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EXHIBIT 4.3.1
AMENDED AND RESTATED
CREDIT AGREEMENT
AMONG
▇▇▇▇▇▇ COMMUNICATIONS CORPORATION
The Several Lenders
from Time to Time Parties Hereto
and
UNION BANK OF CALIFORNIA, N.A.,
AS THE AGENT
DATED AS OF NOVEMBER 19, 1996
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS........................... 1
1.1 Defined Terms .................................................................. 1
1.2 Other Definitional Provisions .................................................. 24
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS........................ 24
2.1 Revolving Credit Commitments ................................................... 24
2.2 Procedure for Borrowing ........................................................ 24
2.3 Commitment Fee ................................................................. 25
2.4 Repayment of Loans; Evidence of Debt ........................................... 25
2.5 Optional Prepayments ........................................................... 26
2.6 Termination or Reduction of Commitments and Mandatory Prepayments .............. 26
2.7 Conversion and Continuation Options ............................................ 28
2.8 Minimum Amounts and Maximum Number of Tranches ................................. 28
2.9 Interest Rates and Payment Dates ............................................... 29
2.10 Computation of Interest and Fees ............................................... 29
2.11 Inability to Determine Interest Rate ........................................... 29
2.12 Pro Rata Treatment and Payments ................................................ 30
2.13 Illegality ..................................................................... 31
2.14 Requirements of Law ............................................................ 31
2.15 Taxes .......................................................................... 32
2.16 Indemnity ...................................................................... 34
2.17 Change of Lending Office ....................................................... 34
2.18 Further Assurances Regarding Security; Additional Security ..................... 34
SECTION 3. REPRESENTATIONS AND WARRANTEES ...................... 36
3.1 Organization, Powers, Good Standing and Business ............................... 36
3.2 Authorization of Borrowing, etc................................................. 38
3.3 Financial Condition ............................................................ 39
3.4 No Material Adverse Change; No Restricted Payments ............................. 40
3.5 Title To Properties; Liens ..................................................... 40
3.6 Litigation; Adverse Facts ...................................................... 40
3.7 Payment of Taxes ............................................................... 40
3.8 Performance of Agreements ...................................................... 41
3.9 Governmental Regulation ........................................................ 41
3.10 Securities Activities .......................................................... 41
3.11 Employee Benefit Plans ......................................................... 41
3.12 Certain Fees ................................................................... 42
3.13 Environmental .................................................................. 42
3.14 Solvency ....................................................................... 44
3.15 Related Documents .............................................................. 44
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3.16 Insurance ...................................................................... 44
3.17 Intellectual Property .......................................................... 44
3.18 Disclosure ..................................................................... 44
3.19 Security Documents ............................................................. 45
3.20 Purposes of Loans .............................................................. 45
SECTION 4. CONDITIONS PRECEDENT.............................. 45
4.1 Conditions to Initial Loans .................................................... 45
4.2 Conditions to Each Loan ........................................................ 48
SECTION 5. AFFIRMATIVE COVENANTS............................. 49
5.1 Financial Statements and Systems ............................................... 49
5.2 Maintenance of Existence, etc. ................................................. 53
5.3 Payment of Taxes and Claims; Tax Consolidation ................................. 53
5.4 Maintenance of Properties; Insurance ........................................... 53
5.5 Inspection; Lender Meeting ..................................................... 54
5.6 Compliance with Laws, etc....................................................... 54
5.7 Compliance with Related Documents .............................................. 54
5.8 Environmental Disclosure and Inspection ........................................ 54
5.9 Hazardous Materials; the Borrower's Remedial Action ............................ 56
5.10 FCC Licenses ................................................................... 56
5.11 Additional Loan Parties ........................................................ 56
5.13 Corporate Separateness; Tax Sharing Agreement .................................. 57
SECTION 6. NEGATIVE COVENANTS.................................. 57
6.1 Financial Condition Covenants .................................................. 58
6.2 Limitation on Indebtedness ..................................................... 59
6.3 Liens and Related Matters ...................................................... 60
6.4 Investments; Joint Ventures .................................................... 61
6.5 Contingent Obligations ......................................................... 63
6.6 Restricted Payments ............................................................ 64
6.7 Restriction on Fundamental Changes; Asset Sales ................................ 65
6.8 [INTENTIONALLY LEFT BLANK] ..................................................... 65
6.9 Sales and Lease-Backs .......................................................... 66
6.10 Sale or Discount of Receivables ................................................ 66
6.11 Transactions with Shareholders and Affiliates .................................. 66
6.12 Disposal of Subsidiary Stock ................................................... 66
6.13 Conduct of Business ............................................................ 66
6.14 Amendments or Waivers of Related Documents and Charter Documents;
Limitation on Optional Payments ................................................ 67
6.15 Fiscal Year .................................................................... 67
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SECTION 7. EVENTS OF DEFAULT ................................ 68
SECTION 8. THE AGENT .................................... 71
8.1 Appointment
8.2 Delegation of Duties .......................................................... 72
8.3 Exculpatory Provisions ........................................................ 72
8.4 Reliance by the Agent ......................................................... 72
8.5 Notice of Default ............................................................. 72
8.6 Non-Reliance on the Agent and Other Lenders ................................... 73
8.7 Indemnification ............................................................... 73
8.8 The Agent in Its Individual Capacity .......................................... 74
8.9 Successor the Agent ........................................................... 74
SECTION 9. MISCELLANEOUS................................ 74
9.1 Amendments and Waivers ........................................................ 74
9.2 Notices ....................................................................... 75
9.3 No Waiver; Cumulative Remedies ................................................ 75
9.4 Survival of Representations and Warranties .................................... 76
9.5 Payment of Expenses and Taxes ................................................. 76
9.6 Successors and Assigns; Participations and Assignments ........................ 76
9.7 Adjustments; Set-off .......................................................... 79
9.8 Counterparts; Effectiveness ................................................... 79
9.9 Severability .................................................................. 79
9.10 Integration ................................................................... 80
9.11 GOVERNING LAW ................................................................. 80
9.12 Submission To Jurisdiction; Waivers ........................................... 80
9.13 Acknowledgements .............................................................. 80
9.14 WAIVERS OF JURY TRIAL ......................................................... 81
9.15 Confidentiality ............................................................... 81
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SCHEDULES
1.1A Lenders, Commitments and Addresses
1.1B Pricing Grid
1.1C Preapproved Acquisitions
1.1D License Companies and Partners
1.1E Discontinued Operations
1.1F Applicable Commitment Fee Rates
3.1(d) Ownership of Subsidiaries
3.1(e) FCC Licenses, Radio and Television Stations
3.1(f) Real Property
3.16 Insurance
3.17(b) Intellectual Property
3.19(b) UCC Filing Offices
5.10 Certain FCC Licenses
6.2(e) Existing Indebtedness and Liens
6.4(f) Existing Investments
7(r) Certain Minority Interests
EXHIBITS
A Form of Note
B Form of Amended and Restated Borrower Pledge Agreement
C Form of Amended and Restated Borrower Security Agreement
D Form of Amended and Restated Subsidiaries Guarantee
E Form of Amended and Restated Subsidiaries Pledge Agreement
F Form of Amended and Restated Subsidiaries Security Agreement
G Form of Borrowing Certificate
H Form of Assignment and Acceptance
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 19, 1996,
among ▇▇▇▇▇▇ COMMUNICATIONS CORPORATION, a Delaware corporation (the
"Borrower"), the several banks and other financial institutions from time to
time parties to this Agreement (the "Lenders") and UNION BANK OF CALIFORNIA,
N.A., as Agent for the Lenders hereunder.
WITNESSETH:
WHEREAS, the Borrower has requested the Lenders to amend and restate
its Credit Agreement (the "Existing Credit Agreement") dated as of December 19,
1995 to make available a $200,000,000 revolving credit facility to be used by
the Borrower to make Permitted Purchases (each term and each other capitalized
term used but not defined in this introductory statement shall have the meaning
assigned to such term in subsection 1.1) and for general corporate purposes
(including any Investment permitted under the terms hereof).
NOW THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall
have the following meanings:
"Acquisition Capital Expenditures": expenditures to improve or
upgrade the assets acquired pursuant to any Permitted Acquisition or
Preapproved Acquisition or certain assets owned by the Borrower or any
of its Subsidiaries as of the Closing Date and (a) in the case of a
Permitted Acquisition, specifically identified in writing to the
Lenders prior to the consummation of such Permitted Acquisition or (b)
in the case of assets owned as of the Closing Date or a Preapproved
Acquisition, specified in Schedule 1.1C.
"Adjusted Consolidated Operating Cash Flow": (a) at any date
on or prior to December 31, 1998, the sum of (i) the Consolidated
Operating Cash Flow of the Borrower and its Subsidiaries for the twelve
most recently ended calendar months for which the Lenders shall have
received financial statements pursuant to subsection 5.1(b)(i), minus
(ii) Consolidated Operating Cash Flow of the INTV Properties for such
twelve-month period, plus (iii) the product of (x) four times (y) the
Consolidated Operating Cash Flow of the INTV Properties for the three
most recently ended calendar months for which the Lenders shall have
received financial statements pursuant to subsection 5.1(b)(i), plus
(iv) in the case of any calculation of Adjusted Consolidated Operating
Cash Flow at any date occurring on or before September 30, 1997,
Consolidated Corporate Overhead of the Borrower and its Subsidiaries
for that portion of the period from January 1, 1996 through September
30, 1996, which is included in the twelve-month period covered by such
calculation in accordance with clauses (i) and (ii) of this definition;
and (b) at any date after December 31, 1998, Consolidated Operating
Cash Flow of the Borrower and its Subsidiaries.
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"Adjustment Date": with respect to the effectiveness of any
change in the Applicable Margin:
(a) the Closing Date; and
(b) each subsequent date upon which the Agent
receives (i) the financial statements required to be delivered
pursuant to subsection 5.1(b)(ii) or (iii), as the case may
be, for the most recently completed fiscal period and (ii) the
compliance certificate required pursuant to subsection
5.1(b)(iv) with respect to such financial statements (or, if
such compliance certificate and financial statements shall not
have been delivered in a timely manner, each of (x) the date
upon which the compliance certificate required to be delivered
pursuant to subsection 5.1(b)(iv) for the most recently
completed fiscal period was due and (y) the date thereafter on
which such financial statements and compliance certificate
actually are delivered).
"Affiliate" as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors
of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.
"Agent": Union Bank of California, N.A., together with its
affiliates, as the arranger of the Commitments and as the agent for the
Lenders under this Agreement and the other Loan Documents.
"Agreement": this Amended and Restated Credit Agreement, as
amended, supplemented or otherwise modified from time to time.
"Applicable Commitment Fee Rate": for the period commencing
with any Adjustment Date and ending on the day immediately preceding
the next succeeding Adjustment Date, the Applicable Commitment Fee Rate
shall be the rate per annum set forth on Schedule 1.1F opposite the
Leverage Ratio determined on such Adjustment Date; provided, that (a)
from the Closing Date until the receipt of the first financial
statements and certificate referred to in clause (b) of the definition
of "Adjustment Date," the Leverage Ratio shall be deemed for purposes
of this definition to be 4.5 to 1.00; and (b) in the event that the
financial statements required to be delivered pursuant to subsection
5.1(b)(ii) and (iii) are not delivered when due, then during the period
from the date upon which such financial statements were required to be
delivered until the date upon which they actually are delivered, the
Leverage Ratio shall be deemed for purposes of this definition to be
6.5 to 1.00.
"Applicable Margin": for the period commencing with any
Adjustment Date and ending on the day immediately preceding the next
succeeding Adjustment Date,
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the Applicable Margin shall be the rate per annum set forth on Schedule
1.1B opposite the Leverage Ratio determined on such Adjustment Date;
provided, that (a) from the Closing Date until the receipt of the first
financial statements and certificate referred to in clause (b) of the
definition of "Adjustment Date," the Leverage Ratio shall be deemed for
purposes of this definition to be 4.5 to 1.00; and (b) in the event
that the financial statements required to be delivered pursuant to
subsection 5.1(b)(ii) and (iii) are not delivered when due, then during
the period from the date upon which such financial statements were
required to be delivered until the date upon which they actually are
delivered, the Leverage Ratio shall be deemed for purposes of this
definition to be 6.5 to 1.00.
"Asset Sale": any sale, transfer or other disposition by the
Borrower or any of its Subsidiaries of their respective assets
(including any sale and leaseback of assets and any mortgage of real
property), other than the sale or other disposition of property or
assets in the ordinary course of business or an Asset Swap permitted by
subsection 6.7(e) (provided that any Asset Swap permitted by subsection
6.7(e) shall be deemed to be an Asset Sale to the extent provided for
in said subsection).
"Asset Swap": any exchange, with any other Person, of (a)
assets owned by the Borrower or any of its Subsidiaries for (b)
Equivalent Assets of such other Person.
"Assignee": as defined in subsection 9.6(c).
"Available Commitment": as to any Lender at any time, an
amount equal to the excess, if any, of (a) the amount of such Lender's
Commitment over (b) the aggregate principal amount of all Loans made by
such Lender then outstanding.
"Barter Transaction": any sale of radio or television
advertising time (other than in the ordinary course of business) by the
Borrower to any Person, other than an Affiliate of any Loan Party,
which is paid for by such Person other than in Cash or Cash
Equivalents.
"Base Rate": with respect to each day, the greater on such day
of (a) the per annum rate most recently determined by the Agent at its
U.S. lending office from time to time as its base rate and (b) 1/2% per
annum plus the Federal Funds Rate. Each change in the Base Rate shall
take effect simultaneously with the corresponding change or changes in
such base rate or the Federal Funds Rate, as the case may be. The Base
Rate is not intended to be necessarily the lowest rate of interest
charged by the Agent in connection with extensions of credit to
debtors.
"Base Rate Loans": Loans the rate of interest applicable to
which is based upon the Base Rate.
"Board": the Board of Governors of the Federal Reserve System.
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"Borrower Pledge Agreement": the Amended and Restated Pledge
Agreement to be executed and delivered by the Borrower, substantially
in the form of Exhibit B, as the same may be amended, supplemented or
otherwise modified from time to time.
"Borrower Security Agreement": the Amended and Restated
Security Agreement to be executed and delivered by the Borrower,
substantially in the form of Exhibit C, as the same may be amended,
supplemented or otherwise modified from time to time.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.2 as a date on which the Borrower requests the
Lenders to make Loans hereunder.
"Broadcast Station": any of the Owned Radio Stations, Owned
Television Stations, LMA Radio Stations and LMA Television Stations,
and "Broadcast Stations", means all such entities collectively.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close.
"Capital Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of
capital stock of a corporation, any and all equivalent ownership
interests in a Person (other than a corporation) and any and all
warrants or options to purchase any of the foregoing.
"Cash": money, currency or a credit balance in a Deposit
Account.
"Cash Equivalents": (i) direct obligations of the United
States or any agency thereof, or obligations guaranteed or insured by
the United States, provided that in each case such obligations mature
within one year from the date of acquisition thereof, (ii) certificates
of deposit maturing within one year from the date of creation thereof
issued by any United States national or state banking institution
having capital, surplus and undivided profits aggregating at least
$250,000,000 and rated at least A-1 by Standard & Poor's Corporation
and P-1 by ▇▇▇▇▇'▇ Investors Service, Inc., (iii) commercial paper with
a maturity of 180 days or less issued by a corporation (except an
Affiliate of the Borrower) organized under the laws of any state of
the United States or the District of Columbia and rated at least A-1 by
Standard & Poor's Corporation or, at least P-1 by ▇▇▇▇▇'▇ Investors
Service, Inc. and (iv) repurchase agreements and reverse repurchase
agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the United States or issued by an agency
thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition;
provided that the terms of such
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agreements comply with the guidelines set forth in the Federal
Financial Agreements of Depository Institutions with Securities Dealers
and Others, as adopted by the Comptroller of the Currency and (v)
tax-exempt auction rate securities and municipal preferred stock, in
each case, subject to reset no more than 35 days after the date of
acquisition and having a rating of at least AA by Standard & Poor's
Corporation or AA by ▇▇▇▇▇'▇ Investors Service, Inc.
"Certificate of Designations": (i) the Certificate of
Designations of Junior Cumulative Compounding Redeemable Preferred
Stock of ▇▇▇▇▇▇ Communications Corporation dated as of December 22,
1994, as amended as of the date hereof in accordance with the terms
hereof and thereof, and (ii) the Certificate of Designations of
Exchangeable Preferred Stock of ▇▇▇▇▇▇ Communications Corporation dated
as of September 30, 1996.
"Closing Date": the date on which the conditions precedent set
forth in subsection 4.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": all assets of the Loan Parties, now owned or
hereinafter acquired, upon which a Lien is purported to be created by
any Security Document.
"Commitment": as to any Leader, the obligation of such Lender
to make Loans to the Borrower hereunder in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule 1.1A, as such amount may be
reduced from time to time in accordance with the provisions of this
Agreement.
"Commitment Percentage": as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the
aggregate Commitments (or, at any time after the Commitments shall have
expired or terminated, the percentage which the aggregate principal
amount of such Lender's Loans then outstanding constitutes of the
aggregate principal amount of the Loans then outstanding).
"Commitment Period": the period from and including the date
hereof to but not including the Termination Date or such earlier date
on which the Commitments shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Communications Act": the Communications Act of 1934, as
amended (including, without limitation, the Cable Communications
Policy Act of 1984 and the Cable Television Consumer Protection and
Competition Act of 1992) and all rules and
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regulations of the Federal Communications Commission, in each case as
from time to time in effect.
"Compliance Certificate": as defined in subsection 5.1(b)(iv).
"Consolidated Capital Expenditures": for any period, the
aggregate of all expenditures (whether paid in cash or accrued as a
liability and including that portion of Capital Leases which is
capitalized on the consolidated balance sheet of the Borrower) by the
Borrower and its Subsidiaries during such period that, in conformity
with GAAP, are included in "additions to property, plant or equipment"
or comparable items reflected in the consolidated statement of changes
in financial position of the Borrower and its Subsidiaries but, in any
event, excluding expenditures in respect of Acquisition Capital
Expenditures, Permitted Purchases or Studio Construction Expenditures.
"Consolidated Cash Interest Expense": for any period,
Consolidated Interest Expense of the Borrower and its Subsidiaries, but
excluding, however, amortization of discount, deferred financing costs
and other items included in interest expense not payable or not
actually paid in cash during such period (including, but not limited
to, any interest on the Exchange Debentures paid in kind).
"Consolidated Corporate Overhead": for any period, the
aggregate amount expended in cash by the Borrower, ▇▇▇▇▇▇
Communications Management Company ("▇▇▇▇▇▇ Management") and PCC Direct,
Inc. ("PCC Direct") on account of services rendered by them on behalf
of Subsidiaries of the Borrower (other than ▇▇▇▇▇▇ Management) and for
goods consumed by the Borrower and ▇▇▇▇▇▇ Management in rendering such
services (other than for the national sales personnel associated with
the INTV Properties).
"Consolidated Debt Service": for any period, the aggregate
amount of all regularly scheduled payments of principal of and interest
or dividends and fees on any Indebtedness required by the terms of such
Indebtedness to be paid in cash by the Borrower or its Subsidiaries
during such period, including, without limitation, any such payments
with respect to the Loans and the Senior Subordinated Notes and any
obligations paid with respect to Capital Leases, provided that with
respect to the principal amount of the Loans, the amount of
Consolidated Debt Service for any period shall equal the excess, if
any, of (A) the aggregate principal amount of the Loans at the
beginning of such period over (B) the aggregate Commitments at the end
of such period.
"Consolidated Fixed Charges": for any period, without
duplication, the sum of (i) Consolidated Debt Service, (ii)
Consolidated Capital Expenditures to the extent actually made, (iii) to
the extent actually paid in cash during such period, income tax expense
(other than, to the extent otherwise included therein, current income
tax expenses attributable to gains on Asset Sales) and (iv) the
aggregate amount paid in cash during such period in connection with any
(A) dividend or other distribution or
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(B) redemption, retirement, sinking fund or similar payment, purchase
or other acquisition for value, direct or indirect, on account of any
preferred capital stock (including, but not limited to, in respect of
Cumulative Preferred Stock or Exchangeable Preferred Stock) of the
Borrower or its Subsidiaries now or hereafter outstanding, provided
that to the extent any redemption, retirement, sinking fund or similar
payment, purchase or other acquisition for value is made on the
Cumulative Preferred Stock prior to December 31, 1997, or any dividend
is paid in connection therewith, the amount expended in connection
therewith shall be excluded from any calculations pursuant to this
definition.
"Consolidated Interest Expense": for any period, the total
interest expense (including that portion attributable to Capital
Leases in accordance with GAAP and capitalized interest and the net
cash costs associated with Interest Rate Agreements) of the Borrower
and its Subsidiaries on a consolidated basis with respect to all
outstanding Indebtedness of the Borrower and its Subsidiaries,
including, without limitation, (i) all amounts payable to the Agent
and the Lenders pursuant to subsection 2.9 and all commissions,
discounts and other fees and charges owed with respect to letters of
credit and bankers' acceptance financing and (ii) time brokerage fees
payable by the Borrower and its Subsidiaries relating to a LMA Radio
Station or LMA Television Station expensed during such period prior to
the date such Station is acquired by the Borrower. In determining
Consolidated Interest Expense for any period, there shall be (i)
included all interest expense attributable to Indebtedness incurred or
assumed by the Borrower or any of their Subsidiaries during the period
in connection with any Permitted Purchase as if such Indebtedness was
incurred or assumed on the day before the first day of such period and
bore interest from the first day of such period until the date of such
incurrence or assumption at a rate per annum equal to the weighted
average rate of interest on the other Indebtedness outstanding during
such period and (ii) excluded Consolidated Interest Expense
attributable to that portion of the principal amount of the Loans
prepaid during such period pursuant to subsection 2.6 as if such
portion of the principal amount of the Loans was prepaid on the day
before the first day of such period.
"Consolidated Net Income": for any period, the consolidated
net income (or loss) of the Borrower and its Subsidiaries, determined
on a consolidated basis in accordance with GAAP; provided that there
shall be excluded (a) the income (or deficit) of any Person accrued
prior to the date it becomes a Subsidiary of the Borrower or is merged
into or consolidated with the Borrower or any of its Subsidiaries, (b)
the income (or deficit) of any Person (other than a Subsidiary of the
Borrower) in which the Borrower or any of its Subsidiaries has an
ownership interest, except to the extent that any such income is
actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions, (c) the undistributed earnings of
any Subsidiary of the Borrower to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary is not
at the time permitted by the terms of any Contractual Obligation (other
than under any Loan Document) or Requirement of Law applicable to such
Subsidiary, (d) any after-tax gains or losses attributable to Asset
Sales or returned surplus assets of any Pension
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Plan, and (e) (to the extent not included in clauses (a) through (d)
above) any net extraordinary, unusual or non-recurring gains or net
non-cash extraordinary, unusual or non-recurring losses.
