Exhibit 4(M)
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LOAN AGREEMENT
between
ALLEGHENY COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
and
UNITEL VIDEO, INC.
Dated as of July 1, 1997
Relating to the
ALLEGHENY COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
Variable Rate Demand Revenue Bonds, Series 1997
(Unitel Mobile Video Project)
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS - ACCEPTANCE OF INDENTURE..............................3
Section 1.01. Definitions..................................................3
Section 1.02. Acceptance of Indenture......................................4
Section 1.03. Assignment to Trustee........................................4
Section 1.04. Accounting Principles........................................4
ARTICLE II THE PROJECT.......................................................5
Section 2.01. The Project..................................................5
Section 2.02. Costs of Project.............................................5
ARTICLE III LOAN OF BOND PROCEEDS............................................6
Section 3.01. Sale and Delivery of Bonds...................................6
Section 3.02. Loan of Bond Proceeds........................................6
Section 3.03. Use of Bond Proceeds.........................................6
Section 3.04. Corporation Contribution.....................................6
Section 3.05. Security.....................................................6
Section 3.06. Conditions Precedent.........................................6
ARTICLE IV INSTALLMENT PAYMENTS..............................................7
Section 4.01. Repayment of Loan............................................7
Section 4.02. Time and Manner of Repayment.................................7
Section 4.03. Payment Credits..............................................9
Section 4.04. Additional Amounts Payable by the Corporation................9
Section 4.05. Payments to Trustee.........................................10
Section 4.06. Payments Unconditional; No Defense or Set-Off...............10
Section 4.07. Optional Prepayments By Corporation.........................10
ARTICLE V WARRANTIES, REPRESENTATIONS AND COVENANTS OF CORPORATION..........12
Section 5.01. General Representations, Warranties and Covenants...........12
Section 5.02. Indemnification of Authority and Trustee....................13
Section 5.03. Reports and Audits..........................................13
Section 5.04. Taxes and Claims............................................14
Section 5.05. Compliance with Laws........................................14
Section 5.06. Tax-Exempt Bond Covenants...................................14
Section 5.07. Insurance...................................................15
Section 5.08. Observance of Terms of Documents............................15
Section 5.09. Covenant With Bondholders...................................15
Section 5.13. Investments.................................................15
Section 5.14. Filings to Protect Security Interest in Trust Estate........16
Section 5.12. Renewal Letter of Credit; Alternate Letter of Credit........16
Section 5.13. Remarketing Agent...........................................16
Section 5.14. Purchase of Bonds...........................................16
ARTICLE VI DEFAULTS AND REMEDIES............................................17
Section 6.01. Events of Default by Corporation............................17
Section 6.02. Remedies Upon Event of Default..............................17
Section 6.03. Remedies of Authority and Control of Remedies by Bank.......18
Section 6.04. Waiver of Errors and Exemptions.............................18
Section 6.05. No Remedy Exclusive.........................................18
Section 6.06. No Waiver Implied...........................................18
Section 6.07. Agreement to Pay Attorney's Fees and Expenses...............18
ARTICLE VII MISCELLANEOUS...................................................20
Section 7.01. Representations and Special Covenants of Authority..........20
Section 7.02. Assignment..................................................20
Section 7.03. Term of Agreement...........................................21
Section 7.04. Notices.....................................................21
Section 7.05. Parties in Interest.........................................22
Section 7.06. Survival of Covenants, Conditions and Representations.......22
Section 7.07. Amendments..................................................22
Section 7.08. Severability................................................23
Section 7.09. Counterparts................................................23
Section 7.10. Applicable Law..............................................23
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of July 1, 1997 (the "Agreement") between
the ALLEGHENY COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY (the "Authority"), a body
corporate and politic duly organized, existing and in good standing under the
laws of the Commonwealth of Pennsylvania (the "Commonwealth") and UNITEL VIDEO,
INC., a for-profit corporation organized under the laws of the State of Delaware
(the "Corporation").
WITNESSETH:
WHEREAS, the Authority is a body corporate and politic existing under the
laws of the Commonwealth of Pennsylvania pursuant to the Economic Development
Financing Law, amended December 17, 1993, P.L. 490, No. 74, as amended
(hereinafter called the "Act"), having been duly organized by the County of
Allegheny, Pennsylvania (hereinafter called the "County"); and
WHEREAS, the Corporation has, by duly authorized resolution, undertaken a
project consisting of constructing and equipping up to two mobile video
television production units to be based at its Allegheny County, Pennsylvania
offices (the "Project"); and
WHEREAS, the Authority is authorized under the Act to issue its bonds for
the purposes of (i) financing all or a portion of the costs of the Project and
(ii) paying all or a portion of the costs of issuance of the Bonds (defined
hereinafter) and the Authority has determined that the public interest will be
best served and that the purposes of the Act can be more advantageously obtained
by the Authority's issuance of bonds in order to obtain funds to loan to the
Corporation for the foregoing purposes; and
WHEREAS, it has been determined that in order to accomplish such purposes
the Authority will issue its revenue bonds pursuant to a Trust Indenture dated
as of July 1, 1997 (the "Indenture") between the Authority and PNC Bank,
National Association, as trustee (the "Trustee"), in an initial aggregate
principal amount of $5,000,000, which shall be designated Allegheny County
Industrial Development Authority Variable Rate Demand Revenue Bonds, Series 1997
(Unitel Mobile Video Project) (the "Bonds"); and
WHEREAS, the Authority and the Corporation hereby agree to enter into this
Agreement, under the terms of which the Authority will lend the proceeds from
the sale of the Bonds to the Corporation (the "Loan") to finance the costs of
the Project and the Corporation will repay the Loan by making installment
payments to the Authority in an aggregate amount sufficient to pay the principal
of, premium, if any, and interest on the Bonds as the same become due and
payable; and
WHEREAS, the Bonds shall be secured by, among other things, the
installment payments to be paid pursuant to this Agreement (except for the
Unassigned Rights) to the Authority by the Corporation, which payments are to be
assigned to the Trustee; and
WHEREAS, the Corporation has obtained an Initial Letter of Credit (as
hereinafter defined) from Bank of America, (the "Initial Bank") which can be
drawn upon prior to the expiration thereof in an amount up to (a) an amount
equal to the outstanding principal amount of the Bonds to be used (i) to pay the
principal of the Bonds at maturity, earlier redemption or upon acceleration, and
(ii) to enable the Trustee's Agent (as hereinafter defined) to pay the portion
of the purchase price equal to the principal amount of Bonds delivered or deemed
delivered for purchase and not remarketed, plus (b) an initial amount equal to
49 days' accrued interest on the Bonds (calculated at a rate
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Loan Agreement, Series 1997 Bonds
Unitel Video, Inc.
of 12% per annum) to be used (i) to pay interest on the Bonds and (ii) to pay
the portion of the purchase price equal to the accrued interest, if any, on the
Bonds properly delivered or deemed delivered for purchase and not remarketed;
and
WHEREAS, the issuance, sale and delivery of the Bonds and the execution
and delivery of this Agreement have been in all respects duly and validly
authorized in accordance with the Act by the resolutions of the Authority and as
approved by the County; and
NOW, THEREFORE, in consideration of the promises and of the mutual
representations, covenants and agreements herein set forth, the Authority and
the Corporation, each intending to legally bind themselves and their respective
successors and assigns, do mutually promise, covenant and agree as follows:
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Loan Agreement, Series 1997 Bonds Page 2
Unitel Video, Inc.
