borrower and its Consolidated Subsidiaries as at December 31, 1996 and
the related consolidated and consolidating statements of income, retained
earnings and changes in financial position (or of cash flow, as the case may be)
of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on
said date, with the opinion thereon (in the case of said consolidated balance
sheet and statements) of Arthur Andersen & Company. All such financial
statements are complete and correct and present fairly, in all material
respects, the consolidated and consolidating financial condition of the Borrower
and its Consolidated Subsidiaries as at said date and the consolidated and
consolidating results of their operations for the fiscal year ended on said date
in accordance with generally accepted accounting principles and practices
applied on
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a consistent basis. Neither the Borrower nor any of its Subsidiaries had on said
date any material contingent liabilities, liabilities for taxes, unusual forward
or long-term commitments or unrealized or anticipated losses from any
unfavorable commitments, except as referred to or reflected or provided for in
said balance sheet as at said date. Since December 31, 1996, there has been no
material adverse change in the consolidated financial condition, operations,
business or prospects taken of the Borrower and its Consolidated Subsidiaries
taken as a whole from that set forth in said financial statements as at said
date.
8.03 Litigation. Except as disclosed to the Lenders in writing
on or prior to the date of this Agreement, there are no legal or arbitral
proceedings, or any proceedings by or before any governmental or regulatory
authority or agency, now pending or (to the knowledge of the Borrower (after due
inquiry)) threatened (a) against the Borrower, any of its Subsidiaries or any
Material Third-Party Licensee or any Person that owns the capital stock (or
other equity ownership interest) of such Material Third-Party Licensee which, if
adversely determined, could have a Material Adverse Effect or (b) relating to
any River City License Acquisition or the other transactions contemplated
hereby.
8.04 No Breach. None of the execution and delivery of this
Agreement and the other Transaction Documents, the consummation of the
transactions herein and therein contemplated and compliance with the terms and
provisions hereof and thereof will conflict with or result in a breach of, or
require any consent (other than the approvals of the FCC provided in the
Security Documents and those referred to in Section 8.06 hereof) under, the
charter or by-laws of any Obligor, or any applicable law or regulation, or any
order, writ, injunction or decree of any court or governmental authority or
agency, or any agreement or instrument to which the Borrower or any of its
Subsidiaries is a party or by which any of them is bound or to which any of them
is subject, or constitute a default under any such agreement or instrument, or
(except for the Liens created pursuant to the Security Documents) result in the
creation or imposition of any Lien upon any Property of the Borrower or any of
its Subsidiaries pursuant to the terms of any such agreement or instrument.
8.05 Action. Each Obligor has all necessary corporate power
and authority to execute, deliver and perform its obligations under each of the
Transaction Documents to which it is a party; the execution, delivery and
performance by each Obligor of each of the Transaction Documents to which it is
a party have been duly authorized by all necessary corporate action on its part
(including, without limitation, any required
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shareholder approvals); and this Agreement has been duly and validly executed
and delivered by each Obligor and constitutes, and each of the other Transaction
Documents to which such Obligor is a party when executed and delivered by such
Obligor will constitute, its legal, valid and binding obligation, enforceable in
accordance with its terms.
8.06 Approvals. No authorizations, approvals or consents of,
and no filings or registrations with, any governmental or regulatory authority
or agency are necessary for the execution, delivery or performance by any
Obligor of the Transaction Documents to which such Obligor is a party or for the
validity or enforceability thereof, except (a) for filings and recordings in
respect of the Liens created pursuant to the Security Documents, (b) filings
under 47 CFR Section 73.3613 and (c) the approvals by the FCC for the
acquisition of any Broadcast Licenses.
8.07 Use of Loans. Neither the Borrower nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock and no part of the proceeds of
any extension of credit hereunder will be used to buy or carry any Margin Stock.
8.08 ERISA. The Borrower and the ERISA Affiliates have
fulfilled their respective obligations under the minimum funding standards of
ERISA and the Code with respect to each Plan and are in compliance in all
material respects with the presently applicable provisions of ERISA and the
Code, and have not incurred any liability to the PBGC or any Plan or
Multiemployer Plan (other than to make contributions in the ordinary course of
business).
8.09 Taxes. United States Federal income tax returns of the
Borrower and its Subsidiaries have been examined and closed through the fiscal
year of the Borrower ended December 31, 1993. The Borrower and its Subsidiaries
have filed all United States Federal income tax returns and all other material
tax returns which are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Borrower
or any of its Subsidiaries. The charges, accruals and reserves on the books of
the Borrower and its Subsidiaries in respect of taxes and other governmental
charges are, in the opinion of the Borrower, adequate. The Borrower has not
given or been requested to give a waiver of the statute of limitations relating
to the payment of any Federal, state, local or foreign taxes or other
impositions. If the Borrower is a member of an affiliated group of corporations
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filing consolidated returns for United States Federal income tax purposes, it is
the "common parent" of such group.
8.10 Investment Company Act. Neither the Borrower nor any of
its Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
8.11 Public Utility Holding Company Act. Neither the Borrower
nor any of its Subsidiaries is a "holding company", or an "affiliate" of a
"holding company" or a "subsidiary company" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
8.12 Indebtedness and Interest Rate Protection Agreements. (a)
Part A of Schedule I hereto is a complete and correct list, as of the date of
this Agreement, of each credit agreement, loan agreement, indenture, purchase
agreement, guarantee, letter of credit or other arrangement providing for or
otherwise relating to any Indebtedness or any extension of credit (or commitment
for any extension of credit) to, or guarantee by, the Borrower or any of its
Subsidiaries, the aggregate principal or face amount of which equals or exceeds
(or may equal or exceed) $1,000,000, and the aggregate principal or face amount
outstanding or which may become outstanding under each such arrangement is
correctly described in Part A of Schedule I hereto.
(b) Part B of Schedule I hereto is a complete and correct
list, as of the date of this Agreement, of each Interest Rate Protection
Agreement in respect of a notional principal amount which equals or exceeds (or
may equal or exceed) $1,000,000.
8.13 Hazardous Materials. The Borrower and each of its
Subsidiaries have obtained all permits, licenses and other authorizations which
are required under all Environmental Laws, except to the extent failure to have
any such permit, license or authorization would not result in a liability
(individually or in the aggregate) exceeding $1,000,000. The Borrower and each
of its Subsidiaries are in compliance with the terms and conditions of all such
permits, licenses and authorizations, and are also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any applicable Environmental
Law or in any regulation, code, plan, order, decree, judgment, injunction,
notice or demand letter issued, entered, promulgated or approved thereunder,
except to the extent failure to comply would not result in a liability
(individually or in the aggregate) exceeding $1,000,000.
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In addition, except as set forth in Schedule II hereto:
(a) No notice, notification, demand, request for information,
citation, summons or order has been issued, no complaint has been
filed, no penalty has been assessed and no investigation or review is
pending or threatened by any governmental or other entity with respect
to any alleged failure by the Borrower or any of its Subsidiaries to
have any permit, license or authorization required in connection with
the conduct of the business of the Borrower or any of its Subsidiaries
or with respect to any generation, treatment, storage, recycling,
transportation, discharge or disposal, or any Release of any Hazardous
Materials generated by the Borrower or any of its Subsidiaries.
(b) Neither the Borrower nor any of its Subsidiaries or
Environmental Affiliates has operated a treatment, storage or disposal
facility requiring a permit under the Resource Conservation and
Recovery Act of 1976, as amended, or under any comparable state or
local statute at any Property now or previously owned or leased by the
Borrower or any of its Subsidiaries or Environmental Affiliates; and
(i) no substance containing PCBs is or has been present
at any Property now or previously owned or leased by the
Borrower or any of its Subsidiaries or Environmental
Affiliates;
(ii) no asbestos is or has been present at any Property
now or previously owned or leased by the Borrower or any of
its Subsidiaries or Environmental Affiliates;
(iii) there are no underground storage tanks active or
abandoned, at any Property now or previously owned or leased
by the Borrower or any of its Subsidiaries or Environmental
Affiliates;
(iv) no Hazardous Materials have been Released, in a
reportable quantity, where such a quantity has been
established by statute, ordinance, rule, regulation or order,
at, on or under any Property now or previously owned by the
Borrower or any of its Subsidiaries or Environmental
Affiliates; and
(v) no Hazardous Materials have been otherwise Released
at, on or under any Property now or previously owned or leased
by the Borrower or any of its Subsidiaries to an extent that
it has, or may
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reasonably be expected to have, a liability exceeding
$1,000,000.
(c) Neither the Borrower nor any of its Subsidiaries or
Environmental Affiliates has transported or arranged for the
transportation of any Hazardous Material to any location which is
listed on the National Priorities List under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA"), listed for possible inclusion on the National
Priorities List by the Environmental Protection Agency in CERCLIS or on
any similar state list or which is the subject of Federal, state or
local enforcement actions or other investigations which may lead to
claims against the Borrower or any of its Subsidiaries for clean-up
costs, remedial work, damages to natural resources or for personal
injury claims, including, but not limited to, claims under CERCLA.
(d) No Hazardous Material generated by the Borrower or any of
its Environmental Affiliates has been recycled, treated, stored,
disposed of or Released by the Borrower or any of its Environmental
Affiliates at any location other than those listed in Schedule II
hereto.
(e) No oral or written notification of a Release of a
Hazardous Material has been filed by or on behalf of the Borrower or
any of its Subsidiaries and no Property now or previously owned or
leased by the Borrower or any of its Subsidiaries is listed or proposed
for listing on the National Priorities list promulgated pursuant to
CERCLA, on CERCLIS or on any similar state list of sites requiring
investigation or clean-up.
(f) No Liens have arisen under or pursuant to any
Environmental Laws on any of the real Property or Properties owned or
leased by the Borrower or any of its Subsidiaries, and no government
actions have been taken or are in process which could subject any of
such Properties to such Liens and neither the Borrower nor any of its
Subsidiaries would be required to place any notice or restriction
relating to the presence of Hazardous Materials at any Property owned
by it in any deed to such Property.
(g) There have been no environmental investigations, studies,
audits, tests, reviews or other analyses conducted by or which are in
the possession of the Borrower or any of its Subsidiaries in relation
to any Property or facility now or previously owned or leased by the
Borrower or any of its Subsidiaries which have not been made available
to the Lenders.
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8.14 Subsidiaries, Etc.
(a) Set forth in Part A of Schedule III hereto is a complete
and correct list, as of the date hereof, of all of the Subsidiaries of the
Borrower, together with, for each such Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding ownership interests in
such Subsidiary and (iii) the nature of the ownership interests held by each
such Person and the percentage of ownership of such Subsidiary represented by
such ownership interests. Except as disclosed in Part A of Schedule III hereto,
(x) each of the Borrower and its Subsidiaries owns, free and clear of Liens
(other than Liens created pursuant to the Security Documents), and has the
unencumbered right to vote, all outstanding ownership interests in each Person
shown to be held by it in Part A of Schedule III hereto, (y) all of the issued
and outstanding capital stock of each such Person organized as a corporation is
validly issued, fully paid and nonassessable and (z) there are no outstanding
Equity Rights with respect to such Person.
(b) Set forth in Part B of Schedule III hereto is a complete
and correct list, as of the date of this Agreement, of each Investment (other
than Investments disclosed in Part A of said Schedule III hereto) in an amount
exceeding $25,000 held by the Borrower or any of its Subsidiaries in any Person
and, for each such Investment, (i) the identity of the Person or Persons holding
such Investment and (ii) the nature of such Investment. Except as disclosed in
Part B of Schedule III hereto, each of the Borrower and its Subsidiaries owns,
free and clear of all Liens (other than Liens created pursuant to the Security
Documents), all such Investments.
(c) None of the Subsidiaries of the Borrower is, on the date
of this Agreement, subject to any indenture, agreement, instrument or other
arrangement of the type described in the last sentence of Section 9.22 hereof.
8.15 Broadcast Licenses.
(a) Part A of Schedule IV hereto accurately and completely
lists, as of the date hereof, for each Owned Station, all Broadcast Licenses
granted or assigned to the Borrower or any of its Subsidiaries, or under which
the Borrower and its Subsidiaries have the right to operate such Owned Station.
The Broadcast Licenses listed on Part A of Schedule IV hereto with respect to
any Owned Station include all material authorizations, licenses and permits
issued by the FCC that are required or necessary for the operation of such Owned
Station, and the conduct of the business of the Borrower and its Subsidiaries
with respect to such Owned Station, as now conducted or proposed to be
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conducted. The Broadcast Licenses listed in Part A of Schedule IV hereto are
issued in the name of the respective License Subsidiary for the Owned Station
being operated under authority of such Broadcast Licenses and are on the date
hereof validly issued and in full force and effect, and the Borrower and its
Subsidiaries have fulfilled and performed in all material respects all of their
obligations with respect thereto and have full power and authority to operate
thereunder.
(b) Part B of Schedule IV hereto accurately and completely
lists, as of the date hereof, for each Contract Station, all Broadcast Licenses
granted or assigned to the Material Third-Party Licensee for such Contract
Station, or under which the Material Third-Party Licensee for such Contract
Station has the right to operate such Contract Station. The Broadcast Licenses
listed on Part B of Schedule IV hereto with respect to any Contract Station
include all material authorizations, licenses and permits issued by the FCC that
are required or necessary for the operation of such Contract Station, and the
conduct of the business of the Material Third-Party Licensee for such Contract
Station with respect to such Contract Station, as now conducted or proposed to
be conducted. The Broadcast Licenses listed in Part B of Schedule IV hereto are
issued in the name of the Material Third-Party Licensee for the Contract Station
being operated under authority of such Broadcast Licenses and are on the date
hereof validly issued and in full force and effect, and the Material Third-Party
Licensee for such Contract Station has fulfilled and performed in all material
respects all of its obligations with respect thereto and has full power and
authority to operate thereunder.
8.16 Property. The Borrower and its Subsidiaries will own or
hold all easements, rights-of-way, licenses in respect of real property and
similar rights as are necessary for the acquisition, ownership and operation of
the Stations. Each of the Borrower and its Subsidiaries has good title to its
properties and assets free and clear of all Liens, except for Liens permitted
under Section 9.06 hereof.
8.17 Ancillary Documents. The Borrower has heretofore
delivered to the Agent a true and complete copy of the Ancillary Documents, in
each case as in effect on the date hereof, and each of the same is in full force
and effect and no default of any Obligor party thereto of any of the provisions
thereof is in existence on the date hereof.
8.18 Film Obligations. Set forth in Schedule V hereto is a
complete and correct list as of March 31, 1997, setting forth for each Station,
(a) the respective Film Cash Payments to be made in each fiscal year during the
period commencing on
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January 1, 1997 through and including December 31, 1999 and (b) the respective
Film Cash Payments to be made during the period commencing on January 1, 2000
through and including December 31, 2003.
8.19 Capitalization. The authorized capital stock of the
Borrower consists, on the date hereof, of 145,000,000 shares, consisting of (a)
100,000,000 shares of Class A Common Stock, par value $.01 per share, of which
6,854,327 shares are duly and validly issued and outstanding, each of which
shares is fully paid and nonassessable; (b) 35,000,000 shares of Class B Common
Stock, par value $.01 per share, of which 27,850,581 shares are duly and validly
issued and outstanding, each of which shares is fully paid and nonassessable;
(c) 10,000,000 shares of Preferred Stock, par value $.01 per share, of which
1,500,000 shares of Series B Convertible Preferred Stock, par value $.01 per
share is divided and designated, of which 1,115,370 shares are duly and validly
issued and outstanding, each of which shares is fully paid and nonassessable and
of which 2,062,000 shares of Series C Preferred Stock, par value $.01 per share
is divided and designated, all of which are issued and outstanding, each of
which shares is fully paid and nonassessable. As of the date hereof .0000209625%
of such issued and outstanding shares of Class A Common Stock are owned
beneficially and of record by the Smith Brothers, and 100% of such issued and
outstanding shares of Class B Common Stock are beneficially owned of record,
directly or indirectly, by the Smith Brothers. As of the date hereof, (i) except
for (x) the Designated Employee Stock Option Plan, (y) the Incentive Stock
Option Plan, (z) the 1996 Long-Term Incentive Plan, (xx) Equity Rights created
pursuant to the River City Acquisition Documents, and (yy) Hedging Agreements
outstanding on the date hereof, there are no outstanding Equity Rights with
respect to the Borrower and (ii) except for (x) the right of the holders of the
Seller Stock (or of any such stock converted into the Borrower's Class A Common
Stock) to require the Borrower to repurchase such Seller Stock (or Class A
Common Stock) and (y) Hedging Agreements outstanding on the date hereof, there
are no outstanding obligations of the Borrower or any of its Subsidiaries to
repurchase, redeem, or otherwise acquire any shares of capital stock of the
Borrower nor are there any outstanding obligations of the Borrower or any of its
Subsidiaries to make payments to any Person, such as "phantom stock" payments,
where the amount thereof is calculated with reference to the fair market value
or equity value of the Borrower or any of its Subsidiaries.
8.20 True and Complete Disclosure. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of the Obligors to the Agent or any Lender in connection with the
negotiation, preparation or
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delivery of this Agreement and the other Basic Documents or included herein or
therein or delivered pursuant hereto or thereto, when taken as a whole do not
contain any untrue statement of material fact or omit to state any material fact
necessary to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading. All written
information furnished after the date hereof by the Borrower and its Subsidiaries
to the Agent and the Lenders in connection with this Agreement and the other
Basic Documents and the transactions contemplated hereby and thereby will be
true, complete and accurate in every material respect, or (in the case of
projections) based on reasonable estimates, on the date as of which such
information is stated or certified. There is no fact known to the Borrower that
could have a Material Adverse Effect that has not been disclosed herein, in the
other Basic Documents or in a report, financial statement, exhibit, schedule,
disclosure letter or other writing furnished to the Lenders for use in
connection with the transactions contemplated hereby or thereby.
8.21 Tax Identification Numbers. The tax identification number
for each Obligor on the date hereof is correctly set forth opposite the name of
such Obligor on Schedule VI hereto.
8.22 Program Services Agreements. Schedule VII hereto is a
complete and correct list, as of the date of this Agreement, of each agreement
pursuant to which the Borrower or any of its Subsidiaries has the right to
program and sell advertising on a substantial portion of the inventory of
broadcast time of any Station.
8.23 Options. Schedule VIII hereto is a complete and correct
list, as of the date of this Agreement, of each option agreement pursuant to
which the Borrower or any of its Subsidiaries has the right to acquire licenses,
permits, authorizations or certificates to construct, own, operate or promote
any television or radio broadcasting station.
8.24 Asset Use and Operating Agreements. Schedule IX hereto is
a complete and correct list, as of the date of this Agreement, with respect to
each Owned Station, of the agreement between the Subsidiary of the Borrower that
operates such Owned Station and a License Subsidiary with respect to such Owned
Station.