"Consolidated Operating Cash Flow": for any period, the sum (without
duplication) of the amounts for such period of (a) Consolidated Net
Income, (b) Consolidated Interest Expense, (c) actual taxes paid in
cash by the Borrower on a consolidated basis which reduced Consolidated
Net Income, (d) total depreciation expense, (e) total amortization
expense including, without limitation, Programming Amortization
Expense, (f) other non-cash items reducing Consolidated Net Income, and
(g) whether or not includable as a separate item in the statement of
such Consolidated Net Income for such period, losses on sales of assets
less the amounts for such period of (i) Programming Rights Payments,
(ii) non-cash items increasing Consolidated Net Income, (iii) whether
or not includable as a separate item in the statement of such
Consolidated Net Income for such period, gains on the sales of assets,
and (iv) consolidated interest income, all of the foregoing as
determined on a consolidated basis for the Borrower and its
Subsidiaries in conformity with GAAP. For the purposes of calculating
Consolidated Operating Cash Flow for any period (other than in
determining Excess Cash Flow), any acquisition by the Borrower or any
Subsidiary permitted pursuant to the terms hereof shall be deemed to
have occurred on the first day of such period, any Asset Sale by the
Borrower or any Subsidiary shall be deemed to have occurred as of the
day before the first day of such period, and Consolidated Operating
Cash Flow shall be adjusted to give effect to such acquisition or Asset
Sale in accordance with the foregoing.
"Consolidated Senior Debt": as at any date of determination,
the sum of (a) Consolidated Total Debt less (b) Indebtedness of the
Borrower and its Subsidiaries permitted by subsections 6.2(e)(i), (g),
(h), (i) and j).
"Consolidated Total Debt": as at any date of determination,
without duplication, the aggregate amount of (a) all Indebtedness
(including, without limitation, the Loans) other than preferred capital
stock plus (b) the aggregate amount of all Contingent Obligations
(other than any guaranty of the Obligations by any Subsidiary of the
Borrower), in each case, of the Borrower and its Subsidiaries
determined on a consolidated basis in accordance with GAAP.
"Contingent Obligation": as applied to any Person, any direct
or indirect liability, contingent or otherwise, of that Person (a) with
respect to any indebtedness, lease, dividend or other obligation of
another if the primary purpose or intent thereof by the Person
incurring the Contingent Obligation is to provide assurance to the
obligee of such obligation of another that such obligation of another
will be paid or discharged, or that any agreements relating thereto
will be complied with, or that the holders of such obligation will be
protected (in whole or in part) against loss in respect thereof, (b)
with respect to any letter of credit issued for the account of that
Person or as to which that Person is otherwise liable for reimbursement
of drawings, or (c) under Interest Rate Agreements. Contingent
Obligations shall include, without
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limitation, (i) the direct or indirect guaranty, endorsement (otherwise
than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such
Person of the obligation of another, (ii) the obligation to make
take-or-pay or similar payments if required regardless of
non-performance by any other party or parties to an agreement, and
(iii) any liability of such Person for the obligations of another
through any agreement (contingent or otherwise) (x) to purchase,
repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such
obligation (whether in the form of loans, advances, stock purchases,
capital contributions or otherwise), or (y) to maintain the solvency or
any balance sheet item, level of income or financial condition of
another, if in the case of any agreement described under subclauses (x)
or (y) of this sentence, the primary purpose or intent thereof is as
described in the preceding sentence. The amount of any Contingent
Obligation (other than Interest Rate Agreements) as of any date shall
be equal to the amount of the obligation as of any date so guaranteed
or otherwise supported. The amount of any Interest Rate Agreement as of
any date shall be equal to the aggregate amount that would be payable
by such Person if such Interest Rate Agreement were terminated on such
date as a result of a default thereunder by such Person.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement (credit or
otherwise), instrument or other undertaking to which such Person is a
party or by which it or any of its property is bound.
"Core Business": a radio station, radio network, network
television station, long-form paid programming television station
(which shall not include any television station which airs in excess of
20 hours per month of programming which consists of an electronic
retailing or home shopping business conducted by the Borrower and/or
its Subsidiaries or Unrestricted Subsidiaries) or outdoor advertising
property, in each case, located in the United States.
"Cumulative Preferred Stock": the preferred stock of the
Borrower designated the Junior Cumulative Compounding Redeemable
Preferred Stock, issued by the Borrower pursuant to, and with such
rights, restrictions, privileges and preferences as set forth in, its
Certificate of Designation.
"Default": any of the events specified in Section 7, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Deposit Account": a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable
certificate of deposit.
"Discontinued Operations": the entities and businesses
specified on Schedule 1.1E.
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"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Employee Benefit Plan": any employee benefit plan within the
meaning of Section 3(3) of ERISA which is maintained for employees of
the Borrower or any ERISA Affiliates.
"Environmental Claim": any accusation, allegation, notice of
violation, claim, demand, abatement order or other order or direction
(conditional or otherwise) by any governmental authority or any Person
for any damage, including, without limitation, personal injury
(including sickness, disease or death), tangible or intangible property
damage, contribution, indemnity, indirect or consequential damages,
damage to the environment, nuisance, pollution, contamination or other
adverse effects on the environment, or for fines, penalties or
restrictions, resulting from or based upon (i) the existence of a
Release (whether sudden or non-sudden or accidental or non-accidental),
of, or exposure to, any Hazardous Material, in, into or onto the
environment, (ii) the use, handling, transportation, storage, treatment
or disposal of Hazardous Materials, or (iii) the violation, or alleged
violation, of any Environmental Laws.
"Environmental Laws": any and all foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority
or other Requirements of Law (including common law) regulating,
relating to or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any
time hereafter be in effect.
"Equivalent Assets": of (i) any radio station: any other radio
station or radio stations; (ii) any radio network: any other radio
network or radio networks; (iii) any network television station: any
other network television station or network television stations; (iv)
any long-form paid programming station: any other long-form paid
programming station or long-form paid programming stations; (v) outdoor
advertising property: any other outdoor advertising property or outdoor
advertising properties; (vi) any Core Business (other than a radio
station): any radio station or radio stations; or (vii) any Non-Core
Business: any Core Business.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate": the Borrower and (a) any corporation which
is a member of a controlled group of corporations within the meaning of
Section 414(b) of the Code of which the Borrower is a member; (b) any
trade or business (whether or not incorporated) which is a member of a
group of trades or businesses under common control within the meaning
of Section 414(c) of the Code of which the Borrower is a member; and
(c) any member of an affiliated service group within the meaning of
Section 414(m) or (o) of the Code of which the Borrower, any
corporation described in clause (i) above or any trade or business
described in clause (ii) above is a member.
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"ERISA Event": (a) the occurrence of a reportable event within
the meaning of Section 4043 of ERISA with respect to any Pension Plan,
(b) a failure to meet the minimum funding standard of Section 412 of
the Code or of Section 302 of ERISA, including, without limitation, the
failure to make on or before its due date a required installment under
Section 412(m) of the Code or Section 302(e) of ERISA, (regardless of
the issuance of any waivers in accordance with Section 412(d) of the
Code) and any request for a waiver under Section 412(d) of the Code in
connection with any Pension Plan; (c) the provision of the
administrator of any Pension Plan of a notice pursuant to Section
4041(a)(2) of ERISA to terminate such plan pursuant to Section 4041(c)
of ERISA; (d) the withdrawal by the Borrower or any ERISA Affiliate
from a Pension Plan during a plan year for which it was a "substantial
employer" within the meaning of Section 4001(a)(2) of ERISA; (e) the
institution by the PBGC of proceedings to terminate a Pension Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition which the Borrower or any ERISA Affiliate reasonably
anticipates would constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, a
Pension Plan; (f) the withdrawal by the Borrower or any ERISA Affiliate
in a complete or partial withdrawal (within the meaning of Section 4203
or 4205 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; (g) the imposition on the Borrower or any ERISA
Affiliate of fines, penalties, taxes or related charges under Chapter
43 of the Code or under Sections 502(c), (i) or (1) or 4071 of ERISA;
(h) the assertion of a material claim (other than routine claims for
benefits) against any Employee Benefit Plan or the assets thereof, or
against the Borrower or any ERISA Affiliate in connection with any such
plan; or (i) receipt from the Service of notice of the failure of any
Pension Plan to qualify under Section 401(a) of the Code, or the
failure of any trust forming part of a Pension Plan to fail to qualify
for exemption from taxation under Section 501(a) of the Code.
"Eurocurrency Reserve Requirements": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board) maintained by a member bank of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined by the Agent to be equal to the arithmetic mean of the rates
per annum offered by leading banks in the London interbank market at
approximately 11:00 a.m. (London time) two Working Days prior to the
beginning of such Interest Period, as quoted on Telerate Page 3750 or,
in the event that Telerate Page 3750 shall at such time quote such
rates for fewer
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than two leading banks, the rate at which the Agent is offered Dollar
deposits at or about 11:00 A.M. (London time), two Working Days prior
to the beginning of such Interest Period in the London interbank market
for delivery on the first day of such Interest Period for the number of
days comprised therein and in an amount comparable to the amount of the
Agent's Eurodollar Loan to be outstanding during such Interest Period.
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/16th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 7,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Excess Cash Flow": for any period, the Consolidated Operating
Cash Flow of the Borrower and its Subsidiaries for such period minus
for such period, the sum of (a) Consolidated Debt Service, (b)
Consolidated Capital Expenditures and (c) the actual taxes paid by the
Borrower and its Subsidiaries in cash.
"Exchangeable Preferred Stock": the preferred stock of the
Borrower designated the 12 1/2% Cumulative Exchangeable Preferred
Stock, issued by the Borrower pursuant to, and with such rights,
restrictions, privileges and preferences as set forth in its
Certificate of Designations.
"Exchange Debentures": 12 1/2% Exchange Debentures due 2006,
which may be issued by the Borrower pursuant to, and with such rights,
restrictions, privileges and preferences as set forth in the Exchange
Debenture Indenture.
"Exchange Debenture Indenture": the Indenture dated as of
September 30, 1996 pursuant to which the Borrower may issue the
Exchange Debentures, as the same may be amended, supplemented or
otherwise modified from time to time.
"Existing Agreement": as defined in the recitals to this
Agreement.
"Facilities": any and all real property (including, without
limitation, all buildings, fixtures or other improvements located
thereon) now, or hereafter, owned, leased, operated or used by the
Borrower or any of its Subsidiaries or any of their respective
predecessors.
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13
"FCC": the Federal Communications Commission and any successor
governmental agency performing functions similar to those performed by
the Federal Communications Commission on the date hereof.
"FCC License": any of the licenses, permits or other
authorizations issued by the FCC relating to or necessary for the
operation of the Broadcast Stations, the loss of which could reasonably
be expected to have a Material Adverse Effect, including, without
limitation, those listed on Schedule 3.1(e) hereto.
"Federal Funds Rate": with respect to each day, the rate per
annum (rounded upward, if necessary, to the nearest 1/16 of 1%) offered
in the interbank market to the Agent as the overnight "federal funds
rate" at or about 10:00 A.M., Los Angeles time, on such day (or, if
such day is not a Business Day, for the next preceding Business Day).
"Financial Statements": the audited consolidated balance
sheet, statement of operations, cash flows and shareholders' equity for
the Borrower and its consolidated Subsidiaries for the fiscal years
ended December 31, 1994 and 1995 and the unaudited interim consolidated
balance sheet, statement of operations, cash flows and shareholders'
equity for the Borrower and its consolidated Subsidiaries for the six
months ended June 30, 1995 and 1996.
"GAAP": generally accepted accounting principles in the United
States of America consistent with those utilized in preparing the
audited financial statements referred to in subsection 3.3.
"Governmental Authority": 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.
"Hazardous Materials": (a) any chemical, material or substance
defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous waste",
"restricted hazardous waste", or "toxic substances" or words of similar
import under any applicable Environmental Laws, (b) any oil, petroleum
or petroleum derived substance, any drilling fluids, produced waters
and other wastes associated with the exploration, development or
production of crude oil, any flammable substances or explosives, any
radioactive materials, any hazardous wastes or substances, any toxic
wastes or substances or any other materials or pollutants which (i)
pose a material hazard to any property of the Borrower or any of its
Subsidiaries or to Persons on or about such property or (ii) cause such
property to be in violation of any Environmental Laws, (c) asbestos in
any form which is or could become friable, urea formaldehyde foam
insulation, polychlorinated biphenyls, and (d) any other chemical,
material or substance, exposure to which is prohibited, limited or
regulated by any governmental authority or may or could pose a hazard
to the health and safety of the owners, occupants or any Persons
surrounding the Facilities.
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"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than current
trade liabilities incurred in the ordinary course of business and
payable in accordance with customary practices), (b) any other
indebtedness of such Person which is evidenced by a note, bond,
debenture or similar instrument, (c) all bligations of such Person
under Capital Leases, (d) all obligations of such Person in respect of
acceptances issued or created for the account of such Person, (e) all
liabilities secured by any Lien on any property owned by such Person
even though such Person has not assumed or otherwise become liable for
the payment thereof and (f) the liquidation value of any preferred
capital stock of such Person its Subsidiaries held by any Person other
than such Person and its wholly owned Subsidiaries.
"Intellectual Property": all patents, trademarks, trade names,
copyrights, technology, know-how and processes used in or necessary for
the conduct of business of the Borrower and its Subsidiaries as
currently conducted that are material to the condition (financial or
other), business, or operations of the Borrower and its Subsidiaries
taken as a whole.
"Interest Payment Date": (a) as to any Base Rate Loan, the
last day of each March, June, September and December and the date on
which such Loan is paid or converted into a Loan of another Type, (b)
as to any Eurodollar Loan having an Interest Period of three months or
less, the last day of such Interest Period, and (c) as to any
Eurodollar Loan having an Interest Period longer than three months,
each day which is three months or a whole multiple thereof, after the
first day of such Interest Period and the last day of such Interest
Period.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing
or conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three, six or twelve
months thereafter, as selected by the Borrower in its notice
of borrowing or notice of conversion, as the case may be,
given with respect thereto; and
(b) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three, six or twelve
months thereafter, as selected by the Borrower by irrevocable
notice to the Agent not less than three Working Days prior to
the last day of the then current Interest Period with respect
thereto;
provided that if the Borrower at any time selects an Interest Period
with respect to any Eurodollar Loan of twelve months, such selection is
subject to the availability of Eurodollar Loans having an Interest
Period of twelve months on the part of all of the Lenders; provided,
further, all of the foregoing provisions relating to Interest Periods
are subject to the following:
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(1) if any Interest Period pertaining to a Eurodollar Loan
would otherwise end on a day that is not a Working Day, such Interest
Period shall be extended to the next succeeding Working Day unless the
result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on
the immediately preceding Working Day;
(2) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Working Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Working Day
of a calendar month; and
(3) the Borrower shall select Interest Periods with respect to
any Eurodollar Loan so as not to require a payment or prepayment of any
such Eurodollar Loan during an Interest Period for such Loan.
"Interest Rate Agreement": any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement or other similar agreement or
arrangement designed to protect the Borrower or any of its Subsidiaries against
fluctuations in interest rates.
"INTV Properties": the Borrower's network of owned, operated or
affiliated television stations that are dedicated to infomercial programming and
declared by the Board of Directors of the Borrower as INTV Properties.
"Investment": (a) any direct or indirect purchase or other acquisition
by the Borrower or any of its Subsidiaries of, or a beneficial interest in,
stock or other Securities of any other Person, or (b) any direct or indirect
loan, advance (other than advances to employees for moving, entertainment and
travel expenses, drawing accounts and similar expenditures in the ordinary
course of business) or capital contribution by the Borrower or any of its
Subsidiaries to any other Person, including all indebtedness and accounts
receivable from that other Person that are not current assets or did not arise
from sales to that other Person in the ordinary course of business. The amount
of any Investment shall be the original cost of such Investment plus the cost of
all additions thereto, without any adjustments for increases or decreases in
value, or write-ups, write-downs or write-offs with respect to such investment.
Investments shall not include any purchase of Program Rights in the ordinary
course of business.
"Joint Venture": a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form.
"Leverage Ratio": at any date of determination, the ratio of (a)
Consolidated Total Debt of the Borrower and its Subsidiaries on such date to (b)
Adjusted Consolidated Operating Cash Flow as of the last day of the month for
which the
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Borrower shall have then most recently delivered financial statements pursuant
to subsection 5.1(b)(i).
"License Subsidiary": each Subsidiary of the Borrower which holds any
FCC License relating to a Broadcast Station as specified on Schedule 1. 1.D; and
"License Subsidiaries" means all such Persons collectively.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any Capital Lease having
substantially the same economic effect as any of the foregoing).
"LMA Agreements": (i) each of the agreements pursuant to which certain
of the Loan Parties operate an LMA Radio Station or LMA Television Station,
together with any amendments, supplements or modifications thereto, as the same
may be amended, restated, supplemented or otherwise modified from time to time
in accordance with the terms hereof and thereof, and (ii) any other local
marketing agreements, local management agreements, local sales agreements, time
brokerage agreements or similar arrangements entered into by the Borrower or
any of its Subsidiaries to the extent permitted hereby.
"LMA Radio Station": each of the radio stations (including, without
limitation, those identified on Schedule 1. 1.D) operated by the Borrower or its
Subsidiaries pursuant to an LMA Agreement.
"LMA Television Station": each of the television stations (including,
without limitation, those identified on Schedule 1. 1.D) operated by the
Borrower or its Subsidiaries pursuant to an LMA Agreement.
"Loan Documents": this Agreement, any Notes and the Security Documents.
"Loan Parties": the Borrower and each Subsidiary of the Borrower which
is a party to a Loan Document.
"Loans": as defined in subsection 2.1.
"Margin Stock": has the meaning assigned to that term in Regulation U
of the Board as in effect from time to time.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or prospects
of the Borrower and its Subsidiaries taken as a whole or (b) the validity or
enforceability of this or any of the other Loan Documents or the rights or
remedies of the Agent or the Lenders hereunder or thereunder.
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"Multiemployer Plan": a "multiemployer plan" within the meaning of
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate has an
obligation to contribute or in respect of which the Borrower or any ERISA
Affiliate has any outstanding liability, contingent or otherwise.
"Net Cash Proceeds": in connection with:
(a) any Asset Sale, the proceeds thereof in the form of Cash and Cash
Equivalents (including any such proceeds received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received), net of
attorneys' fees, accountants' fees, investment banking fees, amounts required to
be applied to the repayment of Indebtedness secured by a Lien expressly
permitted hereunder on any asset which is the subject of such Asset Sale (other
than any Lien in favor of the Agent for the benefit of the Lenders) and other
customary fees and expenses actually incurred in connection therewith and net of
taxes paid or reasonably estimated to be payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements); and
(b) any issuance or sale of equity securities or debt securities or
instruments or the incurrence of loans, the Cash proceeds received from such
issuance or incurrence, net of attorneys' fees, investment banking fees,
accountants' fees, underwriting discounts and commissions and other customary
fees and expenses actually incurred in connection therewith.
"Non-Core Business": any business other than a Core Business.
"Non-Excluded Taxes": as defined in subsection 2.15.
"Note": as defined in subsection 2.4(e).
"Obligations": the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans and
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) the Notes and all other obligations and
liabilities of the Borrower to the Agent or to any Lender, whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement, any other Loan Document, any Interest Rate Agreement entered into
with any Lender, whether on account of principal, interest, fees, indemnities,
costs, expenses (including, without limitation, all fees, charges and
disbursements of counsel to the Agent or to any Lender that are required to be
paid by the Borrower pursuant hereto) or otherwise.
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"Operating Lease": as applied to any Person, any lease (including,
without limitation, any leases that may be terminated by the lessee at any time)
of any property (whether real, personal or mixed) of such Person that is not a
Capital Lease other than any such lease under which such Person is the lessor.
"Owned Radio Station": each of the radio stations (including, without
limitation, those identified on Schedule 3.1(f)) owned by the Borrower and such
other radio stations acquired pursuant to a Permitted Purchase.
"Owned Television Station": each of the television stations (including,
without limitation, those identified on Schedule 3.1(f)) owned by the Borrower
and such other television stations acquired pursuant to a Permitted Purchase.
"Ownership Report": the Ownership Report of each Loan Party most
recently filed with the FCC.
"Participant": as defined in subsection 9.6(b).
"▇▇▇▇▇▇": ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, residing on the date hereof at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"Pension Plan": any Employee Benefit Plan, other than a Multiemployer
Plan, which is subject to the provisions of Title IV of ERISA.
"Permitted Acquisition": has the meaning assigned to that term in
subsection 6.4(j).
"Permitted Encumbrances": the following types of Liens (provided that
enforcement of the same will not have a Material Adverse Effect except with
respect to clauses (i) and (v) hereof):
(i) Liens for taxes, assessments or governmental charges or claims the
payment of which is not, at the time, required by subsection 5.3;
(ii) Liens of carriers, warehousemen and other liens imposed by law
incurred in the ordinary course of business for sums not yet delinquent or being
contested in good faith, if such reserve or other appropriate provision, if any,
as shall be required by GAAP shall have been made therefor;
(iii) Liens of mechanics and materialmen for sums not yet due or the
validity of which are being contested in good faith;
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(iv) Liens (other than any Lien imposed pursuant to Section 401(a)(29)
or Section 412(n) of the Code or under ERISA or any Environmental Law) incurred
or deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, trade contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money) and deposits made pursuant to the terms of
Purchase Agreements permitted hereunder;
(v) any attachment or judgment Lien not constituting an Event of
Default under subsection 7(j);
(vi) leases or subleases granted to others not interfering in any
material respect with the business of the Borrower or any of its Subsidiaries;
(vii) easements, rights-of-way, restrictions, minor defects,
encroachments or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the ordinary conduct
of the business of the Borrower or any of its Subsidiaries; and
(vii) Liens arising from filing UCC financing statements relating
solely to leases permitted by this Agreement.
"Permitted Purchase": any of (i) a Permitted Acquisition, (ii) a
Preapproved Acquisition or (iii) any other acquisition of a Core Business
permitted hereunder or otherwise consented to by the Required Lenders from time
to time in accordance with the terms hereof.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreements": the collective reference to the Borrower Pledge
Agreement and the Subsidiaries Pledge Agreement.
"Preapproved Acquisition": means each of the acquisitions listed on
Schedule 1.1C, Provided that such acquisition is effected pursuant to the
Purchase Agreement relating to such acquisition.
"Program": any television series or other program produced or
distributed for television release (including any syndicated series or other
program regardless of its
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medium of initial exploitation), in each case whether recorded on film
videotape, audiotape, cassette, cartridge, disc or by any other means, method,
process or device, whether now known or hereafter developed.