ARTICLE I
DEFINITIONS - ACCEPTANCE OF INDENTURE
Section 1.01. Definitions. All terms which are defined in the recitals
hereto shall have the meaning assigned to them therein, unless otherwise defined
herein or unless the context clearly requires otherwise. Capitalized terms used
in this Agreement and not defined herein, unless the context clearly requires
otherwise, shall have the same meanings as set forth in the Indenture.
In addition, the following terms shall have the meanings specified below:
"Audited Financial Statements" means financial statements of the
Corporation prepared in accordance with generally accepted accounting principles
which have been examined and reported on by an independent public accountant.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time. Each reference to a section of the Code herein shall be deemed to include
the United States Treasury Regulations, including temporary and proposed
regulations, relating to such section which are applicable to the Bonds or the
use of the proceeds thereof.
"Cost" or "Costs" shall have the meaning ascribed to such term in the
Indenture.
"Documents" means this Agreement, the Indenture, the Bonds, the Letter of
Credit Agreement, the Pledge Agreement and all other documents executed by the
Corporation or the Authority in connection therewith.
"GAAP" shall mean generally accepted accounting principles as defined more
specifically in Section 1.04 hereof.
"Loan" means the loan to the Corporation by the Authority, concurrently
with the issuance of the Bonds, of the gross proceeds from the sale of the Bonds
for the purpose of financing all or a portion of the Project.
"Officer's Certificate" means a certificate signed, in the case of a
certificate delivered by the Corporation, by the Chief Executive Officer, Chief
Financial Officer, any Vice President, Secretary or Assistant Secretary of the
Corporation or, in the case of a certificate delivered by any other Person, the
chief executive or chief financial officer of such other Person, in either case
whose authority to execute such Certificate shall be evidenced to the
satisfaction of the Trustee.
"Person" shall mean an individual, a corporation, a partnership, an
association, a joint stock company, a joint venture, a trust, an unincorporated
organization, a governmental unit or an agency, political subdivision or
instrumentality thereof or any other group or organization of individuals.
"Unassigned Rights" means the fees and expenses payable to the Authority,
the Authority's right to indemnification under Section 5.02 of this Agreement
and the Authority's right to execute and deliver supplements and amendments to
this Agreement.
All definitions of documents herein shall include any and all amendments
and supplements thereto and all definitions of persons or entities shall include
their respective successors and assigns.
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Unitel Video, Inc.
All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP in effect from time to time, as
modified by Section 1.04 hereof.
Section 1.02. Acceptance of Indenture. The Corporation acknowledges that
it has received an executed copy of the Indenture and that it is familiar with
the terms and conditions of the Indenture. The Corporation further covenants
that it will comply with all the conditions and covenants contained in the
Indenture relating to the Corporation and the Project, and that it will not take
any action which would cause a default thereunder or jeopardize the rights of
the Trustee, the Authority or the Bondholders.
Section 1.03. Assignment to Trustee. The Authority hereby notifies the
Corporation, and the Corporation hereby acknowledges, that all of the
Authority's right, title and interest in this Agreement (except the Unassigned
Rights) are being assigned and pledged to the Trustee as security for the Bonds
and the Bank or the Bank's Agent, as applicable. The Corporation consents to
such assignment and acknowledges that the Bonds are being issued in reliance by
the Trustee upon the assignment of the Authority's rights under this Agreement.
The Corporation agrees that it shall perform all obligations and pay all amounts
due from the Authority under the Bonds and the Indenture so that at all times
there shall be no default thereunder.
Section 1.04. Accounting Principles. Where the character or amount of any
asset or liability or item of income or expense is required to be determined or
any consolidation, combination or other accounting computation is required to be
made for the purposes of this Agreement or any agreement, document or
certificate executed and delivered in connection with or pursuant to this
Agreement, such determination or computation shall be done in accordance with
GAAP.
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Unitel Video, Inc.
ARTICLE II
THE PROJECT
Section 2.01. The Project. The Project consists of constructing and
equipping up to two mobile video television production units to be based at the
Corporation's Allegheny County, Pennsylvania offices.
Section 2.02. Costs of Project. The Corporation agrees and acknowledges
that there is no implied or express warranty that the proceeds of the Bonds will
be sufficient to pay the Costs of the Project.
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Unitel Video, Inc.
ARTICLE III
LOAN OF BOND PROCEEDS
Section 3.01. Sale and Delivery of Bonds. In order to provide the funds
necessary to finance the Project as provided for in this Agreement, the
Authority agrees that it will use its best efforts to cause the Bonds to be
issued, sold and delivered. All proceeds received from the sale of the Bonds
shall be deposited by the Authority in trust with the Trustee in accordance with
the requirements of the Indenture, for the benefit, however, of the Corporation,
and in consideration of such issuance, sale and delivery of the Bonds, and such
deposit, the Corporation shall apply such funds as provided herein and in the
Indenture and shall make the payments specified in Article IV hereof and observe
all other conditions and provisions hereof.
Section 3.02. Loan of Bond Proceeds. Subject to the conditions hereof, the
Authority will concurrently with the issuance of the Bonds lend the proceeds
from the sale of the Bonds to the Corporation for the purpose of financing the
Project.
Section 3.03. Use of Bond Proceeds. The Authority shall deposit the
proceeds from the sale of the Bonds with the Trustee to be expended and
deposited all in accordance with the provisions of the Indenture.
Section 3.04. Corporation Contribution. In the event the Loan should not
be sufficient to pay the costs of the Project, the Corporation shall pay those
costs in excess of the amount of the Loan.
Section 3.05. Security. This Agreement is a general obligation of the
Corporation and the full faith and credit of the Corporation is pledged to the
payment of all sums due hereunder.
Section 3.06. Conditions Precedent. The obligation of the Authority to
provide the Loan is subject to the satisfaction of the following conditions:
(a) The representations and warranties set forth herein shall be
true and correct on and as of the date of the issuance of the Bonds and on such
date no Event of Default as hereinafter defined and no condition or act which
with the giving of notice or the lapse of time or both, would constitute such an
Event of Default, shall have occurred and be continuing or shall exist;
(b) The Corporation shall furnish to the Authority an Opinion of
Counsel for the Corporation in form and substance satisfactory to the Authority
as to matters which the Authority shall reasonably request; and
(c) All legal details and proceedings in connection with the
issuance of the Bonds and the making of the Loan shall be in form and substance
satisfactory to the Authority and the Authority shall have received all
originals or certified or other copies of such documents and proceedings in
connection therewith in form and substance satisfactory to it as it may
reasonably request.
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Unitel Video, Inc.