Section 9. Covenants of the Obligors. The Obligors covenant
and agree with the Lenders and the Agent that, so long as any Commitment, Loan
or Letter of Credit Liability is
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outstanding and until payment in full of all amounts payable by the Borrower
hereunder:
9.01 Financial Statements. The Borrower shall deliver to the
Agent the following items (with, except in the case of consolidating financial
statements furnished pursuant to Section 9.01(a) below, sufficient copies for
each Lender):
(a) as soon as available and in any event within 45 days after
the end of each of the first three fiscal quarters of each fiscal year
of the Borrower, consolidated and consolidating statements of income,
retained earnings and cash flow of the Borrower and its Consolidated
Subsidiaries for such period and for the period from the beginning of
the respective fiscal year to the end of such period, and the related
consolidated and consolidating balance sheets as at the end of such
period, setting forth in each case in comparative form the
corresponding consolidated and consolidating figures for the
corresponding period in the preceding fiscal year, accompanied by a
certificate of a senior financial officer of the Borrower, which
certificate shall state that said financial statements present fairly,
in all material respects, the consolidated financial condition and
results of operations of the Borrower and its Consolidated
Subsidiaries, and the respective individual unconsolidated financial
condition and results of operations of the Borrower and of each of its
Consolidated Subsidiaries, in each case in accordance with generally
accepted accounting principles, consistently applied, as at the end of,
and for, such period (subject to normal year-end audit adjustments);
(b) as soon as available and in any event within 110 days
after the end of each fiscal year of the Borrower, consolidated and
consolidating statements of income, retained earnings and cash flow of
the Borrower and its Consolidated Subsidiaries for such year and the
related consolidated and consolidating balance sheets as at the end of
such year, setting forth in each case in comparative form the
corresponding consolidated and consolidating figures for the preceding
fiscal year, and accompanied (i) in the case of said consolidated
statements and balance sheet, by an unqualified opinion thereon of
independent certified public accountants of recognized national
standing, which opinion shall state that said consolidated financial
statements present fairly, in all material respects, the consolidated
financial condition and results of operations of the Borrower and its
Consolidated Subsidiaries as at the end of, and for, such fiscal year
in accordance with generally accepted accounting principles, and a
certificate of such
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accountants stating that, in making the examination necessary for their
opinion, they obtained no knowledge, except as specifically stated, of
any Default, and (ii) in the case of said consolidating statements and
balance sheets, by a certificate of a senior financial officer of the
Borrower, which certificate shall state that said consolidating
financial statements fairly present the respective individual
unconsolidated financial condition and results of operations of the
Borrower and of each of its Consolidated Subsidiaries, in each case in
accordance with generally accepted accounting principles, consistently
applied, as at the end of, and for, such fiscal year;
(c) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any
(including, without limitation, reports on Forms 10-Q and 10-K), which
the Borrower or any of its Subsidiaries shall have filed with the
Securities and Exchange Commission (or any governmental agency
substituted therefor) or any national securities exchange;
(d) promptly upon the furnishing thereof generally to the
holders of any class or issue of securities of the Borrower (or to any
of their respective agents or trustees) copies of all financial
statements, reports, proxy statements, notices and other communications
so furnished; and promptly upon the receipt thereof by the Borrower,
copies of any notices, reports or other communications from any holder
of any Preferred Stock or any Senior Subordinated Notes (or any agent
or trustee therefor);
(e) as soon as possible, and in any event within ten days
after the Borrower knows or has reason to believe that any of the
events or conditions specified below with respect to any Plan or
Multiemployer Plan have occurred or exist, a statement signed by a
senior financial officer of the Borrower setting forth details
respecting such event or condition and the action, if any, which the
Borrower or its ERISA Affiliate proposes to take with respect thereto
(and a copy of any report or notice required to be filed with or given
to PBGC by the Borrower or an ERISA Affiliate with respect to such
event or condition):
(i) any reportable event, as defined in Section 4043(c)
of ERISA and the regulations issued thereunder, with respect
to a Plan, as to which PBGC has not by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified
within 30 days of the occurrence of such event (provided that
a failure to meet the minimum funding standard of
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Section 412 of the Code or Section 302 of ERISA shall be a
reportable event regardless of the issuance of any waivers in
accordance with Section 412(d) of the Code);
(ii) the filing under Section 4041 of ERISA of a notice of
intent to terminate any Plan or the termination of any Plan;
(iii) the institution by PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by the
Borrower or any ERISA Affiliate of a notice from a
Multiemployer Plan that such action has been taken by PBGC
with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal by the Borrower or
any ERISA Affiliate under Section 4201 or 4204 of ERISA from a
Multiemployer Plan, or the receipt by the Borrower or any
ERISA Affiliate of notice from a Multiemployer Plan that it is
in reorganization or insolvency pursuant to Section 4241 or
4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Borrower or any ERISA Affiliate
to enforce Section 515 of ERISA, which proceeding is not
dismissed within 30 days; and
(vi) the adoption of an amendment to any Plan that,
pursuant to Section 401(a)(29) of the Code or Section 307 of
ERISA, would result in the loss of tax-exempt status of the
trust of which such Plan is a part if the Borrower or an ERISA
Affiliate fails to timely provide security to such Plan in
accordance with the provisions of said Sections;
(f) promptly after any Obligor knows or has reason to believe
that any Default has occurred, a notice of such Default describing the
same in reasonable detail and, together with such notice or as soon
thereafter as possible, a description of the action that the Borrower
has taken and proposes to take with respect thereto;
(g) promptly following delivery thereof to or by the Borrower
or any of its Subsidiaries, copies of all material notices, reports,
approvals and other material communications that are received by the
Borrower or any of
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its Subsidiaries from the FCC or filed by the Borrower or any of its
Subsidiaries with the FCC;
(h) promptly following delivery thereof to or by the Borrower
or any of its Subsidiaries, copies of all material notices (including,
without limitation, notices of default), financial statements, reports,
approvals and other material communications that are received by the
Borrower or any of its Subsidiaries from or on behalf of any Material
Third- Party Licensee or Affiliate of any Material Third-Party Licensee
or furnished by the Borrower or any of its Subsidiaries to any Material
Third-Party Licensee or Affiliate of any Material Third-Party Licensee;
(i) from time to time such other information regarding the
financial condition, operations, business or prospects of the Borrower,
any of its Subsidiaries, any Station, any Material Third-Party Licensee
or any Person that owns the capital stock (or other equity ownership
interest) of any Material Third-Party Licensee (including, without
limitation, any Plan or Multiemployer Plan and any reports or other
information required to be filed under ERISA) as any Lender or the
Agent may reasonably request; and
(j) at the time it furnishes each set of financial statements
pursuant to clause (a) or (b) above, financial statements for the
Borrower, its Consolidated Subsidiaries and the Unrestricted Companies
having the same scope, detail and information, covering the same
periods of time, and accompanied by a corresponding certificate of a
senior financial officer of the Borrower or opinion of independent
certified public accountants of recognized national standing, as the
case may be, as said financial statements delivered pursuant to said
clause (a) or (b), as though each reference in said clause (a) or (b)
to "the Borrower and its Consolidated Subsidiaries" were a reference to
"the Borrower, its Consolidated Subsidiaries and the Unrestricted
Companies".
The Borrower will furnish to the Agent (with sufficient copies for each Lender),
at the time it furnishes each set of financial statements pursuant to paragraph
(a) or (b) above, a certificate of a senior financial officer of the Borrower
(i) to the effect that no Default has occurred and is continuing (or, if any
Default has occurred and is continuing, describing the same in reasonable detail
and describing the action that the Borrower has taken and proposes to take with
respect thereto) and (ii) setting forth in reasonable detail the computations
necessary to determine whether the Borrower is in compliance with Sections
9.07(e), 9.09, 9.10, 9.11, 9.12, 9.13, 9.14, and 9.15
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hereof as of the end of the respective quarterly fiscal period or fiscal year.
In addition, the Borrower shall in each of its fiscal years (commencing with its
fiscal year ending 1997) as soon as available and in any event on or before
December 31 of each fiscal year, deliver to each Lender, a budget for the next
following fiscal year setting forth anticipated income, expense and capital
expenditure items for each quarter during such fiscal year and, on a date to be
mutually agreed upon with the Agent, arrange for its relevant officers to be
present at a meeting with the Lenders for the purpose of discussing its
business, prospects and financial affairs (including its near-term projections)
with the Lenders.
9.02 Litigation. The Borrower will promptly give to the Agent
(with sufficient copies for each Lender) notice of all legal or arbitral
proceedings, and of all proceedings by or before any governmental or regulatory
authority or agency, and any material development in respect of such legal or
other proceedings (collectively, "Proceedings"), affecting the Borrower or any
of its Subsidiaries or any of their respective assets, franchises or licenses
(including, without limitation, the Broadcast Licenses for Owned Stations)
except Proceedings which, if adversely determined, would not (either
individually or in the aggregate) have a Material Adverse Effect or result in
the loss of a franchise or license (including, without limitation, any Broadcast
License for an Owned Station other than an Immaterial Broadcast License). The
Borrower will promptly give to the Agent (with sufficient copies for each
Lender) notice of all Proceedings affecting the Material Third-Party Licensee
for a Contract Station or any Broadcast Licenses for such Contract Station
except Proceedings which, if adversely determined, would not (either
individually or in the aggregate) have a Material Adverse Effect or result in
the loss of any Broadcast License (other than an Immaterial Broadcast License)
for such Contract Station.
9.03 Existence, Etc. The Borrower will, and will cause each of
its Subsidiaries to:
(a) preserve and maintain its legal existence and all of its
material rights, privileges and franchises (including, without
limitation, the Broadcast Licenses, but excluding Immaterial Broadcast
Licenses, for Owned Stations) (provided that nothing in this Section
9.03 shall prohibit any transaction expressly permitted under Section
9.05 hereof);
(b) comply with the requirements of all applicable laws,
rules, regulations and orders of governmental or regulatory authorities
if failure to comply with such
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requirements would (either individually or in the aggregate) have a
Material Adverse Effect;
(c) pay and discharge all material taxes, assessments and
governmental charges or levies imposed on it or on its income or
profits or on any of its Property prior to the date on which penalties
attach thereto, except for any such tax, assessment, charge or levy the
payment of which is being contested in good faith and by proper
proceedings and against which adequate reserves are being maintained;
(d) maintain all of its material Properties used or useful in
its business in good working order and condition, ordinary wear and
tear excepted; and
(e) permit representatives of any Lender or the Agent, during
normal business hours, to examine, copy and make extracts from its
books and records, to inspect its Properties, and to discuss its
business and affairs with its officers, all to the extent reasonably
requested by such Lender or the Agent (as the case may be).
9.04 Insurance. The Borrower will, and will cause each of its
Subsidiaries to, maintain insurance with financially sound and reputable
insurance companies, and with respect to Property and risks of a character
usually maintained by corporations engaged in the same or similar business
similarly situated, against loss, damage or liability of the kinds and in the
amounts customarily maintained by such corporations and maintain such other
insurance as is usually carried by such corporations, provided that the Borrower
will in any event maintain (with respect to itself, each of its Subsidiaries and
each Owned Station), and will cause the Material Third-Party Licensee for each
Contract Station (or the Person that owns the capital stock (or other equity
ownership interest) of such Material Third-Party Licensee) to maintain (with
respect to itself and such Contract Station), casualty insurance and insurance
against claims and damages with respect to defamation, libel, slander, privacy
or other similar injury to person or reputation (including, without limitation,
misappropriation of personal likeness), in such amounts as are then customary
for Persons engaged in the same or similar business similarly situated. The
Borrower shall provide to the Agent at the same time it furnishes its annual
financial statements under Section 9.01(b) hereof a certificate of insurance
comparable in scope to the certificate furnished under Section 7.01(t)(i) hereof
demonstrating compliance with this Section 9.04.
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9.05 Prohibition of Fundamental Changes.
(a) The Borrower will not, nor will it permit any of its
Subsidiaries to, enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution).
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, acquire any business or Property from, or capital stock of, or
be a party to any acquisition of, any Person, or acquire any option to make any
such acquisition, except for purchases of inventory, programming rights and
other Property to be sold or used in the ordinary course of business,
Investments permitted under Section 9.08 hereof, Dividend Payments permitted
under Section 9.09(f) and (g) hereof and Capital Expenditures permitted under
Section 9.12 hereof.
(c) The Borrower will not, and will not permit any of its
Subsidiaries to, without the prior written consent of the Majority Lenders,
convey, sell, lease, transfer or otherwise dispose of, in one transaction or a
series of transactions, all or a substantial part of its business or Property,
whether now owned or hereafter acquired including, without limitation,
receivables and leasehold interests, but excluding (i) any inventory or other
Property sold or disposed of in the ordinary course of business and on ordinary
business terms and (ii) obsolete or worn-out Property, tools or equipment no
longer used or useful in its business so long as the amount thereof sold in any
single fiscal year by the Borrower and its Subsidiaries shall not have a fair
market value in excess of $1,000,000.
(d) Notwithstanding the foregoing provisions of this Section
9.05:
(i) the Borrower and its Subsidiaries may consummate any River
City License Acquisition or any Approved Acquisition (each, a "Subject
Acquisition") provided that:
(v) both immediately prior to such Subject
Acquisition and, after giving effect thereto, no Default shall
have occurred and be continuing;
(w) each assignment or transfer of control of
Broadcast Licenses to the Borrower or any of its Subsidiaries
shall have been approved by either:
(A) a Final FCC Order, in the case of the
consummation of the exercise of any of the WPTT
Conversion Option, the Glencairn Options or the WDBB
Option, or
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(B) an Initial FCC Order, in the case of any
Subject Acquisition other than those referred to in
the preceding clause (A) (and, if the Agent or the
Majority Lenders shall have so requested, the Agent
shall have received an opinion of Fisher Wayland
Cooper Leader and Zaragoza L.L.P. (or other counsel
satisfactory to the Agent or the Majority Lenders, as
the case may be, in its (or their) reasonable
judgment) to the effect that such transfer shall have
been so approved by a Final FCC Order or an Initial
FCC Order, as the case may be, and that such
Broadcast Licenses have been validly assigned to the
Borrower or such Subsidiary);
(x) in the case of the acquisition of assets (or of
the capital stock (or other equity ownership interest) of the
Person that owns such assets) and assumption of liabilities
relating to WXWX-FM, Easley, South Carolina and WXWX-FM,
Greer, South Carolina, or to WPMR-AM and WKRF-FM, Tobyhanna,
Pennsylvania, no later than the date falling ten Business Days
(or such shorter period as the Agent may agree) prior to the
consummation of such acquisition, the Borrower shall have
delivered to the Agent drafts or executed counterparts of such
of the respective agreements or instruments pursuant to which
such acquisition is to be consummated (together with any
related management, non-compete, employment, option or other
material agreements), any schedules or other material
ancillary documents to be executed or delivered in connection
therewith, all of which shall be satisfactory to the Agent in
form and substance and
(y) the Borrower shall promptly furnish to the Agent
copies of such information or documents relating to such
Subject Acquisition as the Agent or any Lender or Lenders
(through the Agent) shall have reasonably requested; and
(z) on the date on which the Borrower or any of its
Subsidiaries pays any WSYX Option Extension Payment or the
WSYX Sale Price Differential, the Borrower shall furnish to
the Lenders a certificate showing calculations (after giving
effect to such payment) in reasonable detail that demonstrate
that such payment will not result in a Default under Section
9.11 hereof;
(ii) the Borrower or any of its Subsidiaries may make any Other
Acquisition provided that:
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(q) at the time that the Borrower or any of its
Subsidiaries enters into a definitive purchase agreement for
such Other Acquisition, either:
(A) the Borrower has sufficient financing
committed to it to enable it or its Subsidiary, as
the case may be, to consummate such Other Acquisition
or
(B) if the maximum amount of all
termination, break-up and similar fees payable by the
Borrower or its Subsidiary, as the case may be, by
reason of such Other Acquisition failing to be
consummated were included in the calculation of Total
Indebtedness, the Borrower would be in compliance
with the Total Indebtedness Ratio on such date;
(r) after the consummation thereof, there shall
remain unused Revolving Credit Commitments in an aggregate
amount of not less than $25,000,000;
(s) both immediately prior to such Other Acquisition
and immediately, after giving effect thereto, no Default shall
have occurred and be continuing;
(t) immediately after giving effect to such Other
Acquisition, the BCF Percentage does not exceed 25%;
(u) each assignment or transfer of control of
Broadcast Licenses to the Borrower or any of its Subsidiaries
pursuant to any such Other Acquisition shall have been
approved by an order of the FCC that is no longer subject to
reconsideration or review by the FCC or by any court or
administrative body (and, if the Agent or the Majority Lenders
shall have so requested, the Agent shall have received an
opinion of Fisher Wayland Cooper Leader and Zaragoza L.L.P.