"Program Contracts": all contracts for television broadcast rights of
Programs, including, but not limited to, film, music and related audio rights
and syndicated series exhibition rights acquired under license agreements.
"Program Rights": any right, whether arising under Program Contracts or
otherwise, to broadcast, sell, distribute, subdistribute, exhibit, lease,
sublease, license, sublicense or otherwise exploit Programs.
"Program Rights Costs": the maximum amount which the Borrower and/or
any of its Subsidiaries or its or their co-venturers have furnished or have
contractually committed to furnish (to the extent such commitments shall be
reflected as an asset or liability on the consolidated balance sheet and the
notes thereto of the Borrower) toward the production or acquisition by the
Borrower and/or any of its Subsidiaries or its or their co-venturers of any
Program Rights with respect to any Program.
"Programming Amortization Expense": for any period, total amortization
expense of the Borrower and/or any of its Subsidiaries for such period which is
directly attributable to Programs, Program Rights or Program Contracts,
determined on a consolidated basis in conformity with GAAP.
"Programming Obligations": at any date of determination, all direct or
indirect liabilities, contingent or otherwise, with respect to Program
Contracts, Programs or Program Rights (including, without limitation, all
Program Rights Costs) of the Borrower and its Subsidiaries, to the extent
reflected on the consolidated balance sheet and the notes thereto of the
Borrower and its Subsidiaries prepared in conformity with GAAP.
"Programming Rights Payments": for any period, the aggregate cash
payments scheduled to be made by the Borrower and/or any of its Subsidiaries for
such period in respect of Programming Obligations, determined on a consolidated
basis in conformity with GAAP.
"Purchase Agreements": the agreements, contracts and other documents
pursuant to which the Borrower or its Subsidiaries will consummate a Permitted
Purchase, in form and substance satisfactory to the Agent or, in the case of an
acquisition consented to by the Required Lenders in accordance with clause (iii)
of the definition of the term "Permitted Purchase", the Required Lenders.
"Register": as defined in subsection 9.6(d).
"Related Documents": (a) the Purchase Agreements and (b) the LMA
Agreements.
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"Release": any release, spill, emission, leaking, plumbing, pouring,
injection, escaping, deposit, disposal, discharge, dispersal, leaching, or
migration into the indoor or outdoor environment (including, without limitation,
the abandonment or disposal of any barrels, containers or other closed
receptacles containing any Hazardous Materials), or into or out of any Facility,
including the movement of any Hazardous Material through the air, soil, surface
water, groundwater or property.
"Required Lenders": at a particular time, the holders of at least 51% of
the aggregate unpaid principal amount of the Loans, or, if no Loans are
outstanding, Lenders the Commitment Percentages of which aggregate at least 51%.
"Requirement of Law": as to any Person, the Certificate of Incorporation
and By-Laws or other organizational or governing documents of such Person, and
any law, treaty, rule or regulation or determination of an arbitrator or a court
or other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is
subject.
"Restricted Payment": means (i) any dividend or other distribution,
direct or indirect, on account of any equity interests (including preferred
capital stock) of the Borrower or any of its Subsidiaries now or hereafter
outstanding, (ii) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any equity
interests (including preferred capital stock) of the Borrower or any of its
Subsidiaries now or hereafter outstanding, (iii) any payment made to retire, or
to obtain the surrender of, any outstanding warrants, options or other rights to
acquire any equity interests (including preferred capital stock) of the Borrower
or any of its Subsidiaries now or hereafter outstanding and (iv) any direct or
indirect payment, loan, contribution or other transfer of funds or other
property to any equity holder of the Borrower or any of its Subsidiaries.
"Securities": any stock, shares, voting trust certificates, bonds,
debentures, options, warrants, notes, or other evidences of indebtedness,
secured or unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as "securities" or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
"Security Agreements": the collective reference to the Borrower
Security Agreement and the Subsidiaries Security Agreement.
"Security Documents": the collective reference to the Pledge
Agreements, the Subsidiaries Guarantee, the Security Agreements and all other
security documents hereafter delivered to the Agent granting a Lien on any
asset or assets of any Person to secure the obligations and liabilities of the
Borrower hereunder and under any of the other Loan Documents or to secure any
guarantee of any such obligations and liabilities.
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"Senior Debt Ratio": at any date of determination, the ratio of (a)
Consolidated Senior Debt on such date to (b) Adjusted Consolidated Operating
Cash Flow as of the last day of the month for which the Borrower shall have then
most recently delivered financial statements pursuant to subsection 5.1(b)(i).
"Senior Subordinated Note Indenture": the Indenture dated as of
September 28, 1995 pursuant to which the Borrower issued the Senior Subordinated
Notes, as the same may be amended, supplemented or otherwise modified from time
to time.
"Senior Subordinated Notes": the Senior Subordinated Notes due October
1, 2002 of the Borrower in the aggregate principal amount of $230,000,000.
"Solvent": with respect to any Person, that as of the date of
determination, both (A)(i) the then fair saleable value of the property of such
Person is (y) greater than the total amount of liabilities (including Contingent
Obligations) of such Person and (z) greater than the amount that will be
required to pay the probable liabilities of such Person's then existing debts as
they become absolute and matured considering all financing alternatives, sharing
and allocation arrangements and potential asset sales reasonably available to
such Person; (ii) such Person's capital is not unreasonably small in relation to
its business or any contemplated or undertaken transaction; and (iii) such
Person does not intend to incur, or believe or reasonably should believe that
it will incur, debts beyond its ability to pay such debts as they become due
and (B) such Person is solvent within the meaning given that term and similar
terms under applicable laws relating to fraudulent transfers.
"Stockholders' Agreement": the Amended and Restated Stockholders'
Agreement of the Borrower dated as of December 22, 1994, as the same may be
amended, supplemented or otherwise modified from time to time.
"Studio Construction Expenditures": expenditures by the Borrower or its
Subsidiaries for the construction of a new infomercial/electronic retailing
studio facility to be located at either Old Okochobee Road between Australian
Avenue and Florida Mango Road or ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ and related equipment (including software) in an aggregate amount not to
exceed $10,000,000.
"Subsidiaries Guarantee": the Amended and Restated Guarantee to be
executed and delivered by each Subsidiary in favor of the Agent, substantially
in the form of Exhibit D, as the same may be amended, supplemented or otherwise
modified from time to time.
"Subsidiaries Pledge Agreement": the Amended and Restated Subsidiaries
Pledge Agreement to be executed and delivered by each Subsidiary in favor of the
Agent, substantially in the form of Exhibit E, as the same may be amended,
supplemented or otherwise modified from time to time.
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"Subsidiaries Security Agreement": the Amended and Restated
Subsidiaries Security Agreement to be executed and delivered by each
Subsidiary in favor of the Agent, substantially in the form of Exhibit F,
as the same may be amended, supplemented or otherwise modified from time
to time.
"Subsidiaries Security Documents": the collective reference to
the Subsidiaries Pledge Agreement and the Subsidiaries Security
Agreement.
"Subsidiary": as to any Person, a corporation, partnership
or other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the time
owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower. All references in this Agreement to a
"Subsidiary" or "Subsidiaries" of the Borrower shall not include (a) any
Unrestricted Subsidiary of the Borrower or (b) any Discontinued
Operation.
"Subsidiary Guarantor": any Subsidiary of the Borrower that is
a party to the Subsidiaries Guarantee.
"Termination Date": June 30, 2002.
"Tranche": the collective reference to Eurodollar Loans the
then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Loans shall
originally have been made on the same day).
"Transferee": as defined in subsection 9.6(f).
"Type": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar Loan.
"Unrestricted Subsidiary": any corporation, partnership or
other entity which, but for the operation of this definition, would be a
Subsidiary of the Borrower (i) created, invested in or acquired by the
Borrower or any Subsidiary of the Borrower after December 19, 1995, other
than pursuant to a Preapproved Acquisition, (ii) designated by a
resolution of the Board of Directors of the Borrower as an Unrestricted
Subsidiary and such designation and the basis for such designation are
provided in writing to the Agent, and (iii)(A) into which the Borrower or
any Subsidiary has made any Investment with the proceeds of any issuance
or sale of any class of equity Securities of the Borrower or any
Subsidiary or as permitted by subsection 6.4(d) or (B) acquired in
exchange, in whole or in part, for equity Securities of the Borrower or
any Subsidiary; provided that if such Subsidiary is a
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partnership, such Subsidiary may be an Unrestricted Subsidiary only if
neither the Borrower nor a Subsidiary of the Borrower is a general
partner of such Subsidiary.
"Warrants": each of the warrants to purchase shares of common
stock or preferred capital stock of the Borrower.
"Working Day": shall mean any Business Day on which dealings
in foreign currencies and exchange between banks may be carried on in
London, England.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any Notes or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate
or other document made or delivered pursuant hereto, accounting terms relating
to the Borrower and its Subsidiaries not defined in subsection 1.1 and
accounting terms partly defined in subsection 1.1, to the extent not defined,
shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section, subsection, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the
terms and conditions hereof, each Lender severally agrees to make revolving
credit loans ("Loans") to the Borrower from time to time during the Commitment
Period in an aggregate principal amount at any one time outstanding not to
exceed the amount of such Lender's Commitment. During the Commitment Period
the Borrower may use the Commitments by borrowing, prepaying the Loans in whole
or in part, and reborrowing, all in accordance with the term and conditions
hereof.
2.2 Procedure for Borrowing. (a) The Loans may from time
to time be (i) Eurodollar Loans or (ii) Base Rate Loans or (iii) a combination
thereof, as determined by the Borrower and notified to the Agent in accordance
with subsections 2.2(b) and 2.7, provided that no Loan shall be made as a
Eurodollar Loan after the day that is one month prior to the Termination Date.
(b) The Borrower may borrow under the Commitments during
the Commitment Period on any Working Day, if all or any part of such Loans are
to be initially Eurodollar Loans, or on a Business Day, if all of such Loans
are to be initially Base Rate
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Loans, provided that the Borrower shall give the Agent irrevocable notice
(which notice must be received by the Agent prior to 10:00 A.M., Los Angeles
time, (a) three Business Days prior to the requested Borrowing Date, if all or
any part of the requested Loans are to be initially Eurodollar Loans or (b)
one Business Day prior to the requested Borrowing Date, otherwise), specifying
(i) the amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether
the borrowing is to be Eurodollar Loans, Base Rate Loans, or a combination
thereof and (iv) if the borrowing is to be entirely or partly of Eurodollar
Loans, the respective amounts of each such Type of Loan and the respective
lengths of the initial Interest Periods therefor. Each borrowing under the
Commitments shall be in an amount equal to (x) in the case of Base Rate Loans,
$500,000 or a whole multiple of $100,000 in excess thereof (or, if the then
aggregate Available Commitments are less than $100,000, such lesser amount) and
(y) in the case of Eurodollar Loans, $3,000,000 or a whole multiple of
$1,000,000 in excess thereof. Upon receipt of any such notice from the
Borrower, the Agent shall promptly notify each Lender thereof. Each Lender
will make the amount of its pro rata share of each borrowing available to the
Agent for the account of the Borrower at the office of the Agent specified in
subsection 9.2 prior to 11:00 A.M., New York City time, on the Borrowing Date
requested by the Borrower in funds immediately available to the Agent. Such
borrowing will then be made available to the Borrower by the Agent crediting
the account of the Borrower on the books of such office with the aggregate of
the amounts made available to the Agent by the Lenders and in like funds as
received by the Agent.
2.3 Commitment Fee. The Borrower agrees to pay to the
Agent for the account of each Lender a commitment fee for the duration of the
Commitment Period from and including the first day of the Commitment Period,
computed at the Applicable Commitment Fee Rate per annum on the average daily
amount of the Available Commitment of such Lender during the period for which
payment is made, payable quarterly in arrears on the last day of each March,
June, September and December and on the Termination Date or such earlier date
as the Commitments shall terminate as provided herein, commencing on the first
of such dates to occur after the date hereof.
2.4 Repayment of Loans, Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay to the Agent for the account of
each Lender the then unpaid principal amount of each Loan of such Lender on the
Termination Date (or such earlier date on which the Loans become due and
payable pursuant to Section 7). The Borrower hereby further agrees to pay
interest on the unpaid principal amount of the Loans from time to time
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in subsection 2.9.
(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of the Borrower
to such Lender resulting from each Loan of such Lender from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time under this Agreement.
(c) The Agent shall maintain the Register pursuant to
subsection 9.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, the Type thereof and each
Interest Period applicable thereto, (ii) the amount
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of any principal or interest due and payable or to become due and payable from
the Borrower to each Lender hereunder and (iii) both the amount of any sum
received by the Agent hereunder from the Borrower and each Lender's share
thereof.
(d) The entries made in the Register and the accounts of
each Lender maintained pursuant to subsection 2.4(b) shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Borrower therein recorded; provided, however,
that the failure of any Lender or the Agent to maintain the Register or any
such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made
to the Borrower by such Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Agent by any Lender, the Borrower will execute and deliver to such Lender a
promissory note of the Borrower evidencing the Loans of such Lender,
substantially in the form of Exhibit A with appropriate insertions as to date
and principal amount (a "Note").
2.5 Optional Prepayments. The Borrower may, at any time
and from time to time, prepay the Loans, in whole or in part, without premium
or penalty, upon at least three Business Days' irrevocable notice to the Agent
in the case of Eurodollar Loans, and upon at least one Business Days'
irrevocable notice to the Agent in the case of Base Rate Loans, specifying the
date and amount of prepayment and whether the prepayment is of Eurodollar
Loans, Base Rate Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each. Upon receipt of any such notice the
Agent shall promptly notify each Lender thereof. If any such notice is given,
the amount specified in such notice shall be due and payable on the date
specified therein, together with any amounts payable pursuant to subsection
2.16. Partial prepayments shall be in an aggregate principal amount of $250,000
or a whole multiple of $50,000 in excess thereof.
2.6 Termination or Reduction of Commitments and Mandatory
Prepayments,
(a) The Borrower shall have the right, upon not less than
three Business Days' notice to the Agent, to terminate the Commitments or, from
time to time, to reduce the amount of the Commitments. Any such reduction
shalt be in an amount equal to $500,000 or a whole multiple of $500,000 in
excess thereof and shall reduce permanently the Commitments then in effect.
Termination of the Commitments shall also terminate the obligation of the
Lenders to make Loans.
(b) On each March 31, June 30, September 30 and December
31 during the period from and including December 31, 1997 to the Termination
Date, the Commitment shall be reduced by the amount set forth below opposite
the period in which such date occurs:
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==========================================================
QUARTERLY
COMMITMENT
DATE OR PERIOD REDUCTION
==========================================================
December 31, 1997 $ 5,000,000
----------------------------------------------------------
January 1, 1998-December 31, 1998 $ 7,500,000
----------------------------------------------------------
January 1, 1999-December 31, 2000 $10,000,000
----------------------------------------------------------
January 1, 2001-December 31, 2001 $10,625,000
----------------------------------------------------------
January 1, 2002-June 30, 2002 $21,250,000
==========================================================
(c) If any class of debt Securities or instruments of the
Borrower or any of its Subsidiaries shall be issued or sold or the Borrower or
its Subsidiaries shall incur any indebtedness (other than any debt Securities
or instruments issued or Indebtedness incurred as permitted by subsection 6.2)
an amount equal to 100% of the Net Cash Proceeds from such issuance, sale or
incurrence shall be applied on the date of such issuance, sale or incurrence
toward the reduction of the Commitments in accordance with the provisions of
paragraph (f) of this subsection 2.6.
(d) The Commitments shall be reduced in accordance with
the provisions of paragraph (f) of this subsection 2.6 by an amount equal to
the aggregate amount of Net Cash Proceeds received by the Borrower and its
Subsidiaries from Asset Sales (other than any sale of WPBF-TV and WTVX-TV if
such sale occurs prior to June 30, 1997), except that (i) if the Leverage Ratio
as of the last day of the fiscal quarter preceding such Asset Sale is greater
than 4.50 to 1.00, then the first $50,000,000 of such Net Cash Proceeds
received by the Borrower and its Subsidiaries during the Commitment Period need
not be so applied to reduce the Commitments to the extent the Borrower or any
of its Subsidiaries invests such Net Cash Proceeds, or contracts to invest
(subject only to customary conditions other than the obtaining of financing)
such Net Cash Proceeds on or prior to the 181st day following the date of such
Asset Sale and the Net Cash Proceeds so contractually committed are so invested
within 360 days following the date of such Asset Sale, in Equivalent Assets of
the assets sold (a "Permitted Reinvestment") (provided that, as at the time of
such Permitted Reinvestment and after giving effect thereto no Default or Event
of Default shall have occurred and be continuing or would result therefrom) and
(ii) if the Leverage Ratio is less than or equal to 4.50 to 1.00 as of the last
day of the fiscal quarter preceding such Asset Sale, then the Net Cash Proceeds
of such Asset Sale need not be so applied to reduce the Commitments to the
extent the Borrower or any of its Subsidiaries applies such Net Cash Proceeds
to make a Permitted Reinvestment within the time period for such Permitted
Reinvestment specified in clause (i) of this paragraph (provided that, as at
the time of such Permitted Reinvestment and after giving effect thereto no
Default or Event of Default shall have occurred and be continuing or would
result therefrom).
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(e) If, for the 1997 fiscal year of the Borrower and any
subsequent fiscal year of the Borrower, (i) there shall be Excess Cash Flow and
(ii) the Leverage Ratio is greater than or equal to 4.50 to 1.00 as of the last
day of such fiscal year, then on the relevant Excess Cash Flow Application Date
(as defined below) there shall be applied toward the reduction of the
Commitment in accordance with the provisions of paragraph (f) of this
subsection 2.6, an amount equal to 50% of such Excess Cash Flow. Each such
Commitment reduction shall be made on the date (an "Excess Cash Flow
Application Date") that is five days after the earlier of (i) the date on which
the financial statements of the Borrower referred to in subsection 5. 1
(b)(iii), for the fiscal year with respect to which such prepayment is made,
are required to be delivered to the Lenders and (h) the date such financial
statements are actually delivered.
(f) Reductions of the Commitments pursuant to this
subsection 2.6 shall be applied to the permanent reduction of the Commitments
to the then remaining scheduled Commitment reductions pro rata according to the
respective amounts thereof. Any reduction of the Commitments pursuant to this
subsection 2.6 shall be accompanied by the prepayment of the Loans (including
accrued interest and any amounts due pursuant to subsection 2.16) to the
extent, if any, that the aggregate then outstanding principal amount of the
Loans exceeds the amount of the Commitments as so reduced.
2.7 Conversion and Continuation Options. (a) The Borrower
may elect from time to time to convert Eurodollar Loans to Base Rate Loans, by
giving the Agent at least two Business Days' prior irrevocable notice of such
election, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert Base Rate Loans to Eurodollar Loans by
giving the Agent at least three Working Days' prior irrevocable notice of such
election. Any such notice of conversion to Eurodollar Loans shall specify the
length of the initial Interest Period or Interest Periods therefor. Upon
receipt of any such notice the Agent shall promptly notify each Lender thereof.
All or any part of outstanding Eurodollar Loans and Base Rate Loans may be
converted as provided herein, provided that (i) no Loan may be converted into a
Eurodollar Loan when any Event of Default has occurred and is continuing and
the Agent has or the Required Lenders have determined that such a conversion is
not appropriate and (ii) no Loan may be converted into a Eurodollar Loan after
the date that is one month prior to the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon
the expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Agent, in accordance with the applicable
provisions of the term "Interest Period" set forth in subsection 1.1, of the
length of the next Interest Period to be applicable to such Loans, provided
that no Eurodollar Loan may be continued as such (i) when any Event of Default
has occurred and is continuing and the Agent has or the Required Leaders have
determined that such a continuation is not appropriate or (ii) after the date
that is one month prior to the Termination Date and provided, further, that if
the Borrower shall fail to give such notice or if such continuation is not
permitted such Loans shall be automatically converted to Base Rate Loans on the
last day of such then expiring Interest Period.
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2.8 Minimum Amounts and Maximum Number of Tranches. All
borrowings, conversions and continuations of Loans hereunder and all selections
of Interest Periods hereunder shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate principal
amount of the Loans comprising each Eurodollar Tranche shall be equal to
$3,000,000 or a whole multiple of $1,000,000 in excess thereof. In no event
shall there be more than 8 Eurodollar Tranches outstanding at any time.
2.9 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined with
respect to such Loan for such day plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) any principal of any Loan,
(ii) any interest payable thereon, (iii) any commitment fee or (iv) any other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), the principal of such overdue Loans
and any such overdue interest, commitment fee or other amount shall bear
interest at a rate per annum which is (x) in the case of principal, the rate
that would otherwise be applicable thereto pursuant to the foregoing provisions
of this subsection plus 2% or (y) in the case of any such overdue interest,
commitment fee or other amount, the rate described in paragraph (b) of this
subsection plus 2%, in each case from the date of such non-payment until such
overdue principal, interest, commitment fee or other amount is paid in full (as
well after as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
2.10 Computation of Interest and Fees. (a) Interest on
Base Rate Loans and commitment fees shall be calculated on the basis of a 365-
(or 366-, as the case may be) day year for the actual days elapsed. Interest on
Eurodollar Loans shall be calculated on the basis of a 360-day year for the
actual days elapsed. The Agent shall as soon as practicable notify the
Borrower and the Lenders of each determination of a Eurodollar Rate. Any
change in the interest rate on a Loan resulting from a change in the Base Rate
or the Eurocurrency Reserve Requirement, shall become effective as of the
opening of business on the day on which such change becomes effective. The
Agent shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error. The Agent
shall, at the request of the Borrower, deliver to the Borrower a statement
showing the quotations used by the Agent in determining any interest rate
pursuant to subsection 2.9(a) or (b).
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2.11 Inability to Determine interest Rate. If prior to
the first day of any Interest Period:
(a) the Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or
(b) the Agent shall have received notice from the
Required Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such
Interest Period,
the Agent shall give telecopy or telephonic notice thereof to the Borrower and
the Lenders as soon as practicable thereafter. If such notice is given (x)
any Eurodollar Loans requested to be made on the first day of such Interest
Period shall be made as Base Rate Loans, (y) any Loans that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as Base Rate Loans and (z) any affected outstanding Eurodollar Loans
shall be converted, on the first day of such Interest Period, to Base Rate
Loans. Until such notice has been withdrawn by the Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall the Borrower
have the right to convert Loans to Eurodollar Loans.
2.12 Pro Rata Treatment and Payments. (a) Each borrowing
by the Borrower from the Lenders hereunder, each payment by the Borrower on
account of any commitment fee hereunder and any reduction of the Commitments of
the Lenders shall be made pro rata according to the respective Commitment
Percentages of the Lenders. Each payment (including each prepayment) by the
Borrower on account of principal of and interest on the Loans shall be made pro
rata according to the respective outstanding principal amounts of the Loans
then held by the Lenders. All payments (including prepayments) to be made by
the Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without set off or counterclaim and shall be made
prior to 11:00 A.M. Los Angeles time, on the due date thereof to the Agent,
for the account of the Lenders, at the Agent's office specified in subsection
9.2, in Dollars and in immediately available funds. The Agent shall distribute
such payments to the Lenders promptly upon receipt in like funds as received.