ARTICLE IV
INSTALLMENT PAYMENTS
Section 4.01. Repayment of Loan. The Corporation hereby covenants and
agrees that it shall repay the Loan to the Authority by making installment
payments, in the manner and at the times hereinafter set forth, in sums
sufficient to pay the principal of, premium, if any, and interest payable on the
Bonds, and to pay all other amounts payable by the Corporation under the terms
of this Agreement.
Section 4.02. Time and Manner of Repayment. The Corporation agrees to make
the following payments on the following dates:
(a) Interest:
(i) At all times while the Bonds are secured by a Letter of
Credit.: On each Interest Payment Date for the Bonds while the Bonds are
secured by a Letter of Credit, an amount which, after taking into
consideration any amount on deposit in the Bond Fund (other than in the
LOC Debt Service Account), is equal to the amount of the interest to
become due on the Bonds on such Interest Payment Date; provided, however,
that the Corporation may be entitled to certain credits on or reductions
of such payments as permitted under Section 4.03 hereof and Section 408 of
the Indenture.
(ii) At all times while the Bonds are NOT secured by a Letter
of Credit following the Conversion Date: In the event that the Letter of
Credit is terminated on and after the Conversion Date in accordance with
Section 403 of the Indenture, the Corporation agrees to make the following
payments on the following dates:
(A) On the 20th day of each month, beginning with the
first month following the month in which the Conversion Date for the
Bonds occurs, an amount which, together with an equal amount to be
paid on the 20th day of each month, if any, occurring before the
next succeeding Semiannual Date, will not be less than the interest
to become due on the Bonds on the next succeeding Semiannual Date;
and
(B) on the 20th day of each month thereafter, an amount
equal to one-sixth (1/6) of the interest to become due on the Bonds
on the next succeeding Semiannual Date; provided, however, that the
Corporation may be entitled to certain credits on the payments in
this Section 4.02(a)(ii) as permitted under Section 4.03 hereof.
(b) Principal:
(i) At all times while the Bonds are secured by a Letter of
Credit: On each July 1, an amount equal to the principal to become due on
the Bonds secured by a Letter of Credit on such date by Maturity;
provided, however, that the Corporation may be entitled to certain credits
on or reductions of such payments as permitted under Section 4.03 hereof
and Section 408 of the Indenture.
(ii) At all times while the Bonds are NOT secured by a Letter
of Credit following the Conversion Date: On the 20th day of each month
beginning with the first month following the month in which the Conversion
Date for the Bonds occurs, an amount which, together with an equal amount
to be paid on the 20th day of each
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Unitel Video, Inc.
month, if any, occurring before the next succeeding July 1, will not be
less than the principal to become due on the Bonds on the next succeeding
July 1 by Maturity or mandatory redemption, and thereafter on the 20th day
of each month an amount equal to one-twelfth (1/12) of the next
installment of the principal becoming due on the Bonds on the next
succeeding July 1 by Maturity or mandatory redemption; provided, however,
that the Corporation may be entitled to certain credits on such payments
as permitted under Section 4.03 hereof.
(c) The Corporation shall provide for the payment of the principal
of, interest and premium, if any, on the Bonds other than Pledged Bonds,
Corporation Bonds and Bonds bearing interest at a Fixed Rate (subject to the
provisions of Section 403(i) of the Indenture permitting the termination of the
Letter of Credit in the Fixed Mode in certain situations) by delivery of a
Letter of Credit to the Trustee which complies with the requirements of the
Indenture. Simultaneously with the original issuance and delivery of the Bonds,
the Corporation shall deliver the Initial Letter of Credit to the Trustee. The
Corporation hereby authorizes and directs the Trustee to draw moneys under the
Letter of Credit in accordance with the provisions of the Indenture and the
Letter of Credit to the extent necessary to pay the principal of, premium, if
any, and interest on the Bonds other than Pledged Bonds and Corporation Bonds if
and when due.
(d) The Corporation shall pay to the Trustee amounts equal to the
amounts to be paid by the Trustee and the Trustee's Agent pursuant to Section
506 of the Indenture to purchase outstanding Bonds, such amounts to be paid by
the Corporation to the Trustee and the Trustee's Agent, as the case may be, on
the dates such payments pursuant to Section 506 of the Indenture are to be made;
provided, however, that the obligation of the Corporation to make any such
payment hereunder shall be reduced by the amount of any moneys available for
such payment under clauses (i) or (ii) of Section 506(a) of the Indenture.
(e) The Corporation shall provide for the payment of amounts to be
paid by the Trustee or the Trustee's Agent pursuant to Section 506 of the
Indenture by the delivery of the Letter of Credit to the Trustee. Simultaneously
with the original issuance and delivery of the Bonds, the Corporation shall
deliver the Initial Letter of Credit to the Trustee. The Corporation hereby
authorizes and directs the Trustee to draw moneys under the Letter of Credit in
accordance with the provisions of the Indenture and the Letter of Credit to the
extent necessary to provide moneys payable under Section 506 of the Indenture if
and when due.
(f) Payments Required to Effect Optional Redemption. On or before
the Business Day next preceding the date of redemption of any Bonds to be
optionally redeemed pursuant to Section 511(a) of the Indenture, an amount not
less than the full amount required to pay the principal of and premium, if any,
on such Bonds to be optionally redeemed; provided, however, that the Corporation
may be entitled to certain credits on or reductions of such payments as
permitted under Section 408 of the Indenture.
(g) Trustee's Fee. While the Bonds remain Outstanding, the
reasonable compensation and expenses of the Trustee under the Indenture shall be
paid directly to such Trustee by the Corporation upon the receipt by the
Corporation of a bill for such services from the Trustee.
(h) Authority's Annual Administrative Fee. The Corporation shall pay
an initial closing fee in the amount of $5,000 together with a legal fee in the
amount of $2,500 on the Closing Date. Commencing on the Closing Date and on
August 1 of each year thereafter while the Bonds remain Outstanding, an amount
equal to the Administrative Fee of the Authority shall be payable by (and not
subject to refund) the Corporation. The Administrative Fee shall be in the
amount of $1,250, together with any other administrative expenses
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Unitel Video, Inc.
(including reasonable legal fees) reasonably incurred by the Authority in
connection with inquiring into, or enforcing, the performance by the Corporation
of its obligations hereunder. The payment of any such administrative expenses
shall be due within 30 days of receipt of an itemized statement from the
Authority.
(i) Rebate to the United States. If there is any amount required to
be paid to the United States pursuant to Section 148(f) of the Code and Section
5.06(d) hereof, the Corporation shall pay such amount to the United States.
Section 4.03. Payment Credits. Notwithstanding any provision contained in
this Loan Agreement or in the Indenture to the contrary, the Corporation shall
be entitled to receive a credit against the payments required by Section 4.02 in
the following situations:
(a) Principal and Interest: Any moneys on deposit in the Bond Fund,
other than the LOC Debt Service Account, shall be credited against the
obligation of the Corporation under Section 4.02(a) and/or (b) hereof for the
payment of principal of and interest on the Bonds.