(or other counsel reasonably satisfactory to the Agent or the
Majority Lenders, as the case may be) to the effect that such
transfer shall have been so approved by a final order of the
FCC and that such Broadcast Licenses have been validly
assigned to the Borrower or such Subsidiary);
(v) the ratio of Total Indebtedness on the date that
such Other Acquisition is consummated (calculated after giving
effect to the borrowings and prepayments hereunder to be made
on such date) to EBITDA for the
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period of four fiscal quarters of the Borrower ending on or
most recently ended prior to such date (calculated on a pro
forma basis as if such Other Acquisition had been consummated
on the first day of such period) will not be greater than the
lesser of (A) 6.50 to 1 and (B) such ratio as shall be
required by Section 9.14 hereof on such date;
(w) if the Aggregate Consideration for such Other
Acquisition is equal to or greater than $10,000,000, the
Borrower shall furnish to the Lenders a certificate showing
calculations (after giving effect to borrowings and
prepayments hereunder to be made on such date and calculated
on a pro forma basis as if such Other Acquisition had been
consummated on the first day of the period of four fiscal
quarters of the Borrower ending on or most recently ended
prior to such date) in reasonable detail that demonstrate that
such Other Acquisition will not result in a Default under any
of (A) Sections 9.10, 9.11, 9.12, 9.13 or 9.15 hereof and (B)
clause (v) of this Section 9.05(d)(ii);
(x) no later than the date falling ten Business Days
(or such shorter period as the Agent may agree) prior to the
date that such Other Acquisition is consummated, the Borrower
shall have delivered to the Agent drafts or executed
counterparts of such of the respective agreements or
instruments (including, without limitation, Program Services
Agreements) pursuant to which such Other Acquisition is to be
consummated (together with any related management,
non-compete, employment, option or other material agreements),
any schedules or other material ancillary documents to be
executed or delivered in connection therewith, all of which
shall be satisfactory in form and substance to the Agent (or,
if the portion of the Aggregate Consideration for such Other
Acquisition payable to extend and exercise any option acquired
in connection with such Other Acquisition exceeds 20% of the
Aggregate Consideration payable in connection with such Other
Acquisition, the Majority Lenders) and sufficient to
demonstrate compliance by the Borrower with the requirements
of this Section 9.05(d)(ii) and
(y) promptly following request therefor, copies of
such information or documents relating to such Other
Acquisition as the Agent or any Lender or Lenders (through the
Agent) shall have reasonably requested; and
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(z) if requested by the Agent or the Majority Lenders
with respect to any agreement (A) entered into by any Obligor
and any other Person in connection with such Other Acquisition
or (B) to be transferred to any Obligor in connection with
such Other Acquisition, which agreement is determined by the
Agent or the Majority Lenders, as the case may be, to be
material (a "Material Agreement"), the Borrower shall cause
such Obligor and such other Person to execute and deliver to
the Agent a Consent and Agreement with respect to such
Material Agreement;
(iii) the Borrower or any of its Subsidiaries may sell to Glencairn
or a Subsidiary of Glencairn the Broadcast Licenses for any Owned
Station and any Property required pursuant to the rules and regulations
of the FCC to be sold in connection with the transfer of such Broadcast
Licenses, provided that:
(w) any such sale relating to WTTE-TV, WFBC-TV or
KRRT-TV (each, a "Specified Station") shall be for an amount
not less than 80% of the appraised value (as determined by an
appraiser satisfactory to the Agent and the Borrower and
experienced in the appraisal of properties similar to those
being so sold), and any such sale relating to any other Owned
Station shall be for an amount not less than 100% of the
appraised value (as determined as aforesaid), which amount in
all such cases shall be payable in cash,
(x) Glencairn or such Subsidiary of Glencairn, as the
case may be, shall enter into a Program Services Agreement
with a Subsidiary of the Borrower with respect to each Station
the Broadcast Licenses of which are so sold, which Program
Services Agreement shall be substantially in the form of a
Program Services Agreement in effect on the date hereof
between Glencairn or a Subsidiary of Glencairn and a
Subsidiary of the Borrower,
(y) after giving effect to such sale and related
Program Services Agreement, the BCF Percentage does not exceed
25%, and
(z) Glencairn or such Subsidiary of Glencairn, as the
case may be, shall enter into a Consent and Agreement with the
Agent relating to such Program Services Agreement;
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(iv) the Borrower or any of its Subsidiaries may, subject to
compliance with Section 1013 of the 1993 Senior Subordinated Note
Indenture, dispose of substantially all of the assets relating to any
Owned Station that is a radio broadcasting station (or the capital
stock of the Subsidiary of the Borrower that owns such assets if such
Subsidiary does not own any Property relating to any other Owned
Station that is a television broadcasting station), provided that:
(x) both immediately prior to such disposition and,
after giving effect thereto, no Default shall have occurred
and be continuing; and
(y) either:
(A) such disposition is a sale to any Person
for cash in an amount not less than the fair market
value of such assets, and the Borrower shall promptly
furnish to the Agent copies of such information or
documents relating to such disposition as the Agent
or any Lender or Lenders (through the Agent) shall
have reasonably requested; or
(B) such disposition is an exchange, with
any Person, of such assets for assets owned by such
Person (or the capital stock (or other equity
ownership interest) of such Person) comprising a
radio broadcasting station of equal or greater value,
as determined in good faith by the Board of Directors
of the Borrower or such Subsidiary and the
acquisition of such assets of such Person pursuant to
such exchange shall comply with the provisions of
clause (d)(ii) of this Section 9.05;
(v) the Borrower or any of its Subsidiaries may, subject to
compliance with Section 1013 of the 1993 Senior Subordinated Note
Indenture, dispose of substantially all of the assets relating to any
Owned Station that is a television broadcasting station (or the capital
stock of the Subsidiary of the Borrower that owns such assets),
provided that:
(x) both immediately prior to such disposition and,
after giving effect thereto, no Default shall have occurred
and be continuing; and
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(y) either:
(A) such disposition is a sale to any Person
for cash in an amount not less than the fair market
value of such assets and:
(1) the EBITDA Percentage
attributable to such assets together with
the EBITDA Percentage attributable to all
other assets sold pursuant to this clause
(A) or exchanged pursuant to the following
clause (B) during the immediately preceding
twelve-month period shall not exceed 20%,
(2) the EBITDA Percentage
attributable to all assets of the Borrower
and its Subsidiaries sold pursuant to this
clause (A) or exchanged pursuant to the
following clause (B) since the Restatement
Effective Date shall not exceed 50%, and
(3) the Borrower shall have
furnished to the Lenders, not later than the
date falling ten Business Days (or such
shorter period as the Agent may agree) prior
to the date of such disposition a
certificate in form and detail satisfactory
to the Agent stating (and setting forth
calculations in reasonable detail
demonstrating) the EBITDA Percentage
attributable to the assets so sold and
promptly following request therefor, copies
of such other information or documents
relating to such disposition as the Agent of
any Lender or Lenders (through the Agent)
shall have reasonably requested; or
(B) such disposition is an exchange, with
any Person, of such assets for assets owned by such
Person (or the capital stock (or other equity
ownership interest) of such Person) comprising a
television broadcasting station of equal or greater
value, as determined in good faith by the Board of
Directors of the Borrower or such Subsidiary and:
(1) the EBITDA Percentage
attributable to such assets of the Borrower
or such Subsidiary together with the EBITDA
Percentage attributable to all other assets
of the Borrower or any of its
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Subsidiaries sold pursuant to the foregoing
clause (A) or exchanged pursuant to the this
clause (B) during the immediately preceding
twelve-month period shall not exceed 20%,
(2) the EBITDA Percentage
attributable to all assets of the Borrower
and its Subsidiaries sold pursuant to the
foregoing clause (A) or exchanged pursuant
to this clause (B) since the Restatement
Effective Date shall not exceed 50%,
(3) the acquisition of such assets
of such Person pursuant to such exchange
shall comply with the provisions of clause
(d)(ii) of this Section 9.05 and
(4) the Borrower shall have
furnished to the Lenders, not later than the
date falling ten Business Days (or such
shorter period as the Agent may agree) prior
to the date of such disposition a
certificate in form and detail satisfactory
to the Agent stating (and setting forth
calculations in reasonable detail
demonstrating) the EBITDA Percentage
attributable to the assets so sold;
(vi) the Borrower or any of its Subsidiaries may dispose of
Properties for fair market value, provided that the aggregate fair
market value of Properties disposed of by the Borrower and its
Subsidiaries in any fiscal year of the Borrower may not exceed
$5,000,000;
(vii) the Borrower or any of its Subsidiaries may dispose of
Properties acquired by any of them in the River City Non-License
Acquisition that are substantially duplicative of Properties
theretofore owned by any of them, provided that:
(x) any such disposition shall be for fair market
value and
(y) the aggregate fair market value of all such
Properties disposed of the Borrower and its Subsidiaries after
the date hereof may not exceed $2,500,000;
(viii) the Borrower or any of its Subsidiaries may sell in
accordance with Section 10.4 of the Baker Employment
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Agreement to Barry Baker or to any Person designated by Barry Baker
under said Section 10.4 the Property of the Borrower or such Subsidiary
required to be so sold pursuant to said Section 10.4, provided that any
such sale shall be for cash in an amount not less than the fair market
value of the Property so sold; and
(ix) any Subsidiary (other than a License Subsidiary) may be merged
or consolidated with or into any other Subsidiary (other than a License
Subsidiary); provided that:
(x) if any such transaction shall be between a
Subsidiary and a Wholly Owned Subsidiary, the Wholly Owned
Subsidiary shall be the continuing or surviving corporation
and
(y) if any such transaction shall be between a
Subsidiary Guarantor and a Subsidiary not a Subsidiary
Guarantor, and such Subsidiary Guarantor is not the continuing
or surviving corporation, then the continuing or surviving
corporation shall have assumed all of the obligations of such
Subsidiary Guarantor hereunder and under the other Basic
Documents.
9.06 Limitation on Liens. The Borrower will not, nor will it
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon any of its Property, whether now owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
(b) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or which are being contested in good
faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Borrower or any of its
Subsidiaries, as the case may be, in accordance with GAAP;
(c) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days or
which are being contested in good faith and by appropriate proceedings
and Liens securing judgments but only to the extent for an amount and
for a period not resulting in an Event of Default under Section 10(h)
hereof;
(d) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
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(e) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(f) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Property or minor imperfections in title
thereto which, in the aggregate, are not material in amount, and which
do not in any case materially detract from the value of the Property
subject thereto or interfere with the ordinary conduct of the business
of the Borrower or any of its Subsidiaries;
(g) rights of tenants, as tenants only, under leases of real
property acquired as part of the River City Non- License Acquisition,
which rights do not materially detract from the value of the real
property subject thereto or interfere with the ordinary conduct of the
business of the Borrower or any of its Subsidiaries performed thereon;
(h) Liens on the capital stock of Glencairn owned by Carolyn
C. Smith acquired by the Borrower or any of its Subsidiaries pursuant
to the exercise of the Glencairn Options, to the extent such Liens are
in existence on the date of such acquisition;
(i) additional Liens upon real and/or personal Property
created after the date hereof, provided that the aggregate Indebtedness
secured thereby and incurred on and after the date hereof shall not
exceed $5,000,000 in the aggregate at any one time outstanding; and
(j) any extension, renewal or replacement of the foregoing,
provided, however, that the Liens permitted hereunder shall not be
spread to cover any additional Indebtedness or Property (other than a
substitution of like Property).
9.07 Indebtedness. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur or suffer to exist any Indebtedness
except:
(a) Indebtedness to the Lenders hereunder;
(b) Indebtedness outstanding on the date hereof and listed in
Schedule I hereto;
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(c) Indebtedness of the Borrower evidenced by senior
subordinated notes in an aggregate principal amount not exceeding
$200,000,000 at any one time outstanding and subordinated guarantees
thereof by Subsidiary Guarantors (such Indebtedness and guarantees
being collectively referred to as the "Additional Senior Subordinated
Notes"), provided that (i) such notes are issued at not less than 97%
of par, (ii) such notes and guarantees shall be unsecured and such
notes shall bear interest at a fixed rate not greater than 12% per
annum on the face amount thereof, (iii) no scheduled payments,
prepayments, redemptions or sinking fund or like payments on such notes
shall be required before the tenth anniversary of the date of issuance
of such notes, (iv) the terms and conditions of such notes shall not be
less favorable to the Borrower, its Subsidiaries, the Lenders and the
Agent than the terms and conditions of the 1995 Senior Subordinated
Note Indenture and the 1995 Senior Subordinated Notes, and the terms of
subordination thereof shall also extend to cover obligations of the
Borrower and its Subsidiaries in respect of any Hedging Agreements to
which the Borrower and any Lender are parties, (v) the Net Available
Proceeds of such Indebtedness shall, within the Specified Number of
days, be used (x) to finance the consummation of any Acquisition and
transaction expenses in connection therewith and/or (y) to prepay the
Loans and reduce the Commitments pursuant to Section 2.09(b)(iii)
hereof and (vi) no Default shall have occurred and be continuing at the
time of incurrence of such Indebtedness or would result therefrom;
(d) Indebtedness of Subsidiaries of the Borrower to the
Borrower or to other Subsidiaries of the Borrower;
(e) additional Indebtedness of the Borrower in an aggregate
principal amount not exceeding $50,000,000 at any one time outstanding,
provided (i) that no Default shall have occurred and be continuing at
the time of incurrence of such Indebtedness or would result therefrom
and (ii) such Indebtedness shall be unsecured;
(f) Subordinated Film Indebtedness of the Borrower in an
aggregate principal amount not to exceed $10,000,000 at any one time
outstanding, provided that the terms and conditions of each agreement
or instrument evidencing or governing such Indebtedness shall be
satisfactory to the Majority Lenders;
(g) Guarantees of Indebtedness of GDLP incurred in connection
with Property used by the Borrower and its Subsidiaries in an aggregate
principal amount (including all
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such Indebtedness, if any, permitted by Section 9.07(b) hereof) not
exceeding $2,000,000 at any one time outstanding;
(h) Indebtedness of the Borrower evidenced by senior
subordinated notes and subordinated guarantees thereof by Subsidiary
Guarantors (such Indebtedness and guarantees being collectively
referred to as the "Converted Senior Subordinated Notes"), provided
that (i) such notes and guarantees shall be unsecured and such notes
shall bear interest at a fixed rate not greater than 15% per annum,
(ii) no scheduled payments, prepayments, redemptions or sinking fund or
like payments on such notes shall be required before the tenth
anniversary of the date of issuance of the Other Preferred Stock, (iii)
the terms and conditions of such notes shall not be less favorable to
the Borrower, its Subsidiaries, the Lenders and the Agent than the
terms and conditions of the 1995 Senior Subordinated Note Indenture and
the 1995 Senior Subordinated Notes, and the terms of subordination
thereof shall also extend to cover obligations of the Borrower and its
Subsidiaries in respect of any Hedging Agreements to which the Borrower
and any Lender are parties, (iv) the Borrower shall issue such notes
pursuant to the conversion of all, but not less than all, of the Other
Preferred Stock into such notes in an aggregate principal amount not
exceeding the aggregate liquidation preference of the Other Preferred
Stock so converted and (v) both immediately prior to such conversion of
the Other Preferred Stock and, after giving effect thereto, no Default
shall have occurred and be continuing.
(i) Indebtedness of the Borrower owing to either or both of
the Designated Companies that is subordinated on terms satisfactory to
the Majority Lenders to the obligations of the Borrower hereunder,
under the Notes (if any) and under any Hedging Agreements to which the
Borrower and any Lender are parties.
9.08 Investments. The Borrower will not, and will not permit
any of its Subsidiaries to, make or permit to remain outstanding any Investments
except:
(a) operating deposit accounts with banks;
(b) Permitted Investments;
(c) Investments by the Borrower and its Subsidiaries in
capital stock of Subsidiaries of the Borrower to the extent outstanding
on the date of the financial statements of the Borrower and its
Consolidated Subsidiaries referred
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to in Section 8.02 hereof or required by Section 9.25 hereof and
advances by the Borrower and its Subsidiaries to Subsidiary Guarantors
in the ordinary course of business permitted to be incurred by Section
9.07(d) hereof;
(d) Investments outstanding on the Restatement Effective Date
and identified in Schedule III hereto;
(e) the formation of special purpose Wholly Owned Subsidiaries
of the Borrower for the acquisition of capital stock of or partnership
interests in Persons resulting in such Persons becoming Wholly Owned
Subsidiaries of the Borrower, in each case for the purpose of enabling
the Borrower and its Subsidiaries to consummate acquisitions permitted
by Section 9.05 hereof;
(f) Guarantees by Subsidiary Guarantors of Indebtedness of the
Borrower to the extent such guarantees are expressly permitted by
Section 9.07 hereof;
(g) Guarantees permitted by Section 9.07(g) hereof;
(h) the conversion by the Borrower of the outstanding
principal amount of the WPTT Convertible Debenture into non-voting
common stock of WPTT in accordance with the terms thereof;
(i) Investments by the Borrower in Affiliates in an amount up
to but not exceeding $200,000,000 in the aggregate provided that (x) no
Default shall have occurred and be continuing at the time of the making
of such Investment or would result therefrom, (y) at the time of the
making of such Investment, the Total Indebtedness Ratio shall not be
greater than the lesser of (A) 6.50 to 1 and (B) such ratio as shall be
required by Section 9.14 hereof at the time of the making of such
Investment and (z) each such Affiliate shall be engaged solely in lines
of business activity that would be permitted by Section 9.19 hereof if
such Affiliate were an Obligor hereunder;
(j) the PPI Guaranties;
(k) loans or capital contributions made by the Borrower to the
Designated Companies after the date hereof in an amount up to but not
exceeding $3,000,000 in the aggregate at any one time outstanding;
(l) Investments by the Borrower and its Subsidiaries in
capital stock of KDSM to the extent outstanding on the date of the
consummation of the PPI Transaction (after
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giving effect thereto), including, without limitation, any such capital
stock resulting from the conversion or exchange into such capital stock
of Indebtedness owing by to the Borrower or any of its Subsidiaries;
(m) Investments by the Borrower and its Subsidiaries in
capital stock of New PPI Sub to the extent outstanding on the date of
the consummation of the New PPI Transaction (after giving effect
thereto), including, without limitation, any such capital stock
resulting from the conversion or exchange into such capital stock of
Indebtedness owing by New PPI Sub to the Borrower or any of its
Subsidiaries;
(n) a cash contribution by the Borrower to the capital of New
PPI Sub in an aggregate amount not exceeding 3% of the aggregate
liquidation preference of the New PPI Preferred Stock, which cash
contribution is made in connection with the consummation of the New PPI
Transaction and used by New PPI Sub solely to purchase New PPI Common
Participation Interests; and
(o) additional Investments in an amount up to but not
exceeding $40,000,000 in the aggregate, provided that no Default shall
have occurred and be continuing at the time of the making of such
Investment or would result therefrom.
Notwithstanding anything contained herein to the contrary, the Borrower will
not, and will not permit any of its Subsidiaries to, make any Investment in an
Unrestricted Company other than the Investments referred to in clauses (j)
through (n) of this Section 9.08.
9.09 Dividend Payments. The Borrower will not, and will not
permit any of its Subsidiaries to declare or make any Dividend Payment at any
time, except that, so long as no Default exists at the time of making such
Dividend Payment or would result therefrom:
(a) the Borrower may pay to any Person (including, without
limitation, an Affiliate) dividends in cash in any of its fiscal years
ending after December 31, 1996 provided that (i) the aggregate amount
of such dividends paid in such fiscal year does not exceed 25% of
Excess Cash Flow for its fiscal year immediately preceding the fiscal
year in which such dividends are paid (to the extent that such 25% of
Excess Cash Flow has not otherwise been applied by the Borrower in
accordance with the provisions of this Agreement), and (ii) such
dividend may not be paid earlier than three Business Days after the
prepayment of Loans
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required by Section 2.09(c) hereof in such fiscal year of payment;
(b) the Borrower may pay dividends in cash on the Existing
Preferred Stock, provided that the Fixed Charges Ratio shall not be
less than such ratio as shall be required by Section 9.11 hereof at the
time of the making of such Dividend Payment;
(c) the Borrower may pay dividends in cash on Other Preferred
Stock, provided that at the time of the making of such dividend, the
Total Indebtedness Ratio shall not be greater than the lesser of (A)
6.00 to 1 and (B) such ratio as shall be required by Section 9.14
hereof at the time of the making of such dividend;
(d) the Borrower may pay dividends in cash (other than
dividends on Preferred Stock) provided that at the time of the making
of such dividend, the Total Indebtedness Ratio shall not be greater
than 4.00 to 1;
(e) the Borrower may make Equity Issuances permitted by
Section 9.26 hereof;
(f) the Borrower may purchase, in one transaction or a series
of transactions, its Class A Common Stock and its Class B Common Stock,
provided that the aggregate purchase price (including, without
limitation, cash payments, the principal amount of promissory notes and
Indebtedness assumed, cash payments under Hedging Agreements relating
to capital stock of the Borrower, and the fair market value of Property
delivered) paid, delivered or assumed by the Borrower therefor shall
not exceed $20,000,000;
(g) the Borrower may apply the portion of the Net Available
Proceeds of any Equity Issuances not theretofore applied as required by
Section 9.26(c)(iii) hereof to redeem Existing Preferred Stock for an
aggregate redemption price (including premium) not exceeding
$100,000,000 (less any amount paid to redeem New PPI Preferred Stock
pursuant to the following paragraph (h)) in connection with an optional
redemption by KDSM (if it is then a Designated Company) of KDSM Senior
Debentures, so long as substantially simultaneously with such
redemption (i) all of the proceeds of such redemption shall be used by
KDSM to repay the KDSM Senior Debentures and (ii) all of the proceeds
of the repayment of the KDSM Senior Debentures shall be used by the
Trust to redeem Preferred Participation Interests having an aggregate
liquidation preference equal to the amount of such proceeds;
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(h) the Borrower may apply the portion of the Net Available
Proceeds of any Equity Issuances not theretofore applied as required by
Section 9.26(c)(iii) hereof to redeem New PPI Preferred Stock for an
aggregate redemption price (including premium) not exceeding
$100,000,000 (less any amount paid to redeem Existing Preferred Stock
pursuant to the preceding paragraph (g)) in connection with an optional
redemption by New PPI Sub (if it is then a Designated Company) of New
PPI Senior Debentures, so long as substantially simultaneously with
such redemption (i) all of the proceeds of such redemption shall be
used by New PPI Sub to repay the New PPI Senior Debentures and (ii) all
of the proceeds of the repayment of the New PPI Senior Debentures shall
be used by the New PPI Trust to redeem New PPI Preferred Participation
Interests having an aggregate liquidation preference equal to the
amount of such proceeds; and
(i) the Borrower may convert any Other Preferred Stock into
Converted Senior Subordinated Notes in accordance with Section 9.07(h)
hereof.