If any payment hereunder becomes due and payable on a day other than a Business
Day, such payment shall be extended to the next succeeding Business Day, and,
with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension.
(b) Unless the Agent shall have been notified in writing
by any Lender prior to a borrowing that such Lender will not make the amount
that would constitute its Commitment Percentage of such borrowing available to
the Agent, the Agent may assume that such Lender is making such amount
available to the Agent, and the Agent may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. If such amount is not
made available to the Agent by the required time on the Borrowing Date
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therefor, such Lender shall pay to the Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Rate for
the period until such Lender makes such amount immediately available to the
Agent. A certificate of the Agent submitted to any Lender with respect to any
amounts owing under this subsection shall be conclusive in the absence of
manifest error. If such Lender's Commitment Percentage of such borrowing is
not made available to the Agent by such Lender within three Business Days of
such Borrowing Date, the Agent shall also be entitled to recover such amount
with interest thereon, without duplication of any amounts received by the Agent
from such Lender, at the rate per annum applicable to Base Rate Loans
hereunder, on demand, from the Borrower.
2.13 Illegality. Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert Base Rate Loans to Eurodollar Loans shall
forthwith be canceled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans
on the respective last days of the then current Interest Periods with respect
to such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of
the then current Interest Period with respect thereto, other than as a result
of the gross negligence or willful act of such Lender, the Borrower shall pay
to such Lender such amounts, if any, as may be required pursuant to subsection
2.16.
2.14 Requirements of Law. (a) If the adoption of or any
change in any Requirement of Law or in the interpretation or application
thereof or compliance by any Lender with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any
kind whatsoever with respect to this Agreement, any Note or any
Eurodollar Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for NonExcluded
Taxes covered by subsection 2.15 and changes in the rate of tax on the
overall net income of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
thereunder; or
(iii) shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting
into, continuing or maintaining Eurodollar Loans or to reduce any amount
receivable hereunder in respect thereof, then, in any such case, such Lender
shall notify the Borrower of such increased cost
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or reduced amount receivable and describe in reasonable detail the basis for
such notification, and the Borrower shall promptly pay such Lender such
additional amount or amounts as will compensate such Lender for such increased
cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption
of or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender
to be material, then from time to time, the Borrower shall promptly pay to such
Lender such additional amount or amounts as will compensate such Lender for
such reduction.
(c) If any Lender becomes entitled to claim any
additional amounts pursuant to this subsection, it shall promptly notify the
Borrower (with a copy to the Agent) of the event by reason of which it has
become so entitled. A certificate as to any additional amounts payable
pursuant to this subsection submitted by such Lender to the Borrower (with a
copy to the Agent) shall be conclusive in the absence of manifest error. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
(d) In the event any Lender delivers a certificate
requesting compensation pursuant to this subsection 2.14, the Borrower may, at
its sole expense and effort, upon notice to such Lender and the Agent, require
such Lender to transfer and assign, without recourse (in accordance with and
subject to the restrictions contained in subsection 9.6), all of its interests,
rights and obligations under this Agreement to an assignee which shall assume
such assigned obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided, however, that (x) such assignment shall not
conflict with any law, rule or regulation or order of any court or other
Governmental Authority having jurisdiction, (y) the Borrower shall have
received the prior written consent to such assignment of the Agent, which
consent shall not unreasonably be withheld, and (z) the Borrower or such
assignee shall have paid to the affected Lender in immediately available funds
an amount equal to the sum of the principal of the outstanding Loans of such
Lender plus all interest, fees and other amounts accrued and unpaid for the
account of such Lender hereunder (including any amounts under this subsection
2.14); provided, further, that if prior to any such transfer and assignment the
circumstances or event that resulted in such Lender's claim for compensation
under this subsection 2.14 cease to cause such Lender to suffer increased costs
or reductions in amounts received or receivable or reduction in return on
capital (including as a result of any action taken by such Lender pursuant to
subsection 2.17), or if, within twenty days after the Borrower shall have
notified such Lender of its election to exercise its rights pursuant to this
subsection, such Lender shall waive its right to claim further compensation
under this
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subsection 2.14 in respect of such circumstances or event, then such Lender
shall not thereafter be required to make any such transfer and assignment
hereunder.
2.15 Taxes. (a) All payments made by the Borrower under
this Agreement and any Notes shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Agent or any Lender as a
result of a present or former connection between the Agent or such Lender and
the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any Note). If any such non-excluded taxes, levies,
imposts, duties, charges, fees deductions or withholdings ("Non- Excluded
Taxes") are required to be withheld from any amounts payable to the Agent or
any Lender hereunder or under any Note, the amounts so payable to the Agent or
such Lender shall be increased to the extent necessary to yield to the Agent or
such Lender (after payment of all Non-Excluded Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts specified in
this Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this subsection. Whenever any
Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Agent for its own account or for the
account of such Lender, as the case may be, a certified copy of an original
official receipt received by the Borrower showing payment thereof. If the
Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Agent the required receipts or other
required documentary evidence, the Borrower shall indemnify the Agent and the
Lenders for any incremental taxes, interest or penalties that may become
payable by the Agent or any Lender as a result of any such failure. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws
of the United States of America or a state thereof shall:
(i) deliver to the Borrower and the Agent (A) two
duly completed copies of United States Internal Revenue Service Form
1001 or 4224, or successor applicable form, as the case may be, and
(B) an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be;
(ii) deliver to the Borrower and the Agent two
further copies of any such form or certification on or before the
date that any such form or certification expires or becomes obsolete
and after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrower; and
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(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be requested
by the Borrower or the Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the Agent.
Such Lender shall certify (i) in the case of a Form 1001 or 4224, that it is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes and (ii) in the case of a
Form W-8 or W-9, that it is entitled to an exemption from United States backup
withholding tax. Each Person that shall become a Lender or a Participant
pursuant to subsection 9.6 shall, upon the effectiveness of the related
transfer, be required to provide all of the forms and statements required
pursuant to this subsection, provided that in the case of a Participant such
Participant shall furnish all such required forms and statements to the Lender
from which the related participation shall have been purchased.
2.16 Indemnity. The Borrower agrees to indemnify each
Lender and to hold each Lender harmless from any loss or expense which such
Lender may sustain or incur as a consequence of (a) default by the Borrower in
making a borrowing of, conversion into or continuation of Eurodollar Loans
after the Borrower has given a notice requesting the same in accordance with
the provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the excess, if
any, of (i) the amount of interest which would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to
the last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Applicable Margin included
therein, if any) over (ii) the amount of interest (as reasonably determined by
such Lender) which would have accrued to such Lender on such amount by placing
such amount on deposit for a comparable period with leading banks in the
interbank eurodollar market. This covenant shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.17 Change of Lending Office. Each Lender agrees that if
it makes any demand for payment under subsection 2.14 or 2.15(a), or if any
adoption or change of the type described in subsection 2.13 shall occur with
respect to it, it will use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions and so long as such efforts would
not be disadvantageous to it, as determined in its sole discretion) to
designate a different lending office if the making of such a designation would
reduce or obviate the need for the Borrower to make payments under subsection
2.14 or 2.15(a), or would eliminate or reduce the effect of any adoption or
change described in subsection 2.13.
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2.18 Further Assurances Regarding Security, Additional
Security. (a) The Borrower shall, and shall cause each of its Subsidiaries to,
from time to time, execute and deliver to the Agent on behalf of the Lenders,
such additional Security Documents, statements, documents, agreements and
reports as it may from time to time reasonably request to evidence, perfect or
otherwise implement or assure the security for repayment of the Obligations.
With respect to the Lenders' insurance policies, upon the Agent's reasonable
request, the Borrower shall arrange for co-insurance and/or reinsurance, with
companies and in amounts satisfactory to the Agent. All reinsurance policies
shall include direct access agreements acceptable to the Agent.
(b) Notwithstanding anything herein to the contrary, to
the extent this Agreement or any other Loan Document purports to require any
Loan Party to grant to the Agent, on behalf of Lenders, a security interest in
the FCC Licenses of any Loan Party now owned or hereafter acquired, as the case
may be, the Agent, on behalf of Lenders, shall only have a security interest in
such FCC Licenses at such times and to the extent that a security interest in
such licenses is permitted under applicable law. Notwithstanding anything to
the contrary set forth herein, the Agent, on behalf of Lenders, agrees that to
the extent prior FCC approval is required pursuant to the Communications Act
for (a) the operation and effectiveness of any grant, right or remedy hereunder
or under the Security Agreements or (b) taking any action that may be taken by
the Agent hereunder or under the Security Agreements, such grant, right, remedy
or actions will be subject to such prior FCC approval having been obtained by
or in favor of the Agent, on behalf of Lenders. The Borrower agrees that, upon
an Event of Default and at the Agent's request, the Borrower will, and will
cause its Subsidiaries to, immediately file, or cause to be filed, such
applications for approval and shall take all other and further actions
reasonably required by the Agent, on behalf of Lenders, to obtain such FCC
approvals or consents as are necessary to transfer ownership and control to the
Agent, on behalf of Lenders, or their successors, assigns or designees of the
FCC Licenses held by the Borrower, its License Subsidiaries or any of its other
Subsidiaries. To enforce the provisions of this subsection, the Agent is
empowered to request the appointment of a receiver from any court of competent
jurisdiction. Such receiver shall be instructed to seek from the FCC an
involuntary transfer of control of any such FCC License for the purpose of
seeking a bona fide purchaser to whom control will ultimately be transferred.
The Borrower hereby agrees to authorize, and to cause each of its Subsidiaries
to authorize, such an involuntary transfer of control upon the request of the
receiver so appointed, and, if the Borrower shall refuse to authorize or cause
any of its Subsidiaries to so authorize the transfer, its approval may be
required by the court. Upon the occurrence and continuance of an Event of
Default, and the request of the Agent, the Borrower shall further use its best
efforts to assist in obtaining approval of the FCC, if required, for any action
or transactions contemplated by this Agreement or the other Loan Documents,
including, without limitation, the preparation, execution and filing with the
FCC of the assignor's or transferor's portion of any application or
applications for consent to the assignment of any FCC License or transfer of
control necessary or appropriate under the FCC's rules and regulations for
approval of the transfer or assignment of any portion of the Collateral,
together with any FCC License or other authorization.
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(c) The Borrower acknowledges that the assignment or
transfer of such FCC Licenses is integral to the Lenders' realization of the
value of the Collateral, that there is no adequate remedy at law for failure by
the Borrower to comply with the provisions of this subsection and that such
failure would not be adequately compensable in damages, and therefore agrees
that the agreements contained in this subsection may be specifically enforced.
(d) Notwithstanding anything to the contrary contained in
this Agreement or any other Loan Document, neither the Agent nor any Lender
shall, without first obtaining the approval of the FCC, take any action
pursuant to this Agreement or any other Loan Document which would constitute or
result in any assignment of an FCC License or any change of control of the
Borrower or any of its Subsidiaries if such assignment or change in control
would require, under then existing law (including the written rules and
regulations promulgated by the FCC), the prior approval of the FCC.
(e) At any time or from time to time upon the reasonable
request of the Agent, the Borrower shall, and shall cause each of its
Subsidiaries to, execute and deliver such further documents (including without
limitation such financing statements, continuation statements or amendments
thereto and such other documents and certificates as the Agent may reasonably
request to perfect and preserve the security interests granted or purported to
be granted under any of the Security Documents) and do such other acts and
things as the Agent may reasonably request to effect fully the purposes of this
Agreement and the other Loan Documents and to provide for payment of the
Obligations in accordance with the terms of this Agreement and the other Loan
Documents. Without limiting any of the foregoing, in the event a Person
becomes a Subsidiary of the Borrower after the Closing Date, the Borrower shall
cause such Subsidiary to execute and deliver such guarantees, Security
Documents and such other agreements, pledges, assignments, documents and
certificates (including, without limitation, any amendments to the Loan
Documents) as the Agent may reasonably request and do such other acts and
things as the Agent may reasonably request to have such Subsidiary guaranty the
Obligations, grant, subject to the limitation set forth in subsection 2.18(b),
to the Agent on behalf of Lenders, a duly perfected first priority Lien
(subject to Liens permitted hereunder) on all real, personal and mixed property
(in each case, if so requested by the Agent) of such Subsidiary, and effect
fully the purposes of this Agreement and the other Loan Documents and to
provide for payment of the Obligations in accordance with the terms of this
Agreement and the other Loan Documents. Without limiting the generality of the
foregoing, in the event the Borrower forms or otherwise acquires a Subsidiary
after the Closing Date, the Borrower shall (i) execute and deliver to the Agent
a pledge agreement substantially in the form attached hereto as Exhibit B and
(ii) cause such Subsidiary to execute and deliver a guarantee substantially in
the form attached hereto as Exhibit E, a pledge agreement substantially in the
form attached hereto as Exhibit E and a security agreement in the form of
Exhibit F.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this
Agreement and to make the Loans, the Borrower hereby represents and warrants to
the Agent and each Lender that:
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3.1 Organization, Powers, Good Standing and Business
(a) Organization and Powers. Each Loan Party is a
corporation or limited partnership, as the case may be, duly formed and validly
existing under the laws of the jurisdiction of its organization. Each Loan
Party has all requisite corporate or partnership, as the case may be, power and
authority to own and operate its properties, to carry on its business as now
conducted and proposed to be conducted, and each Loan Party has all requisite
corporate or partnership, as the case may be, power and authority to enter into
the Related Documents and the Loan Documents, to carry out the transactions
contemplated thereby and to issue the Notes, in each case to the extent it is a
party thereto.
(b) Good Standing. Each Loan Party is in good standing in
every jurisdiction where its assets are located and wherever necessary to carry
out its present business and operations, except where the failure to be so
qualified has not had and could not reasonably be expected to have a Material
Adverse Effect.
(c) Conduct of Business. The Loan Parties are engaged only
in the businesses permitted to be engaged in under subsection 6.13 and are
conducting their businesses in accordance with the provisions of subsection
6.13. Each Loan Party holds all licenses, permits, franchises, leases,
certificates of authority, or any waivers of the foregoing that are necessary
to permit each of them to conduct their respective businesses as now conducted
and to hold and operate their respective properties, except where the failure
to have such licenses, permits, franchises, leases and certificates of
authority, or waivers of any of the foregoing, could not reasonably be expected
to have a Material Adverse Effect. All such licenses, permits, franchises,
leases, certificates of authority and waivers are valid and in full force and
effect, except where the failure to be in full force and effect of such
licenses, permits, franchises, leases, certificates of authority and waivers
could not reasonably be expected to have a Material Adverse Effect.
(d) Ownership and Subsidiaries. All of the issued and
outstanding Capital Stock of each of the other Loan Parties is held directly or
indirectly by the Borrower. The ownership of each of the Loan Parties and each
of the Subsidiaries of each of the Loan Parties is specified correctly and
completely on Schedule 3. 1 (d) annexed hereto. None of the Capital Stock of
the Persons identified on Schedule 3.1(d) annexed hereto is Margin Stock,
except as specified on such Schedule. Each of the Subsidiaries of the Loan
Parties identified on Schedule 3.1(d) annexed hereto is validly existing and in
good standing under the laws of its respective jurisdiction of incorporation or
organization, as the case may be, and has full corporate or partnership, as the
case may be, power and authority to own its assets and properties and to
operate its business as presently owned and conducted except where failure to
be in good standing or a lack of corporate or partnership, as the case may be,
power and authority, has not had and could not reasonably be expected to have a
Material Adverse Effect.
(e) FCC Matters.
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(i) Schedule 3. 1 (e) correctly sets forth all of the FCC
Licenses (other than auxiliary service licenses and receive only earth
stations) owned or held by any Subsidiary of the Borrower or their
respective Affiliates as of the Closing Date or, upon consummation of
any Permitted Purchase, to be held by each Loan Party and correctly sets
forth the expiration date, if any, of each such FCC License. Each FCC
License was duly and validly issued by the FCC pursuant to procedures
which comply with all requirements of applicable law, and neither the
Borrower nor any other Loan Party has any knowledge of the occurrence of
any event or the existence of any circumstance which, in the reasonable
judgment of the Borrower or any other Loan Party, is likely to lead to
the revocation or suspension of any FCC License. The Loan Parties have
the right to use all FCC Licenses required in the ordinary course of
business for the operation of the Broadcast Stations. Each such FCC
License is in full force and effect and each holder thereof is in
substantial compliance therewith with no known conflict with the valid
rights of others which could reasonably be expected to have a Material
Adverse Effect. No event has occurred which permits, or after notice or
lapse of time or both would permit, the revocation, termination,
modification or restriction of any such FCC License or other right which
could reasonably be expected to have a Material Adverse Effect. The
Borrower does not directly own or hold any FCC License.
(ii) The Loan Parties have duly filed in a timely manner
all material filings which are required to be filed by the Loan Parties
under the Communications Act and are in all material respects in
substantial compliance with the Communications Act, including, without
limitation, the rules and regulations of the FCC relating to the
broadcast of radio and television signals or the operation of the
Broadcast Stations.
(iii) None of the Facilities (including without limitation,
the transmitter and tower sites owned or used by the Borrower or any of
its Subsidiaries) violate in any material respect the provisions of any
applicable building codes, fire regulations, building restrictions or
other governmental ordinances, orders or regulations, and (except as set
forth in Schedule 3.1(f)) each such Facility is zoned so as to permit
the commercial uses intended by the owner or occupier thereof and there
are no outstanding variances or special use permits materially affecting
any of the Facilities or the uses thereof.
(iv) The Ownership Report filed by the Borrower is true,
correct and complete in all material respects, and there has been no
change in control of the ownership of the Loan Parties or the FCC
Licenses of the Loan Parties since the most recently filed Ownership
Report for any of the Loan Parties other than as disclose in writing to
the Agent and the Lenders.
(f) Real Property. Schedule 3.1(f) accurately states all
material real property interests held by the Loan Parties.
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3.2 Authorization of Borrowing. etc.
(a) Authorization of Borrowing. The execution, delivery
and performance of the Loan Documents and the Related Documents and the
issuance, delivery and payment of the Notes have been duty authorized by all
necessary corporate or partnership, as the case may be, action by each Loan
Party a party thereto except, in the case of any Related Document, the failure
of which could not result in a Material Adverse Effect.
(b) No Conflict. The execution, delivery and performance
by each Loan Party of the Loan Documents and the Related Documents, the
issuance, delivery and performance of the Notes and any other transaction
contemplated by the Loan Documents or the Related Documents do not and will not
(i) violate any provision of law applicable to any Loan Party, the Certificate
of Incorporation, Bylaws, Partnership Agreement or other organizational
documents of any Loan Party or any order, judgment or decree of any court or
other agency of government binding on any Loan Party, (ii) conflict with,
result in a breach of or constitute (with due notice or lapse of time or both)
a default under any material Contractual Obligation of any Loan Party, (iii)
result in or require the creation or imposition of any material Lien upon any
of the properties or assets of any Loan Party (other than Liens hereunder in
favor of the Agent on behalf of the Lenders) or (iv) require any approval of
stockholders or other equity holders or any approval or consent of any Person
under any Contractual Obligation of any Loan Party, except for such approvals
or consents which have been obtained by the Borrower or its Subsidiaries or
which relate to any Permitted Acquisition and will be obtained prior to the
consummation thereof.
(c) Governmental Consents. The execution, delivery and
performance by each Loan Party of the Loan Documents and the Related Documents
to which it is a party, the issuance, delivery and performance of the Notes and
any other transactions contemplated by the Loan Documents or the Related
Documents, do not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any federal, state
or other governmental authority or regulatory body including, without
limitation, the FCC and any issuer of any permit or grant of authority relating
to the Broadcast Stations, except for filings required in connection with the
perfection of the security interests granted pursuant to the Loan Documents,
the consent, if any, required from the FCC in connection with the consummation
or enforcement of the Loan Documents and the Related Documents in each case to
the extent such consummation or enforcement involves the assignment of any FCC
License or may be deemed a "change of control" under the Communications Act,
filings required with the FCC in connection with any License Subsidiary
transfer and the filing with the FCC, for notice purposes only, of this
Agreement and any of the other Loan Documents and the Related Documents
required to be filed, filings pursuant to the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act in
connection with any Permitted Purchase and, with respect to Related Documents,
any registration with, consent or approval of, or notice to, or other action
to, the failure of which to make or obtain could not reasonably be expected to
have a Material Adverse effect.
(d) Binding Obligation. Each of the Loan Documents and the
Related Documents has been duly executed and delivered by each Loan Party which
is a party thereto, and is the legally valid and binding obligation of such
Loan Party, enforceable against such
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Loan Party in accordance with their respective terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally and subject to the
availability of equitable remedies.
3.3 Financial Condition. The Borrower has heretofore
delivered to the Lenders, at the Lenders' request, the Financial Statements.
All such statements were prepared in conformity with GAAP and, together with
the accompanying notes thereto, if any, fairly present the financial position
(where applicable on a consolidated basis) of the entities described in such
financial statements as at the respective dates thereof and the results of
operations and changes in financial position (where applicable on a
consolidated basis) of the entities described therein for each of the periods
then ended (subject to, in the case of unaudited financial statements, normal
year-end adjustments). The Borrower has no (and will not following the funding
of the Loans have) material Contingent Obligation, contingent liability or
liability for taxes, long-term lease or unusual forward or long-term commitment
that is not (or will not be, upon the delivery thereof) reflected in the
foregoing financial statements or the notes thereto or in the annual financial
statements required to be delivered pursuant to subsection 5.1(b)(iii).
3.4 No Material Adverse Change: No Restricted Payments.
Since December 31, 1995, no event or change has occurred that has caused or
evidences, either individually or in the aggregate, a Material Adverse Effect.
Since December 31, 1995, the Borrower has not directly or indirectly declared,
ordered, paid or made or set apart any sum or property for any Restricted
Payment or agreed so to do, except as permitted by subsection 6.6.
3.5 Title To Properties; Liens. Each Loan Party holds
(i) good, marketable and insurable fee simple title, subject to Liens permitted
by subsection 6.3, to all its owned real property, (ii) good, sufficient,
insurable and valid leasehold title, subject to Liens permitted by subsection
6.3, to its respective leased real property and (iii) good, sufficient and
legal title, subject to Liens permitted by subsection 6.3, to all of its
material properties and assets (other than as described in clauses (i) and (ii)
of this sentence) reflected in the balance sheet included with the Financial
Statements or in the most recent financial statements delivered pursuant to
subsection 5.1(b) of this Agreement, except for assets acquired or disposed of
since the date of such financial statements. Except as permitted by subsection
6.3, all such properties and assets are free and clear of Liens.