(b) Purchase of Bonds: The principal amount of Bonds purchased by
the Corporation and delivered to the Trustee, or purchased by the Trustee and
canceled, shall be credited against the obligation of the Corporation to pay
amounts equal to the principal due on the Bonds in such order as the Corporation
shall elect prior to such purchase or if no such election is made prior to such
purchase, in the inverse order thereof; provided, however, that deposit of a
Bond of one Maturity may not be credited against an obligation which would be
used, in the normal course, to retire a Bond of another Maturity; and provided
further, however, that so long as a Letter of Credit is in effect with respect
to all or a portion of the Bonds, the Corporation shall be entitled to the
credit provided in this Section 4.03(b) only to the extent that Bonds the
payment of which is secured by such Letter of Credit which are purchased by the
Corporation and delivered to the Trustee, or purchased by the Trustee and
canceled, are (in each instance) purchased with Eligible Moneys drawn under the
Letter of Credit.
(c) In addition, the Corporation shall be entitled to a credit
during the year immediately preceding the final maturity date of the Bonds to
the extent that any payment required to be made pursuant to Section 4.02 of this
Agreement would, together with the amount held by the Trustee in all Funds under
the Indenture, other than the LOC Debt Service Account, exceed the principal
amount of the Bonds Outstanding and the amount of the interest due both at the
final maturity date and the interest payment date immediately preceding the
final maturity date.
(d The Corporation shall also be entitled to a credit against
payments required to be made pursuant to Section 4.02 hereof to the extent that
the required payment due on the Bonds has been paid from moneys advanced under
the Letter of Credit and the Corporation has directly reimbursed the Bank for
such draw.
Section 4.04. Additional Amounts Payable by the Corporation. It is the
intention of the Authority and the Corporation that, notwithstanding any other
provision of this Agreement, the Trustee, on the Authority's behalf, shall
receive funds from the Corporation at such times and in such amounts as will
enable the Authority to meet all of its obligations under the Bonds, including
obligations surviving payment of the Bonds pursuant to the terms thereof.
Accordingly, the Corporation agrees (but such agreement shall not limit the
generality of the preceding sentence) that if any additional amounts become
payable by the Authority pursuant to the terms of the Bonds to any holder of the
Bonds, then additional amounts shall be due and payable by the Corporation to
the Authority hereunder equal to any additional amounts that may be payable by
the Authority under the Bonds, before or after payment of
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Unitel Video, Inc.
principal on the Bonds, all of which amounts shall be paid by the Corporation on
the date that the comparable amounts are due by the Authority to such owner of
the Bonds. The Corporation further agrees to pay any other amounts which the
Authority is obligated under the Indenture to pay to the Trustee.
Section 4.05. Payments to Trustee. All installment payments and other
amounts payable by the Corporation hereunder shall be paid directly to the
Trustee, except that indemnification payments due to the Authority pursuant to
Section 5.02 hereof shall be paid to the Authority and the Administrative Fee of
the Authority shall be paid directly to the Authority.
Section 4.06. Payments Unconditional; No Defense or Set-Off.
(a) The obligations of the Corporation to pay the installments and
other amounts payable hereunder shall be absolute and unconditional without
defense or set-off by reason of any default by the Authority under this
Agreement or under any other agreement between the Corporation and the Authority
or for any other reason, including, without limitation, any acts or
circumstances that may constitute failure of consideration, destruction of or
damage to the Project, commercial frustration of purpose or failure of the
Authority to perform and observe any agreement, whether express or implied, or
any duty, liability or obligation arising out of or in connection with this
Agreement, it being the intention of the parties that such installment payments
and other amounts will be paid in full when due without any delay and will be
received by the Authority and the Trustee as a net sum without deductions,
abatements, diminution or set-off of any kind whatsoever.
(b) Damage to or destruction of all or any portion of the Project by
fire or any other cause shall not terminate this Agreement or cause any
abatement of or reduction in the payments to be made by the Corporation
hereunder, or otherwise alter the respective obligations of the Authority or the
Corporation as set forth herein,
Section 4.07. Optional Prepayments By Corporation.
(a) The Corporation may prepay all or any portion of the Loan to the
same extent and upon the same conditions that the Authority has the right to
prepay the indebtedness evidenced by the Bonds. Any such amounts prepaid by the
Corporation to the Trustee shall be credited against the outstanding balance of
the Loan hereunder. Partial prepayments of the Loan made by the Corporation
hereunder shall be credited against the obligation of the Corporation to pay
amounts equal to the principal due on the Bonds in such order as the Corporation
shall elect prior to such payment or if no such election is made prior to such
payment, in the inverse order thereof. Payments of principal installments and
interest falling due shall continue to be made in accordance with Sections 4.01
and 4.02 hereof until the entire outstanding balance of the Loan and all accrued
interest have been paid or provision satisfactory to the Trustee has been made
for the defeasance of the Bonds in accordance with Section 1201 of the
Indenture.
(b) If there are sufficient moneys available with the Trustee to
meet the payment of principal of, premium, if any, and interest on all the
Outstanding Bonds and sufficient funds available with the Trustee to meet all
remaining obligations of the Corporation to the Authority and the Trustee, the
Trustee shall so notify the Corporation in writing, and the Corporation shall
then be relieved of making any further payments hereunder, and this Agreement
shall terminate.
(c) With respect to Bonds bearing interest at a Weekly Rate, the
Corporation shall give the Trustee and the Authority not less than 35 days'
prior written notice of any optional prepayment, which notice shall designate
the date of prepayment and the amount
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Unitel Video, Inc.
thereof and direct the redemption of Bonds in the amount corresponding to the
prepayment. Such notice may be withdrawn by the Corporation prior to delivery of
the Trustee's notice of redemption to Bondholders pursuant to Section 512 of the
Indenture. No such notice from the Corporation shall be required in the case of
prepayments required to be made in order to provide for the payment of the
redemption of Bonds required to be redeemed. The Corporation shall provide to
the Bank a copy of any notice given pursuant to this Section 4.07(c).
(d) In the case of a prepayment to be applied to the redemption of
Bonds bearing interest at a Fixed Rate, the Corporation shall give the Trustee
and the Authority not less than 50 days' prior written notice, which notice
shall designate the date of prepayment and the amount thereof and direct the
redemption of Bonds in the amount corresponding to the prepayment. Such notice
may be withdrawn by the Corporation prior to delivery of the Trustee's notice of
redemption to Bondholders pursuant to Section 512 of the Indenture. No such
notice from the Corporation shall be required in the case of prepayments
required to be made in order to provide for the payment of the redemption of
Bonds required to be redeemed. The Corporation shall provide to the Bank a copy
of any notice given pursuant to this Section 4.07(d).
(e) Notwithstanding subsections (c) and (d) above, in the case of a
prepayment to be applied to the special optional redemption of Pledged Bonds
pursuant to Section 511(b) of the Indenture, the Corporation shall give the
Trustee not less than one Business Days' prior written notice, which notice
shall designate the date of prepayment and the amount thereof and direct the
redemption of Pledged Bonds in the amount corresponding to the prepayment. The
Corporation shall provide to the Bank a copy of any notice given pursuant to
this Section 4.07(e).
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ARTICLE V
WARRANTIES, REPRESENTATIONS AND COVENANTS OF CORPORATION
Section 5.01. General Representations, Warranties and Covenants. The
Corporation represents warrants and agrees that:
(a) All information, representations and warranties set forth in the
certificates, executed and delivered by the Corporation in connection with the
issuance of the Bonds by the Authority is true, correct and complete in all
material respects as of the date of execution of this Agreement.