Notwithstanding anything herein to the contrary, the Borrower will not, and will
not permit any of its Subsidiaries to, purchase or redeem any of the Existing
Preferred Stock or New PPI Preferred Stock except as expressly permitted by
clauses (g) and (h) of this Section 9.09.
9.10 Interest Coverage Ratio. The Borrower will not permit the
Interest Coverage Ratio on any date to be less than the ratio set forth below
opposite the period during which such date falls:
Period Ratio
------ -----
From the Restatement Effective
Date through December 30, 1998 1.80 to 1
From December 31, 1998
through December 30, 1999 1.90 to 1
From December 31, 1999
through December 30, 2000 2.00 to 1
From December 31, 2000
and at all times thereafter 2.20 to 1
9.11 Fixed Charges Ratio. The Borrower will not permit the
Fixed Charges Ratio to be less than or equal to 1.05 to 1 at any time.
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9.12 Capital Expenditures. The Borrower will not permit the
aggregate amount of Capital Expenditures to exceed (a) for its fiscal year
ending in 1997, $31,500,000 and (b) for any of its fiscal years thereafter, 1.05
multiplied by the maximum aggregate amount of Capital Expenditures (excluding
Additional Capital Expenditures (as defined below)) permitted under this Section
9.12 for the immediately preceding fiscal year of the Borrower; provided that
the Borrower may permit additional Capital Expenditures ("Additional Capital
Expenditures") in an aggregate amount (whether in one or more fiscal years of
the Borrower) not exceeding $75,000,000, which Additional Capital Expenditures
shall be used by the Borrower and its Subsidiaries solely to finance the
conversion from an analog to a digital format of the television broadcasting
facilities and equipment owned by Borrower and its Subsidiaries.
9.13 Senior Indebtedness Ratio. The Borrower will not permit
the Senior Indebtedness Ratio on any date to be greater than the ratio set forth
below opposite the period during which such date falls:
Period Ratio
------ -----
From the Restatement Effective
Date through December 30, 2000 5.00 to 1
From December 31, 2000
through December 30, 2001 4.50 to 1
From December 31, 2001
and at all times thereafter 4.00 to 1
9.14 Total Indebtedness Ratio. The Borrower will not permit
the Total Indebtedness Ratio on any date to be greater than the ratio set forth
below opposite the period during which such date falls:
Period Ratio
------ -----
From the Restatement Effective
Date through December 30, 1997 6.75 to 1
From December 31, 1997
through June 29, 1998 6.50 to 1
From June 30, 1998
through December 30, 1998 6.25 to 1
From December 31, 1998
through June 29, 1999 6.00 to 1
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From June 30, 1999
through December 30, 1999 5.50 to 1
From December 31, 1999
through December 30, 2000 5.00 to 1
From December 31, 2000
through December 30, 2001 4.50 to 1
From December 31, 2001
and at all times thereafter 4.00 to 1
9.15 Film Cash Payments. Neither the Borrower nor any of its
Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or
set apart any money for a sinking, defeasance or other analogous fund for, the
purchase, redemption, retirement or other acquisition of, or make any voluntary
payment or prepayment of the principal of or interest on, or any other amount
owing in respect of, any Film Obligations, except for (a) regularly scheduled
payments in respect thereof required pursuant to the instruments evidencing such
Film Obligations and (b) with the consent of the Agent, prepayments of Film
Obligations not exceeding $25,000,000 after the date hereof.
9.16 No Guarantee of Senior Debentures. The Borrower will not,
nor will it permit any of its Subsidiaries to, Guarantee all or any portion of
the KDSM Senior Debentures or the New PPI Senior Debentures, except by operation
of the Guarantees referred to in clauses (ii) and (iv) of the definition of "PPI
Guaranties" in Section 1.01 hereof. Without limiting the generality of the
foregoing, the Borrower will not, nor will it permit any of its Subsidiaries or
any of the Unrestricted Companies to, take any action (including, without
limitation, causing the Trust or the New PPI Trust to be dissolved) the effect
of which would be to cause either of said referenced Guarantees to become
effective.
9.17 Interest Rate Protection Agreements.
(a) The Borrower will obtain and maintain in full force and
effect from the date not later than the 45th day after the Restatement Effective
Date until no sooner than the second anniversary of the Restatement Effective
Date one or more Interest Rate Protection Agreements with one or more of the
Lenders (and/or with a bank or other financial institution having capital,
surplus and undivided profits of at least $500,000,000), which (together with
the fixed interest rates on the Senior Subordinated Notes) effectively enables
the Borrower (in a manner satisfactory to the Agent), as at any date, to protect
itself against three-month London interbank offered rates plus the
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respective Applicable Margins for Eurodollar Loans in effect at the time such
Interest Rate Protection Agreements are obtained exceeding 10% per annum as to a
notional principal amount from time to time determined as follows: the sum of
such notional principal amount and the aggregate principal amount of the Senior
Subordinated Notes with a fixed rate of interest less than or equal to 10% per
annum scheduled to be outstanding from time to time when expressed as a
percentage of the sum of the aggregate principal or face amount of the Loans and
the Senior Subordinated Notes scheduled to be outstanding from time to time is
at least equal to 60%.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, obtain or enter into any Interest Rate Protection Agreements
except as bona fide hedges against fluctuations in interest rates.
(c) Notwithstanding the foregoing clause (a), the Borrower
shall be permitted to modify the requirements under the Interest Rate Protection
Agreement with the consent of the Agent.
9.18 Subordinated Indebtedness. Neither the Borrower nor any
of its Subsidiaries shall purchase, redeem, retire or otherwise acquire for
value, or set apart any money for a sinking, defeasance or other analogous fund
for, the purchase, redemption, retirement or other acquisition of, or make any
voluntary payment or prepayment of the principal of or interest on, or any other
amount owing in respect of, any Subordinated Indebtedness, except for (a)
prepayments on the Carolyn Smith Documents and the Julian Smith Documents in an
aggregate amount not exceeding $2,000,000 in any fiscal year of the Borrower,
(b) regularly scheduled payments of principal and interest in respect thereof
required pursuant to the instruments evidencing such Subordinated Indebtedness,
and (c) the purchase, redemption, retirement or other acquisition of
Subordinated Indebtedness, provided that (i) no Default shall have occurred and
be continuing at the time of such purchase, redemption, retirement or other
acquisition or would result therefrom and (ii) the aggregate amount of such
purchase, redemption or retirement together with the aggregate amount of
payments permitted pursuant to Section 9.08(n) does not exceed $40,000,000 in
the aggregate.
9.19 Lines of Business. The Borrower will not, nor will it
permit any of its Subsidiaries to, engage to any substantial extent in any line
or lines of business activity other than (a) the business of owning and
operating the Stations (and related retransmission facilities), (b) the
commercial utilization of frequencies licensed, granted or leased to the
Borrower or any of its Subsidiaries by the FCC, any other governmental authority
or any Person in connection with the
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television or radio broadcasting businesses and (c) the production, development,
sale, lease or other provision of equipment and/or services to Persons engaged
in the businesses relating to those referred to in the preceding clause (b);
provided that the Borrower shall not permit the portion of EBITDA for any period
derived from the business activity referred to in the foregoing clause (a) to be
less than 85% of EBITDA for such period. None of the License Subsidiaries will
engage in any line or lines of business activity other than as expressly
contemplated in its respective Asset Use and Operating Agreement. The Borrower
will cause all Broadcast Licenses for Owned Stations at all times to be held in
the name of the respective License Subsidiary for the Owned Station being
operated under authority of such Broadcast Licenses. Notwithstanding the
foregoing, CRESAP shall be permitted to engage in the business referred to in
Section 9.27(a) hereof.
9.20 Transactions with Affiliates. Except as expressly
permitted by this Agreement, the Borrower will not, nor will it permit any of
its Subsidiaries to, directly or indirectly: (a) make any Investment in an
Affiliate; (b) transfer, sell, lease, assign or otherwise dispose of any
Property to an Affiliate; (c) merge into or consolidate with or purchase or
acquire Property from an Affiliate; or (d) enter into any other transaction
directly or indirectly with or for the benefit of an Affiliate (including,
without limitation, guarantees and assumptions of obligations of an Affiliate);
provided that (i) any Affiliate who is an individual may serve as a director,
officer or employee of the Borrower or any of its Subsidiaries and receive
reasonable compensation for his or her services in such capacity, (ii) the
Borrower and its Subsidiaries may enter into transactions (other than extensions
of credit by the Borrower or any of its Subsidiaries to an Affiliate) providing
for the leasing of Property, the rendering or receipt of services or the
purchase or sale of inventory and other Property in the ordinary course of
business (it being understood and agreed that no Acquisition shall be deemed to
be in the ordinary course of business) if the monetary or business consideration
arising therefrom would be substantially as advantageous to the Borrower and its
Subsidiaries as the monetary or business consideration which would obtain in a
comparable transaction with a Person not an Affiliate and (iii) the Borrower may
enter into and perform management agreements, cost sharing agreements and tax
sharing agreements with one or both Designated Companies having terms
satisfactory to the Majority Lenders.
9.21 Use of Proceeds. The Borrower will use the proceeds of
the Loans hereunder (a) to repay loans outstanding under the Existing Credit
Agreement, (b) to finance (i) the River City License Acquisitions, (ii) the
Approved Acquisitions,
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(iii) Other Acquisitions and (iv) transaction costs in connection with all of
the foregoing and (c) for its and its Subsidiaries' general corporate purposes
(in compliance with all applicable legal and regulatory requirements); provided
that neither the Agent nor any Lender shall have any responsibility as to the
use of any of such proceeds.
9.22 Certain Obligations Respecting Subsidiaries. The Borrower
will, and will cause each of its Subsidiaries to, take such action from time to
time as shall be necessary to ensure that each of its Subsidiaries is a Wholly
Owned Subsidiary. Without limiting the generality of the foregoing, none of the
Borrower nor any of its Subsidiaries shall sell, transfer or otherwise dispose
of any shares of stock in any Subsidiary owned by them, nor permit any
Subsidiary to issue any shares of stock of any class whatsoever to any Person
(other than to the Borrower or another Obligor and except as aforesaid). In the
event that any such additional shares of stock shall be issued by any Subsidiary
(except as aforesaid), the respective Obligor agrees forthwith to deliver to the
Agent pursuant to the Security Agreement the certificates evidencing such shares
of stock, accompanied by undated stock powers executed in blank and shall take
such other action as the Agent shall request to perfect the security interest
created therein pursuant to the Security Agreement. The Borrower will not permit
any of its Subsidiaries to enter into, after the date of this Agreement, any
indenture, agreement, instrument or other arrangement that, directly or
indirectly, prohibits or restrains, or has the effect of prohibiting or
restraining, or imposes materially adverse conditions upon, the incurrence or
payment of Indebtedness, the granting of Liens, the declaration or payment of
dividends, the making of loans, advances or Investments or the sale, assignment,
transfer or other disposition of Property.
9.23 Additional Subsidiary Guarantors. The Borrower will, and
will cause each of its Subsidiaries to, take such action, from time to time as
shall be necessary to ensure that all Subsidiaries of the Borrower are
Subsidiary Guarantors (and, thereby, "Obligors") hereunder and to pledge and
grant to the Agent for the benefit of the Lenders a security interest in all of
its respective Property to secure its respective obligations under its
respective guarantees pursuant to documentation substantially to the effect of
the Security Documents, mutatis mutandis, and otherwise reasonably satisfactory
to the Lenders and the Agent. Without limiting the generality of the foregoing,
in the event that the Borrower or any of its Subsidiaries shall form or acquire
any new Subsidiary after the date hereof, the Borrower or the respective
Subsidiary will cause such new Subsidiary to become a "Subsidiary Guarantor"
(and, thereby, an "Obligor") hereunder and to pledge and grant to the Agent for
the
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benefit of the Lenders a security interest on all of its Property to secure its
respective obligations under its respective guarantees pursuant to documentation
substantially to the effect of the Security Documents, mutatis mutandis, and
otherwise reasonably satisfactory to the Lenders and the Agent and to deliver
such proof of corporate action, incumbency of officers, opinions of counsel and
other documents as is consistent with those delivered by each Obligor pursuant
to Section 7.01 hereof upon the Restatement Effective Date or as any Lender or
the Agent shall have requested.
9.24 Modifications of Certain Documents. Without the prior
written consent of the Majority Lenders, the Borrower will not, and will not
permit any of its Subsidiaries to, consent to any modification, supplement,
waiver or termination of any of the provisions of (a) any instrument evidencing
or governing any of the Film Cash Payments unless such instrument is modified,
supplemented or waived at no cost (including, but not limited to interest costs)
to the Borrower or any of its Subsidiaries, (b) the Ancillary Documents, (c) the
River City Acquisition Documents, or (d) the PPI Guaranties, except that the
Borrower or any of its Subsidiaries may (i) amend any of the Asset Use and
Operating Agreements entered into prior to the date hereof to cause the same to
be substantially in the form of Exhibit F hereto, (ii) amend any of the Program
Services Agreements to extend the stated expiration date thereof and (iii)
modify or supplement any of the provisions of the instruments or documents
referred to in the foregoing clauses (a) through (c) herein if (A) such
modifications and supplements are not and will not be, in the reasonable
judgment of the Agent, materially adverse to the interests of the Borrower, its
Subsidiaries, any Lender or the Agent, and (B) the Borrower or such Subsidiary,
as the case may be, shall have furnished to the Agent, not later than the date
falling ten Business Days (or such shorter period as the Agent may agree) prior
to the date of such modification or supplement, a notice setting forth in
reasonable detail the terms and conditions thereof. The Borrower will not, and
will not permit any of its Subsidiaries to, designate any Indebtedness as
Designated Senior Indebtedness or Designated Guarantor Senior Indebtedness, in
each case under and as defined in either Senior Subordinated Note Indenture.
9.25 License Subsidiaries.
(a) Whenever the Borrower or any of its Subsidiaries acquires
any Broadcast License after the Restatement Effective Date, the Borrower shall
(without limiting its obligations under Section 9.23 hereof) cause such
acquisition to take place as follows in accordance with all applicable laws and
regulations, including, without limitation, pursuant to approvals from the
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FCC: (i) each Broadcast License so acquired shall be transferred to and held by
a separate Wholly-Owned Subsidiary of the Borrower that is a License Subsidiary,
provided that (x) the Broadcast Licenses for one or more radio broadcasting
stations serving a single "Area of Dominant Influence" as determined by Arbitron
Company may be held by any one or more License Subsidiaries that do not hold any
Broadcast License for any one or more television broadcasting stations and (y)
the Broadcast Licenses for WTTV-TV, a television broadcasting station licensed
to Bloomington, Indiana and serving the Bloomington area, and for WTTK-TV, a
television broadcasting station licensed to Kokomo, Indiana and serving the
Kokomo area, may be held in a single License Subsidiary, (ii) the related
operating assets shall be transferred to and held by an operating company that
is a Subsidiary of the Borrower (an "Operating Subsidiary"), (iii) such License
Subsidiary and such Operating Subsidiary shall enter into a Asset Use and
Operating Agreement, (iv) the Borrower shall deliver or cause to be delivered to
the Agent in pledge under the Security Agreement all capital stock of such
License Subsidiary and such Operating Subsidiary and (v) the Borrower shall
furnish to the Agent such evidence as may be reasonably requested by the Agent
or any Lender that the foregoing transactions have been so effected.
(b) Notwithstanding anything herein to the contrary, the
Borrower shall not permit any License Subsidiary to:
(i) create, incur, assume or have outstanding any Indebtedness
or other liabilities or obligations except for obligations under the
Basic Documents and an Asset Use and Operating Agreement;
(ii) own any right, franchise or other asset except for
Broadcast Licenses transferred to it by the Borrower of which it is a
direct, Wholly Owned Subsidiary and Broadcast Licenses acquired in the
ordinary course of business and rights under a Asset Use and Operating
Agreement;
(iii) enter into any transaction of merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution);
(iv) create, incur or permit to exist any Lien (other than the
Lien created by the Security Agreement) on or in respect of, or sell,
lease, assign, transfer or otherwise dispose of, any of its rights,
franchises or other assets;
(v) engage in any business other than holding Broadcasting
Licenses and entering into a Asset Use and Operating Agreement; or
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(vi) make or hold any Investment.
(c) Notwithstanding anything in this Section 9.25 to the
contrary, the Borrower and the Subsidiary Guarantors shall not be obligated to
effect any transaction contrary to law or the rules, regulations or policies of
the FCC, and shall be permitted to unwind the transactions contemplated by this
Section 9.25 to the extent necessary to comply with a ruling of the FCC;
provided that the Borrower shall and shall cause each of the Subsidiary
Guarantors to use its best efforts to carry out the provisions of this Section
9.25 consistent with all laws and all rules, regulations and policies of the
FCC, including, without limitation, pursuing any necessary approval or consents
of the FCC.
9.26 Equity Issuance. The Borrower will not effect an Equity
Issuance; provided that the Borrower may (a) (i) issue its Class A Common Stock
as contemplated by the Baker Stock Option Agreement, the Corporate Employee
Stock Option Agreement, the Station Employee Stock Option Agreement and the
Designated Employee Stock Option Plan and (ii) make an Equity Issuance pursuant
to the Columbus Option Agreement; (b) issue Other Preferred Stock (and any of
its Class A Common Stock upon the conversion of any Other Preferred Stock),
provided that the Net Available Proceeds of such Other Preferred Stock shall be
applied to the prepayment of Revolving Credit Loans as provided in Section
2.09(b)(ii) hereof; and (c) make any other Equity Issuance so long as, in the
case of this clause (c) only, (i) such Equity Issuance is an Equity Public
Offering, (ii) after giving effect thereto, no Default shall have occurred and
be continuing and (iii) the Net Available Proceeds thereof shall be applied
within the Specified Number of days after receipt by the Borrower thereof, to
finance (w) the purchase by the Borrower of the Seller Stock and transaction
expenses in connection therewith, (x) the consummation of any Acquisition and
transaction expenses in connection with such Acquisition, (y) the redemption of
the Existing Preferred Stock as permitted by Section 9.09(g) hereof or the New
PPI Preferred Stock as permitted by Section 9.09(h) hereof or (z) any
combination of the foregoing clauses (w), (x) and (y), provided that 80% of any
portion of such Net Available Proceeds not so applied shall be applied to the
prepayment of Loans as provided in Section 2.09(b)(i) hereof.