3.6 Litigation: Adverse Facts. There is no action, suit,
proceeding, governmental arbitration or governmental investigation (whether or
not purportedly on behalf of any Loan Party) at law or in equity or before or
by any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, including,
without limitation, the FCC, pending or, to the knowledge of the Borrower,
threatened against or affecting any Loan Party or any property of any Loan
Party (but, in any event, excluding suits or proceedings affecting the
broadcasting industry, television industry or radio industry generally) that
has had, or could reasonably be expected to result in any Material Adverse
Effect. Neither the Borrower nor any of its Subsidiaries has received any
notice of termination of any material contract, lease or other agreement, or
suffered any
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material damage, destruction or loss, (whether or not covered by insurance) or
had any employee strike, work-stoppage, slow-down or lock-out or any
substantial threat directed to it of any imminent strike, work-stoppage,
slow-down or lock out, any of which remain pending and are material to the
conduct of the Borrower or its Subsidiaries' business as presently conducted
that could reasonably be expected to result in a Material Adverse Effect.
3.7 Payment of Taxes. Except to the extent permitted by
subsection 5.3, all tax returns and reports of the Borrower and its
Subsidiaries required to be filed by it or on its behalf have been timely
filed, and all taxes, assessments, fees and other governmental charges upon
such Persons and upon their respective properties, assets, income and
franchises which are due and payable have been paid when due and payable. The
Borrower does not know of any proposed tax assessment against any such Person
which is not being actively contested by such Person, in good faith and by
appropriate proceedings; provided that such reserves or other appropriate
provisions, if any, as shall be required in conformity with GAAP shall have
been made or provided therefor.
3.8 Performance of Agreements. (a) No Loan Party is in
default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any of its Contractual
Obligations, and no condition exists that, with the giving of notice or the
lapse of time or both, would constitute such a default, except, in each case,
where the consequences, direct or indirect, of such default or defaults, if
any, could not have a Material Adverse Effect.
(b) No Loan Party is a party or subject to any agreement
or instrument which has or could reasonably be expected to have, individually
or the aggregate, a Material Adverse Effect.
3.9 Governmental Regulation. No Loan Party is subject to
regulation under the Public Utility Company Act of 1935, the Federal Power Act
or the Investment Company Act of 1940 or to any federal or state statute or
regulation limiting its ability to incur Indebtedness.
3.10 Securities Activities. Neither any Loan Party nor
any of their respective Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying any Margin Stock.
3.11 Employee Benefit Plans. (a) The Borrower and each
ERISA Affiliate is in substantial compliance with all provisions and
requirements of ERISA with respect to each Employee Benefit Plan, and have
substantially performed all their obligations under each Employee Benefit Plan.
There are no actions, suits or claims (other than routine claims for benefits)
pending or threatened against any Employee Benefit Plan or its assets, and, to
the best knowledge of the Borrower, no facts exist which could give rise to any
such actions, suits or claims.
(b) Within the period of five years ending on the Closing
Date, no ERISA Event has occurred, and there is no unpaid liability of the
Borrower or any ERISA Affiliate
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that arose in connection with any ERISA Event that occurred prior to that
five-year period. As of the Closing Date, no ERISA Event is reasonably
expected to occur with respect to any Employee Benefit Plan.
(c) Except to the extent required under Section 4980B of
the Code, no Employee Benefit Plan provides health or welfare benefits (through
the purchase of insurance or otherwise) for any retired or former employees of
the Borrower or any ERISA Affiliate.
(d) As of the most recent valuation date for any Pension
Plan, the excess of the actuarial present value (determined on the basis of
reasonable assumptions employed by the independent actuary for such Pension
Plan) of the benefit liabilities (as defined in Section 4001(a)(16) of ERISA),
whether or not vested, over the fair market value of the assets of such Pension
Plan, individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which there is
no such excess), does not exceed $500,000.
3.12 Certain Fees. No broker's or finder's fee or
commission will be payable by the Borrower or any of its Subsidiaries (or to
the best knowledge of the Borrower, by any other Person), other than to
Communication Equity Associates, Inc., with respect to the making of the Loans,
or any of the other transactions contemplated hereby (except that with respect
to any Permitted Purchase the Borrower has or will inform the Leaders of any
such fees or commissions), and the Borrower hereby indemnifies the Lenders
against and agree that they will hold the Lenders harmless from any claim,
demand or liability for broker's or finder's fees (other than any broker's or
finder's fee of any broker or finder retained by the Agent or the Lenders)
alleged to have been incurred in connection with any such offer, issuance and
sale, or any of the other transactions contemplated hereby or by the Related
Documents and any expenses, including legal fees, arising in connection with
any such claim, demand or liability.
3.13 Environmental.
(i) The operations of the Borrower and its
Subsidiaries (including, without limitation, all operations and
conditions at or in the Facilities) comply, and for the period within
any applicable statute of limitations have complied, in all material
respects with all Environmental Laws;
(ii) The Borrower and each of its Subsidiaries has
obtained all permits under Environmental Laws necessary to their
respective operations, and all such permits are in good standing, and
the Borrower and each of its Subsidiaries is in compliance with all
material terms and conditions of such permits;
(iii) Neither the Borrower nor any of its
Subsidiaries has received (a) any notice or claim to the effect that
it is or may be liable to any Person as a result of the Release or
threatened Release of any Hazardous Materials or (b) any letter or
request for information under Section 104 of the Comprehensive
Environmental Response compensation and Liability Act (42 U.S.C.
Section 9604) or comparable state laws, and to
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the best of the Borrower's knowledge, none of the operations of the
Borrower or any of its Subsidiaries is the subject of any federal or
state investigation evaluating whether any further investigation or
remedial action is needed to respond to a Release or threatened
Release of any Hazardous Material at any Facility or at any other
location;
(iv) None of the operations of the Borrower or any
of its Subsidiaries is subject to any judicial, administrative, or
arbitral proceeding alleging the violation of or liability under
any Environmental Laws which if adversely determined could
reasonably be expected to have a Material Adverse Effect;
(v) The Borrower and each of its Subsidiaries and
all of their Facilities or operations are not subject to any
outstanding written order or agreement with any governmental
authority or private party relating to (a) any Environmental Laws
or (b) any Environmental Claims that in each case could reasonably
be expected to have a Material Adverse Effect;
(vi) To the best knowledge of each Loan Party, neither
the Borrower nor any of its Subsidiaries has any contingent
liability in connection with any Release of any Hazardous Materials
by the Borrower or any Subsidiaries of the Borrower that could
reasonably be expected to have a Material Adverse Effect;
(vii) Neither the Borrower nor any of its Subsidiaries or,
to the best of the Borrower's knowledge, any predecessor of the
Borrower or any Subsidiaries of the Borrower has filed any
notice under any Environmental Law indicating past or present
treatment or disposal of Hazardous Materials at any Facility, and
none of the Borrower's or any of its Subsidiary's operations
involves the generation, transportation, treatment, storage or
disposal of hazardous waste, as defined under 40 C.F.R. Parts
260-270 or any state equivalent in material violation of any such
law;
(viii) To the best knowledge of each Loan Party, no
Hazardous Material exists on, under or about any Facility in a
manner that could give rise to an Environmental Claim having a
Material Adverse Effect, and neither the Borrower nor any
Subsidiary of the Borrower has filed any notice or report of a
Release of any Hazardous Materials that could reasonably be
expected to give rise to an Environmental Claim having a Material
Adverse Effect;
(ix) To the best knowledge of each Loan Party, neither
the Borrower nor any Subsidiary of the Borrower (or any of their
predecessors) has disposed of any Hazardous Materials in a manner
that could reasonably be expected to give rise to an Environmental
Claim having a Material Adverse Effect;
(x) No underground storage tanks or surface impoundments
are on or at the Facilities, other than those that could not
reasonably be expected to give rise to an Environmental Claim
having a Material Adverse Effect;
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(xi) No Lien in favor of any Person for (a) any liability
under Environmental Laws, or (b) damages arising from or costs
incurred by such Person in response to a Release has been filed
or has been attached to the Facilities; and
(xii) There is no radio frequency radiation,
electromagnetic field or similar condition of or about any property
owned, operated, or otherwise used by any Loan Party that could
reasonably be expected to give rise to a Material Adverse Effect.
3.14 Solvency. Each Loan Party is, and on and after the
consummation of the transactions contemplated hereby will be, Solvent.
3.15 Related Documents. As of the Closing Date and with
respect to any Related Documents executed and delivered on any Borrowing Date,
as of such Borrowing Date, the Related Documents have been duly authorized,
executed and delivered by each Loan Party and their respective Subsidiaries, to
the extent each is a party thereto, and are in full force and effect and no
material term or condition thereof has been amended or modified in any respect
that could reasonably be expected to have a Material Adverse Effect, without
the consent of the Agent and the Required Lenders. The Borrower has delivered
or offered to deliver to the Lenders complete and correct copies of the Related
Documents and of all exhibits and schedules delivered to or by any Loan Party
or their respective Subsidiaries in connection with Related Documents.
3.16 Insurance. The Borrower and its Subsidiaries maintain,
with financially sound and reputable insurers, insurance with respect to its
properties and business and the properties and business of its Subsidiaries,
against loss or damage of the kinds customarily insured against by entities
of established reputation engaged in the same or similar business of such types
and in such amounts as are customarily carried under similar circumstances
by such other entities. Schedule 3.16 is a complete and accurate description
of all policies of insurance that will be in effect as of the Closing Date
for the Borrower and its Subsidiaries.
3.17 Intellectual Property. (a) The Borrower and its
Subsidiaries own, or are licensed to use, the Intellectual Property and all
such Intellectual Property is, in all material respects, fully protected and
duly and property registered, filed or issued in the appropriate office and
jurisdictions for such registrations, filing or issuances.
(b) Except as disclosed on Schedule 3.17(b), (i) no
material claim has en asserted by any Person with respect to the use of any
such Intellectual Property, or challenging or questioning the validity or
effectiveness of any such Intellectual Property; (ii) to the best of the
Borrower's knowledge, the use of such Intellectual Property by the Borrower or
any of its Subsidiaries does not infringe on the rights of any Person, subject
to such claims and infringements as do not, in the aggregate, give rise to any
liabilities on the part of the Borrower or any of its Subsidiaries that are
material to the Borrower or any of its Subsidiaries; and (iii) the consummation
of the transactions contemplated by this Agreement will not in any material
manner or to any material extent impair the ownership of (or the license to
use, as the case may be) any of such Intellectual Property by the Borrower or
any of its Subsidiaries.
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3.18 Disclosure. No representation or warranty of any
Loan Party contained in any Loan Document or Related Document or any other
document, certificate or written statement furnished to the Lenders by or on
behalf of any Loan Party for use in connection with the transactions
contemplated by this Agreement (including any Permitted Purchase) contains any
untrue statement of a material fact or omits to state a material fact (known to
the Borrower in the case of any document not furnished by it) necessary in
order to make the statements contained herein or therein not misleading in
light of the circumstances in which the same were made. The projections and
pro forma financial information contained in such materials are based upon good
faith estimates and assumptions believed by the Borrower to be reasonable at
the time made, it being recognized by the Lenders that such projections as to
future events are not to be viewed as facts and that actual results during the
period or periods covered by any such projections may differ from the projected
results. There is no fact known (or which should upon the reasonable exercise
of diligence be known) to the Borrower (other than matters of a general
economic nature or relating to the broadcasting industry generally) that has
had or could reasonably be expected to have a Material Adverse Effect and that
has not been disclosed herein or in such other documents, certificates and
statements furnished to the Lenders for use in connection with the transactions
contemplated hereby.
3.19 Security Documents. (a) Each of the Pledge Agreements
is effective to create in favor of the Agent, for the benefit of the Lenders, a
legal, valid and enforceable security interest in the Pledged Securities
described therein and proceeds thereof and, when the Pledged Notes described
therein and stock certificates representing the Pledged Stock described therein
are delivered to the Agent, each such Pledge Agreement shall constitute a fully
perfected first priority Lien on, and security interest in, all right, title
and interest of the relevant Loan Party in such Pledged Securities and the
proceeds thereof, as security for the Obligations (as defined in the relevant
Pledge Agreement), in each case prior and superior in right to any other
Person.
(b) Each of the Security Agreements is effective to
create in favor of the Agent, for the benefit of the Lenders, a legal, valid and
enforceable security interest in the Collateral described therein and proceeds
thereof, and when financing statements in appropriate form are filed in the
offices specified on Schedule 3.19(b), each such Security Agreement shall
constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties in such Collateral and the proceeds
thereof, to the extent permitted under the Communications Act, as security for
the Obligations (as defined in the relevant Security Agreement), in each case
prior and superior in right to any other Person, other than with respect to
Liens expressly permitted by subsection 6.3.
3.20 Purposes of Loans. The proceeds of the Loans may be
used by the Borrower to make Permitted Purchases and general corporate purposes
(including any Investment permitted under the terms hereof), including the
payment of fees and expenses incurred in connection with the execution and
delivery of this Agreement.
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SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loans. The agreement of each
Lender to make the initial Loan requested to be made by it is subject to the
satisfaction on or prior to November 30, 1996 of the following conditions
precedent:
(a) Loan Documents. The Agent shall have received (i) this
Agreement, executed and delivered by a duly authorized officer of the
Borrower, with a counterpart for each Lender, (ii) each of the Pledge
Agreements, each executed and delivered by a duly authorized officer
of the parties thereto, with a counterpart or a conformed copy for each
Lender, (iii) the Subsidiaries Guarantee, executed and delivered by
a duly authorized officer of the parties thereto, with a counterpart or
a conformed copy for each Lender, (iv) the Security Agreements,
executed and delivered by a duly authorized officer of the parties
thereto, with a counterpart or a conformed copy for each Lender and
(v) for the account of each relevant Lender, Notes conforming to the
requirements hereof and executed and delivered by a duly authorized
officer of the Borrower.
(b) Related Agreements. The Agent shall have received,
with a copy for each Lender, true and correct copies, certified as to
authenticity by the Borrower, of the LMA Agreements, the Purchase
Agreements, the Exchange Debenture Indenture and such other documents
or instruments as may be reasonably requested by the Agent, including,
without limitation, a copy of any debt instrument, security agreement
or other material contract to which the Borrower or any of its
Subsidiaries may be a party.
(c) Borrowing Certificate. The Agent shall have received,
with a counterpart for each Lender, a certificate of each Loan Party,
dated the Closing Date, substantially in the form of Exhibit G, with
appropriate insertions and attachments, satisfactory in form and
substance to the Agent, executed by the President or any Vice
President and the Secretary or any Assistant Secretary of the
Borrower.
(d) Corporate Proceedings of the Borrower. The Agent shall
have received, with a counterpart for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Agent, of the
Board of Directors of the Borrower authorizing (i) the execution,
delivery and performance of this Agreement and the other Loan
Documents to which it is a party, (ii) the borrowings contemplated
hereunder and (iii) the granting by it of the Liens created pursuant
to the Borrower Security Documents, certified by the Secretary or an
Assistant Secretary of the Borrower as of the Closing Date, which
certificate shall be in form and substance satisfactory to the Agent
and its counsel and shall state that the resolutions thereby certified
have not been amended, modified, revoked or rescinded.
(e) Borrower Incumbency Certificate. The Agent shall have
received, with a counterpart for each Lender, a Certificate of the
Borrower, dated the Closing Date, as to the incumbency and signature of
the officers of the Borrower executing any Loan
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Document satisfactory in form and substance to the Agent executed by the
President or any Vice President and the Secretary or any Assistant Secretary of
the Borrower.
(f) Organizational Proceedings of Subsidiaries. The
Agent shall have received, with a counterpart for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Agent, of the Board of
Directors of each Subsidiary (and its general partner, if applicable) which is
a party to a Loan Document authorizing (i) the execution, delivery and
performance of the Loan Documents to which it is a party and (ii) the granting
by it of the Liens created pursuant to the Subsidiaries Security Documents to
which it is a party, certified by the Secretary or an Assistant Secretary of
each such Subsidiary (and its general partner, if applicable) as of the Closing
Date, which certificate shall be in form and substance satisfactory to the
Agent and shall state that the resolutions thereby certified have not been
amended, modified, revoked or rescinded.
(g) Subsidiary Incumbency Certificates. The Agent shall
have received, with a counterpart for each Lender, a certificate of each
Subsidiary of the Borrower which is a Loan Party, dated the Closing Date, as to
the incumbency and signature of the officers of such Subsidiaries (and its
general partner, if applicable) executing any Loan Document, satisfactory in
form and substance to the Agent executed by the President or any Vice President
and the Secretary or any Assistant Secretary of each such Subsidiary (and its
general partner, if applicable).
(h) Organizational Documents. The Agent shall have
received with a counterpart for each Lender, true and complete copies of the
certificate of incorporation and by-laws or other organizational documents of
each Loan Party, certified as of the Closing Date as complete and correct
copies thereof by the Secretary or an Assistant Secretary of the such Loan
Party (or, in lieu of such copies, certification that such documents have not
been amended, supplemented or otherwise modified subsequent to the date of
delivery thereof to the Agent in connection with the closing of the Existing
Credit Agreement).
(i) Exchangeable Preferred Stock and Exchange Debentures.
The Lenders shall be satisfied with the terms and conditions of the
Exchangeable Preferred Stock and the Exchange Debentures.
(j) Fees. All fees and expenses which the Borrower has
agreed to pay in connection with the execution and delivery of this Agreement
and all fees and expenses then accrued and unpaid under the Existing Credit
Agreement shall have been paid in full to the Agent and Lenders on the date on
which this Agreement shall become effective in accordance with subsection 9.8.
(k) Legal Opinions. The Agent shall have received, with
a counterpart each Lender, the following executed legal opinions:
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(i) the executed legal opinion of Holland &
Knight, counsel to the Borrower and the other Loan Parties, in
form and substance satisfactory to the Agent and the Lenders;
(ii) the executed legal opinion of Dow ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, special FCC counsel to the Borrower and the other
Loan Parties, in form and substance satisfactory to the Agent
and the Lenders; and
(iii) the executed legal opinion of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, General Counsel to the Borrower, in form and substance
satisfactory to the Agent and the Lenders.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Agent may
reasonably require.
(l) Pledged Stock: Stock Powers: Pledged Notes. The
Agent shall have received the certificates representing the shares
pledged pursuant to each of the Pledge Agreements, together with an
undated stock power for each such certificate executed in blank by a
duly authorized officer of the pledgor thereof, and the notes pledged
pursuant to each of the Pledge Agreements, each endorsed in blank by a
duly authorized officer of the pledgor thereof.
(m) Actions to Perfect Lien. The Agent shall have
received evidence in form and substance satisfactory to it that all
filings, recordings, registrations and other actions, including,
without limitation, the filing of duly executed financing statements
on form UCC-1, necessary or, in the opinion of the Agent, desirable to
perfect the Liens created by the Security Documents shall have been
completed.
(n) Lien Searches. The Agent shall have received the
results of a recent search by a Person satisfactory to the Agent, of
the Uniform Commercial Code, judgement and tax lien filings which may
have been filed with respect to personal property of the Borrower, and
the results of such search shall be satisfactory to the Agent.
(o) Insurance. The Agent shall have received evidence in
form and substance satisfactory to it that all of the requirements of
subsection 5.4 shall have been satisfied.
4.2 Conditions to Each Loan. The agreement of each
Lender to make any Loan requested to be made by it on any date (including,
without limitation, its initial Loan) is subject to the satisfaction of the
following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower and its
Subsidiaries in or pursuant to the Loan Documents shall be true and
correct in all material respects on and as of such date as if made on
and as of such date except for any representation and warranty which
is
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expressly made as of an earlier date, which representation and
warranty shall have been true and correct in all material respects as
of such earlier date.
(b) No Default. No Default or Event of Default shall
have occurred and be continuing on such date or after giving effect to
the Loans requested to be made on such date.
(c) Acquisition Compliance Certificate. With respect to
any borrowing of Loans the proceeds of which shall be used by the
Borrower or any of its Subsidiaries to make a Permitted Purchase, the
Agent shall have received a certificate which sets forth in reasonable
detail a calculation of the Leverage Ratio of the Borrower and its
Subsidiaries as at the date of such Loan.
(d) Indebtedness Incurrence Certificate. The Agent shall
have received a certificate indicating compliance with Section 4.06
(Limitation on Additional Indebtedness) of the Senior Subordinated
Note Indenture and, if any Exchange Debentures shall be then
outstanding, the corresponding Section of the Exchange Debenture
Indenture, in each case, after giving effect to the Loans requested to
be made on such date.
(e) Additional Matters. All corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Agreement, the
other Loan Documents shall be reasonably satisfactory in form and
substance to the Agent, and the Agent shall have received such other
documents and legal opinions in respect of any aspect or consequence
of the transactions contemplated hereby or thereby as it shall
reasonably request.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained
in this subsection have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect or any amount is owing to any Lender or the Agent hereunder or
under any other Loan Document, the Borrower shall and (except in the case of
delivery of financial, information, reports and notices) shall cause each of
its Subsidiaries to:
5.1 Financial Statements and Systems.
(a) Accounting System: Maintain a system of accounting
established and administered in accordance with sound business practices to
permit preparation of financial statements in conformity with GAAP.