(b) The Corporation shall not take any action that would cause the
occurrence of an Event of Default under the terms of the Indenture.
(c) The Corporation has full power and authority to execute and
deliver the Documents executed and delivered by the Corporation, and to incur
and perform the obligations provided for therein, all of which have been duly
authorized by all proper and necessary action and all material governmental
licenses, authorizations, consents and approvals required in each case of and
for the Corporation in connection with its obligation under the Documents have
been obtained. No consent or approval of any other person or public authority or
regulatory body (other than the Authority) is required as a condition to the
validity or enforceability of any of the Documents against the Corporation, or
if required the same has been duly obtained.
(d) Each of the Documents executed and delivered by the Corporation
has been properly executed by the Corporation, constitutes the valid and legally
binding obligation of the Corporation, and is fully enforceable against the
Corporation in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights.
(e) There is no litigation or proceeding pending or, so far as the
Corporation knows, threatened, before any court or administrative agency which,
in the opinion of the Corporation, will materially adversely affect the
financial condition or operations of the Corporation or the authority of the
Corporation to enter into, or the validity or enforceability of, any of the
Documents executed and delivered by the Corporation.
(f) There is (i) no provision of any existing mortgage, indenture,
contract or agreement binding on the Corporation or affecting its property, and
(ii) no law binding upon the Corporation or affecting any of its property, which
would conflict with or in any way prevent the execution, delivery or performance
of any of the Documents executed and delivered by the Corporation or which would
be in default or violated as a result of such execution, delivery or
performance.
(g) The Corporation has filed all federal, state and local tax
returns which are required to be filed by the Corporation or has received
extensions for filing the same and has paid all taxes as shown on such returns
as they have become due. No claims have been assessed and are unpaid with
respect to such taxes.
(h) There is no default by the Corporation under this Agreement or
any other Documents and, no event has occurred and is continuing, and no
condition exists which with notice or the passage of time or both would
constitute a default under any thereof.
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Section 5.02. Indemnification of Authority and Trustee. The Corporation
agrees that (i) the Authority and the members, officers and employees thereof;
and (ii) the Trustee and its officers, directors, employees and agents, shall
not be liable for and the Corporation covenants and agrees to protect,
exonerate, defend, indemnify and save the Authority and the members, officers,
employees and agents thereof and the Trustee, its officers, directors, employees
and agents, harmless from and against any and all costs, damages or liabilities
(including the reasonable fees and expenses of legal counsel) which may arise
out of the issuance of the Bonds or interpretations or performance of any
provision of this Agreement, the Indenture or the Tax Regulatory Certificate, or
arising from any breach or default on the part of the Corporation in the
performance of any covenant or agreement on the part of the Corporation to be
performed pursuant to the terms of this Agreement; and from and against all
reasonable costs, counsel fees, expenses and liabilities incurred in or about
the defense of any such claims or action or proceedings brought thereon. The
Corporation may, at its cost and in its name or in the name of the Authority
and/or the Trustee, prosecute or take any other action involving third persons
which the Corporation deems necessary in order to insure or protect the
Corporation's rights under this Agreement; in such event, the Authority and the
Trustee will reasonably cooperate with the Corporation, but at the sole expense
of the Corporation.
The Authority or Trustee, as the case may be, shall give prompt written
notice to the Corporation of any claim asserted against the Authority, its
members, officers, employees or agents or the Trustee, its officers, directors,
employees or agents, when such claim becomes known and which, if sustained, may
result in liability of the Corporation hereunder; provided, however, that the
failure by the Authority or the Trustee to give such notice shall not relieve
the Corporation from its obligations to protect, exonerate, defend, indemnify
and save the Authority and its members, officers or employees or the Trustee,
its officers, directors, employees, and agents harmless as aforesaid, except to
the extent that the failure to give such notice results in actual loss or damage
to the Corporation; and in case any action or proceeding be brought against the
Authority, its members, officers, employees or agents or the Trustee, its
officers, directors, employees or agents, by reason of any such claim, the
Corporation, upon notice as aforesaid, covenants and agrees diligently to resist
or defend such action or proceedings; provided, however, that the indemnified
party or parties will cooperate and assist in the defense of such action or
proceeding if reasonably requested to do so by the Corporation.
Notwithstanding anything contained herein to the contrary, the Corporation
shall not be obligated to indemnify or hold harmless the Authority or its
members, officers, employees or agents for its or their gross negligence or
willful misconduct or the Trustee, it's officers, directors, agents and
employees for its gross negligence or willful misconduct.
Section 5.03. Reports and Audits. The Corporation shall:
(a) as soon as practicable but in no event later than five months
after the end of each of its fiscal years, file with the Trustee and the
Authority Audited Financial Statements of the Corporation prepared as of the end
of such fiscal year;
(b) as soon as practicable but in no event later than five months
after the end of each fiscal year, file with the Trustee and the Authority an
Officer's Certificate stating whether to the best knowledge of the signers the
Corporation is in default in the performance of any covenant contained in this
Agreement and, if so, specifying each such default of which the signers may have
knowledge;
(c) if an Event of Default hereunder shall have occurred and be
continuing, (i) file with the Trustee and the Authority such other financial
statements and information concerning the operations and financial affairs of
the Corporation (or of any consolidated
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Unitel Video, Inc.
group of companies of which the Corporation is a member) as the Trustee or the
Authority may from time to time reasonably request, and (ii) provide access to
the facilities of the Corporation for the purpose of inspection by the Trustee
or the Authority during regular business hours or at such other times as the
Trustee or the Authority may reasonably request.
Section 5.04. Taxes and Claims. The Corporation shall pay and discharge
all taxes, assessments and governmental charges or levies imposed upon it or on
its income or properties prior to the date on which penalties attach thereto,
and all lawful claims which, if unpaid, might become a lien or charge upon any
of its properties, provided that the Corporation shall not be required to pay
any such tax, assessment, charge, levy or claim, the payment of which is being
contested in good faith and by proper proceedings, so long as the security for
the Bonds is not, in the opinion of the Trustee, materially impaired during the
period of contest.
Section 5.05. Compliance with Laws. The Corporation shall comply with all
applicable federal, state and local laws, rules, regulations and orders of any
governmental authority, subject to its right to contest the same in good faith,
including, without limitation, the applicable requirements of Rule 15(c)2-12 as
promulgated by the Securities and Exchange Commission (Such Rule not being
applicable to the Corporation or the Bonds unless and until the Bonds convert to
the Fixed Mode) and recognizing that the Authority is not an "obligated person"
within the meaning of said Rule.
Section 5.06. Tax-Exempt Bond Covenants.
(a) The Corporation hereby covenants and agrees that:
(i) it shall at all times do and perform all acts and things
necessary or desirable in order to assure that interest paid on the Bonds
shall, for purposes of federal income taxation, be and remain excludable
from the gross income of the recipients thereof and that it will refrain
from doing or performing any act or thing that will cause such interest
not to be so excludable.