9.27 CRESAP. Notwithstanding anything contained herein to the
contrary, prior to the making of the CRESAP Investment:
(a) The Borrower shall not permit CRESAP to engage in any
business activity other than employing commercial
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airplane pilots and contracting the services of such pilots to other
Persons;
(b) subject to the proviso to Section 9.27(e) hereof, the
Borrower shall not, and shall not permit its Subsidiaries to, transfer
cash or other Property to CRESAP after the Restatement Effective Date,
howsoever such transfer may be characterized or effected; provided that
the Borrower and its Subsidiaries may pay to CRESAP, in cash, fees not
exceeding $695,500 in any calendar year;
(c) neither the Borrower nor any of its Subsidiaries shall
become obligated to CRESAP in any manner whatsoever except with respect
to the payment of fees permitted by the preceding paragraph (b);
(d) the Borrower shall not permit CRESAP to incur Indebtedness
in an aggregate principal amount exceeding $1,500,000 at any one time
outstanding; and
(e) without limiting the effect of clause (b) of this Section
9.27, neither the Borrower nor any of its Subsidiaries shall make, hold
or maintain any Investment (including, without limitation, any
Investment made before the Restatement Effective Date) in CRESAP other
than the capital stock of CRESAP held by the Borrower on the
Restatement Effective Date; provided that the Borrower or any one of
its Subsidiaries may make a single Investment in CRESAP not exceeding
$1,000,000, the proceeds of which shall be used by CRESAP immediately
upon receipt thereof to repay in full all Indebtedness of CRESAP
outstanding on the date of the such Investment.
9.28 Program Services Agreements. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any local marketing
agreement, time brokerage agreement, program services agreement or any similar
agreement providing for:
(a) the Borrower or any of its Subsidiaries to program or sell
advertising time on all or any portion of the broadcast time of any
television or radio station; or
(b) any Person other than the Borrower or any of its
Subsidiaries to program or sell advertising time on all or any portion
of the broadcast time of any Station, except for KBLA(AM), a radio
broadcasting station licensed to Santa Monica, California and serving
the Santa Monica area.
Notwithstanding the preceding sentence, the Borrower or any of its Subsidiaries
(other than License Subsidiaries) may enter into
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any Program Services Agreement with any other Person (including, without
limitation, Affiliates) provided that the aggregate amount payable by the
Borrower and its Subsidiaries under all Program Services Agreements during any
fiscal year of the Borrower (beginning with its fiscal year ending in 1997),
excluding Permitted Termination Payments (as defined in the next sentence),
shall not exceed the Maximum Amount (as defined in the next sentence) for such
fiscal year. For purposes of the preceding sentence, (i) a "Permitted
Termination Payment" shall mean a payment owing by the Borrower or any of its
Subsidiaries by reason of the early termination of a Program Services Agreement
relating to any of the television stations referred to below provided that the
amount of such payment shall not exceed the amount set forth below opposite the
name of such television station:
Station Termination Payment
------- -------------------
WVTV-TV $5,500,000
WNUV-TV $5,500,000
WRDC-TV $6,500,000
WABM-TV $7,500,000
WTTE-TV $5,000,000
WFBC-TV $5,000,000
KRRT-TV $5,000,000
Other $5,000,000; and
(ii) the "Maximum Amount" for any fiscal year of the Borrower shall mean (x) for
its fiscal year ending in 1997, $25,000,000 and (y) for any of its fiscal years
thereafter, an amount equal to the Maximum Amount for its preceding fiscal year
increased (or decreased, as the case may be) by the percentage of the increase
(or decrease, as the case may be) in the Consumer Price Index for all Urban
Consumers (as published by the U.S. Department of Labor) for the twelve-month
period ending in September of such preceding fiscal year. As used in this
Section 9.29, (v) "WABM-TV" shall mean WABM-TV, Channel 68, a television
broadcasting station licensed to Birmingham, Alabama and serving the Birmingham
area, (w) "WNUV-TV" shall mean WNUV-TV, a television broadcasting station
licensed to Baltimore, Maryland and serving the Baltimore area, (x) "WRDC-TV"
shall mean WRDC-TV, Channel 28, a television broadcasting station licensed to
Raleigh-Durham, North Carolina and serving the Raleigh-Durham area, (y)
"WVTV-TV" shall mean WVTV-TV, a broadcasting television station licensed to
Milwaukee, Wisconsin and serving the Milwaukee area, and (z) "Other" means any
other broadcasting television station sold by the Borrower or any of its
Subsidiaries as permitted by Section 9.05(d)(iii) hereof.
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9.29 Exercise of River City Options. Not later than 90 days
after the issuance by the FCC of an order approving the assignment or transfer
of control to the Borrower or any of its Subsidiaries of Broadcast Licenses for
any "Station" referred to in the River City Group I Option Agreement or the
"Columbus Station" referred to in the Columbus Option Agreement (whether or not
such order is subject to reconsideration or review by the FCC or by any court or
administrative body), the Borrower shall consummate the applicable River City
License Acquisition in accordance with Section 9.05(d)(i) hereof.
9.30 Limitation on Cure Rights. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any agreement (a "Cure
Right Agreement") with or for the benefit of any other Person that limits the
ability of the Borrower or such Subsidiary to exercise any rights or remedies
under any agreement (an "Acquisition Agreement") pursuant to which an
Acquisition is to be consummated; provided that the Borrower or any of its
Subsidiaries may enter into or suffer to exist any Cure Right Agreement for the
benefit of the lenders to Glencairn or to River City, as the case may be, to the
extent that such lenders (or an agent on behalf of such lenders) has a security
interest in the Acquisition Agreement to which such Cure Right Agreement
relates.
Section 10. Events of Default.
10.01 Events of Default; Remedies. If one or more of the
following events (herein called "Events of Default") shall occur and be
continuing:
(a) Any Obligor shall default in the payment when due (whether
at stated maturity or upon mandatory or optional prepayment) of any
principal of or interest on any Loan, or any Reimbursement Obligation,
any fee or any other amount payable by it hereunder or under any other
Basic Document; or
(b) Any of the Obligors shall default in the payment when due
of any principal of or interest on any of its other Indebtedness
aggregating $5,000,000 or more, or in the payment when due of any
amount under any Interest Rate Protection Agreement for a notional
principal amount exceeding $5,000,000; or any event specified in any
note, agreement, indenture or other document evidencing or relating to
any such Indebtedness or any event specified in any Interest Rate
Protection Agreement shall occur if the effect of such event is to
cause, or (with the giving of any notice or the lapse of time or both)
to permit the holder or holders of such Indebtedness (or a trustee or
agent on
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behalf of such holder or holders) to cause, such Indebtedness to become
due, or to be prepaid in full (whether by redemption, purchase, offer
to purchase or otherwise), prior to its stated maturity or to have the
interest rate thereon reset to a level so that securities evidencing
such Indebtedness trade at level specified in relation to the par value
thereof or, in the case of an Interest Rate Protection Agreement, to
permit the payments owing under such Interest Rate Protection Agreement
to be liquidated; or
(c) Any representation, warranty or certification made or
deemed made in any Basic Document (or in any modification or supplement
thereto) by any of the Credit Parties or any certificate furnished to
any Lender or the Agent pursuant to the provisions thereof, shall prove
to have been false or misleading as of the time made or furnished in
any material respect; or
(d) Any of the Credit Parties shall default in the performance
of any of its obligations under (i) any of Sections 9.01(f), 9.05
through 9.20, 9.25, 9.28 or 9.29 hereof, (ii) either of Section 4.02 or
5.02 of the Security Agreement, (iii) either of Section 5.02 and 7.02
of the Affiliate Guarantee or (iv) any provision of any of the
Mortgages; or any of the Credit Parties shall default in the
performance of any of its other obligations in this Agreement or any
other Basic Document and such default shall continue unremedied for a
period of ten days after notice thereof to the Borrower by the Agent or
any Lender (through the Agent); or
(e) Any of the Obligors or Material Third-Party Licensees
shall admit in writing its inability to, or be generally unable to, pay
its debts as such debts become due; or
(f) Any of the Obligors or Material Third-Party Licensees,
shall (i) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee, examiner or liquidator
of itself or of all or a substantial part of its Property, (ii) make a
general assignment for the benefit of its creditors, (iii) commence a
voluntary case under the Bankruptcy Code, (iv) file a petition seeking
to take advantage of any other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement or winding-up, or
composition or readjustment of debts, (v) fail to controvert in a
timely and appropriate manner, or acquiesce in writing to, any petition
filed against it in an involuntary case under the
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Bankruptcy Code, or (vi) take any corporate action for the purpose of
effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the
application or consent of any of the Obligors or Material Third-Party
Licensees in any court of competent jurisdiction, seeking (i) its
liquidation, reorganization, dissolution, arrangement or winding-up, or
the composition or readjustment of its debts, (ii) the appointment of a
trustee, receiver, custodian, examiner, liquidator or the like of such
Obligor, River City or such Subsidiary, as the case may be, or of all
or any substantial part of its Property, or (iii) similar relief in
respect of such Obligor under any law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of
debts, and such proceeding or case shall continue undismissed, or an
order, judgment or decree approving or ordering any of the foregoing
shall be entered and continue unstayed and in effect, for a period of
60 or more days; or an order for relief against such Obligor, River
City or such Subsidiary, as the case may be, shall be entered in an
involuntary case under the Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money in
excess of $5,000,000 in the aggregate shall be rendered by one or more
courts, administrative tribunals or other bodies having jurisdiction
against any of the Obligors and the same shall not be discharged (or
provision shall not be made for such discharge), or a stay of execution
thereof shall not be procured, within 30 days from the date of entry
thereof and the relevant Obligor shall not, within said period of 30
days, or such longer period during which execution of the same shall
have been stayed, appeal therefrom and cause the execution thereof to
be stayed during such appeal; or
(i) An event or condition specified in Section 9.01(f) hereof
shall occur or exist with respect to any Plan or Multiemployer Plan
and, as a result of such event or condition, together with all other
such events or conditions, the Borrower or any ERISA Affiliate shall
incur or in the opinion of the Majority Lenders shall be reasonably
likely to incur a liability to a Plan, a Multiemployer Plan or PBGC (or
any combination of the foregoing) which would constitute, in the
determination of the Majority Lenders, a Material Adverse Effect; or
(j) During any period of 25 consecutive calendar months,
individuals who were directors of the Borrower on
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the first day of such period shall no longer constitute a majority of
the board of directors of the Borrower; or
(k) Except for expiration in accordance with its terms, any of
the Security Documents shall be terminated or shall cease to be in full
force and effect, for whatever reason; or
(l) Any Broadcast License (other than an Immaterial Broadcast
License) shall be terminated, forfeited or revoked or shall fail to be
renewed for any reason whatsoever, or shall be modified in a manner
materially adverse to the Borrower, or for any other reason (i) any
License Subsidiary shall at any time cease to be a licensee under any
Broadcast License (other than an Immaterial Broadcast License) relating
to the Owned Station to which such Broadcast Licenses have been granted
or the Subsidiary of the Borrower that owns 100% of the capital stock
of such License Subsidiary shall otherwise fail to have all required
authorizations, licenses and permits to construct, own, operate or
promote such Owned Station, or (ii) any Material Third-Party Licensee
for any Contract Station shall fail to preserve and maintain its legal
existence or any of its material rights, privileges or franchises
(including the Broadcast Licenses (other than an Immaterial Broadcast
Licenses) for such Contract Station (other than by reason of such
Contract Station becoming an Owned Station)); or
(m) With respect to any Owned Station, the License Subsidiary
with respect to such Owned Station shall at any time cease to be a
Wholly Owned Subsidiary of the Subsidiary of the Borrower that owns the
operating assets related to the Broadcast Licenses for such Owned
Station; or the Borrower shall cease at any time to own all of the
issued shares of the Capital Stock of any such Subsidiary; or
(n) Any transfer of any common stock of the Borrower or any of
its Subsidiaries or any right to receive such common stock or any other
interest in the Borrower or any of its Subsidiaries shall be
transferred and either (i) such transfer shall fail to comply with any
applicable provision of the Federal Communications Act of 1934, as
amended from time to time, or any applicable FCC rule, regulation or
policy, or (ii) the Agent shall not have received prior to such
transfer any opinion reasonably satisfactory to the Majority Lenders of
counsel reasonably satisfactory to the Majority Lenders to the effect
that such transfer does so comply; or
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(o) the Smith Brothers shall cease at any time collectively to
own, legally or beneficially, shares of stock of the Borrower
representing at least 51% of the voting power and economic value of the
Borrower (other than, in any case referred to in this paragraph (o), by
reason of death or disability); or
(p) the Borrower shall deliver any Change of Control Purchase
Notice under and as defined in any Senior Subordinated Note Indenture,
either Designated Company shall deliver any similar notice under the
indenture pursuant to which the KDSM Senior Debentures or the New PPI
Senior Debentures are issued, or any event or circumstance shall occur
that results in a change of ownership or control over the board of
directors of the Borrower and that would permit the holders of the KDSM
Senior Debentures (or any of them) or any agent or trustee acting on
their behalf, or the holders of the New PPI Senior Debentures (or any
of them) or any agent or trustee acting on their behalf, to exercise
remedies in respect thereof; or
(q) any Program Services Agreement shall be terminated prior
to its stated expiration date and the Obligor party thereto shall not
have entered into a substantially identical agreement relating to the
Contract Station to which such Program Services Agreement relates or
any party to any Program Services Agreement shall default in any of its
obligations thereunder; or
(r) any party to any of the River City Acquisition Documents
shall default in the performance of any of its obligations thereunder;
or
(s) any party to a Consent and Agreement shall default in the
performance of any of its obligations thereunder;
(t) there shall have been asserted against any Credit Party an
Environmental Claim that, in the judgment of the Majority Lenders, is
reasonably likely to be determined adversely to the affected Credit
Parties, and the amount thereof is, singly or in the aggregate,
reasonably likely to have a Material Adverse Effect (insofar as such
amount is payable by any of the Credit Parties by after deducting any
portion thereof that is reasonably expected to be paid by other
creditworthy Persons jointly and severally liable thereof); or
(u) the Preferred Participation Interests shall not be
redeemed by the Trust on or prior to the stated maturity date thereof
or the New PPI Preferred Participation
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Interests shall not be redeemed by the New PPI Trust on or prior to
the stated maturity date thereof;
THEREUPON: (i) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Section 10.01 with respect to any Obligor, the Agent
may, by notice to the Borrower, terminate the Commitments and/or declare the
principal amount then outstanding of, and the accrued interest on, the Loans,
the Reimbursement Obligations and all other amounts payable by the Obligors
hereunder and under the Notes (if any) (including, without limitation, any
amounts payable under Section 5.05 or 5.06 hereof) to be forthwith due and
payable, whereupon such amounts shall be immediately due and payable (provided
that if so requested by the Majority Revolving Credit Lenders, the Majority
Tranche A Lenders or the Majority Tranche C Lenders, the Agent shall take such
action with respect to the Commitment and/or Loans of any Class and other
amounts in respect thereof (including, in the case of the Revolving Credit
Commitments and/or the Revolving Credit Loans, the Reimbursement Obligations) to
the extent held by or owed to the relevant Lenders) without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by each Obligor; and (ii) in the case of the occurrence of an Event of
Default referred to in clause (f) or (g) of this Section 10.01 with respect to
any Obligor, the Commitments shall automatically be terminated and the principal
amount then outstanding of, and the accrued interest on, the Loans, the
Reimbursement Obligations and all other amounts payable by the Obligors
hereunder and under the Notes (if any) (including, without limitation, any
amounts payable under Section 5.05 or 5.06 hereof) shall automatically become
immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by each
Obligor.
Without limiting the rights of the Lenders under the preceding paragraph of this
Section 10.01, upon the occurrence and during the continuance of any Event of
Default, the Borrower agrees that it shall, if requested by the Agent or the
Majority Revolving Credit Lenders through the Agent (and, in the case of any
Event of Default referred to in clause (f) or (g) of this Section 10.01 with
respect to the Borrower, forthwith, without any demand or the taking of any
other action by the Agent or such Majority Revolving Credit Lenders) provide
cover for the Letter of Credit Liabilities by paying to the Agent immediately
available funds in an amount equal to the then aggregate undrawn face amount of
all Letters of Credit, which funds shall be held by the Agent in the Collateral
Account as collateral security for the Letter of Credit Liabilities and be
subject to withdrawal only as therein provided.
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10.02 Collateral Account.
(a) The Borrower hereby establishes with the Agent a separate
cash collateral account (the "Collateral Account") in the name and under the
control of the Agent into which there shall be deposited from time to time such
amounts as required to be paid to the Agent under Section 2.09, 3.01 or 10.01
hereof.
(b) As collateral security for the prompt payment in full when
due (whether at stated maturity, upon mandatory or optional prepayment, pursuant
to requirements for cash collateral or otherwise) of the Reimbursement
Obligations, interest thereon, and all obligations of the Borrower under the
Letter of Credit Documents relating to Letters of Credit and under Section
2.10(g) hereof (whether or not then outstanding or due and payable) (such
obligations being herein collectively called the "Secured Letter of Credit
Obligations"), the Borrower hereby pledges and grants to the Agent, for the
benefit of the Issuing Bank, the Revolving Credit Lenders and the Agent as
provided herein, a security interest in all of its right, title and interest in
and to the Collateral Account and the balances from time to time in the
Collateral Account (including the investments and reinvestments therein provided
for below). The balances from time to time in the Collateral Account shall not
constitute payment of any Secured Letter of Credit Obligations until applied by
the Agent as provided herein. Anything in this Agreement to the contrary
notwithstanding, funds held in the Collateral Account shall be subject to
withdrawal only as provided in Section 2.09(f) hereof and in this Section 10.02.
(c) Amounts on deposit in the Collateral Account shall be
invested and reinvested by the Agent in such Permitted Investments as the
Borrower shall determine in its sole discretion, provided that (i) failing
receipt by the Agent of instructions from the Borrower, the Agent may invest and
reinvest such amounts as the Agent shall determine in its sole discretion and
(ii) the approval of the Agent shall be required for the investments and
reinvestments to be made during any period while a Default has occurred and is
continuing. All such investments and reinvestments shall be held in the name and
be under the control of the Agent.
(d) If an Event of Default shall have occurred and be
continuing, the Agent may (and, if instructed by the Majority Revolving Credit
Lenders, shall) in its (or their) discretion at any time and from time to time
elect to liquidate any such investments and reinvestments and credit the
proceeds thereof to the Collateral Account and apply or cause to be applied such
proceeds and any other balances in the Collateral Account to the
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payment of any of the Secured Letter of Credit Obligations due and payable.
(e) If (i) no Default has occurred and is continuing and (ii)
all of the Secured Letter of Credit Obligations have been paid in full, the
Agent shall, from time to time, at the request of the Borrower, deliver to the
Borrower, against receipt but without any recourse, warranty or representation
whatsoever, such of the balances in the Collateral Account as exceed the
aggregate undrawn face amount of the Letters of Credit. When all of the Secured
Letter of Credit Obligations shall have been paid in full and all Letters of
Credit have expired or been terminated, the Agent shall promptly deliver to the
Borrower, against receipt but without any recourse, warranty or representation
whatsoever, the balances remaining in the Collateral Account.