(b) Financial Statements and Other Reports: Deliver to
the Lenders:
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(i) Monthly Financial: as soon as practicable
and in any event with 30 days after the end of each fiscal month
of the Borrower, copies of the monthly sales pacing reports and
operating cash flow statements form each operating property for such
month, and copies of the consolidated and consolidating income
statement, operating cash flow statement and performance to budget
analysis for the Borrower and its Subsidiaries for and as of the end of
such fiscal month;
(ii) Quarterly Financial: as soon as practicable
and in any event within 45 days after the end of each fiscal quarter
of the Borrower ending after the Closing Date, a consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end
of such period, and the related unaudited consolidated statements of
income and of cash flows, as contained in the Form 10-Q for such
fiscal quarter provided by the Borrower to the Securities and Exchange
Commission (or any successor or analogous Governmental Authority), and
if such Form 10-Q is no longer required to be so provided by the
Borrower, then the Borrower shall provide the Lenders with comparable
financial statements, certified by the chief financial officer of the
Borrower that they fairly present the financial condition and results
of operations of the Borrower and its Subsidiaries, as appropriate, as
at the end of such periods and for such periods, subject to changes
resulting from audit and normal year-end adjustments;
(iii) Year-End Financial: as soon as practicable and
in any event within 90 days after the end of each fiscal year of the
Borrower, the audited consolidated balance sheet of the Borrower and
its consolidated Subsidiaries, as at the end of such year, and the
related consolidated statements on income, shareholders' equity and
cash flows of the Borrower and its Subsidiaries for such fiscal year,
(a) accompanied by a report thereon of independent certified public
accountants of recognized national standing selected by the Borrower
and reasonably satisfactory to Agent and the Required Lenders, which
report shall contain no qualifications with respect to the continuance
of the Borrower and its consolidated Subsidiaries as going concerns
and shall state that such financial statements present fairly the
financial position of the Borrower and its consolidated Subsidiaries
as at the dates indicated and the statements of income and cash flows
for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years (except as otherwise stated therein) and
that the examination by such accountants in connection with such
financial statements has been made in accordance with generally
accepted auditing standards without any limitations being imposed on
the scope of such examination and (b) certified by the chief financial
officer of the Borrower that they fairly present the financial
condition and results of operation of the Borrower and its
Subsidiaries, as at the dates and for the periods indicated, as
appropriate;
(iv) Officer's and Compliance Certificate: together
with each delivery of financial statements of the Borrower and its
Subsidiaries pursuant to subdivisions (ii) and (iii) above, (a) and
Officer's Certificate of the Borrower stating that the signers have
reviewed the terms of this Agreement and the Notes and have made, or
caused to by made under their supervision, a review in reasonable
detail of the transactions and condition of the Borrower and its
Subsidiaries during the accounting period covered by
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such financial statements and that such review has not disclosed the
existence during or at the end of such accounting period, and that the
signers do not have knowledge of the existence as at the date of such
Officers' Certificate, of any condition or event which constitutes an
Event of Default or Default, or, if any such condition or event
existed or exists, specifying the nature and period of existence
thereof and what action the Borrower has taken, is taking and proposes
to take with respect thereto; and (b) a certificate (a "Compliance
Certificate") in a form satisfactory to the Agent demonstrating in
reasonable detail compliance during and at the end of the applicable
accounting periods with the provisions of subsection 2.6 and Section
6;
(v) Reconciliation Statement: if, as a result of any
change in accounting principles and policies from those used in the
preparation of the Financial Statements, the financial statements of
the Borrower and its consolidated Subsidiaries delivered pursuant to
subsections (ii), (iii) or (xii) of this subsection 5.1 (b) will
differ in any material respect from the financial statements that would
have been delivered pursuant to such subsections had no such change in
accounting principles and policies been made, then, together with the
first delivery of financial statements pursuant to subsection (ii),
(iii) or (xii) following such change, financial statements of the
Borrower and its consolidated Subsidiaries prepared on a pro forma
basis, for (y) the current year to the effective date of such change
and (z) the one full fiscal year immediately preceding the fiscal year
in which such change is made, as if such change had been in effect
during such period;
(vi) Accountants' Certification: together with each
delivery of consolidated financial statements of the Borrower and its
Subsidiaries pursuant to subdivision (iii) above, to the extent
available, a written statement by the independent public accountants
giving the report thereon (a) stating that their audit examination has
included a review of the terms of this Agreement and the Notes as they
relate to accounting matters, (b) stating whether, in connection with
their audit examination, any condition or event that constitutes an
Event of Default or Default has come to their attention and, if such a
condition or event has come to their attention, specifying the nature
and period of existence thereof, provided that such accountants shall
not be liable by reason of any failure to obtain knowledge of any such
Event of Default or Default with respect to accounting matters that
would not be disclosed in the course of their audit examination and (c)
stating that, based on their audit examinations nothing has come to
their attention that causes them to believe that the information
contained in the Compliance Certificate delivered therewith pursuant to
clause (b) of subdivision (iv) above for the applicable fiscal year
are not stated in accordance with the terms of this Agreement;
(vii) Accountants' Reports: promptly upon receipt thereof
(unless restricted by applicable professional standards), copies of all
significant reports submitted to the Borrower by independent public
accountants in connection with each annual, interim or special audit of
the financial statements of the Borrower made by such accountants,
including, without limitation, the comment letter submitted by such
accountants to management in connection with their annual audit;
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(viii) Reports and Filings: within five days after the same
are sent, copies of all financial statements and reports which the
Borrower sends to its stockholders, and within five days after the same
are filed, copies of all financial statements and reports which the
Borrower may make to, or file with, the Securities and Exchange
Commission or any successor or analogous Governmental Authority;
(ix) Events of Default etc.: promptly upon, but in any
event no later than two Business Days after, any officer of the
Borrower obtaining knowledge (a) of any condition or event that
constitutes an Event of Default or Default, or becoming aware that any
Lender or the Agent has given any notice or taken any other action with
respect to a claimed Event of Default or Default under this Agreement,
(b) that any Person has given any notice to the Borrower or any of its
Subsidiaries or taken any other action with respect to a claimed
default or event or condition of the type referred to in Section 7(b)
and (e), (c) of any condition or event that would be required to be
disclosed in a current report filed by the Borrower with the Securities
and Exchange Commission on Form 8-K (Items 1, 2, 4 and 5 of such Form
as in effect on the date hereof) or (d) of any condition or event which
has had or could reasonably be expected to have a Material Adverse
Effect (which, for such purposes, shall be determined with respect to
the Borrower individually), an Officer's Certificate specifying the
nature and period of existence of such condition or event, or
specifying the notice given or action taken by such holder or Person
and the nature of such claimed default, Event of Default, Default,
event or condition, and what action the Borrower has taken, is taking
and proposes to take with respect thereto;
(x) Litigation: promptly upon any officer of the Borrower
obtaining knowledge of (a) the institution of any action, suit,
proceeding, governmental investigation or arbitration against or
affecting any Loan Party or any property of any Loan Party not
previously disclosed by the Borrower or the other Loan Parties to the
Lenders or (b) any material adverse development in any such action,
suit, proceeding, governmental investigation or arbitration that, in
any case:
(y) involves claims in excess of $1,000,000 in
the aggregate; or
(z) would reasonably be expected to cause a
Material Adverse Effect;
the Borrower shall promptly give notice thereof to the Lenders and
provide such other information as may be reasonably available to them
to enable the Lenders and their counsel to evaluate such matters;
(xi) ERISA Events. promptly upon becoming aware of the
occurrence of or forthcoming occurrence of any ERISA Event in
connection with any Employee Benefit Plan or any trust created
thereunder, with a written notice specifying the nature thereof, what
action the Borrower or ERISA Affiliate has taken, is taking or proposes
to take with respect thereto and, when known, any action taken or
threatened by the Internal Revenue Service, the Department of Labor or
the PBGC with respect thereto;
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(xii) ERISA Notices: with reasonable promptness, copies of
(a) all notices received by the Borrower or any of its ERISA
Affiliates from the PBGC relating to an ERISA Event, (b) each Schedule
B (Actuarial Information) to the annual report (Form 5500 Series)
filed by the Borrower or any of its ERISA Affiliates with the Internal
Revenue Service with respect to each Pension Plan, if any, and (c) all
notices received by the Borrower or any of its ERISA Affiliates from a
Multiemployer Plan sponsor concerning an ERISA Event;
(xiii) Financial Plans: as soon as practicable and in any
event no later than the 30 days after the end of any fiscal year of
the Borrower, a budget and financial forecast for the Borrower and its
Subsidiaries including, (a) a forecasted operating cash flows
statement of the Borrower and its Subsidiaries for the next succeeding
fiscal year, (b) forecasted operating cash flows statement of the
Borrower and its Subsidiaries for each fiscal quarter of the next
succeeding fiscal year and (c) such other information and projections
as any Lender may reasonably request, in each case, in a format
satisfactory to the Agent; and
(xiv) Other Information: with reasonable promptness, such
other information and data with respect to the Borrower or any of its
Subsidiaries or Affiliates as from time to time may be reasonably
requested by any Lender.
5.2 Maintenance of Existence, etc.. Except as permitted
by subsection 6.7, preserve and keep in full force and effect its corporate or
partnership existence, as the case may be, and rights and franchises material
to its business.
5.3 Payment of Taxes and Claims: Tax Consolidation. Pay
all taxes, assessments and other governmental charges imposed upon it or any of
its properties or assets or in respect of any of its franchises, business,
income or property, non-payment of which would cause a Material Adverse Effect,
before any penalty accrues thereon, and all claims (including, without
limitation, claims for labor, services, materials and supplies) for sums that
have become due and payable and that by law have or may become a material Lien
upon any of its properties or assets, prior to the time when any penalty or
fine shall be incurred with respect thereto; provided that no such tax,
assessment, charge or claim need be paid if being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted and if
such reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor. Neither the Borrower nor
any of its Subsidiaries will file or consent to the filing of any consolidated
income tax return with any Person (other than the Borrower or its
Subsidiaries).
5.4 Maintenance of Properties: Insurance. Maintain in
good repair, working order and condition all material properties used or useful
in the business of the Borrower and its Subsidiaries (including, without
limitation, Intellectual Property) and from time to time will make or cause to
be made all appropriate (as reasonably determined by the Borrower) repairs,
renewals and replacements thereof. The Borrower will maintain or cause to be
maintained, with financially sound and reputable insurers, insurance with
respect to its properties and business and the properties and business of its
Subsidiaries (including without
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limitation, business interruption insurance and insurance on plant, property
and equipment) against loss or damage of the kinds customarily carried or
maintained under similar circumstances by entities of established reputation
engaged in similar businesses and shall maintain key man life insurance in a
benefit amount payable to the Company of not less than $5,000,000 for ▇▇▇▇▇▇.
On or before the end of the second fiscal quarter of each fiscal year, the
Borrower shall submit to the Agent an Officers' Certificate updating the
information contained in Schedule 3.16 as of such date. Each such policy of
insurance (other than business interruption insurance) shall name the Agent as
the loss payee or as additional insured, as the Agent may require, for the
benefit of the Lenders thereunder and provide for at least thirty (30) days
prior written notice (or such other period as is customary in the industry) to
the Agent of any material modification or any cancellation of such policies.
5.5 Inspection, Lender Meeting. Subject to subsection
9.15, permit any authorized representatives designated by the Agent to visit
and inspect any of the properties of the Borrower, any of its Subsidiaries or
any Broadcast Station, including its and their financial and accounting
records, and to make copies and take extracts therefrom, and to discuss its and
their affairs, finances and accounts with its and their officers and
independent public accountants, all upon reasonable notice and at such
reasonable times during normal business hours and as often as may be reasonably
requested. Without in any way limiting the foregoing, the Borrower will, upon
the request of the Required Lenders, participate in a meeting with the Agent
and the Lenders once during each fiscal year to be held at the Borrower's
corporate offices at such time as may be agreed to by the Borrower an the
Required Lenders.
5.6 Compliance with Laws, etc. (a)(i) Comply with the
requirements of all applicable laws, rules, regulations and orders of any
Governmental Authority, including, without limitation, the Communications Act,
noncompliance with which could reasonably be expected to cause a Material
Adverse Effect and (ii) comply in all material respects at all times with all
provisions of all FCC Licenses, certifications and permits, franchises or other
permits and authorizations relating to the operation of the Broadcast Stations
and all other material agreements, licenses and leases to which it is a party
or of which it is a beneficiary and suffer no loss or forfeiture thereof or
thereunder except for any non-compliance or a loss or forfeiture which does not
have and could not reasonably be expected to have a Material Adverse Effect;
and
(b) Not engage in any transaction or permit the
occurrence of any act or omission, and shall cause each ERISA Affiliate not to
engage in any transaction or to permit the occurrence of any act or omission,
which would constitute, or would give rise to, an ERISA Event which would cause
a Material Adverse Effect.
5.7 Compliance with Related Documents. Comply at all
times with the covenants under the Related Documents except for any failure to
comply which could not reasonably be expected to result in a Material Adverse
Effect or an Event of Default or Default, or otherwise adversely affect the
interests of the Lenders under this Agreement or any of the other Loan
Documents. The Borrower and its Subsidiaries shall deliver to the Agent copies
of all reports, notices and other information received or required to be
delivered
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by the Borrower and its Subsidiaries with respect to the Related Documents, if
so requested by any Lender or if such information relates to any matter or
matters which, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
5.8 Environmental Disclosure and Inspection. (a) Comply, and undertake all
reasonable efforts to ensure that all tenants under any lease or occupancy
agreement affecting any portion of the Facilities and all other Persons on or
occupying such property comply, in all materials respects with all Environmental
Laws, provided that upon teaming of any noncompliance with Environmental Laws by
the Borrower or any of its Subsidiaries, shall promptly undertake all reasonable
efforts to remedy such non-compliance.
(b) Agree that the Agent is entitled (but has no obligation), from time to
time (upon the Agent's determination in its reasonable discretion that any of
the following is advisable), upon notice to the Borrower and as often as may
reasonably be requested, retain, at the Borrower's expense, an independent
professional consultant to review any report relating to Hazardous Materials
prepared by or for the Borrower and to conduct its own investigation of any
Facility. The Borrower hereby grants to the Agent, its agents, employees,
consultants and contractors the right to enter into or on to the Facilities upon
reasonable notice and at such times during normal business hours and as often as
may reasonably be requested to perform such tests on such property as are
reasonably necessary to conduct such a review and/or investigation. The Borrower
may receive copies of any reports prepared by independent experts, but the
Lenders shall have no duty to disclose or discuss any information produced by
such reviews or investigations with the Borrower or any of its Subsidiaries.
(c) Promptly advise the Lenders in writing and in reasonable detail of (i)
any Release of any Hazardous Material (of which the Borrower is aware) required
to be reported to any federal, state or local governmental or regulatory agency
under any applicable Environmental Laws, (ii) any and all written communications
with respect to Environmental Claims or any Release of Hazardous Material
required to be reported to any federal, state or local governmental or
regulatory agency, (iii) any remedial action taken by the Borrower or any other
Person in response to (a) any Hazardous Material on, under or about any
Facility, the existence of which could reasonably be expected to result in an
Environmental Claim having a Material Adverse Effect or (b) any Environmental
Claim that could reasonably be expected to have a Material Adverse Effect, (iv)
the Borrower's discovery of any occurrence or condition on any real property
adjoining or in the vicinity of any Facility that could cause such Facility or
any part thereof to be classified as a "border-zone property" or to be otherwise
subject to any restrictions on the ownership, occupancy, transferability or use
thereof under any Environmental Laws that could reasonably be expected to have a
Material Adverse Effect, and (v) any request for information from any
governmental agency that indicates such agency is investigating whether the
Borrower or any of its Subsidiaries may be potentially responsible for a Release
of Hazardous Materials.
(d) Promptly notify the Lenders'of any proposed acquisition or disposition
of stock, assets, or property by any Loan Party, that could reasonably be
expected to expose the Borrower or any of its Subsidiaries to, or result in,
Environmental Claims that could have a
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Material Adverse Effect and of any proposed action to be taken by the Borrower
or any of its Subsidiaries to commence or cease manufacturing, industrial or
other operations that could reasonably be expected to subject the Borrower or
any of its Subsidiaries to additional laws, rules or regulations, including,
without limitation, laws, rules and regulations requiring additional
environmental permits or licenses.
(e) At their own expense, provide copies of such documents or information
as the Agent may reasonably request in relation to any matters disclosed
pursuant to this subsection.
5.9 Hazardous Materials; the Borrower's Remedial Action. Take promptly any
and all necessary remedial action required by all applicable Environmental Laws
and perform such remedial action in compliance with all applicable Environmental
Laws and orders and directives of all federal, state and local governmental
authorities except when and only to the extent that the Borrower's or such
Subsidiary's liability for the presence, storage, use, disposal, transportation
or discharge of any Hazardous Material is being contested in good faith by the
Borrower or such Subsidiary by appropriate proceedings, and the pendency of such
proceedings is not reasonably likely to give rise to a Material Adverse Effect.
5.10 FCC Licenses, (a) Use their best efforts to keep in full force and
effect all of the FCC Licenses of the Borrower, if any, and its Subsidiaries.
The Loan Parties shall provide a copy of any (or, in the event of any notice
based on knowledge of such Loan Parry, a brief description of such default and
the basis of such knowledge) notice from the FCC of any violation with respect
to any FCC License received by it or any of its respective Subsidiaries (or
with respect to which any of such Loan Parties may have any knowledge).
(b) The Borrower shall establish and maintain wholly-owned License
Subsidiaries for the purpose of holding the FCC Licenses related to the
Broadcast Stations owned by them on and after the Closing Date and shall cause
the License Subsidiaries not to own any material assets other than the FCC
Licenses or to have any material liabilities (other than pursuant to the
Subsidiary Guarantee or the guarantees with respect to the Senior Subordinated
Notes). At all times on and after the date hereof (or (i) in the case of those
FCC Licenses described in Schedule 5. 1 0, as soon as practicable following the
date hereof and at all times thereafter or (ii) in the case of any FCC License
acquired subsequent to the date hereof with respect to which it is not
practicable to cause such FCC License to be acquired directly by a License
Subsidiary, as soon as practicable following the date of acquisition and at all
times thereafter), the Borrower shall, and shall cause its Subsidiaries to,
cause each new FCC License issued by the FCC to be issued to, and held by, a
License Subsidiary.
5.11 Additional Loan Parties. In the event that (i) any Permitted Purchase
is to be made by any Subsidiary or Affiliate of the Borrower and such Subsidiary
or Affiliate is not a Loan Party hereunder or under any of the other Loan
Documents immediately prior to the consummation of any such transaction, or (ii)
the Borrower proposes for any other reason to add any Subsidiary or Affiliate
thereof as a Loan Party hereunder (each such Subsidiary or Affiliate in any case
referred to herein as an "Additional Loan Party" and collectively as the
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"Additional Loan Parties"), then, on or before the consummation of any such
transaction or addition as a Loan Party hereunder, such Additional Loan Party
shall deliver appropriate counterparts and assumptions of each Loan Document to
which it is to be a party and all such documents, opinions of counsel,
certificate and instruments as such Additional Loan Party would have been
required to deliver pursuant to subsection 4.1 had such Additional Loan Party
been a Loan Party hereunder on the Closing Date and such other documents,
certificates, instruments and assurances as are consistent with the provisions
of subsection 2.18 and Section 4 in relation to such Additional Loan Party's
proposed status hereunder and under the other Loan Documents (including, without
limitation, taking into consideration whether the obligations of such Additional
Loan Party are to be of a limited recourse nature or otherwise), all as shall be
determined at the time such Additional Loan Party is approved by the Agent. Upon
satisfaction of the foregoing conditions, such Additional Loan Party shall be a
Loan Party for all purposes hereunder and under the other Loan Documents.
5.12 Schedule Supplements. Each of the Schedules referred to in subsection
3.1 shall be automatically amended from time to time upon written notice by the
Borrower to the Agent and the Lenders to reflect additional information
described in such notice under this Agreement including, without limitation, the
addition (or deletion) of any Subsidiaries, Broadcast Stations, FCC Licenses or
LMA Agreements resulting from a Permitted Purchase or any other transaction
permitted hereunder, and any modifications resulting from the renewal or
additional grant of any FCC Licenses or LMA Agreements. Without limiting the
foregoing, on the request of the Agent or any Lender (in the event that such
information is not otherwise delivered by the Borrower to the Agent or the
Lenders pursuant to this Agreement), the Borrower will supplement each Schedule
hereto, or representation herein or in any other Loan Document with respect to
any matter hereafter arising which, if existing or occurring at the date of this
Agreement, would have been required to be set forth or described in such
Schedule or as an exception to such representation or which is necessary to
correct any information in such Schedule or representation which has been
rendered inaccurate thereby; provided, that such supplement to such Schedule or
representation shall not be deemed an amendment thereof if such amendment would
require the consent of the Required Lenders under the terms of this Agreement,
unless expressly consented to in writing by the Required Lenders, and no such
amendments, except as the same may be consented to in a writing which expressly
includes a waiver, shall be or be deemed a waiver by the Lenders of any Event of
Default or Default disclosed therein.
5.13 Corporate Separateness: Tax Sharing Agreement. (a) Cause the
management, business and affairs of each Unrestricted Subsidiary to be conducted
in such a manner so that such Unrestricted Subsidiary will be perceived as a
legal entity separate and distinct from the Borrower and its Subsidiaries.
(b) Enter in a tax sharing agreement on terms and conditions customary and
reasonably satisfactory to the Agent if the Agent shall reasonably determine
that such an agreement is necessary to provide for the fair and reasonable
allocation of federal, state and local tax liabilities and benefits between and
among (i) the Borrower and its Subsidiaries and (ii) any Unrestricted
Subsidiaries.
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SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect or any amount is owing to any Lender or the Agent hereunder or under any
other Loan Document, the Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:
6.1 Financial Condition Covenants. (a) Leverage Ratio. Pemnit the Leverage
Ratio as of the last day of each calendar quarter occurring during any of the
periods set forth below to be greater than the correlative ratio indicated:
Period Ended Leverage Ratio
==================================== ==============
Closing Date - March 31, 1997 6.35:1.00
April 1, 1997 - September 30, 1997 6.25:1.00
October 1, 1997 - September 30, 1998 5.50:1.00
October 1, 1998 - thereafter 5.00:1.00
(b) Cash Interest Coverage. Permit the ratio of (y) Adjusted Consolidated
Operating Cash Flow to (z) Consolidated Cash Interest Expense of the Borrower
and its Subsidiaries for the four quarter period ending on the last day of each
calendar quarter occurring during the periods specified below to be less than
the correlative ratio indicated:
Cash Interest
Period Coverage Ratio
==================================== ==============
Closing Date -
March 31, 1997 1.40:1.00
April 1, 1997 - December 31, 1998 1.50:1.00
Thereafter 2.00:1.00
(c) Senior Debt Ratio. Permit the Senior Debt Ratio as of the last day of
each calendar quarter occurring during any of the periods set forth below to be
greater than the correlative ratio indicated:
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Senior
Period Ended Debt Ratio
====================================== ==========
Closing Date - September 30, 1997 4.00:1.00
October 1, 1997 - September 30, 1998 3.75:1.00
October 1, 1998 - and thereafter 3.50:1.00
(d) Fixed Charge Coveage. Permit the ratio of (y) Adjusted Consolidated
Operating Cash Flow to (z) Consolidated Fixed Charges of the Borrower and its
Subsidiaries for the twelve consecutive month period ending as of the last day
of any calendar quarter to be less than 1.10:1.00.
(e) Cash Flow from LMA-Agreernents. Permit more than 25% of Consolidated
Operating Cash Flow to be earned or generated pursuant to LMA Agreements for any
fiscal period.