(ii) it will not make any investment or other use of the
proceeds (as that term is defined in Section 148 of the Code and all
applicable regulations promulgated thereunder) of the Bonds which would
cause the Bonds to be "arbitrage bonds" (as that term is defined in
Section 148 of the Code and all applicable regulations promulgated
thereunder), and that it will comply with the requirements of such Code
section and regulations throughout the term of the Bonds.
(b) The Corporation hereby covenants that the average maturity of
the Bonds does not exceed 120% of the average reasonably expected economic life
of the facilities financed with the net proceeds of the Bonds.
(c) Interest with respect to the Bonds is not guaranteed (in whole
or in part) by the United States or any agency or instrumentality thereof; no
portion of the proceeds of the Bonds are to be (a) used in making loans the
payment of principal or interest with respect to which is to be guaranteed (in
whole or in part) by the United States (or any agency or instrumentality
thereof), or (b) invested (directly or indirectly) in federally insured deposits
or accounts except to the extent permitted under Section 149(b)(3) of the Code
which provides exceptions which include (i) investments during any initial
temporary period permitted under Section 148 of the Code, such as for certain
construction periods, until such proceeds are needed for the purpose for which
the Bonds were issued; (ii) investments in a bona fide debt service fund, within
the meaning of Section 149(b)(3) of the Code, (iii) investments in a reasonably
required reserve or replacement fund, within the meaning of Section 148(d) of
the Code or (iv) investments in obligations issued by the United States
Treasury; and the payment
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Unitel Video, Inc.
of principal of or interest on the Bonds is not otherwise indirectly guaranteed
(in whole or in part) by the United States or any agency or instrumentality
thereof.
(d) The Corporation hereby covenants that it will perform all
undertakings of and pay all amounts due to the Internal Revenue Service pursuant
to the requirements of Section 148(f) of the Internal Revenue Code and will, in
accordance with the Tax Regulatory Certificate:
(i) deliver to the Trustee and the Authority, a written
statement, with appropriate supporting schedules, of the amount, if any,
determined as of any computation date specified in such Tax Regulatory
Certificate to be payable to the United States government with respect to
the Bonds pursuant to Section 148(f) of the Code (which written statement
and supporting schedules may be prepared by the Corporation or by an
accounting, consulting or financial advisory firm retained by it for such
purpose), and
(ii) submit to the Internal Revenue Service sufficient funds
to make any payment required to be made under Section 148(f) of the Code,
as disclosed in the written statement delivered pursuant to (i) above,
accompanied by such related documentation as may be required to be filed
with such payment; and
will retain records of all determinations made pursuant to the foregoing with
regard to the Bonds until six years after the retirement of the last Bond.
Section 5.07. Insurance. The Corporation will maintain, or cause to be
maintained, insurance with respect to the Project covering such risks and in
such amounts as is required by the Letter of Credit Agreement, and which
liability policies shall name the Authority as additional insured. The
Corporation will deliver evidence of such coverage to the Trustee and the
Authority at the times and in the manner specified in the Letter of Credit
Agreement.
Section 5.08. Observance of Terms of Documents. The Corporation shall
comply with all of the terms and conditions and covenants applicable to the
Corporation contained in this Agreement and the Indenture.
Section 5.09. Covenant With Bondholders. The Authority and the Corporation
agree that this Agreement is executed in part to induce the purchase by others
of the Bonds and accordingly, all representations, warranties, covenants and
agreements on the part of the Corporation and the Authority as set forth herein
are declared to be for the benefit of the Trustee and the registered owners from
time to time of the Bonds and their respective successors and assigns.
Section 5.13. Investments. The Authority and the Corporation agree that
all moneys in any fund established under the Indenture may be invested in such
Qualified Investments as the Corporation may direct in writing; provided,
however, that any such directions shall conform to the requirements of the
Indenture. The Trustee is hereby authorized to trade with itself in the purchase
and sale of securities as provided in Section 404 of the Indenture.
Section 5.11. Filings to Protect Security Interest in Trust Estate. The
Corporation hereby agrees to file and refile such instruments as shall, in the
Opinion of Counsel, be necessary to preserve the lien of the Indenture upon the
Trust Estate or any part thereof granted in the Indenture until the principal of
and interest on the Bonds secured by the Indenture shall have been paid and to
furnish satisfactory evidence to the Trustee of recording, registering, filing
and refiling of such instruments and of every additional instrument which shall,
in the Opinion of Counsel, be necessary to preserve the lien of the Indenture
upon
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the Trust Estate or any part thereof until the principal of and interest on the
Bonds secured by the Indenture and all amounts payable under the Letter of
Credit Agreement shall have been paid.
Section 5.12. Renewal Letter of Credit; Alternate Letter of Credit.
(a) The Corporation covenants and agrees not to permit any of the
Bonds prior to the Conversion Date to be remarketed unless a Letter of Credit
satisfying the requirements of the Indenture is in full force and effect.
Similarly, prior to the Conversion Date, the Corporation may not cancel the
Letter of Credit then in effect unless it provides a Renewal Letter of Credit or
an Alternate Letter of Credit satisfying the requirements of the Indenture.
(b) At any time, the Corporation may, at its option, subject to the
provisions of the Letter of Credit Agreement, provide for the delivery to the
Trustee of a Renewal Letter of Credit or an Alternate Letter of Credit in lieu
of the Letter of Credit then in effect, which Letter of Credit shall meet the
requirements of Section 403 of the Indenture.
Section 5.13. Remarketing Agent. The Corporation covenants and agrees that
it will comply with the provisions of Section 918 of the Indenture with respect
to the removal and replacement of the Remarketing Agent.
Section 5.14. Purchase of Bonds. So long as a Letter of Credit is in
effect, the Corporation shall not acquire, and shall not permit any other
Affiliate or Insider to acquire, any Bonds (other than Pledged Bonds or Bonds
which bear interest at a Fixed Rate) except with Eligible Moneys or as otherwise
required by Section 4.02(d) of this Loan Agreement.
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Unitel Video, Inc.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01. Events of Default by Corporation. The occurrence of any of
the following shall constitute an Event of Default hereunder:
(a) Failure by the Corporation to make any payments under Sections
4.01 and 4.02 of this Agreement when due and such default shall not be cured
within five days after such payment becomes due hereunder; or
(b) Failure by the Corporation to make any payment hereunder or in
the performance of or compliance with any of the provisions, warranties,
covenants, agreements, terms or conditions contained in this Agreement, other
than those specified in (a) above, which continues for thirty (30) days
following written notice thereof to the Corporation from the Authority or the
Trustee except in the case of a default which cannot be cured within such thirty
(30) days, in which case the period shall be extended for such period as is
reasonable to cure the same with due diligence, provided the Corporation
commences such performance or compliance within thirty (30) days and proceeds
diligently to cure the same; or
(c) If the Corporation shall make an assignment of substantially all
of its assets for the benefit of creditors or is adjudicated a bankrupt or shall
file a bill in equity or otherwise initiate proceedings for the appointment of a
receiver of its assets, or shall file a case under the Federal Bankruptcy Code
to be declared a bankrupt or for reorganization or otherwise initiate any
proceedings in any court for a composition with its creditors or for relief in
any manner from the payment of its debts when due under any state or federal
laws; or if any proceedings in bankruptcy or for the appointment of a receiver
shall be instituted against the Corporation under any state or federal law and
shall not be dismissed within sixty (60) days; or
(d) the occurrence of an Event of Default (after notice and passage
of any applicable cure period) under any of the Documents.