(f) The Borrower shall pay to the Agent from time to time such
fees as the Agent normally charges for similar services in connection with the
Agent's administration of the Collateral Account and investments and
reinvestments of funds therein.
Section 11. The Agent.
11.01 Appointment, Powers and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent hereunder and
under the other Basic Documents with such powers as are specifically delegated
to the Agent by the terms of this Agreement and of the other Basic Documents,
together with such other powers as are reasonably incidental thereto. The Agent
(which term as used in this sentence and in Section 11.05 and the first sentence
of Section 11.06 hereof shall include reference to its affiliates and its own
and its affiliates' officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and in the other Basic Documents,
and shall not by reason of this Agreement or any other Basic Document
be a trustee for any Lender;
(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement
or in any other Basic Document, or in any certificate or other document
referred to or provided for in, or received by any of them under, this
Agreement or any other Basic Document, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Basic Document or any other document referred to
or provided for herein or therein or for any failure by the Borrower or
any other
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Person to perform any of its obligations hereunder or thereunder;
(c) shall not, except to the extent expressly instructed by
the Majority Lenders with respect to collateral security under the
Security Documents, be required to initiate or conduct any litigation
or collection proceedings hereunder or under any other Basic Document;
and
(d) shall not be responsible for any action taken or omitted
to be taken by it hereunder or under any other Basic Document or under
any other document or instrument referred to or provided for herein or
therein or in connection herewith or therewith, except for its own
gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it in good faith. The Agent may deem and treat the payee of any Note
as the holder thereof for all purposes hereof unless and until a notice of the
assignment or transfer thereof shall have been filed with the Agent, together
with the consent of the Borrower to such assignment or transfer.
11.02 Reliance by Agent. The Agent shall be entitled to rely
upon any certification, notice or other communication (including any thereof by
telephone, telegram or cable) believed by it to be genuine and correct and to
have been signed or sent by or on behalf of the proper Person or Persons, and
upon advice and statements of legal counsel, independent accountants and other
experts selected by the Agent. As to any matters not expressly provided for by
this Agreement or any other Basic Document, the Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder or thereunder
in accordance with instructions given by the Majority Lenders or, if provided
herein, in accordance with the instructions given by all of the Lenders as is
required in such circumstance, and such instructions of such Lenders and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders.
11.03 Defaults. The Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default (other than the non-payment
of principal of or interest on Loans or of commitment fees) unless the Agent has
received notice from a Lender or the Borrower specifying such Default and
stating that such notice is a "Notice of Default". In the event that the Agent
receives such a notice of the occurrence of a Default, the Agent shall give
prompt notice thereof to the Lenders (and shall give each Lender prompt notice
of each such non-payment). The
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Agent shall (subject to Section 11.07 hereof) take such action with respect to
such Default as shall be directed by the Majority Lenders or, if provided
herein, the Majority Revolving Credit Lenders, the Majority Tranche A Lenders or
the Majority Tranche C Lenders, provided that, unless and until the Agent shall
have received such directions, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interest of the Lenders except to
the extent that this Agreement expressly requires that such action be taken, or
not be taken, only with the consent or upon the authorization of the Majority
Lenders, the Majority Revolving Credit Lenders, the Majority Tranche A Lenders,
the Majority Tranche C Lenders, all of the Lenders with respect to any Class of
Loans or all of the Lenders.
11.04 Rights as a Lender. With respect to its Commitment(s)
and the Loans made by it, Chase (and any successor acting as Agent) in its
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same, and its rights as Issuing Bank
hereunder, as though it were not acting as the Agent, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include the Agent in
its individual capacity. Chase (and any successor acting as Agent) and its
affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with the Obligors (and any of their Subsidiaries or
Affiliates) as if it were not acting as the Agent, and Chase (and any such
successor) and its affiliates may accept fees and other consideration from the
Obligors for services in connection with this Agreement or otherwise without
having to account for the same to the Lenders.
11.05 Indemnification. The Lenders agree to indemnify the
Agent (to the extent not reimbursed under Section 12.03 hereof, but without
limiting the obligations of the Borrower under said Section 12.03, and including
in any event any payments under any indemnity which the Agent is required to
issue to any bank referred to in Section 4.02 of the Security Agreement and
Section 5.02 of the Affiliate Guarantee Agreement to which remittances in
respect of Accounts, as defined therein, are to be made), ratably in accordance
with their respective Credit Exposures, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Agent (including by any Lender) arising
out of or by reason of any investigation or in any way relating to or arising
out of this Agreement or any other Basic Document or any other documents
contemplated by or
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referred to herein or therein or the transactions contemplated hereby
(including, without limitation, the costs and expenses which the Borrower is
obligated to pay under Section 12.03 hereof, and including also any payments
under any indemnity which the Agent is required to issue to any bank referred to
in Section 4.02 of the Security Agreement and Section 5.02 of the Affiliate
Guarantee Agreement to which remittances in respect of Accounts, as defined
therein, are to be made, but excluding, unless a Default has occurred and is
continuing, normal administrative costs and expenses incident to the performance
of its agency duties hereunder) or the enforcement of any of the terms hereof or
thereof or of any such other documents, provided that no Lender shall be liable
for any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the party to be indemnified.
11.06 Non-Reliance on Agent and Other Lenders. Each Lender
agrees that it has, independently and without reliance on the Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Borrower and its Subsidiaries
and decision to enter into this Agreement and that it will, independently and
without reliance upon the 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 analysis and decisions in taking or not taking action under this Agreement
or any of the other Basic Documents. The Agent shall not be required to keep
itself informed as to the performance or observance by any Obligor of this
Agreement or any of the other Basic Documents or any other document referred to
or provided for herein or therein or to inspect the Properties or books of the
Borrower or any of its Subsidiaries. Except for notices, reports and other
documents and information expressly required to be furnished to the Lenders by
the Agent hereunder or under the Security Documents, the Agent shall not have
any duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition or business of the
Borrower or any of its Subsidiaries (or any of their affiliates) which may come
into the possession of the Agent or any of its affiliates.
11.07 Failure to Act. Except for action expressly required of
the Agent hereunder and under the other Basic Documents, the Agent shall in all
cases be fully justified in failing or refusing to act hereunder and thereunder
unless it shall receive further assurances to its satisfaction from the Lenders
of their indemnification obligations under Section 11.05 hereof against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
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11.08 Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the Agent may
resign at any time by giving notice thereof to the Lenders and the Borrower, and
the Agent may be removed at any time with or without cause by the Majority
Lenders. Upon any such resignation or removal, the Majority Lenders shall have
the right to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Majority Lenders and shall have accepted such appointment
within 30 days after the retiring Agent's giving of notice of resignation or the
Majority Lenders' removal of the retiring Agent, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent, which shall be a bank which
has an office in New York, New York with a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as Agent hereunder by
a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Section 11 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Agent.
11.09 Consents under Certain Documents. Except as otherwise
provided in Section 12.04 hereof with respect to this Agreement, the Agent may,
with the prior consent of the Majority Lenders (but not otherwise), consent to
any modification, supplement or waiver under any of the Basic Documents or under
either Senior Subordinated Note Indenture, provided that, without the prior
consent of each Lender, the Agent shall not (except as provided herein or in the
Security Documents) release any guarantor from its liability in respect of its
guarantee, release any collateral or otherwise terminate any Lien under any
Basic Document providing for collateral security, or agree to additional
obligations being secured by such collateral security (unless, but subject to
the prior consent of the Majority Lenders as aforesaid, the Lien for such
additional obligations shall be junior to the Lien in favor of the other
obligations secured by such Basic Document), except that no such consent shall
be required, and the Agent is hereby authorized to (i) release any Lien covering
Property which is the subject of a disposition of Property permitted hereunder
or to which the Majority Lenders have consented; and (ii) release any Mortgages
executed and delivered by Cunningham, KIG or GDLP.
11.10 Collateral Sub-Agents. Each Lender by its execution and
delivery of this Agreement agrees, as contemplated by Section 4.03 of the
Security Agreement, that, in the event it shall hold any Permitted Investments
referred to therein, such
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Permitted Investments shall be held in the name and under the control of such
Lender, and such Lender shall hold such Permitted Investments as a collateral
sub-agent for the Agent thereunder. The Borrower by its execution and delivery
of this Agreement hereby consents to the foregoing.
Section 12. Miscellaneous.
12.01 Waiver. No failure on the part of the Agent or any
Lender to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under this Agreement or any Note shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege under this Agreement or any Note preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
Each Obligor irrevocably waives, to the fullest extent
permitted by applicable law, any claim that any action or proceeding commenced
by the Agent or any Lender relating in any way to this Agreement should be
dismissed or stayed by reason, or pending the resolution, of any action or
proceeding commenced by any Obligor relating in any way to this Agreement
whether or not commenced earlier. To the fullest extent permitted by applicable
law, the Obligors shall take all measures necessary for any such action or
proceeding commenced by the Agent or any Lender to proceed to judgment prior to
the entry of judgment in any such action or proceeding commenced by any Obligor.
12.02 Notices. All notices and other communications provided
for herein and under the Security Documents (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be given
or made in writing (including, without limitation, telecopy) delivered to the
intended recipient at the "Address for Notices" specified below its name on the
signature pages hereof (or below the name of the Borrower, in the case of any
Subsidiary Guarantor); or, as to any party, at such other address as shall be
designated by such party in a notice to each other party. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
12.03 Expenses, Etc. The Borrower agrees to pay or reimburse
each of the Lenders and the Agent for paying: (a) all reasonable out-of-pocket
costs and expenses of the Agent (including, without limitation, the reasonable
fees and expenses of Milbank, Tweed, Hadley & McCloy, special New York counsel
to
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Chase), in connection with (i) the negotiation, preparation, execution and
delivery of this Agreement and the other Basic Documents and the making of the
Loans hereunder, (ii) the negotiation or preparation of any amendment,
modification or waiver of any of the terms of this Agreement or any of the other
Basic Documents (whether or not consummated), (iii) the consummation of any
Acquisition, (iv) compliance by the Borrower with any of Sections 9.23 and 9.25
hereof; (b) all reasonable costs and expenses of the Lenders and the Agent
(including reasonable counsels' fees and expenses) in connection with (i) any
Default and any enforcement or collection proceedings resulting therefrom,
including, without limitation, all manner of participation in or other
involvement with (x) bankruptcy, insolvency, receivership, foreclosure, winding
up or liquidation proceedings, (y) judicial or regulatory proceedings and (z)
workout, restructuring or other negotiations or proceedings (whether or not the
workout, restructuring or transaction contemplated thereby is consummated) and
(ii) the enforcement of this Section 12.03; and (c) all transfer, stamp,
documentary, mortgage, mortgage recording, intangible or other similar taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or any of the other Basic Documents or any other
document referred to herein or therein and all costs, expenses, taxes,
assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any security interest contemplated by
this Agreement or any other Basic Document or any other document referred to
herein or therein.
The Borrower hereby agrees to indemnify the Agent, the
Lenders, the Affiliates of the Lenders and their respective directors, officers,
employees and agents for, and hold each of them harmless against, any and all
losses, liabilities, claims, damages or expenses incurred by any of them
(including any and all losses, liabilities, claims, damages or expenses incurred
by the Agent to any Lender, whether or not the Agent or any Lender is a party
thereto) arising out of or by reason of any investigation or litigation or other
proceedings (including any threatened investigation or litigation or other
proceedings) relating to the extensions of credit hereunder or any actual or
proposed use by the Borrower or any of its Subsidiaries of the proceeds of any
of the extensions of credit hereunder, including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation or litigation or other proceedings (but excluding any such
losses, liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified). Without
limiting the generality of the foregoing, the Borrower will indemnify the Agent
for any payments which the Agent is required to make under any indemnity issued
to any bank
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referred to in Section 4.02 of the Security Agreement to which remittances in
respect to Accounts, as defined therein, are to be made and indemnify the Agent
and each Lender from, and hold the Agent and each Lender harmless against, any
losses, liabilities, claims, damages or expenses described in the preceding
sentence (including any Lien filed against any Property covered by the
Mortgage(s) in favor of any governmental entity, but excluding, as provided in
the preceding sentence, any loss, liability, claim, damage or expense incurred
by reason of the gross negligence or willful misconduct of the Person to be
indemnified) arising as a result of any representation, warranty or
certification made or deemed to be made in Section 8.13 hereof and proved to
have been false or misleading as of the time made or arising under any
Environmental Law as a result of the past, present or future operations of the
Borrower or any of its Subsidiaries (or any predecessor in interest to the
Borrower or any of its Subsidiaries), or the past, present or future condition
of any site or facility owned, operated or leased at any time by the Borrower or
any of its Subsidiaries (or any such predecessor in interest), or any Release or
threatened Release of any Hazardous Materials at or from any such site or
facility, including any such Release or threatened Release that shall occur
during any period when the Agent or any Lender shall be in possession of any
such site or facility following the exercise by the Agent or any Lender of any
of its rights and remedies hereunder or under any of the Security Documents.
12.04 Amendments, Etc. Except as otherwise expressly provided
in this Agreement, any provision of this Agreement may be amended or modified
only by an instrument in writing signed by the Borrower, the Agent and the
Majority Lenders, or by the Borrower and the Agent acting with the consent of
the Majority Lenders, and any provision of this Agreement may be waived only by
an instrument in writing signed by the Majority Lenders or by the Agent acting
with the consent of the Majority Lenders; provided that:
(a) no amendment, modification or waiver shall, unless by an
instrument signed by all of the Lenders or by the Agent acting with the
consent of all of the Lenders:
(i) increase or extend the term, or extend the time
or waive any requirement for the reduction or termination, of
any of the Commitments;
(ii) extend the date fixed for the payment of
principal of or interest on any Loan, any Reimbursement
Obligation or any fee hereunder;
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(iii) reduce the amount of any such payment of
principal;
(iv) reduce the rate at which interest is payable
thereon or any fee is payable hereunder;
(v) alter the rights or obligations of the Borrower
to prepay Loans;
(vi) alter the terms of Section 11.09 hereof or of
this Section 12.04;
(vii) amend the definition of the term "Majority
Lenders", "Majority Revolving Credit Lenders", "Majority
Tranche A Lenders" or "Majority Tranche C Lenders" or modify
in any other manner the number or percentage of the Lenders
(or Class of Lenders) required to make any determinations or
waive any rights hereunder or to modify any provision hereof;
(viii) alter the manner in which payments or
prepayments of principal, interest or other amounts hereunder
shall be applied as between the Lenders or Types or Classes
of Loans; or
(ix) waive any of the conditions precedent set forth
in Section 7.01 hereof;
(b) no amendment, modification or waiver shall, unless by an
instrument signed by all of the Revolving Credit Lenders or by the
Agent acting with the consent of all of the Revolving Credit Lenders
waive any condition precedent set forth in Section 7.02 hereof to the
making of any Revolving Credit Loan or the issuance of any Letter of
Credit;
(c) no amendment, modification or waiver shall, unless by an
instrument signed by all of the Tranche A Lenders or by the Agent
acting with the consent of all of the Tranche A Lenders waive any
condition precedent set forth in Section 7.02 hereof to the making of
any Tranche A Term Loan;
(d) no amendment, modification or waiver shall, unless by an
instrument signed by all of the Tranche C Lenders or by the Agent
acting with the consent of all of the Tranche C Lenders waive any
condition precedent set forth in Section 7.02 hereof to the making of
any Tranche C Term Loan;
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(e) any amendment modifying Section 11 hereof, or which
affects the rights or obligations of the Agent hereunder, shall require
the consent of the Agent;
(f) any modification or supplement to this Agreement that
affects the rights, remedies or obligations of the Issuing Bank in its
capacity as issuer of the Letters of Credit shall require the consent
of the Issuing Bank; and
(g) any modification or supplement of Section 6 hereof shall
require the consent of each Subsidiary Guarantor and, if such
modification or supplement expressly releases any Subsidiary Guarantor
from its liability thereunder, the consent of each Lender.
In furtherance of clauses (b), (c), and (d) of this Section
12.04, no amendment to or waiver of any representation or warranty or any
covenant contained in this Agreement or any other Basic Document, or of any
Event of Default, shall be deemed to be effective for purposes of determining
whether the conditions precedent set forth in Section 7.02 hereof to the making
of any Loan of any Class have been satisfied unless the Majority Revolving
Credit Lenders, the Majority Tranche A Lenders or the Majority Tranche C Lenders
(as the case may be) shall have consented to such amendment or waiver.
Anything in this Agreement to the contrary notwithstanding,
if:
(x) at a time when the conditions precedent set forth in
Section 7 hereof to a Loan of any Class hereunder are, in the opinion
of the Majority Revolving Credit Lenders, the Majority Tranche A
Lenders or the Majority Tranche C Lenders (as the case may be),
satisfied, any Lender shall fail to fulfill its obligations to make
such Loan; or
(y) any Revolving Credit Lender shall fail to pay to the Agent
for the account of the Issuing Bank the amount of such Revolving Credit
Lender's Revolving Credit Commitment Percentage of any payment under a
Letter of Credit pursuant to Section 2.10(e) hereof;
then, for so long as such failure shall continue, such Lender shall (unless the
Majority Lenders, the Majority Revolving Credit Lenders, the Majority Tranche A
Lenders or the Majority Tranche C Lenders (as the case may be), determined as if
such Lender were not a "Lender" hereunder, shall otherwise consent in writing)
be deemed for all purposes relating to amendments, modifications, waivers or
consents under this Agreement or any of the other Basic Documents (including,
without limitation, under this
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Section 12.04 and under Section 11.09 hereof) to have no Loans, Letter of Credit
Liabilities or Commitments, shall not be treated as a "Lender" hereunder when
performing the computation of the Majority Lenders, the Majority Revolving
Credit Lenders, the Majority Tranche A Lenders or the Majority Tranche C Lenders
(as the case may be), and shall have no rights under the preceding paragraph of
this Section 12.04; provided that any action taken by the other Lenders with
respect to the matters referred to in clause (a) of the preceding paragraph
shall not be effective as against such Lender.
12.05 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
12.06 Assignments and Participations.
(a) No Obligor may assign its rights or obligations hereunder
or under any Notes without the prior consent of all of the Lenders and the
Agent.
(b) Each Lender may assign any of its Loans, its Notes, its
Letter of Credit Interest and its Commitments without the consent of the
Borrower or the Agent; provided that:
(i) any such partial assignment shall be in an amount at least
equal to $5,000,000 and the aggregate amount of the Commitments and/or
Loans of the assigning Lender immediately after such partial assignment
shall not be less than $5,000,000;
(ii) each such assignment by a Revolving Credit Lender of its
Revolving Credit Loans, Revolving Credit Note (if any), Revolving
Credit Commitment or Letter of Credit Interest shall be made in such
manner so that the same portion of its Revolving Credit Loans,
Revolving Credit Note (if any), Revolving Credit Commitment and Letter
of Credit Interest is assigned to the respective assignee and shall
require the prior consent of the Issuing Bank;
(iii) each such assignment by a Tranche C Lender of its Tranche C
Term Loans, Tranche C Term Loan Note (if any) or Tranche C Term Loan
Commitment shall be made in such manner so that the same portion of its
Tranche C Term Loans, Tranche C Term Loan Note (if any) or Tranche C
Term Loan Commitment is assigned to the respective assignee; and
(iv) each such assignment shall be effected pursuant to an
Assignment and Acceptance in substantially the form of Exhibit H hereto
and the assignor and assignee shall deliver
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to the Borrower, the Agent and (if the assignment is of Revolving
Credit Commitments and Letter of Credit Interest) the Issuing Bank a
fully executed copy thereof.