6.2 Limitation LM. Create, incur, assume, guaranty, or otherwise become or
remain directly or indirectly liable with respect to, any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Contingent Obligations permitted by subsection 6.5 and, upon any
obligations actually arising pursuant thereto, the Indebtedness corresponding to
the Contingent Obligations so extinguished;
(c) purchase money Indebtedness incurred in the ordinary course of business
not in excess of $20,000,000 in the aggregate outstanding at any time;
(d) Indebtedness in respect of Capital Leases not in excess of $10,000,000
in the aggregate outstanding at any time;
(e) (i) the Senior Subordinated Notes, the Exchangeable Preferred Stock,
any Exchangeable Preferred Stock issued in accordance with subsection 6.2(i) or
(j)(ii), any Exchange Debentures issued in accordance with subsection 6.2(h) or
(j)(i) and (ii) Indebtedness existing as of the Closing Date as set forth in
Schedule 6.2(e), and renewals, refinancings, extensions and modifications of any
Indebtedness described in this paragraph (e) which do not increase the principal
amount thereof and which, after giving effect thereto, contain terms and
conditions (including, without limitation, subordination provisions (if any),
covenants and events of default) that are no more favorable in any material
respect to the holders thereof than the terms and conditions thereof applicable
before giving effect thereto;
(f) Indebtedness of the Borrower or any Subsidiary to any Subsidiary and of
any Subsidiary to the Borrower or any Subsidiary;
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(g) Unsecured Indebtedness of the Borrower in an aggregate principal amount
not in excess of $150,000,000 at any time outstanding; provided that (i) (x) no
part of the principal of such Indebtedness is stated to be payable or is
required to be paid in cash (whether by way of mandatory sinking fund, mandatory
redemption, mandatory prepayment or otherwise) prior to October 1, 2002, and the
payment of the principal of and interest on which and other obligations of the
Borrower in respect thereof are subordinated to the prior payment in full of the
principal of and interest (including post-petition interest) on the Notes and
all other obligations and liabilities of the Borrower to the Agent and the
Lenders hereunder on terms and conditions and (y) otherwise containing terms,
covenants and conditions, in the case of clauses (x) and (y), satisfactory in
form and substance to the Agent, as evidenced by its prior written approval
thereof, (ii) the term and conditions of such Indebtedness (including, without
limitation, subordinated provisions, covenants and events of default) are no
more favorable in any material respect to the holders thereof than the terms and
conditions of the Senior Subordinated Notes applicable to the holders thereof
and (iii) at the time of issuance of such Subordinated Debt no Default or Event
of Default shall have occurred and be continuing or would result therefrom;
(h) Exchange Debentures issued in exchange for Exchangeable Preferred Stock
in accordance with the provisions of the applicable Certificate of Designations
(as in effect on the date hereof) and the Exchange Debenture Indenture (as in
effect on the date hereof); provided that at the time of issuance of such
Exchange Debentures no Default or Event of Default shall have occurred and be
continuing or would result therefrom;
(i) additional Exchangeable Preferred Stock in an aggregate amount not to
exceed $40,000,000; provided that (i) at the time of issuance of such
Exchangeable Preferred Stock no Default or Event of Default shall have occurred
and be continuing or would result therefrom and (ii) such issuance shall occur
prior to December 3 1, 1997;
(j) (i) Exchange Debentures issued as interest on other Exchange Debentures
in accordance with the Exchange Debenture Indenture and (ii) Exchangeable
Preferred Stock issued as dividends on other Exchangeable Preferred Stock in
accordance with its Certificate of Designation; and
(k) additional unsecured Indebtedness of the Borrower not exceeding
$10,000,000 in aggregate principal amount at any one time outstanding.
6.3 Liens and Related Matters.
(a) Prohibitions on Liens. Create, incur, assume or permit to exist any
Lien on or with respect to any property or asset (including any document or
instrument in respect of goods or accounts receivable) of the Borrower or any of
its Subsidiaries, whether now owned or hereafter acquired, or any income or
profits therefrom, except:
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(i) Permitted Encumbrances;
(ii) Liens securing purchase money Indebtedness permitted pursuant to
subsection 6.2(c); provided that such Liens shall encumber only the assets
purchased with the proceeds of such Indebtedness;
(iii) Liens granted pursuant to the Loan Documents;
(iv) Liens securing Capital Leases permitted under subsection 6.2(d); and
(v) Liens on assets listed on Schedule 6.2(e) securing Indebtedness on
Schedule 6.2(e), other than Liens in respect of the Senior Subordinated Notes
and the Preferred Stock.
(b) Eguitable Lien in Favor of the Leaders. Create or assume any Lien upon
any of its property or assets, whether now owned or hereafter acquired, other
than Liens excepted by the provisions of this subsection, unless the Borrower
and its Subsidiaries make or cause to be made effective provision whereby the
Obligations will be secured by such Lien equally and ratably with any and all
other Indebtedness thereby secured as long as any such Indebtedness shall be
secured; provided that, notwithstanding the foregoing, this covenant shall not
be construed as a consent by the Required Lenders to any creation or assumption
of any such Lien not permitted by the provisions of this subsection.
(c) No Further Negative Pledges. Except with respect to specific property
encumbered to secure payment of particular Indebtedness otherwise permitted
pursuant to subsections 6.2 and 6.3 or to be sold pursuant to an executed
agreement with respect to an Asset Sale or Asset Swap, enter into any agreement
prohibiting (i) the creation or assumption of any Lien upon its properties or
assets, whether now owned or hereafter acquired or (ii) any incurrence of any
Contingent Obligations.
(d) No Restrictions on Subsidiary Distributions to the Borrower. Except as
provided herein, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any Subsidiary to (a) pay dividends or make any other distribution on any of
such Subsidiary's capital stock, partnership interests or other interests, as
the case may be, owned by the Borrower or any Subsidiary of the Borrower, (b)
subject to subordination provisions any payments in respect of any Indebtedness
owed to the Borrower or any Subsidiary of the Borrower, (c) make loans or
advances to the Borrower or any Subsidiary of the Borrower or (d) transfer any
of its property or assets to the Borrower or any Subsidiary of the Borrower.
6.4 Investments; Joint Ventures. Make or own any Investment, directly or
indirectly, in any Person including any Joint Venture, except:
(a) Investments in Cash and Cash Equivalents;
(b) Consolidated Capital Expenditures otherwise permitted herein;
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(c) Investments arising from Barter Transactions; provided, however, that
no Barter Transaction giving rise to Investments may be consummated (A) if (i)
at such time of consummation an Event of Default or Default shall have occurred
and be continuing or (ii) after giving effect to such Barter Transaction, the
aggregate value o advertising sold pursuant to all Barter Transactions for the
Borrower and its Subsidiaries during any calendar year would exceed $5,000,000,
and (B) unless all personal property received by the Borrower pursuant to any
one or more Barter Transactions (including, without limitation, any notes,
instruments, securities or other evidence of equity interests or indebtedness)
the value of which exceeds $1,000,000 shall be pledged and, if required by the
Security Documents, delivered to the Agent, on behalf of the Lenders, unless
otherwise consented to in writing by the Agent, as "Collateral" under the
Borrower Pledge Agreement or the Borrower Security Agreement;
(d) Investments in Unrestricted Subsidiaries in an aggregate amount not to
exceed $35,000,000; provided that (i) the proceeds thereof are used to make an
acquisition of a Core Business in circumstances where such acquisition would not
constitute a Permitted Acquisition or an acquisition of a Non-Core Business and
(ii) at the time of such acquisition no Default or Event of Default shall have
occurred and be continuing or would result therefrom;
(e) Investments (including, without limitation, Investments in Unrestricted
Subsidiaries) made solely with (x) any proceeds of the sale or issuance of
equity Securities by the Borrower or any Subsidiary which are not used to make
an optional payment or prepayment permitted by subsection 6.14(c) or (y) with
equity Securities of the Borrower;
(f) Investments in effect on the Closing Date as set forth on Schedule
6.4(f);
(g) the exercise of any option acquired in connection with a Permitted
Acquisition permitted by subsection 6.4(j) or a Preapproved Acquisition
permitted by subsection 6.4(k); provided that at the time of such exercise no
Default or Event of Default shall have occurred and be continuing or would
result therefrom;
(h) Investments consisting of promissory notes or other securities issued
by a purchaser to the extent the Borrower or any Subsidiary receives less than
100% cash consideration in an Asset Sale as permitted by subsection 6.7(b);
(i) Investments by the Borrower in its Subsidiaries and Investments by
Subsidiaries in the Borrower and in other Subsidiaries;
(j) any acquisition (it being understood that, as used in this paragraph,
the term "acquisition" shall mean any acquisition by means of a purchase of
stock or assets or a merger or other similar transaction and shall also include
a transaction in which a Loan Party (i) enters into an LMA Agreement with the
owner of a radio station or television station, (ii) either makes a loan to, or
guarantees a loan made by a
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third party to, such owner secured by a Lien on the assets of such radio station
or television station and (iii) obtains an option to acquire the FCC License
covering such radio station or television station that satisfies the
requirements of clause (v)(B) of this paragraph) not otherwise permitted under
this subsection 6.4 (each such transaction referred to herein as a "Permitted
Acquisition" and collectively as the "Permitted Acquisitions"), on the following
terms and conditions: (i) (A) such Permitted Acquisition involves the
acquisition of a Core Business located in either (x) an "Area of Dominant
Influence" ranked numbers I to 100 or (y) an "Area of Dominant Influence" in the
state of Florida in which the Borrower or one of its Subsidiaries owns on the
date hereof a television station or a radio station or (B) such Permitted
Acquisition involves the acquisition of a Core Business and the aggregate
consideration paid or to be paid by the Borrower or its Subsidiaries for all
such Core Businesses acquired pursuant to this subsection 6.4(j)(i)(B)
subsequent to the date hereof shall not exceed $25,000,000, (ii) such Core
Business is projected by the Borrower to have operating cash flow for the
period commencing on the date of such Permitted Acquisition through the
Termination Date; (iii) after giving effect to such Permitted Acquisition and
the borrowing of any Loan in connection therewith, no Event of Default or
Default shall exist; (iv) such Permitted Acquisition shall be consummated
pursuant to documents containing terms and conditions in form and substance
satisfactory to the Agent and the Borrower shall satisfy the requirements of
subsection 5.11 in connection therewith, (v) such acquisition shall result in
the assets so acquired being owned by the Borrower or a wholly owned Subsidiary
of the Borrower and, if such Permitted Acquisition involves the acquisition of
a television station or a radio station, the Borrower or a wholly owned
Subsidiary shall have acquired in connection therewith either (A) the FCC
License held by such Core Business or (B) an option to acquire such FCC
License for a period greater than five years and (vi) if such Permitted
Acquisition involves the acquisition of a television station or a radio station
and is funded with the proceeds of Loans the FCC shall have approved such
acquisition and the FCC's order of approval shall have become final and
non-appealable and nonchallengeable;
(k) Preapproved Acquisitions; provided that at the time of such acquisition
no Default or Event of Default shall have occurred and be continuing or would
result therefrom;
(1) Investments by the Borrower or any Subsidiary arising from the
acquisition of any Equivalent Assets in connection with any Asset Swap, provided
that, (i) such Investment satisfies the requirements for a Permitted Acquisition
specified in subsection 6.4(j) (it being agreed that, if the Borrower or any
Subsidiary gives consideration for the Equivalent Assets acquired by it in
connection with such Asset Swap that is in addition to the assets transferred by
it in exchange therefor, such . additional consideration shall be included in
determining compliance with subclause (i)(B) of said subsection (to the extent
applicable) in connection with such Asset Swap and all subsequent determinations
of whether the requirements for a Permitted Acquisition shall be satisfied, (ii)
after giving effect to such Investment, no Default or Event of Default shall
have occurred and be continuing and (iii) no Asset Swap shall
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be permitted in any calendar year if, after giving effect thereto, all the
assets transferred by the Borrower and its Subsidiaries pursuant to Asset
Swaps during such calendar year shall have generated during the immediately
preceding calendar year an aggregate amount of Consolidated Operating Cash
Flow that exceeds 10% of Consolidated Operating Cash Flow of the Borrower
and its Subsidiaries for such immediately preceding calendar year; and
(m) Investments constituting acquisitions of equity interests in and/or
loans to (i) the owner of a radio station or television station or (ii) the
holder of a permit from the FCC to construct a radio station or television
station, provided that (1) the Borrower or another Loan Party holds an option to
acquire such radio station or television station, (2) any such loan is secured
by the assets of such radio station or television station, (3) the acquisition
of such radio station or television station, when completed pursuant to the
option described in clause (1) above, will constitute a Permitted Acquisition,
(4) the holder of such Investment shall create in favor of the Agent, for the
ratable benefit of the Lenders, a first priority Lien on such Investment and (5)
the aggregate principal amount of all such Investments described in this
paragraph shall not exceed $25,000,000 at any one time outstanding.
6.5 Contingent Obligations. Create or become or be liable, directly or
indirectly, with respect to any Contingent Obligation except:
(a) Contingent Obligations incurred pursuant to the Loan Documents;
(b) Contingent Obligations in respect of Interest Rate Agreements in a
notional amount not in excess of the aggregate principal amount of the
Indebtedness of the Borrower and its Subsidiaries the interest rate on which is
not fixed;
(c) Contingent Obligations resulting from the endorsement of negotiable
instruments for collection in the ordinary course of business;
(d) Contingent Obligations in respect of Operating Leases;
(e) Contingent Obligations in respect of Indebtedness permitted under
subsection 6.2(e); and
(f) Contingent Obligations in respect of loans by third parties to owners
or holders of options to acquire LMA Radio Stations or LMA Television Stations
otherwise permitted by subsection 6.4(j) and in respect of obligations not
exceeding $65,000,000 in aggregate principal amount at any time outstanding.
6.6 Restricted Payments. Declare, order, pay, make or set apart any sum,
directly or indirectly for any Restricted Payment except, so long as no Event of
Default or Default has occurred and is continuing or would result therefrom:
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(a) so long as the Leverage Ratio of the Borrower and its Subsidiaries as
of the last day of the most recently ended calendar quarter is less than 4.50:
1.00, the Borrower may pay in cash annual dividends owed to the holders of the
Cumulative Preferred Stock and the Exchangeable Preferred Stock in accordance
with the terms and conditions of their respective Certificate of Designations;
(b) Restricted Payments with any proceeds from the issuance of equity
Securities permitted by subsection 6.7(d);
(c) payments under time brokerage agreements and LMA Agreements; provided
such payments are made in the ordinary course of business and such agreements
are no less favorable to the Borrower or any Subsidiary, as the case may be,
than those that would otherwise be obtained in an arms-length transaction;
(d) any Subsidiary may make Restricted Payments to the Borrower or any
Subsidiary Guarantor;
(e) the Borrower may from time to time exchange Exchangeable Preferred
Stock for an equal amount of Exchange Debentures to the extent permitted by
subsection 6.2(h); provided that the exchange of 100% (but not less than 100%)
of the Exchangeable Preferred Stock outstanding at any time shall be subject to
the Agent's consent (which may be withheld for any reason or no reason at all
in the Agent's sole discretion);
(f) any redemption of the Cumulative Preferred Stock (including any accrued
pay-in-kind dividends) on or prior to December 31, 1997;
(g) any additional redemption in an amount not to exceed $100,000; and
(h) (i) Exchange Debentures issued as interest on other Exchange Debentures
in accordance with the Exchange Debenture Indenture and (ii) Exchangeable
Preferred Stock issued as a dividend on other Exchangeable Preferred Stock in
accordance with its Certificate of Designation.
6.7 Restriction on Fundamental Changes: Asset Sala, Alter the corporate,
partnership, capital or legal structure of the Borrower or any of its
Subsidiaries or enter into any transaction of merger, or consolidate, or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease, sub-lease, transfer or otherwise dispose
of, in one transaction or a series of transactions, all or any part of its
business, property or assets (including, without limitation, any of the capital
stock or partnership interests held by such Person in any of its Subsidiaries),
whether now owned or hereafter acquired (other than in the ordinary course of
business), or acquire by purchase, lease or otherwise (in one transaction or a
series of related transactions) all or any part of the business, property or
fixed assets of, or stock or other evidence of beneficial ownership of, any
Person (other than purchases or other acquisitions of inventory, leases,
materials, property and equipment in the ordinary course of business) or agree
to do any of the foregoing at any future time, except:
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(a) Consolidated Capital Expenditures otherwise permitted herein;
(b) Asset Sales so long as (w) the consideration received shall be an
amount at least equal to the fair market value thereof; (x) at least 85% of the
consideration received shall be Cash; (y) the proceeds of such Asset Sale are
applied as required by subsection 2.6(d); and (z) no Default or Event of Default
shall have occurred and be continuing or would result therefrom;
(c) Investments permitted by subsection 6.4; and
(d) the issuance of equity Securities of the Borrower and its Subsidiaries
not otherwise prohibited by this Agreement; and
(e) so long as after giving effect thereto no Default or Event of Default
shall have occurred and be continuing, any Asset Swap, provided that (i) the
consideration received therefor shall be at least equal to the fair market value
thereof, (ii) if and to the extent that the Borrower or any Subsidiary receives
consideration for the assets transferred by it in connection with such Asset
Swap that is in addition to the Equivalent Assets received in exchange therefor,
such Asset Swap shall be deemed to be an Asset Sale and shall be permitted only
if the provisions of subsection 6.7(b)(y) shall be complied. with in connection
therewith and (iii) no Asset Swap shall be permitted in any calendar year if,
after giving effect thereto, all the assets transferred by the Borrower and its
Subsidiaries pursuant to Asset Swaps during such calendar year shall have
generated during the immediately preceding calendar year an aggregate amount of
Consolidated Operating Cash Flow that exceeds 10% of Consolidated Operating Cash
Flow of the Borrower and its Subsidiaries for such immediately preceding
calendar year.
6.8 [INTENTIONALLY LEFT BLANK].
6.9 Sales and Lease-Backs. Become or remain liable, directly or indirectly,
as lessee or as guarantor or other surety with respect to any lease, whether an
Operating Lease or a Capital Lease, of any property (whether real or personal or
mixed) whether now owned or hereafter acquired, (i) which the Borrower or any of
its Subsidiaries has sold or transferred or is to sell or transfer to any other
Person (other than the Borrower or any of its Subsidiaries), or (ii) which the
Borrower or any such Subsidiary of the Borrower intends to use for substantially
the same purpose as any other property which has been or is to be sold or
transferred by the Borrower or any such Subsidiary of the Borrower to any Person
(other than the Borrower or one of its Subsidiaries) in connection with such
lease.
6.10 Sale or Discount of Receivables. Sell, directly or indirectly, any of
their notes or accounts receivable other than in the ordinary course of
business.
6.11 Transactions with Shareholders and Affiliates. Enter into or permit to
exist any transaction (including, without limitation, the purchase, sale, lease
or exchange of any property or the rendering of any service), directly or
indirectly, with any holder (other
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than any Subsidiary directly or indirectly wholly owned by the Borrower) of 5%
or more of any class of equity Securities or other interests of the Borrower or
any of its Subsidiaries or with any Affiliate of the Borrower or of any such
holder, as the case may be, on terms that are less favorable to the Borrower or
any Subsidiary, as the case may be, than those that might be obtained at the
time from Persons who are not such a holder or Affiliate.
6.12 Disposal of Subsidiary Stock. Except as permitted by subsection 6.7:
(i) directly or indirectly sell, assign, pledge or otherwise encumber
or dispose of any shares of capital stock, partnership interests, or other
equity securities of (or warrants, rights or options to acquire shares or
other equity securities of) any of its Subsidiaries, except to qualify
directors if required by applicable law; or
(ii) permit any of its Subsidiaries directly or indirectly to sell,
assign, pledge or otherwise encumber or dispose of any shares of capital
stock, partnership interests, or other securities of (or warrants, rights
or options to acquire shares or other securities of) any of its
Subsidiaries, except to the Borrower, a Subsidiary of the Borrower, or to
qualify directors if required by applicable law.
6.13 Conduct of Business. Engage in any business other than (i) a Core
Business, (ii) the ownership of Unrestricted Subsidiaries acquired in connection
with Investments permitted by subsections 6.4(d) and (e) and (iii) such other
lines of business as may be consented to by the Agent and the Required Lenders;
provided that neither the Borrower nor any of its Subsidiaries (other than a
License Subsidiary) shall directly own or hold any FCC License applicable to its
business, it being understood that all such interests, if owned, shall be owned
and maintained by the License Subsidiaries. Notwithstanding anything to the
contrary in this Agreement, including, without limitation, any references to
"Subsidiaries", (A) neither the Borrower nor any of its Subsidiaries shall (i)
except as permitted by subsection 6.4, create or acquire any interest in a
Subsidiary after the Closing Date other than maintenance of their interests in
their respective Subsidiaries as of the Closing Date, or (ii) operate, or
(except through its ownership of an Unrestricted Subsidiary) hold any interest
in, any television or radio broadcast station, cable, microwave or other
television signal transmission system other than the ownership and operation of
Broadcast Stations and (B) no License Subsidiary of the Borrower shall engage in
any business or incur any liabilities other than the ownership of its FCC
Licenses and the execution, delivery and performance of the Loan Documents and
Related Documents to which it is a party and activities necessary to the
foregoing.
6.14 Amendments or Waivers of Related Documents and Charter Documents:
Limitation on Optional Payments.
(a) Agree to any amendment to, or waive any of its lights under, any of the
Re lated Documents (other than non-material amendments or waivers which
individually, or together with all other amendments, waivers or changes made,
would not be adverse to the Borrower or any of its Subsidiaries or the Agent or
any Lender), without obtaining the written
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consent, not to be unreasonably withheld, of the Agent and the Required Lenders
to such amendment or waiver.
(b) Agree to any amendment to, or waive any of its rights under, its
articles of incorporation (including but not limited to the Certificate of
Designations), by-laws, partnership agreement or other documents relating to its
capital stock or other equity interests of the Borrower or its Subsidiaries
(other than amendments or waivers which individually, or together with all other
amendments, waivers or changes made, would not be adverse to the Borrower or any
of its Subsidiaries or the Agent or any Lender) without, in each case, obtaining
the written consent of the Agent and the Required Lenders to such amendment or
waiver.
(c) Other than with the Net Cash Proceeds of the sale or issuance of equity
Securities or in connection with any refinancing of Indebtedness permitted under
subsection 6.2, make any optional payment or prepayment on or redemption,
defeasance or purchase of any Indebtedness (excluding the Obligations, but
including but not limited to the Exchangeable Preferred Stock, Exchange
Debentures, Senior Subordinated Notes or Subordinated Debt), except that the
Exchangeable Preferred Stock and the Cumulative Preferred Stock may be redeemed
to the extent permitted by subsections 6.6(e) and 6.6(f), respectively; or
amend, modify or change, or consent or agree to any amendment, modification or
change to, any of the terms relating to (i) any Indebtedness other than the
Obligations and the preferred stock (other than any such amendment, modification
or change (including, without limitation, pursuant to a waiver) which would
extend the maturity or reduce the amount of any payment of principal thereof or
which would reduce the rate or extend the date for payment of interest thereon
or pursuant to Section 8.01 of the Senior Subordinated Note Indenture or Section
8.01 of the Exchange Debenture Indenture), or (ii) the subordination of the
Senior Subordinated Notes, the Exchange Debentures or Subordinated
Debt.