Unless and until the Authority or the Trustee shall have exercised any remedies
upon an Event of Default, and subject to the rights of the Bank to control all
remedies, including any waiver of an Event of Default pursuant to the Indenture,
the Corporation (or any other person on behalf of the Corporation) may at any
time (a) pay all accrued unpaid payments then due and owing on the outstanding
balance of the Loan and all other sums which the Corporation is obligated to pay
hereunder; and (b) cure all other existing defaults hereunder, and in every such
case, such payment and cure shall be deemed to constitute a waiver of the
default and its consequences as though the default had not occurred.
Section 6.02. Remedies Upon Event of Default. Upon the occurrence and
continuance of an Event of Default:
(a) Subject to Section 6.03 hereof, the entire outstanding balance
of the Loan and any other sums which the Corporation is obligated to pay to the
Authority hereunder shall immediately be due and payable; provided, however,
that the Trustee shall have declared the acceleration of the Bonds in accordance
with the Indenture.
(b) The Trustee, after ten (10) days notice to the Corporation, may
perform for the account of the Corporation any covenant of the Corporation
hereunder in the performance of which the Corporation is in default or make any
payment for which the Corporation is in default. The Corporation shall pay to
the Trustee upon demand any amount paid by it in the performance of such
covenant and any amounts which the Trustee shall have
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Unitel Video, Inc.
paid by reason of failure of the Corporation to comply with any covenant or
provision of this Agreement, including reasonable counsel fees incurred in
connection with prosecution or defense of any proceedings instituted by reason
of default of the Corporation, together with interest at a rate equal to the
lesser of the highest rate permitted by applicable law and the cost of the money
to the Trustee, from the date of payment until repayment by the Corporation.
(c) The Authority and the Trustee, as assignee, may pursue any other
right/remedy available at law or in equity.
6.03. Remedies of Authority and Control of Remedies by Bank.
(a) In addition to the rights of the Trustee under Section 6.02
hereof, the Authority shall have the right to proceed against the Corporation
for payment of Administrative Fees pursuant to Section 4.02(h) hereof and for
indemnification pursuant to Section 5.02 hereof.
(b) Control of Remedies by Bank. Anything herein to the contrary
notwithstanding, if the Bank has not failed to make any payment required under
the Letter of Credit, the Bank shall have the exclusive right to exercise or
direct the exercise of remedies with respect to the Bonds and the Loan Agreement
in accordance with the terms hereof following an Event of Default.
Section 6.04. Waiver of Errors and Exemptions. The Corporation hereby
waives and releases all technical errors, defects and imperfections whatsoever
of a procedural nature in the entering of any judgment or any process or
proceedings arising out of this Agreement. The Corporation also waives the
benefit of any law which now or hereafter might authorize the stay of any
execution to be issued or any judgment recovered hereunder or the exemption of
any property from levy or sale thereunder.
Section 6.05. No Remedy Exclusive. No right or remedy herein conferred
upon or reserved to the Authority or the Trustee is intended to be exclusive of
any other right or remedy herein or by law provided, but each shall be
cumulative and in addition to every other right or remedy given herein or now or
hereafter existing at law or in equity or by statute.
Section 6.06. No Waiver Implied. No waiver by the Authority, the Bank or
the Trustee of any breach by the Corporation of any of its obligations,
agreements or covenants hereunder shall be a waiver of any subsequent breach of
any obligation, agreement or covenant, nor shall any forbearance by the
Authority, the Bank or the Trustee to seek a remedy for any breach by the
Corporation be a waiver by the Authority, the Bank or the Trustee of its rights
and remedies with respect to any subsequent breach.
Section 6.07. Agreement to Pay Attorney's Fees and Expenses. In the event
the Corporation should default under any of the provisions of this Agreement and
the Authority, the Bank or the Trustee (in its own name or in the name and on
behalf of the Authority) should employ attorneys or incur other expenses for the
collection of the payments required hereunder or the enforcement of performance
or observance of any obligation or agreement on the part of the Corporation
herein contained, the Corporation will, on demand therefor, pay to the Authority
or the Trustee (as the case may be) the reasonable fee of such attorneys and
such other reasonable expenses so incurred.
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ARTICLE VII
MISCELLANEOUS
Section 7.01. Representations and Special Covenants of Authority. The
Authority represents, warrants and agrees that:
(a) It is a public body corporate and politic constituting an
instrumentality of the Commonwealth and is authorized under the Act to enter
into the transactions contemplated by this Agreement and to carry out its
obligations hereunder. The Authority has duly authorized the execution and
delivery of this Agreement and all other Documents to which the Authority is a
party, and will do or cause to be done all things necessary to preserve and keep
such Documents in full force and effect. Each of the Documents to which the
Authority is a party constitutes the legal, valid and binding obligation of the
Authority, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights heretofore and
hereafter enacted to the extent constitutionally applicable and except that its
enforcement may also be subject to the exercise of judicial discretion in
appropriate cases
(b) The execution and delivery by the Authority of the Bonds, this
Agreement, the Indenture and all other Documents to which it is a party and
compliance with the provisions of such instruments will not conflict with or
constitute a breach of, or default under, any indenture, commitment, agreement
or other instrument to which the Authority is a party or by which it is bound,
or, as presently construed, any constitutional or statutory provision, or rule,
regulation, ordinance, judgment, order or decree to which the Authority or any
of its property, is subject.
(c) There is no action, suit, proceeding, inquiry or investigation
at law or in equity, before or by any court, public board or body, pending or,
to the best of its knowledge, threatened against the Authority (nor is there any
basis therefor) (i) which in any way questions the powers of the Authority to
enter into this transaction, or the validity of the proceedings taken by the
Authority in connection with the issuance of the Bonds, (ii) wherein an
unfavorable decision, ruling or finding would materially adversely affect the
transaction contemplated by this Agreement, the Indenture or the Bonds or (iii)
which in any way would adversely affect the validity or enforceability of the
Bonds, this Agreement or the Indenture (or of any other instrument required or
contemplated for use in consummating the transactions contemplated thereby or
hereby).
(d) The Authority has full power and authority to execute and
deliver the Documents executed and delivered by the Authority, and to incur and
perform the obligations provided for therein, all of which have been duly
authorized by all proper and necessary action and all material governmental
licenses, authorizations, consents and approvals required in each case of and
for the Authority in connection with its obligation under the Documents have
been obtained. No consent or approval of any other person or public authority or
regulatory body is required as a condition to the validity or enforceability of
any of the Documents against the Authority, or if required the same has been
duly obtained.
Section 7.02. Assignment. The Corporation will not assign all or any part
of its obligations under this Agreement to another Person or Persons; provided
that the Corporation may assign all or a part of the Corporation's obligations
under this Agreement to another Person or Persons subject to the requirement
that (a) the assignee assumes in writing all of the obligations of the
Corporation, or in the case of an assignment of a part of the Corporation's
obligations under this Agreement, that portion of the obligations assigned,
under this
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Agreement; (b) there is delivered to the Trustee, the Authority and the Bank
prior to the consummation of such assignment an Opinion of Counsel to the effect
that such assignment is permitted hereunder and does not subject the interest
payable on the Bonds to United States income taxes or cause the Bonds to be
deemed "arbitrage bonds" within the meaning of Section 148 of the Code and the
regulations thereunder, and (c) there is delivered to the Trustee prior to the
consummation of such assignment written evidence from the Bank that it consents
to such assignment. Every assignee shall be bound by all of the covenants and
agreements of the Corporation herein. Upon satisfaction with the preconditions
to assignment contained in this Section 7.02 and the execution and delivery of
such documents as are reasonably necessary to effect such assignment, the
Corporation shall no longer be liable for such portion of its obligations under
this Agreement properly assigned to another Person or Persons.
Section 7.03. Term of Agreement. This Agreement shall remain in full force
and effect for a term commencing on the date of the issuance of the Bonds and
terminating at such time as there are no Bonds Outstanding under the provisions
of the Indenture; provided, however, that this Agreement and the obligation of
the Corporation to make payments pursuant to the provisions of Article IV hereof
shall continue following the discharge of the Bonds until such time as any
amounts due to the Internal Revenue Service for rebate required by the Indenture
and the Tax Regulatory Certificate and any other amounts due under this
Agreement have been satisfied.
Section 7.04. Notices. Except as otherwise provided in this Agreement, all
notices, directions, certificates, requests, requisitions and other
communications hereunder shall be in writing and shall be sufficiently given and
shall be deemed given when received following mailing, addressed as follows or
hand delivered to the following addresses:
If to the Authority:
Allegheny County Industrial Development Authority
400 Fort Pitt Commons
445 Fort Pitt Blvd.
Pittsburgh, Pennsylvania 15219
Attention: Authorities Manager
If to the Corporation:
Unitel Video, Inc.
555 West 57th Street, Suite 1240
New York, NY 10019
Attention: Chief Financial Officer
with a copy to:
Karen Ceil Lapidus, General Counsel
at the above address
If to the Trustee:
PNC Bank, National Association
One Oliver Plaza, 27th Floor
Pittsburgh, PA 15265
Attn: Corporate Trust Division
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If to the Initial Bank:
Bank of America
c/o Heller Financial, Inc.
500 Monroe Street
Chicago, IL 60661
Attn: Jerry Sepich
A copy of each notice, direction, certificate, request or other communication
given hereunder to the Authority, the Corporation or the Trustee shall also be
given to the others. Any of the foregoing may, by notice given hereunder,
designate any further or different addresses to which subsequent notices,
directions, certificates, requests or other communications shall be sent.
Section 7.05. Parties in Interest. This Agreement shall inure to the
benefit of the Authority, the Corporation, the Trustee and their respective
successors and assigns, and shall be binding upon the Authority, the Corporation
and their respective successors and assigns, and no other Person, other than the
Trustee, the Authority, the Bondholders and the Bank and their respective
successors and assigns, shall have any right, remedy or claim under or by reason
of this Agreement; provided, however, that, except as provided in the Act,
neither the Authority, the County, the Commonwealth nor any political
subdivision thereof shall be liable for the payment of the principal of or
interest on the Bonds or for the performance of any pledge, mortgage, obligation
or agreement created by or arising out of this Agreement or the issuance of the
Bonds, except as specifically provided herein, and, further, that neither the
Bonds nor any such obligation or agreement of the Authority shall be construed
to constitute an indebtedness of the Authority, the County, the Commonwealth or
any political subdivision thereof or a charge against their general credit or
taxing powers within the meaning of any constitutional or statutory provisions
whatsoever, but shall be limited obligations of the Authority payable solely out
of the Trust Estate, including the revenues derived from this Agreement, or from
the sale of the Bonds or income earned on invested funds, as provided herein and
in the Indenture. It is further understood and agreed by the Corporation, that
the Authority shall incur no pecuniary liability hereunder, and shall not be
liable for any expenses related hereto, including administrative expenses and
fees and disbursements of Bond Counsel retained in connection therewith, all of
which expenses the Corporation has agreed to pay. The Authority has no taxing
power.
Section 7.06. Survival of Covenants, Conditions and Representations.
Notwithstanding anything herein to the contrary, all covenants, conditions and
representations of the Corporation and the Authority contained herein which, by
nature, impliedly or expressly involve performance in any particular manner
after the settlement pursuant to Article III or which cannot be ascertained to
have been performed until after the said settlement shall survive said
settlement.
Section 7.07. Amendments.
(a) Except for the amendments provided for by Section 7.07(b)
hereof, this Agreement may not be amended except in accordance with and to give
effect to Article XI of the Indenture as evidenced by an instrument in writing
signed by the parties.
(b) Section 5.06(d) hereof concerning the Corporation's obligation
to comply with the rebate requirements of Section 148(f) of the Code, may be
amended by an instrument in writing signed by the parties hereto in the event
that the Corporation delivers to the Trustee an Officer's Certificate
accompanied by an Opinion of Counsel addressed to the
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Trustee to the effect that amendments to such section are necessary or desirable
to comply with the provisions of Section 148(f) of the Code.
(c) The Corporation shall reimburse the Authority and the Trustee
for all reasonable costs and expenses, including, without limitation, reasonable
attorney's fees, paid or incurred by the Authority or the Trustee in connection
with any amendments or modifications of this Agreement or to the Indenture and
any document, instrument or agreement related hereto or thereto, and the
discussion, negotiation, preparation, approval, execution and delivery of any
and all documents necessary or desirable to effect such amendments or
modifications. A copy of any amendments shall be sent to the Rating Agency, if
any.
Section 7.08. Severability. If any clause, provision or section of this
Agreement shall be ruled invalid, illegal or unenforceable for any reason, the
invalidity of such clause, provision or section shall not affect any of the
remaining clauses, provisions or sections hereof, and this Agreement shall be
construed as if such clause, provision or section had not been contained herein.
Section 7.09. Counterparts. This Agreement may be executed in several
counterparts, any or all of which shall constitute one and the same instrument.
Section 7.10. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth.
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Loan Agreement, Series 1997 Bonds Page 22
Unitel Video, Inc.
IN WITNESS WHEREOF, the ALLEGHENY COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
and UNITEL VIDEO, INC. have caused this Loan Agreement to be duly executed as of
the day and year first above written.
ATTEST: ALLEGHENY COUNTY INDUSTRIAL DEVELOPMENT
AUTHORITY
By: /s/ Gregg Bernaciak By: /s/ James M. Edwards
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Authorized Designate Chairman
ATTEST: UNITEL VIDEO, INC.
By: /s/ Karen Ceil Lapidus By: /s/George Horowitz
--------------------------- -------------------------------
Authorized Officer Authorized Officer
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Loan Agreement, Series 1997 Bonds
Unitel Video, Inc.