Upon execution and delivery by the assignor and the assignee to the Borrower,
the Agent and (if applicable) the Issuing Bank of such Assignment and Acceptance
and upon consent thereto by the Issuing Bank to the extent required above, the
assignee shall have, to the extent of such assignment (unless otherwise provided
in such assignment with the consent of the Borrower and the Agent), the
obligations, rights and benefits of a Lender hereunder holding the
Commitment(s), Letter of Credit Interest and Loans (or portions thereof)
assigned to it (in addition to the Commitment(s), Letter of Credit Interest and
Loans, if any, theretofore held by such assignee) and the assigning Lender
shall, to the extent of such assignment, be released from the Commitment(s) (or
portion(s) thereof) so assigned. Upon each such assignment the assigning Lender
shall pay the Agent an assignment fee of $3,000.
(c) A Lender may sell or agree to sell to one or more other
Persons a participation in all or any part of any Loans held by it, or in its
Commitment(s) or Letter of Credit Interests in which event each purchaser of a
participation (a "Participant") shall be entitled to the rights and benefits of
the provisions of Section 9.01(k) hereof with respect to its participation in
such Loans, Commitment(s) and Letter of Credit Interests as if (and the Borrower
shall be directly obligated to such Participant under such provisions as if)
such Participant were a "Lender" for purposes of said Section, but, except as
otherwise provided in Section 4.07(c) hereof, shall not have any other rights or
benefits under this Agreement or any Note or any other Basic Document (the
Participant's rights against such Lender in respect of such participation to be
those set forth in the agreements executed by such Lender in favor of the
Participant). All amounts payable by the Borrower to any Lender under Section 5
hereof in respect of Loans held by it, its Commitment and its Letter of Credit
Interests shall be determined as if such Lender had not sold or agreed to sell
any participations in such Loans, Commitment and Letter of Credit Interests and
as if such Lender were funding each of such Loan, Commitment and Letter of
Credit Interests in the same way that it is funding the portion of such Loan,
Commitment and Letter of Credit Interests in which no participations have been
sold. In no event shall a Lender that sells a participation agree with the
Participant to take or refrain from taking any action hereunder or under any
other Basic Document except that such Lender may agree with the Participant that
it will not, without the consent of the Participant, agree to (i) increase or
extend the term, or extend the time or waive any requirement for the reduction
or
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termination, of such Lender's related Commitment, (ii) extend the date fixed for
the payment of principal of or interest on the related Loan or Loans,
Reimbursements Obligations or any portion of any fee hereunder payable to the
Participant, (iii) reduce the amount of any such payment of principal, (iv)
reduce the rate at which interest is payable thereon, or any fee hereunder
payable to the Participant, to a level below the rate at which the Participant
is entitled to receive such interest or fee, (v) alter the rights or obligations
of the Borrower to prepay the related Loans, or (vi) consent to any
modification, supplement or waiver hereof or of any of the other Basic Documents
to the extent that the same, under Section 11.10 hereof, requires the consent of
each Lender.
(d) In addition to the assignments and participations
permitted under the foregoing provisions of this Section 12.06, any Lender may
(without notice to the Borrower, the Agent or any other Lender and without
payment of any fee) (i) assign and pledge all or any portion of its Loans and
its Note(s) (if any) as Collateral Security for the obligations of such Lender
(including, without limitation, any assignment or pledge to any Federal Reserve
Bank as collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank) and (ii) assign all or any portion of its
rights under this Agreement and its Loans and its Note(s) (if any) to an
affiliate. No such assignment shall release the assigning Lender from its
obligations hereunder.
(e) A Lender may furnish any information concerning the
Borrower or any of its Subsidiaries in the possession of such Lender from time
to time to assignees and participants (including prospective assignees and
participants).
(f) Anything in this Section 12.06 to the contrary
notwithstanding, no Lender may assign or participate any interest in any Loan or
Reimbursement Obligation held by it hereunder to the Borrower or any of its
Affiliates or Subsidiaries without the prior consent of each Lender.
(g) At the request of any Lender that is not a U.S. Person and
is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, the
Borrower shall maintain, or cause to be maintained, a register (the "Register")
that, at the request of the Borrower, shall be kept by the Agent on behalf of
the Borrower at no charge to the Borrower at the address to which notices to the
Agent are to be sent hereunder, on which it enters the name of such Lender as
the registered owner of each Registered Loan held by such Lender. A Registered
Loan (and the Registered Note (if any) evidencing the same) may be assigned or
otherwise transferred in whole or in part only by registration of
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such assignment or transfer on the Register (and each Registered Note shall
expressly so provide). Any assignment or transfer of all or part of such Loan
(and the Registered Note (if any) evidencing the same) may be effected by
registration of such assignment or transfer on the Register, together with the
surrender of the Registered Note (if any) evidencing the same duly endorsed by
(or accompanied by a written instrument of assignment or transfer duly executed
by) the holder of such Registered Note, whereupon, at the request of the
designated assignee(s) or transferee(s), one or more new Registered Notes in the
same aggregate principal amount shall be issued to the designated assignee(s) or
transferee(s). Prior to the registration of assignment or transfer of any
Registered Loan (and the Registered Note (if any) evidencing the same), the
Borrower shall treat the Person in whose name such Loan (and the Registered Note
(if any) evidencing the same) is registered as the owner thereof for the purpose
of receiving all payments thereon and for all other purposes, notwithstanding
notice to the contrary.
(h) The Register shall be available for inspection by the
Borrower and any Lender that is a Registered Holder at any reasonable time upon
reasonable prior notice.
12.07 Survival. The obligations of the Borrower under Sections
2.10(g), 2.10(l), 5.01, 5.05, 5.06, 5.07, 12.03 and 12.13 hereof, the
obligations of each Subsidiary Guarantor under Section 6.03 hereof and the
obligations of the Lenders under Section 11.05 hereof shall survive the
repayment of the Loans and Reimbursement Obligations and the termination of the
Commitments and, in the case of any Lender that may assign any interest in its
Commitments, Loans or Letter of Credit Interest hereunder, shall survive the
making of such assignment, notwithstanding that such assigning Lender may cease
to be a "Lender" hereunder; provided that, in the event of any such assignment
by a Lender to which the Agent has consented, the assigning bank shall be
released from its obligations under Section 11.05 hereof if and to the extent
that the assignee has assumed such obligations. In addition, each representation
and warranty made, or deemed to be made by a notice of any extension of credit,
herein or pursuant hereto shall survive the making of such representation and
warranty, and no Lender shall be deemed to have waived, by reason of making any
extension of credit hereunder, any Default which may arise by reason of such
representation or warranty proving to have been false or misleading,
notwithstanding that such Lender or the Agent may have had notice or knowledge
or reason to believe that such representation or warranty was false or
misleading at the time such extension of credit was made.
Credit Agreement
- 152 -
12.08 Captions. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
12.09 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.
12.10 Governing Law; Submission to Jurisdiction. This
Agreement and the Notes (if any) shall be governed by, and construed in
accordance with, the law of the State of New York. Each Obligor hereby submits
to the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York and of any New York state court sitting in New
York City for the purposes of all legal proceedings arising out of or relating
to this Agreement or the transactions contemplated hereby. Each Obligor
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
12.11 Waiver of Jury Trial. EACH OF THE OBLIGORS, THE AGENT
AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
12.12 Treatment of Certain Information. The Borrower
acknowledges that (a) services may be offered or provided to it (in connection
with this Agreement or otherwise) by each Lender or by one or more subsidiaries
or affiliates of such Lender and (b) information delivered to each Lender by the
Borrower and its Subsidiaries may be provided to each such subsidiary and
affiliate.
12.13 Cure of Defaults by Agent or Lenders. Notwithstanding
anything contained herein to the contrary, the Agent or any Lender may in its
sole discretion, but shall not be obligated to, (a) cure any monetary default
under any Program Services Agreement or (b) cure, by monetary payment or by
performance, any default under any lease or option agreement to which the
Borrower or any Subsidiary is a party. In each case referred to in the foregoing
clauses (a) and (b), the Borrower shall reimburse the Agent or such Lender for
any such payment, and shall indemnify the Agent or such Lender for any and all
costs and expenses (including, without limitation, the fees and
Credit Agreement
- 153 -
expenses of counsel) incurred by the Agent or such Lender in connection with any
such performance, in each case with interest, at the Base Rate plus the
Applicable Margin, payable from the date of such payment or performance by the
Agent or such Lender to the date of reimbursement by the Borrower. Without
limiting the generality of the foregoing, the Agent or any Lender may in its
sole discretion, but shall not be obligated to, cure, by monetary payment or by
performance, any default as permitted by any Consent and Agreement and the
Borrower shall reimburse the Agent or such Lender for any such payment, and
shall indemnify the Agent or such Lender for any and all costs and expenses
(including, without limitation, the fees and expenses of counsel) incurred by
the Agent or such Lender in connection with any such performance, in each case
with interest, at the Base Rate plus the Applicable Margin, payable from the
date of such payment or performance by the Agent or such Lender to the date of
reimbursement by the Borrower.
Credit Agreement
- 154 -
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
SINCLAIR BROADCAST GROUP, INC.
By /s/ David B. Amy
---------------------------
Name: David B. Amy
Title: Chief Financial Officer
Address for Notices:
Sinclair Broadcast Group, Inc.
2000 West 41st Street
Baltimore, Maryland 21211
Telecopier No.: (410) 467-5043
Telephone No.: (410) 467-5005
Attention: David D. Smith
with a copy to:
Thomas & Libowitz, P.A.
100 Light Street
Baltimore, Maryland 21202
Telecopier No.: (410) 752-2046
Telephone No.: (410) 752-2468
Attention: Steven Thomas
Credit Agreement
----------------
- 155 -
SUBSIDIARY GUARANTORS
CHESAPEAKE TELEVISION, INC.
KSMO, INC.
KUPN LICENSEE, INC.
SINCLAIR RADIO OF ALBUQUERQUE, INC.
SINCLAIR RADIO OF BUFFALO, INC.
SINCLAIR RADIO OF GREENVILLE, INC.
SINCLAIR RADIO OF LOS ANGELES, INC.
SINCLAIR RADIO OF MEMPHIS, INC.
SINCLAIR RADIO OF NASHVILLE, INC.
SINCLAIR RADIO OF NEW ORLEANS, INC.
SINCLAIR RADIO OF ST. LOUIS, INC.
SINCLAIR RADIO OF WILKES-BARRE, INC.
TUSCALOOSA BROADCASTING, INC.
WCGV, INC.
WDBB, INC.
WLFL, INC.
WPGH, INC.
WPGH LICENSEE, INC.
WSMH, INC.
WSTR, INC.
WSTR LICENSEE, INC.
WSYX, INC.
WTTE, CHANNEL 28, INC.
WTTE, CHANNEL 28 LICENSEE, INC.
WTTO, INC.
WTVZ, INC.
WTVZ LICENSEE, INC.
WYZZ, INC.
SUPERIOR COMMUNICATIONS OF OKLAHOMA, INC.
CHESAPEAKE TELEVISION LICENSEE, INC.
FSF TV, INC.
KABB LICENSEE, INC.
KDNL LICENSEE, INC.
KSMO LICENSEE, INC.
SCI - INDIANA LICENSEE, INC.
SCI - SACRAMENTO LICENSEE, INC.
SINCLAIR RADIO OF ALBUQUERQUE LICENSEE, INC.
SINCLAIR RADIO OF BUFFALO LICENSEE, INC.
SINCLAIR RADIO OF GREENVILLE LICENSEE, INC.
SINCLAIR RADIO OF LOS ANGELES LICENSEE, INC.
Credit Agreement
----------------
- 156 -
SINCLAIR RADIO OF MEMPHIS
LICENSEE, INC.
SINCLAIR RADIO OF NASHVILLE
LICENSEE, INC.
SINCLAIR RADIO OF NEW ORLEANS
LICENSEE, INC.
SINCLAIR RADIO OF ST. LOUIS
LICENSEE, INC.
SINCLAIR RADIO OF WILKES-BARRE
LICENSEE, INC.
SUPERIOR COMMUNICATIONS OF
KENTUCKY, INC.
SUPERIOR KY LICENSE CORP.
SUPERIOR OK LICENSE CORP.
WCGV LICENSEE, INC.
WLFL LICENSEE, INC.
WLOS LICENSEE, INC.
WSMH LICENSEE, INC.
WTTO LICENSEE, INC.
WYZZ LICENSEE, INC.
By /s/ David B. Amy
--------------------------
Name: David B. Amy
Title: Secretary
SINCLAIR COMMUNICATIONS, INC.
By /s/ David B. Amy
--------------------------
Name: David B. Amy
Title: Secretary
Credit Agreement
----------------
- 157 -
[INTENTIONALLY OMITTED]
Credit Agreement
- 158 -
THE CHASE MANHATTAN BANK,
as Agent
By /s/ Tracey A Navin
--------------------------
Name: Tracey A. Navin
Title: Vice President
Address for Notices to
Chase as Agent:
The Chase Manhattan Bank
Agent Bank Services
One Chase Manhattan Plaza
8th Floor
New York, New York 10081
Telecopier No.: (212) 552-5700
Telephone No.: (212) 552-7488
LENDERS
THE CHASE MANHATTAN BANK
By /s/ Tracey A. Navin
--------------------------
Name: Tracey A. Navin
Title: Vice President
Lending Office for All Loans:
The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Address for Notices:
The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Telecopier No.: (212) 270-4164
Telephone No.: (212) 270-8916
Attention: Tracey A. Navin
Credit Agreement
----------------
- 159 -
BANKERS TRUST COMPANY
By /s/ Patricia Hogan
--------------------------
Name: Patricia Hogan
Title: Vice President
Lending Office for all Loans:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Attention: Robert Telesca
Address for Notices:
Bankers Trust Company
130 Liberty Street
New York, New York 10006
Telecopier No.: (212) 250-7351/6029
Telephone No.: (212) 250-7342
Attention: Robert Telesca
- 160 -
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
By /s/ Bruce W. Loftin
--------------------------
Name: Bruce W. Loftin
Title: Senior Vice President
Lending Office for all Loans:
First Union National Bank of
North Carolina
301 South College Street -- DC-5
Charlotte, North Carolina
28288-0735
Attention: Gordon Wallace
Address for Notices:
Telecopier No.:
Telephone No.:
Attention:
- 161 -
NATIONSBANK, N.A.
By /s/ Roselyn Reid
--------------------------
Name: Roselyn Reid
Title: Vice President
Lending Office for all Loans:
NationsBank, N.A.
901 Main Street, 64
Dallas, Texas 75202
Address for Notices:
NationsBank, N.A.
101 South Tryon
NationsBank Plaza
Charlotte, North Carolina 28255
Telecopier No.: (704) 388-1113
Telephone No.: (704) 386-8694
Attention: Blair McElhaney
- 162 -
ABN AMRO BANK N.V., New York Branch
By /s/ Frances O. Logan
--------------------------
Name: Frances O. Logan
Title: Group Vice President
By /s/ Ann Schwalbenberg
--------------------------
Name: Ann Schwalbenberg
Title: Vice President
Lending Office for all Loans:
ABN AMRO Bank N.V.
500 Park Avenue
New York, New York 10022
Attention: Ann Schwalbenberg
Address for Notices:
ABN AMRO Bank N.V.
500 Park Avenue
New York, New York 10022
Telecopier No.: (212) 446-4203
Telephone No.: (212) 446-4181
Attention: Ann Schwalbenberg
- 163 -
BANKBOSTON, N.A.
By /s/ Lenny L. Mason
--------------------------
Name: Lenny L. Mason
Title: Vice President
Lending Office for all Loans:
BankBoston, N.A.
100 Federal Street
MS 01-08-08
Boston, Massachusetts 02110
Telecopier No.: (617) 434-3401
Telephone No.: (617) 434-7156
Attention: Lenny L. Mason
Address for Notices:
BankBoston, N.A.
100 Federal Street
MS 01-08-08
Boston, Massachusetts 02110
Telecopier No.: (617) 434-9820
Telephone No.: (617) 434-9725
Attention: Angie Karayiannis
- 164 -
BANK OF AMERICA ILLINOIS
By /s/ Carl F. Salas
--------------------------
Name: Carl F. Salas
Title: Vice President
Lending Office for all Loans:
Bank of America Illinois
231 South LaSalle Street
Chicago, Illinois 60697
Address for Notices:
Bank of America Illinois
335 Madison Avenue
New York, New York 10017
Telecopier No.: (212) 503-7173
Telephone No.: (212) 503-8425
Attention: Carl Salas
- 165-
BANQUE PARIBAS
By /s/ Philippe Vuarchex
--------------------------
Name: Philippe Vuarchex
Title: Vice President
By /s/ Nicole Cawley
--------------------------
Name: Nicole Cawley
Title: Vice President
Lending Office for all Loans:
Banque Paribas
787 Seventh Avenue
New York, New York 10019
Attention: John Andersen
Address for Notices:
Banque Paribas
787 Seventh Avenue
New York, New York 10019
Telecopier No.: (212) 841-2217/
2146/2147/
2148/2149
Telephone No.: (212) 841-2229
Attention: John Andersen
- 166 -
BANQUE NATIONALE DE PARIS
By /s/ Serge Desrayaud
----------------------------------
Name: Serge Desrayaud
Title: Vice President/Team Leader
By /s/ Pamela Lucash
----------------------------------
Name: Pamela Lucash
Title: Assistant Treasurer
Lending Office for all Loans:
Banque Nationale de Paris
499 Park Avenue
New York, New York 10022-1078
Attention: Julie Requena
Address for Notices:
Banque Nationale de Paris
499 Park Avenue
New York, New York 10022-1078
Telecopier No.: (212) 418-8269/
415-9805
Telephone No.: (212) 415-9655
Attention: Julie Requena
- 167 -
CIBC INC.
By /s/ Debra Streck
-------------------------------
Name: Debra Streck
Title: Managing Director, CIBC
Wood Gundy Securities
Corp., as Agent
Lending Office for all Loans:
CIBC Inc.
425 Lexington Avenue
New York, New York 10017
Address for Notices:
CIBC Inc.
425 Lexington Avenue
New York, New York 10017
Telecopier No.: (212) 856-3558
Telephone No.: (212) 856-3706
Attention: Michele E. Roller
- 168 -
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By /s/ Marcus Edward
--------------------------
Name: Marcus Edward
Title: Vice President
By /s/ Brian O'Leary
--------------------------
Name: Brian O'Leary
Title: Vice President
Lending Office for all Loans:
Compagnie Financiere de CIC et de
l'Union Europeenne
520 Madison Avenue
37th Floor
New York, New York 10022
Attention: Marcus Edward
Address for Notices:
Compagnie Financiere
de CIC et de
l'Union Europeenne
520 Madison Avenue
37th Floor
New York, New York 10022
Telecopier No.: (212) 715-4535
Telephone No.: (212) 715-4427
Attention: Marcus Edward
- 169 -
FLEET NATIONAL BANK
By /s/ Eileen M. Burke
-----------------------------
Name: Eileen M. Burke
Title: Senior Vice President
Lending Office for all Loans:
Fleet National Bank
One Federal Street
3rd Floor, MA/OF/DO3D
Boston, MA 02110
Attention: Deborah Micue
Telecopier No.: (617) 346-4363
Telephone No.: (617) 346-4340
Address for Credit Related Notices:
Fleet National Bank
56 East 42nd Street
New York, New York 10017
Telecopier No.: (212) 907-5610
Telephone No.: (212) 907-5653
Attention: Luyen Tran
Address for Loan Administration:
Fleet National Bank
One Federal Street
3rd Floor, MA/OF/DO3D
Boston, MA 02110
- 170 -
LTCB TRUST COMPANY
By /s/ Shuichi Tajima
--------------------------
Name: Shuichi Tajima
Title: Senior Vice President
Lending Office for all Loans:
LTCB Trust Company
165 Broadway
49th Floor
New York, New York 10006
Attention: Winston Brown
Address for Notices:
LTCB Trust Company
165 Broadway
49th Floor
New York, New York 10006
Telecopier No.: (212) 608-3081
Telephone No.: (212) 335-4854
Attention: Winston Brown
- 171 -
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By /s/ Patricia Loret de Mola
------------------------------
Name: Patricia Loret de Mola
Title: Senior Vice President
Lending Office for all Loans:
The Mitsubishi Trust and Banking
Corporation
520 Madison Avenue
26th Floor
New York, New York 10022
Attention: Susan LeFevre
Address for Notices:
The Mitsubishi Trust and Banking
Corporation
520 Madison Avenue
26th Floor
New York, New York 10022
Telecopier No.: (212) 644-6825 or
593-4691
Telephone No.: (212) 891-8243
Attention: Susan LeFevre
- 172 -
THE SANWA BANK LTD.
By /s/ Christian Kambour
--------------------------
Name: Christian Kambour
Title: Vice President
Lending Office for all Loans:
The Sanwa Bank Ltd.
55 East 52nd Street
New York, New York 10055
Attention: Renko Hara
Loan Administration
Credit Contract:
The Sanwa Bank Ltd.
55 East 52nd Street
New York, New York 10055
Telecopier No.: (212) 754-1304
Telephone No.: (212) 339-6232
Attention: Christian Kambour
Administrative Contact:
The Sanwa Bank Ltd.
55 East 52nd Street
New York, New York 10055
Telecopier No.: (212) 754-2368
Telephone No.: (212) 339-6390
Attention: Renko Hara
Loan Administration
- 173 -
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By /s/ Stephen A. Cayer
--------------------------------
Name: Stephen A. Cayer
Title: Assistant Vice President
By /s/ Eduardo Salazar
--------------------------------
Name: Eduardo Salazar
Title: Vice President
Lending Office for all Loans:
Union Bank of Switzerland,
New York Branch
299 Park Avenue
40th Floor
New York, New York 10171
Attention: Ed Salazar
Address for Notices:
Union Bank of Switzerland,
New York Branch
299 Park Avenue
37th Floor
New York, New York 10171
Telecopier No.: (212) 821-3259
Telephone No.: (212) 821-3230
Attention: Loan Servicing
- 174 -
UNION BANK OF CALIFORNIA, N.A.
By /s/ Christine P. Ball
----------------------------------
Name: Christine P. Ball
Title: Vice President
Lending Office for all Loans:
Union Bank of California, N.A.
445 South Figueroa Street
Los Angeles, California 90071
Attention: Christine Ball
Communications
Media Division
Address for Notices:
Union Bank of California, N.A.
445 South Figueroa Street
Los Angeles, California 90071
Telecopier No.: (213) 236-5747
Telephone No.: (213) 236-6176
Attention: Christine Ball
Communications
Media Division
- 175 -
COOPERATIEVE CENTRALE RAIFFEISEN
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND," NEW YORK BRANCH
By /s/ W. Jeffrey Vollack
----------------------------------
Name: W. Jeffrey Vollack
Title: Vice President, Manager
By /s/ Johannes F. Breukhoven
----------------------------------
Name: Johannes F. Breukhoven
Title: Vice President
Lending Office for all Loans:
Rabobank Nederland, New York Branch
245 Park Avenue
New York, New York 10067
Address for Notices:
Rabobank Nederland, New York Branch
245 Park Avenue
New York, New York 10067
Telecopier No.: (212) 916-7830
Telephone No.: (212) 916-7845
Attention: Debra Rivers/
Madeline Ricci
Corporate Services
Department
with a copy to:
Rabobank Nederland
300 South Wacker Drive
Suite 3500
Chicago, Illinois 60606
Telecopier No.: (312) 408-8240
Telephone No.: (312) 408-8248
Attention: Douglas W. Zylstra
- 176 -
DRESDNER BANK AG NEW YORK &
GRAND CAYMAN BRANCHES
By /s/ Brian Haughney
---------------------------
Name: Brian Haughney
Title: Assistant Treasurer
By /s/ Robert Grella
---------------------------
Name: Robert Grella
Title: Vice President
Lending Office for Base Rate Loans:
Dresdner Bank AG
75 Wall Street
New York, New York 10005-2889
Lending Office for Eurodollar
Loans:
Dresdner Bank AG
Grand Cayman Branch
75 Wall Street
New York, New York 10005-2889
Address for Notices:
Dresdner Bank
75 Wall Street
New York, New York 10005-2889
Telecopier No.: (212) 429-2130
Telephone No.: (212) 429-2288
Attention: Laura Lam
- 177 -
THE FUJI BANK, LIMITED, NEW YORK
BRANCH
By /s/ Teiji Teramoto
--------------------------------
Name: Teiji Teramoto
Title: Vice President & Manager
Lending Office for all Loans:
The Fuji Bank, Limited
New York Branch
Two World Trade Center
79th Floor
New York, New York 10048
Telecopier No.: (212) 912-0516
Telephone No.: (212) 898-2065
Attention: Kathleen Barsotti
Address for Notices:
The Fuji Bank, Limited
New York Branch
Two World Trade Center
79th Floor
New York, New York 10048
Telecopier No.: (212) 912-0516
Telephone No.: (212) 898-2065
Attention: Kathleen Barsotti
- 178 -
THE FIRST NATIONAL BANK OF MARYLAND
By /s/ W. Blake Hampson
--------------------------------
Name: W. Blake Hampson
Title: Vice President
Lending Office for all Loans:
The First National Bank of Maryland
Communications Banking Division
Mail Code 101-511
25 South Charles Street
Baltimore, Maryland 21201
Attention: Darla Holbrook
Communications Banking
Specialist
Address for Notices:
The First National Bank of Maryland
Communications Banking Division
Mail Code 101-511
25 South Charles Street
Baltimore, Maryland 21203
Telecopier No.: (410) 244-4920
Telephone No.: (410) 244-4372
Attention: W. Blake Hampson
Vice President
- 179 -
THE SUMITOMO BANK, LIMITED
By /s/ Nancy Z. Reimann
--------------------------------
Name: Nancy Z. Reimann
Title: Vice President
By /s/ James L. Hogan
--------------------------------
Name: James L. Hogan
Title: Vice President & Manager
Lending Office for all Loans:
The Sumitomo Bank Limited --
Chicago Branch
233 S. Wacker Drive
Suite 5400
Chicago, Illinois 60606
Attention: Nancy Z. Reimann
Address for Notices:
The Sumitomo Bank, Limited
10 East Baltimore Street
Suite 1402
Baltimore, Maryland 21202
Telecopier No.: (410) 332-4058
Telephone No.: (410) 332-4050
Attention: Nancy Z. Reimann
- 180 -
SUNTRUST BANK, CENTRAL
FLORIDA, N.A.
By /s/ Ronald K. Rueve
-----------------------------
Name: Ronald K. Rueve
Title: Vice President
Lending Office for all Loans:
SunTrust Bank, Central
Florida, N.A.
200 South Orange Avenue
P.O. Box 3833
Orlanda, Florida 32801
Attention: David Miller
Address for Notices:
SunTrust Bank, N.A.
Florida, N.A.
200 South Orange Avenue
P.O. Box 3833
Orlanda, Florida 32801
Telecopier No.: (407) 237-4253
Telephone No.: (407) 237-5209
Attention: Debbie Torres
CORESTATES BANK, N.A.
By /s/ Edward L. Kittrell
------------------------------
Name: Edward L. Kittrell
Title: Vice President
Lending Office for all Loans:
Corestates Bank, N.A.
1339 Chestnut Street --
FC 1-8-11-28
Philadelphia, Pennsylvania 19101
Attention: Mary Lockhart
Address for Notices:
Corestates Bank, N.A.
1339 Chestnut Street --
FC-1-8-11-28
Philadelphia, Pennsylvania 19101
Telecopier No.: (215) 786-7721
Telephone No.: (215) 786-4313
Attention: Mary Lockhart
PNC BANK, NATIONAL ASSOCIATION
By /s/ Jeffrey E. Hauser
________________________________
Name: Jeffrey E. Hauser
Title: Vice President
Lending Office for all Loans:
PNC Bank, N.A.
Communications Banking Division/
MS F2-F070-21-1
1600 Market Street
21st Floor
Philadelphia, Pennsylvania 19103
Attention: Jeffrey Hauser
Vice President
Address for Notice:
PNC Bank, N.A.
Communications Banking Division/
MS F2-F070-21-1
1600 Market Street
21st Floor
Philadelphia, Pennsylvania 19103
Telecopier No.: (215) 585-6680
Telephone No.: (215) 585-6468
Attention: Jeffrey Hauser
Vice President
MELON BANK, N.A.
By /s/ John T. Kranefuss
-------------------------------
Name: John T. Kranefuss
Title: Assistant Vice President
Lending Office for all Loans:
Mellon Bank, N.A.
Room 4440, 1 Mellon Bank Center
500 Grant Street
Pittsburgh, Pennsylvania
15258-0001
Address for Notices:
Mellon Bank, N.A.
Room 2306, 3MBC
Pittsburgh, Pennsylvania 15259
Telecopier No.: (412) 236-2027/
2028
Telephone No.: (412) 234-4749
Attention: Genie McCreary
THE SAKURA BANK, LTD.
By /s/ Yoshikazu Nagura
--------------------------------
Name: Yoshikazu Nagura
Title: Vice President
Lending Office for all Loans:
The Sakura Bank, Ltd.
277 Park Avenue
New York, New York 10172
Attention: Loan Administration
Department
Address for Notices:
The Sakura Bank, Ltd.
277 Park Avenue
New York, New York 10172
Telecopier No.: (212) 644-9565/
754-6690
Telephone No: (212) 756-6788
Attention: Loan Administration
Department
MICHIGAN NATIONAL BANK
By /s/ Stephane Lubin
---------------------------------
Name: Stephane Lubin
Title: Relationship Manager
Lending Office for all Loans:
Michigan National Bank
Specialty Industries 10-36
27777 Inkster Road
Farmington Hills, Michigan 48334
Address for Notices:
Michigan National Bank
Specialty Industries 10-36
27777 Inkster Road
Farmington Hills, Michigan 48334
Telecopier No.: (810) 473-4345
Telephone No.: (810) 473-4380
Attention: Stephane E. Lubin
CREDIT SUISSE FIRST BOSTON
By /s/ Judith E. Smith
-------------------------------
Name: Judith E. Smith
Title: Director
By /s/ Jeffrey C. Howe
-------------------------------
Name: Jeffrey C. Howe
Title: Director
Lending Office for all Loans:
Credit Suisse First Boston
11 Madison Avenue
New York, New York 10010-3629
Attention: Sloan Fleming
Address for Notices:
Same as Above
Telecopier No.: (212) 325-8314
Telephone No.: (212) 324-9160
Attention:
CAISSE NATIONALE DE CREDIT AGRICOLE
By /s/ John McCloskey
-----------------------------------
Name: John McCloskey
Title: Vice President
Lending Office for all Loans:
Caisse Nationale de Credit Agricole
520 Madison Avenue
New York, New York 10022
Address for Notices:
Caisse Nationale de Credit Agricole
520 Madison Avenue
New York, New York 10022
Telecopier No.: (212) 418-2228
Telephone No.: (212) 418-2217
Attention: John McCloskey
MERCANTILE BANK, NATIONAL
ASSOCIATION
By /s/ Ann Kelly
--------------------------------
Name: Ann Kelly
Title: Vice President
Lending Office for all Loans:
Mercantile Bank,
National Association
7th and Washington 12-3
St. Louis, Missouri 63101
Attention: Tonja Sadl
Eloise Engman
Address for Notices:
Mercantile Bank,
National Association
7th and Washington 12-3
St. Louis, Missouri 63101
Telecopier No.: (314) 425-8292/
2162
Telephone No.: (314) 425-2014
Attention: Tonja Sadl
Eloise Engman
THE DAI-ICHI KANGYO BANK, LTD.
By /s/ Seiji Imai
---------------------------------
Name: Seiji Imai
Title: Vice President
Lending Office for all Loans:
The Dai-Ichi Kangyo Bank, Ltd.
One World Trade Center
Suite 4911
New York, New York 10048
Attention: Julie Zarenko
Address for Notices:
The Dai-Ichi Kangyo Bank, Ltd.
One World Trade Center
Suite 4911
New York, New York 10048
Telecopier No.: (212) 524-0579 and
(212) 912-1879
Telephone No: (212) 432-6632
Attention: Julie Zarenko
BANK OF TOKYO - MITSUBISHI TRUST
COMPANY
By /s/ John P. Judge
--------------------------------
Name: John P. Judge
Title: VP & Co-Head
Lending Office for all Loans:
Bank of Tokyo - Mitsubishi
1251 Avenue of the Americas
12th Floor
New York, New York 10020
Attention: John Judge
Address for Notices:
Bank of Tokyo - Mitsubishi
1251 Avenue of the Americas
12th Floor
New York, New York 10020
Telecopier No.: (212) 782-4935
Telephone No.: (212) 782-4383
Attention: John Judge
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By /s/ Evan Kraus
--------------------------------
Name: Evan Kraus
Title: Associate
By /s/ Frederick K. Kammler
--------------------------------
Name: Frederick K. Kammler
Title: Vice President
Lending Office for all Loans:
Banque Francaise du Commerce
Exterieur
645 Fifth Avenue
20th Floor
New York, New York 10022
Address for Notices:
Banque Francaise du Commerce
Exterieur
645 Fifth Avenue
60th Floor
New York, New York 10022
Telecopier No.: (212) 872-5045
Telephone No.: (212) 872-5041
Attention: Frederick Kammler,
Vice President
Bill Maier,
Group Manager
CRESTAR BANK
By /s/ Thomas C. Palmer
-------------------------------
Name: Thomas C. Palmer
Title: Vice President
Lending Office for all Loans:
Crestar Bank
919 East Main Street-HDQ 1022
Richmond, Virginia 23219
Attention: Thomas Palmer
Address for Notices:
Crestar Bank
919 East Main Street-HDQ 1022
Richmond, Virginia 23219
Telecopier No.: (804) 782-5413
Telephone No.: (804) 782-5833
Attention: Thomas Palmer
BANK OF HAWAII
By /s/ Elizabeth O. MacLean
--------------------------------
Name: Elizabeth O. Maclean
Title: Vice President
Lending Office for all Loans:
Bank of Hawaii
130 Merchant Street
Twentieth Floor
Honolulu, Hawaii 96813
Address for Notices:
Bank of Hawaii
1850 N. Central Avenue
Suite 400
Phoenix, Arizona 85004
Telecopier No.: (602) 257-2235
Telephone No.: (602) 257-2437
Attention: Elizabeth MacLean
(INTENTIONALLY OMMITED)
VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By /s/ Kathleen A. Zarn
--------------------------------
Name: Kathleen A. Zarn
Title: Vice President
Lending Office for all Loans:
Van Kampen American Capital Prime
Rate Income Trust
One Parkview Plaza
Oakbrook Terrace, Illinois 60181
Address for Notices:
Van Kampen American Capital Prime
Rate Income Trust
One Parkview Plaza
Oakbrook Terrace, Illinois 60181
Telecopier No.: (708) 684-6740/
6741
Telephone No.: (708) 684-6479
Attention: Brian Murphy
with a copy to:
State Street Bank & Trust
Corporate Trust Department
P.O. Box 778
Boston, Massachusetts 02102
Telecopier No.: (617) 664-5367
Telephone No,: (617) 664-5481
Attention: Laura Magazu
MEDICAL LIABILITY MUTUAL
INSURANCE CO.
By /s/ K. Wayne Kohle
--------------------------------
Name: K. Wayne Kohle
Title: Vice President
Lending Office for all Loans:
Chancellor LGT Asset Management
1166 Avenue of the Americas
27th Floor
New York, New York 10036
Telecopier No.: (212) 278-4916
Telephone No.: (212) 278-9404
Attention: Greg Smith
Address for Notices:
Chancellor LGT Asset Management
1166 Avenue of the Americas
27th Floor
New York, New York 10036
Telecopier No.: (212) 278-4916
Telephone No.: (212) 278-9404
Attention: Greg Smith
MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC.
By /s/ Anthony R. Clemente
--------------------------------
Name: Anthony R. Clemente
Title: Authorized Signatory
Lending Office for all Loans:
Merrill Lynch Senior Floating Rate
Fund, Inc.
Merrill Lynch Asset Management
800 Scudders Mill Road
Plainsboro, New Jersey 08536
Attention: Anthony Clemente
Address for Notices:
Merrill Lynch Senior Floating Rate
Fund, Inc.
Merrill Lynch Asset Management
800 Scudders Mill Road
Plainsboro, New Jersey 08536
Telecopier No.: (609) 282-2756
Telephone No.: (609) 282-2092
Attention: Anthony Clemente
SENIOR HIGH INCOME PORTFOLIO, INC.
By /s/ Anthony R. Clemente
-------------------------------
Name: Anthony R. Clemente
Title: Authorized Signatory
Lending Office for all Loans:
Senior High Income Portfolio, Inc.
Merrill Lynch Asset Management
800 Scudders Mill Road
Plainsboro, New Jersey 08536
Attention: Anthony Clemente
Address for Notices:
Senior High Income Portfolio, Inc.
Merrill Lynch Asset Management
800 Scudders Mill Road
Plainsboro, New Jersey 08536
Telecopier No.: (609) 282-2756
Telephone No.: (609) 282-2092
Attention: Anthony Clemente
ALLIED SIGNAL INC.
By /s/ Frank X. Whitley
--------------------------------
Name: Frank X. Whitley
Title: Senior Vice President
Shenkman Capital
Management, as
Attorney-in-Fact
Lending Office for all Loans:
Allied Signal Inc.
Shenkman Capital
461 Fifth Avenue
New York, New York 10017
Attention: Niall Rosenweig
Address for Notices:
Allied Signal Inc.
Shenkman Capital
461 Fifth Avenue
New York, New York 10017
Telecopier No.: (212) 867-9106
Telephone No.: (212) 867-9090
Attention: Niall Rosenweig