6.15 Fiscal Year, Change its fiscal year-end from December 31 without the
consent of the Required Lenders.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Failure of any Loan Party to pay any installment of principal of
any Loan when due in accordance with the terrns thereof or hereof; or any
Loan Party shall fail to pay any interest on any Loan when due or any other
amount due pursuant to the Loan Documents within two Business Days after
the date due in accordance with the terms thereof or hereof, or
(b) Failure of any Loan Party or any of their respective Subsidiaries
or any Unrestricted Subsidiary, to pay when due (x) any principal or
interest on any Indebtedness (other than Indebtedness referred to in
paragraph (a) of this Section and
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intercompany debt) in an individual principal amount of $5,000,000 or more or
items of Indebtedness with an aggregate principal amount of $5,000,000 or more
or (y) any Contingent Obligation in an individual principal amount of $5,000,000
or more or Contingent Obligations with an aggregate principal amount of
$5,000,000 or more, in each case beyond the end of any grace period provided
therefor; or
(c) Breach or default of any Loan Party or any of their respective
Subsidiaries or any Unrestricted Subsidiary, with respect to any other material
term of (i) (x) any evidence of any Indebtedness (other than intercompany debt)
in an individual principal amount of $5,000,000 or more or items of Indebtedness
(other than intercompany debt) with an aggregate principal amount of $5,000,000
or more or any Contingent Obligation in an individual principal amount of
$5,000,000 or more or Contingent Obligations with an aggregate principal amount
of $5,000,000 or more or (y) any loan agreement, mortgage, indenture or other
agreement relating thereto, if the effect of such failure, default or breach is
to cause, or to permit the holder or holders of that Indebtedness or Contingent
Obligation (or a trustee on behalf of such holder or holders) then to cause,
that Indebtedness or Contingent Obligation to become or be declared due prior to
its stated maturity (or the stated maturity of any underlying obligation, as the
case may be) or (ii) the Related Documents; or
(d) Failure of the Borrower to perform or comply with any term or condition
contained in subsection 5.2 or Section 6; or
(e) 'Any representation, warranty, certification or other statement made by
any Loan Party in any Loan Document or in any statement or certificate at any
time given by any Loan Party in writing pursuant hereto or in connection
herewith or therewith, shall be false in any material respect on the date as of
which made; or
(f) Any Loan Party shall default in the performance of or compliance with
any term contained in this Agreement or the other Loan Documents, applicable to
that Loan Party, other than those referred to elsewhere in this Section 7 and
such default shall not have been remedied or waived within 30 days after the
earlier of (i) receipt by the Borrower of notice from any Lender or the Agent of
such default or (ii) the Borrower's knowledge of such default; or
(g) (i) A court having jurisdiction in the premises shall enter a decree or
order for relief in respect of any Loan Party or any of their respective
Subsidiaries or any Unrestricted Subsidiary in an involuntary case under the
Bankruptcy Code or any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, which decree or order is not stayed; or any other
similar relief shall be granted under any applicable federal or state law; or
(ii) an involuntary case is commenced against any Loan Party or any of their
respective Subsidiaries or any Unrestricted Subsidiary under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect; or a
decree or order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or other
officer having similar powers over any Loan Party or any of their respective
Subsidiaries or
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any Unrestricted Subsidiary, or over all or a substantial part of its property,
shall have been entered; or the involuntary appointment of an interim receiver,
trustee or other custodian of any Loan Party or any of their respective
Subsidiaries or any Unrestricted Subsidiary for all or a substantial part of its
property; or the issuance of a warrant of attachment, execution or similar
process against any substantial part of the property of any Loan Party or any of
their respective Subsidiaries or any Unrestricted Subsidiary, and the
continuance of any such event in clause (ii) for 60 days unless dismissed,
bonded or discharged, or
(h) Any Loan Party or any of their respective Subsidiaries or any
Unrestricted Subsidiary shall have an order for relief entered with respect to
it or commence a voluntary case under the Bankruptcy Code or any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or shall
consent to the entry of an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any such law, or
shall consent to the appointment of or taking possession by a receiver, trustee
or other custodian for all or a substantial part of its property; the making by
any Loan Party or any of their respective Subsidiaries or any Unrestricted
Subsidiary of any assignment for the benefit of creditors; or
(i) The inability or failure of any Loan Party or any of their respective
Subsidiaries or any Unrestricted Subsidiary, or the admission by any Loan Party
or any of their respective Subsidiaries or any Unrestricted Subsidiary in
writing of its inability, to pay its debts as such debts become due; or the
Board of Directors (or any committee thereof) of any Loan Party or any of their
respective Subsidiaries or any Unrestricted Subsidiary adopts any resolution or
otherwise authorizes action to approve any of the actions referred to in this
clause (i); or
j) Any money judgment, writ or warrant of attachment, or similar process
involving (i) in any individual case an amount in excess of $5,000,000, or (ii)
in the aggregate at any time an amount in excess of $5,000,000, and in either
case not adequately covered by insurance as to which the insurance company has
acknowledged coverage shall be entered or filed against any Loan Party or any of
their respective Subsidiaries or any of their respective assets and shall remain
undischarged, unvacated, unbonded or unstayed for a period of 30 days or in any
event later than five days prior to the date of any proposed sale thereunder, or
(k) Any order, Judgment or decree shall be entered against any Loan Party
or any of their respective Subsidiaries decreeing a dissolution or split-up of
any Loan Party or any of their respective Subsidiaries, and such order shall
remain undischarged or unstayed for a period in excess of 30 days; or
(1) There occurs one or more ERISA Events which singly or in the aggregate
results in liability to the Borrower or any ERISA Affiliate in excess of
$1,000,000; or there exists, as of any valuation date for a Pension Plan, an
excess of the actuarial present value (determined on the basis of reasonable
assumptions employed by the independent actuary for such Pension Plan) of the
benefit liabilities (as defined in
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Section 4001(a)(16) of ERISA), whether or not vested over the fair market value
of the assets of such Pension Plan, individually or in the aggregate for all
Pension Plans (excluding for purposes of such computation any Pension Plans with
respect to which there is no such excess) which exceeds $1,000,000; or
(m) Any Guaranty for any reason, other than the satisfaction in full of all
Obligations, ceases to be in full force and effect (other than in accordance
with its terms) or is declared to be null and void, or any Loan Party denies
that it has any further liability, including without limitation with respect to
future advances by the Lenders, under any Loan Document to which it is a party,
or gives notice to such effect; or
(n) Any Security Document shall, at any time, cease to be in full force and
effect (other than by reason of a release of Collateral in accordance with the
terms thereof) or shall be declared null and void, or the validity or
enforceability thereof shall be contested by any Loan Party or the Agent shall
not have or cease to have a valid and perfected first priority security interest
in the Collateral other than the failure of the Agent or any Lender to take any
action within its control; or
(o) Any FCC License shall be (i) canceled, terminated or finally denied
renewal for any reason; or (ii) renewed on terms which materially adversely
affect the economic or commercial value or usefulness thereof; or
(p) Any event having a Material Adverse Effect shall occur and such default
shall not have been remedied or waived within 30 days after receipt by the
Borrower of notice from any Lender or the Agent of such default; or
(q) The Borrower or any of its Subsidiaries shall fail to comply with the
requirements of any FCC consent obtained to consummate any acquisition; or
(r) Any of the following shall occur (i) any Subsidiary of the Borrower
shall issue or have outstanding any Capital Stock (or any security convertible
into any of its Capital Stock) which is not pledged to the Agent for the benefit
of the Lenders in a manner reasonably satisfactory to the Required Lenders,
except to the extent listed on Schedule 7(r) or waived by the Agent or the
Lenders hereunder in accordance with the terms hereof; (ii) the Borrower or a
Subsidiary of the Borrower shall fail to own and control, of record and
beneficially, 100% of the issued and outstanding Capital Stock of each License
Subsidiary free and clear of all Liens (except Liens created pursuant to the
Borrower Pledge Agreement or the Subsidiaries Pledge Agreement), except to the
extent listed on Schedule 7(r) or waived by the Agent or the Lenders hereunder
in accordance with the terms hereof; (iii) ▇▇▇▇▇▇ (or, after his death,
collectively, his heirs or estate or both) shall cease to own and control, of
record and beneficially, Capital Stock of the Borrower possessing the voting
power under normal circumstances to cast 51 % or more of the total votes
entitled to be cast for the election of directors of the Borrower and (iv)
▇▇▇▇▇▇ (or, after his death, collectively, his heirs
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or estate or both) shall no longer have the voting power or the
contractual right to elect a majority of the Borrower's directors;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraphs (g), (h) or (i) of this Section with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement shall immediately become due and payable, and (B) if such event is any
other Event of Default, either or both of the following actions may be taken:
(i) with the consent of the Required Lenders, the Agent may, or upon the request
of the Required Lenders, the Agent shall, by notice to the Borrower declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Required Lenders, the
Agent may, or upon the request of the Required Lenders, the Agent shall, by
notice to the Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement to be due and payable
forthwith, whereupon the same shall immediately become due and payable. Except
as expressly provided above in this Section, presentment, demand, protest and
all other notices of any kind are hereby expressly waived.
SECTION 8. THE AGENT
8.1 Appointment. Each Lender hereby irrevocably designates and appoints the
Agent as the agent of such Lender under this Agreement and the other Loan
Documents, and each such Lender irrevocably authorizes the Agent, in such
capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as me expressly delegated to the Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agent.
8.2 Delegation of Duties. The Agent may execute any of its duties under
this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
8.3 Exculpatory Provisions. Neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with this Agreement or any other Loan Document (except
for its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report,
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statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other Loan Document or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document or for any failure of
the Borrower to perform its obligations hereunder or thereunder. The Agent shall
not be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of the Borrower.
8.4 Reliance by the Agent. The Agent shall be entitled to rely, and shall
be fully protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrower), independent accountants and other experts
selected by the Agent. The Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Agent. The Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Agent shall in all cases be fully protected in acting,
or in refraining from acting, under this Agreement and the other Loan Documents
in accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
8.5 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Agent has received notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Agent receives such a
notice, the Agent shall give notice thereof to the Lenders. The Agent shall take
such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required 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 or Event of Default as it shall deem advisable in the best
interests of the Lenders.
8.6 Non-Refiance on the Agent and Other Lenders. Each Lender expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by the Agent hereinafter taken, including
any review of the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Agent to any Lender. Each Lender represents to
the Agent that it has, independently and without reliance upon the Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations,
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property, financial and other condition and creditworthiness of the Borrower and
made its own decision to make its Loans hereunder and enter into this Agreement.
Each Lender also represents 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 credit
analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such investigation as it
deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower. Except for
notices, reports and other documents expressly required to be furnished to the
Leaders by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
8.7 Indemnification. The Lenders agree to indemnify the Agent in its
capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Commitment Percentages in effect on the date on which indemnification
is sought (or, if indemnification is sought after the date upon which the
Commitments shall have terminated and the Loans shall have been paid in full,
ratably in accordance with their Commitment Percentages immediately prior to
such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Loans) be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent under
or in connection with any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the Agent's gross negligence or willful misconduct. The
agreements in this subsection shall survive the payment of the
Loans and all other amounts payable hereunder.
8.8 The Agent in Its Individual Capacity. The Agent and its Affiliates may
make loans to, accept deposits from and generally engage in any kind of business
with the Borrower as though the Agent were not the Agent hereunder and under the
other Loan Documents. With respect to the Loans made by it, the Agent shall have
the same rights and powers under this Agreement and the other Loan Documents as
any Lender and may exercise the same as though it were not the Agent, and the
terms "Lender" and "Lenders" shall include the Agent in its individual capacity.
8.9 Successor the Agent. The Agent may resign as the Agent upon 10 days'
notice to the Lenders and the Agent may be removed at any time with or without
cause by an instrument or concurrent instruments in writing delivered to the
Borrower and Agent and signed by Required Lenders. If the Agent shall resign or
be removed as the Agent under this Agreement and the other Loan Documents, then
the Required Lenders shall appoint from
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among the Lenders a successor agent for the Lenders, which successor agent shall
be approved by the Borrower, whereupon such successor agent shall succeed to the
rights, powers and duties of the Agent, and the term "the Agent" shall mean such
successor agent effective upon such appointment and approval, and the former the
Agent's rights, powers and duties as the Agent shall be terminated, without any
other or further act or deed on the part of such former the Agent or any of the
parties to this Agreement or any holders of the Loans. After any retiring the
Agent's resignation as the Agent, the provisions of this Section 8 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
the Agent under this Agreement and the other Loan Documents.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement nor any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Agent may, from time to time, (a) enter into with the Borrower written
amendments, supplements or modifications hereto and to the other Loan Documents
for the purpose of adding any provisions to this Agreement or the other Loan
Documents or changing in any manner the rights of the Lenders or of the Borrower
hereunder or thereunder or (b) waive, on such terms and conditions as the
Required Lenders or the Agent, as the case may be, may specify in such
instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or modification
shall (i) reduce the amount or extend the scheduled date of maturity of any
scheduled payment of any Loan or of any scheduled installment thereof, or reduce
the stated rate of any interest or fee payable hereunder or extend the scheduled
date of any payment thereof or increase the aggregate amount or extend the
expiration date of any Lender's Commitments, in each case without the consent of
each Lender affected thereby, or (ii) amend, modify or waive any provision of
this subsection or reduce the percentage specified in the definition of Required
Lenders, or consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement and the other Loan Documents or
release all or substantially all of the Collateral or any material Subsidiary
from the Subsidiaries Guarantee, in each case except in connection with any
Asset Sale permitted by subsection 6.7, and in each case without the written
consent of all the Lenders, or (iii) amend, modify or waive any provision of
Section 8 without the written consent of the then the Agent. Any such waiver and
any such amendment, supplement, modification or release shall apply equally to
each of the Lenders and shall be binding upon the Borrower, the Lenders, the
Agent and all future holders of the Loans. In the case of any waiver, the
Borrower, the Lenders and the Agent shall be restored to their former positions
and rights hereunder and under the other Loan Documents, and any Default or
Event of Default waived shall be deemed to be cured and not continuing; no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon.
9.2 Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by facsimile
transmission) and,
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unless otherwise expressly provided herein, shall be deemed to have been duly
given or made (a) in the case of delivery by hand, when delivered, (b) in the
case of delivery by mail, three days after being deposited in the mails, postage
prepaid, or (c) in the case of delivery by facsimile transmission, when sent and
receipt has been confirmed, addressed as follows in the case of the Borrower and
the Agent, and as set forth in Schedule 1. IA in the case of the other parties
hereto, or to such other address as may be hereafter notified by the respective
parties hereto:
The Borrower ▇▇▇▇▇▇ Communications Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ Tek
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ at the foregoing address
The Agent: Union Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ at the foregoing address
provided that any notice, request or demand to or upon the Agent or the Lenders
pursuant to subsection 2.2, 2.5, 2.6, 2.7, 2.12 or 9.6 shall not be effective
until received.
9.3 No Waiver, Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Agent or any Lender, any right, remedy, power or
privilege hereunder or under the other Loan Documents shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All representations and
warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
9.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Agent, (b) to pay or
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reimburse each Lender and the Agent for all its costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, the fees and disbursements of counsel (including the
allocated fees and expenses of in-house counsel) to each Lender and of counsel
to the Agent, (c) to pay, indemnify, and hold each Lender and the Agent harmless
from, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other taxes
(which are Non-Excluded Taxes), if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify, and hold each Lender and the Agent harmless from and against
any and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other
documents, including, without limitation, any of the foregoing relating to the
violation of, noncompliance with or liability under, any Environmental Law
applicable to the operations of the Borrower, any of its Subsidiaries or any of
its properties or assets (all the foregoing in this clause (d), collectively,
the "indemnified liabilities"), provided, that the Borrower shall have no
obligation under this subsection 9.5 to the Agent or any Lender with respect to
indemnified liabilities arising from the gross negligence or willful misconduct
of the Agent or any such Lender. The agreements in this subsection shall survive
repayment of the Loans and all other amounts payable hereunder.
9.6 Successors and Assigns: Participations and Assignments. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Lenders, the Agent and their respective successors and assigns, except that the
Borrower may not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of each Lender.
(b) Any Leader may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any Loan
owing to such Lender, any Commitment of such Lender or any other interest of
such Lender hereunder and under the other Loan Documents. In the event of any
such sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and the Borrower
and the Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents. The Borrower agrees that if amounts outstanding under
this Agreement are due or unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of Default, each
Participant shall, to the maximum extent permitted by applicable law, be deemed
to have the right of setoff in respect of its participating interest in amounts
owing under this
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Agreement to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in subsection
9.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that
each Participant shall be entitled to the benefits of subsections 2.14, 2.15,
2.16 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if it was a Lender; provided that, in the case
of subsection 2.15, such Participant shall have complied with the requirements
of said subsection and provided further, that no Participant shall be entitled
to receive any greater amount pursuant to any such subsection than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time and from time to
time assign to any Lender or any affiliate thereof or, with the consent of the
Borrower and the Agent (which in each case shall not be unreasonably withheld),
to an additional bank or financial institution ("an Assignee") all or any part
of its rights and obligations under this Agreement and the other Loan Documents
pursuant to an Assignment and Acceptance, substantially in the form of Exhibit
H, executed by such Assignee, such assigning Lender (and, in the case of an
Assignee that is not then a Lender or an affiliate thereof, by the Borrower and
the Agent) and delivered to the Agent for its acceptance and recording in the
Register provided that (i) no such assignment to an Assignee (other than any
Lender or any affiliate thereof) shall be in an aggregate principal amount of
less than $5,000,000 (other than in the case of an assignment of all of a
Lender's interests under this Agreement) and (ii) after giving effect to any
such assignment (other than an assignment of all of a Lender's interests under
this Agreement), the assigning Lender (together with any Lender which is an
affiliate of such assigning Lender) shall retain Loans and/or Commitments
aggregating not less than $5,000,000. Upon such execution, delivery, acceptance
and recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder with a Commitment as set forth therein,
and (y) the assigning Lender thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such assigning Lender shall cease to be a party hereto). Notwithstanding any
provision of this paragraph (c) and paragraph (e) of this subsection, the
consent of the Borrower shall not be required, and, unless requested by the
Assignee and/or the assigning Lender, new Notes shall not be required to be
executed and delivered by the Borrower, for any assignment which occurs at any
time when any of the events described in paragraphs (g), (h) or (i) of Section 7
shall have occurred and be continuing.
(d) The Agent, on behalf of the Borrower, shall maintain at the address of
the Agent referred to in subsection 9.2 a copy of each Assignment and Acceptance
delivered to it and a register (the "Register") for the recordation of the names
and addresses of the Lenders and the Commitments of, and principal amounts of
the Loans owing to, each Lender from
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time to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Agent and the Lenders may (and, in the
case of any Loan or other obligation hereunder not evidenced by a Note, shall)
treat each Person whose name is recorded in the Register as the owner of a Loan
or other obligation hereunder as the owner thereof for all purposes of this
Agreement and the other Loan Documents, notwithstanding any notice to the
contrary. Any assignment of any Loan or other obligation hereunder not evidenced
by a Note shall be effective only upon appropriate entries with respect thereto
being made in the Register. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the Borrower and the Agent) together
with payment by such Lender or Assignee to the Agent of a registration and
processing fee of $2,500 the Agent shall (i) promptly accept such Assignment and
Acceptance and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any Participant or
Assignee that agrees to be bound by the terms and conditions of subsection 9.15
(each, a "Transferee") and any prospective Transferee any and all financial
information in such Lender's possession concerning the Borrower and its
Affiliates which has been delivered to such Lender by or on behalf of the
Borrower pursuant to this Agreement or which has been delivered to such Lender
by or on behalf of the Borrower in connection with such Lender's credit
evaluation of the Borrower and its Affiliates prior to becoming a party to this
Agreement.
(g) For avoidance of doubt, the parties to this Agreement acknowledge that
the provisions of this subsection concerning assignments of Loans and Notes
relate only to absolute assignments and that such provisions do not prohibit
assignments creating security interests, including, without limitation, any
pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank
in accordance with applicable law.
9.7 Adjustments: Set-off, (a) If any Lender (a "benefitted Lender") shall
at any time receive any payment of all or part of its Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by setoff, pursuant to events or proceedings of the nature
referred to in paragraphs (g), (h) or (i) of Section 7, or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans, or interest thereon,
such benefitted Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Leader's Loan, or
shall provide such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such benefitted Lender to
share the excess payment or benefits of such collateral or proceeds ratably with
each of the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such benefitted Lender,
such purchase shall
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be rescinded, and the purchase price and benefits returned, to the extent of
such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law,
each Lender shall have the right, without prior notice to the Borrower, any such
notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Agent after any such set-off and application made by such
Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
9.8 Counteparts: Effectiveness. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. This
Agreement shall become effective when counterparts hereof shall have been
executed by each of the parties hereto. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the Agent.
9.9 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.10 Integration. This Agreement and the other Loan Documents represent the
agreement of the Borrower, the Agent and the Lenders with respect to the subject
matter hereof, and there are no promises, undertakings, representations or
warranties by the Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.12 Submission To Jurisdiction: Waivers. The Borrower hereby irrevocably
and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Agreement and the other Loan Documents to which it is a
party, or for
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recognition and enforcement of any judgement in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of New York, the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to the Borrower at its
address set forth in subsection 9.2 or at such other address of which the Agent
shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to ▇▇▇ in
any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may
have to claim or recover in any legal action or proceeding referred to in
this subsection any special, exemplary, punitive or consequential damages.
9.13 Acknowledaements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Agent nor any Lender has any fiduciary relationship with or
duty to the Borrower arising out of or in connection with this Agreement or any
of the other Loan Documents, and the relationship between the Agent and the
Lenders, on one hand, and the Borrower, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Borrower and the Lenders.
9.14 WAIVERS OF JURY TRIAL THE BORROWER, THE AGENT AND THE LENDERS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
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9.15 Confidentiality. Each Lender agrees to keep confidential all
non-public information provided to it by the Borrower pursuant to this Agreement
that is designated by the Borrower in writing as confidential; provided that
nothing herein shall prevent any Lender from disclosing any such information (i)
to the Agent or any other Lender, (ii) to any Transferee, (iii) to its
employees, directors, agents, attorneys, accountants and other professional
advisors, (iv) upon the request or demand of any Governmental Authority having
jurisdiction over such Lender, (v) in response to any order of any court or
other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (vi) which has been publicly disclosed other than in breach
of this Agreement, or (vii) in connection with the exercise of any remedy
hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
▇▇▇▇▇▇ COMMUNICATIONS
CORPORATION
By:
-----------------------------
Title:
UNION BANK OF CALIFORNIA, N.A.,
as the Agent and as a Lender
By:
-----------------------------
Title:
THE BANK OF NEW YORK
By:
-----------------------------
Title:
CIBC, INC.
By:
----------------------------
Title:
THE FIRST NATIONAL BANK OF BOSTON
By:
----------------------------
Title:
89
▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
By:
----------------------------
Title: