Exhibit 10.17
CONFORMED COPY
$600,000,000
CREDIT AGREEMENT
dated as of June 26, 2000,
among
Young Broadcasting Inc.,
The Banks Listed Herein,
Bankers Trust Company,
as Administrative Agent,
and
First Union National Bank and
CIBC World Markets Corp.,
as Syndication Agents
Lead Arranger and Book Runner:
Deutsche Bank Securities, Inc.
Co-Book Runner:
First Union Securities, Inc.
Co-Arrangers:
First Union Securities, Inc.
CIBC World Markets Corp.
TABLE OF CONTENTS
-----------------
Page
ARTICLE 1
---------
Definitions and Accounting Terms
--------------------------------
Section 1.01. Certain Defined Terms..................................................... 2
Section 1.02. Computation of Time Periods............................................... 37
Section 1.03. Accounting Terms.......................................................... 37
ARTICLE 2
---------
Amounts and Terms of the Advances
---------------------------------
Section 2.01. The Advances.............................................................. 38
Section 2.02. Method of Borrowing....................................................... 39
Section 2.03. Notes..................................................................... 40
Section 2.04. Maturity of Term Loan A Advances and Term Loan B Advances................. 40
Section 2.05. Interest Rates............................................................ 42
Section 2.06. Fees...................................................................... 45
Section 2.07. Optional Termination or Reduction of Commitments.......................... 45
Section 2.08. [Intentionally Omitted]................................................... 45
Section 2.09. Prepayments............................................................... 45
Section 2.10. [Intentionally Omitted]................................................... 52
Section 2.11. General Provisions as to Payments......................................... 52
Section 2.12. Funding Losses............................................................ 53
Section 2.13. Computation of Interest and Fees.......................................... 53
Section 2.14. Taxes..................................................................... 53
Section 2.15. Method of Electing Interest Rates......................................... 55
Section 2.16. Basis for Determining Interest Rate Inadequate or Unfair.................. 57
Section 2.17. Illegality................................................................ 58
Section 2.18. Increased Cost and Reduced Return......................................... 59
Section 2.19. Base Rate Advances Substituted for Affected Fixed Rate Advances........... 60
Section 2.20. Use of Proceeds........................................................... 61
Section 2.21. Optional Increase in Term Loan B.......................................... 61
ARTICLE 3
---------
Conditions Precedent
--------------------
Section 3.01. Conditions Precedent to Closing Date...................................... 62
Section 3.02. [Intentionally Omitted]................................................... 69
Section 3.03. Conditions Precedent to Permitted Acquisitions............................ 69
Section 3.04. Conditions Precedent to Incurrence of Additional Term Loan B Advances..... 74
ARTICLE 4
---------
Representations and Warranties
------------------------------
i
Section 4.01. Representations and Warranties of the Borrower............................ 75
ARTICLE 5
---------
Covenants of the Borrower
-------------------------
Section 5.01. Affirmative Covenants..................................................... 87
Section 5.02. Negative Covenants........................................................ 95
Section 5.03. Reporting Requirements.................................................... 102
ARTICLE 6
---------
Events of Default
-----------------
Section 6.01. Events of Default......................................................... 107
ARTICLE 7
---------
The Agents
----------
Section 7.01. Appointment and Authorization............................................. 112
Section 7.02. Agents and Affiliates..................................................... 112
Section 7.03. Actions by Agents......................................................... 112
Section 7.04. Consultation with Experts................................................. 112
Section 7.05. Liability of Agents....................................................... 112
Section 7.06. Indemnification........................................................... 113
Section 7.07. Credit Decision........................................................... 113
Section 7.08. Successor Agent........................................................... 113
Section 7.09. [Intentionally Omitted].................................................... 114
Section 7.10. Notice of Default; Collateral Documents................................... 114
ARTICLE 8
---------
Miscellaneous
-------------
Section 8.01. Amendments, Etc........................................................... 115
Section 8.02. Notices, Etc.............................................................. 118
Section 8.03. No Waiver; Remedies....................................................... 118
Section 8.04. Costs and Expenses; Indemnities........................................... 118
Section 8.05. Right to Set-off.......................................................... 120
Section 8.06. BINDING EFFECT; GOVERNING LAW............................................. 121
Section 8.07. Successors and Assigns.................................................... 121
Section 8.08. Headings.................................................................. 126
Section 8.09. Execution in Counterparts; Integration.................................... 126
Section 8.10. Severability of Provisions................................................ 126
Section 8.11. WAIVER OF JURY TRIAL...................................................... 126
Section 8.12. Submission to Jurisdiction; Consent to Service of Process................. 126
Section 8.13. Survival.................................................................. 127
ii
PRICING SCHEDULE
Appendix I - Commitments
SCHEDULES
Schedule 1.01-1 - Collateral Documents
Schedule 1.01-2 - Programming Cost Savings
Schedule 4.01(a) - Subsidiaries of the Borrower
Schedule 4.01(e) - Agreements Relating to Capital Stock
Schedule 4.01(f) - Pro forma Financial Statements
Schedule 4.01(h) - Disclosed Litigation
Schedule 4.01(i) - Existing Liens
Schedule 4.01(m) - Plans and Multiemployer Plans
Schedule 4.01(n) - Existing Debt
Schedule 4.01(s) - Executive Compensation Agreements
Schedule 4.01(t) - Descriptions and Locations of Real
Property and Leasehold Interests
Schedule 4.01(u) - Government and Third Party Consents
Schedule 4.01(y) - Environmental Matters
iii
EXHIBITS
Exhibit A-1 - Form of Term Loan A Note
Exhibit A-2 - Form of Term Loan B Note
Exhibit B-1 - Form of Amended and Restated Borrower Pledge Agreement
Exhibit B-2 - Form of Amended and Restated Borrower Security Agreement
Exhibit B-3 - Form of Amended and Restated Guarantor Pledge Agreement
Exhibit B-4 - Form of Amended and Restated Guarantor Security Agreement
Exhibit B-5 - Form of Second Amended and Restated Guaranty Agreement
Exhibit C-1 - Form of Mortgage
Exhibit C-2 - Form of Deed of Trust
Exhibit D-1 - Form of Mortgage Amendment for Mortgage
Exhibit D-2 - Form of Mortgage Amendment for Deed of Trust
Exhibit E - Form of Assignment and Assumption Agreement
Exhibit F - Form of Opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
Exhibit G - Form of Local Counsel Opinion
Exhibit H - Form of Opinion of Special FCC Counsel
Exhibit I - Form of Opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
Exhibit J - Form of Compliance Certificate
Exhibit K - Intentionally Omitted
Exhibit L - Form of Borrower's Solvency Certificate
Exhibit M - Form of Guarantor's Solvency Certificate
iv
CREDIT AGREEMENT dated as of June 26, 2000 among YOUNG BROADCASTING INC., a
Delaware corporation (the "Borrower"), the banks and other financial
institutions (the "Banks") listed on the signature pages hereof, BANKERS TRUST
COMPANY ("BTCo"), as Administrative Agent for the Lenders hereunder, and FIRST
UNION NATIONAL BANK ("FUNB") and CIBC WORLD MARKETS CORP. ("CIBC"), as
Syndication Agents for the Lenders hereunder.
WITNESSETH:
WHEREAS, the Borrower and certain financial institutions are parties to an
Amended and Restated Credit Agreement dated as of November 25, 1997, as amended
and restated immediately prior to the date hereof (the "Original Existing Credit
Agreement"); and
WHEREAS, the Borrower has entered into an Asset Purchase Agreement dated as
of November 15, 1999 (the "Acquisition Agreement") with The Chronicle Publishing
Company, a Nevada corporation ("Chronicle"), pursuant to which the Borrower has
agreed to acquire (the "Acquisition") certain assets associated with television
broadcast station ▇▇▇▇-TV in San Francisco, California and cable television
station BAY-TV (collectively, "▇▇▇▇-TV") in San Francisco, California Bay Area,
through (1) the purchase of the ▇▇▇▇-TV FCC license from Chronicle by YBSF Inc.,
a Delaware corporation and an indirect wholly owned subsidiary of the Borrower
("License Co. Sub"), and (2) immediately thereafter, the purchase of
substantially all of the other assets of Chronicle which are used primarily to
conduct the business of ▇▇▇▇-TV by Young Broadcasting of San Francisco, Inc., a
Delaware corporation ("YB of San Francisco"); and
WHEREAS, to finance a portion of the purchase price of the Acquisition, the
Borrower has requested the Banks party hereto to make available to the Borrower
term loan facilities in an aggregate amount of $600,000,000; and
WHEREAS, subject to terms and conditions herein, certain of the Banks have
agreed to make Term Loan A Commitments (as defined below) in the aggregate
amount of $125,000,000 and certain of the Banks have agreed to make Term Loan B
Commitments (as defined below) in the aggregate amount of $475,000,000; and
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
Definitions and Accounting Terms
Section 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Accelerated Termination Date" means, in respect of the Term Loan A
Advances, either of the dates specified as the Term Loan A Termination Date in
clauses (iii) and (iv) of the definition of Term Loan A Termination Date if the
Borrower fails to Refinance the applicable issue of Existing Subordinated Debt
by the related Target Refinancing Date and, in respect of the Term Loan B
Advances, any of the dates specified as a possible Term Loan B Termination Date
in c (iii), (iv) and (v) of the definition of Term Loan B Termination Date if
the Borrower fails to Refinance the applicable issue of Existing Subordinated
Debt by the related Target Refinancing Date.
"Accepting Term Loan B Lender" has the meaning specified in Section
2.09(c)(iii).
------------
"Acquisition" has the meaning specified in the second recital to this
Agreement.
"Acquisition Agreement" has the meaning specified in the second recital
to this Agreement.
"Acquisition Documents" means the Acquisition Agreement, including the
exhibits and schedules thereto, and all agreements, documents and instruments
executed and delivered pursuant thereto or in connection therewith, including
without limitation that certain Use and Management Agreement dated as of the
date hereof between License Co. Sub and Chronicle substantially in the form of
Exhibit B to the Acquisition Agreement.
"Additional Closing Date" means the date on which the conditions set
forth in Section 3.04 shall have been satisfied, provided that such date shall
----
be no later than December 31, 2001.
"Additional Mortgage" means a Mortgage substantially in the form of
Exhibit C-1 or C-2 hereto, as applicable, effective as of the Closing Date from
the relevant Guarantor, as mortgagor or grantor as applicable, to or for the
benefit of the Collateral Agent, as mortgagee or beneficiary as applicable on
behalf of the holders of the New Facility Obligations and the Existing Facility
Obligations covering the Real Properties located at: (i) ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(Studio) and
2
Camp Pinnacle Road (Transmitter), Albany County, New York, to replace the
existing Mortgage with respect to such Real Property (the "Existing New York
Mortgage"), (ii) ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ (tower site), City of Branch, Acadia Parish,
Louisiana, and (iii) ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇▇▇ ▇▇▇), ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, South Dakota.
"Adjusted CD Rate Advance" means an Advance which bears interest as
provided in Section 2.05(b).
-------
"Administrative Agent" means BTCo in its capacity as Administrative
Agent for the Lenders hereunder, and its successors in such capacity.
"Administrative Questionnaire" means (i) with respect to each Lender
listed on the signature pages hereof, the administrative questionnaire in the
form submitted to such Lender by the Administrative Agent and submitted to the
Administrative Agent (with a copy to the Borrower) duly completed by such Lender
on or before the Closing Date and (ii) with respect to each other Lender, the
Assignment and Assumption Agreement for such Lender as an Assignee.
"Advance" means a Term Loan A Advance or a Term Loan B Advance, each of
which may be an Adjusted CD Rate Advance, a Base Rate Advance or a Eurodollar
Rate Advance (each of which shall be referred to as a "Type" of Advance).
"Affiliate" means, with respect to any Person, any other Person directly
or indirectly controlling, controlled by or under common control with such
Person. The term "control" means the possession, directly or indirectly, of the
power, whether or not exercised, to direct or cause the direction of the
management or policies of any Person, whether through ownership of voting
securities, by contract or otherwise.
"Agents" means the Administrative Agent, the Syndication Agents, the
Collateral Agent or any combination of the foregoing as the context may require,
and "Agent" means any one of the foregoing.
"Agreement" means this Agreement as amended or otherwise modified from
time to time.
"Allocable Portion" means, for purposes of determining the aggregate
principal amount of Advances required to be repaid pursuant to clauses (i),
(ii), (iii), (iv) or (v) of Section 2.09(b), an amount that bears the same
-------
proportion to the specified percentage of Excess Cash Flow for the Fiscal Year
in question, excess Net Proceeds or excess Major Casualty Proceeds, as the case
may be, as
3
the outstanding principal amount of the Advances bears to the sum of the
outstanding principal amount of the Advances and the Other Term Loan A Advances.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance, such
Lender's CD Lending Office in the case of an Adjusted CD Rate Advance, and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance.
"Applicable Premium Percentage" means, in respect of any prepayment of
Term Loan B Advances subject to a premium pursuant to Section 2.09(e), (x) if
-------
such prepayment occurs prior to the first anniversary of the Closing Date, 2.00%
and (y) if such prepayment occurs on or after the first anniversary of the
Closing Date but prior to the second anniversary of the Closing Date, 1.00%.
"Asset Operating Cash Flow" means, with respect to each Asset Sale, the
portion of Operating Cash Flow for the twelve months immediately preceding such
Asset Sale that is attributable to the asset, property or business being
disposed of pursuant to such Asset Sale.
"Asset Purchase" means an acquisition by the Borrower or any of its
Subsidiaries of (i) all or substantially all of the assets of any Person (other
than the Borrower or any of its Subsidiaries) or (ii) property and assets of any
Person (other than the Borrower or any of its Subsidiaries), in each case
comprising a television station or a business incidental thereto.
"Asset Sale" means any sale, lease, assignment, transfer or other
disposition by the Borrower or any of its Subsidiaries of any asset, property or
business (including, without limitation, receivables and leasehold interests)
whether now owned or hereafter acquired, but excluding dispositions of inventory
in the ordinary course of business.
"Assignee" has the meaning specified in Section 8.07(c).
-------
"Assignment and Assumption Agreement" means an Assignment and Assumption
Agreement entered into by a Lender and an Assignee, and accepted by the
Administrative Agent and consented to by the Borrower (if required), in
substantially the form of Exhibit E.
"Banks" has the meaning specified in the preamble to this Agreement.
4
"Base Rate" means, for any day, a rate per annum equal to the higher of
(i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal
Funds Rate for such day.
"Base Rate Advance" means an Advance which bears interest as provided in
Section 2.05(a).
-------
"Base Rate Margin" means a rate per annum determined daily in accordance
with the Pricing Schedule.
"Borrower " has the meaning specified in the preamble to this Agreement.
"Borrower Pledge Agreement" means the Borrower Pledge Agreement dated as
of November 14, 1994 between the Borrower and the Collateral Agent, and each
other pledge agreement entered into by the Borrower pursuant hereto, in each
case as the same has been or may be amended or otherwise modified from time to
time, including as amended and restated on the Closing Date by the Amended and
Restated Borrower Pledge Agreement substantially in the form of Exhibit B-1.
"Borrower Security Agreement" means the Borrower Security Agreement
dated as of November 14, 1994 between the Borrower and the Collateral Agent, and
each other security agreement entered into by the Borrower pursuant hereto, in
each case as the same has been or may be amended or otherwise modified from time
to time, including as amended and restated on the Closing Date by the Amended
and Restated Borrower Security Agreement substantially in the form of Exhibit
B-2.
"Borrowing" means a Term Loan A Borrowing or a Term Loan B Borrowing
made or Converted on the same day by the Lenders, and also includes the
incurrence of additional Term Loan B Advances pursuant to Section 2.21.
"Bridge Facility" means the $200 Million Credit Agreement, dated as of
the date hereof, among License Co. Parent, as borrower, the banks and other
financial institutions named therein and BTCo., as agent.
"Bridge Guaranty Agreements" means the Bridge Parent Guaranty Agreement
and the Bridge Sub Guaranty Agreement.
"Bridge Loans" means the loans made to License Co. Parent pursuant to
the Bridge Facility.
5
"Bridge Obligations" means the Bridge Loans and all other obligations of
the License Companies in connection with the Bridge Facility.
"Bridge Parent Guaranty Agreement" means a Guaranty Agreement in
substantially the form of Exhibit C to the Bridge Facility, pursuant to which
License Co. Parent, on a basis junior to its Bridge Obligations, guarantees the
New Facility Obligations and the Existing Facility Obligations.
"Bridge Pledge Agreement" means a Pledge Agreement in substantially the
form of Exhibit D to the Bridge Facility, pursuant to which License Co. Parent
pledges all of the outstanding capital stock of License Co. Sub to the
Collateral Agent to secure the Bridge Obligations and, on a basis junior
thereto, the New Facility Obligations and the Existing Facility Obligations.
"Bridge Security Agreements" means Security Agreements in substantially
the forms of Exhibits E and H to the Bridge Facility, pursuant to which License
Co. Parent and License Co. Sub, respectively, grant security interests in all of
their assets in favor of the Collateral Agent to secure the Bridge Obligations
and, on a basis junior thereto, the New Facility Obligations and the Existing
Facility Obligations.
"Bridge Sub Guaranty Agreement" means a Guaranty Agreement in
substantially the form of Exhibit F to the Bridge Facility, pursuant to which
License Co. Sub guarantees License Co. Parent's Bridge Obligations and, on a
basis junior thereto, the New Facility Obligations and the Existing Facility
Obligations.
"BTCo" has the meaning specified in the preamble to this Agreement.
"Capital Expenditures" means, for any period, the aggregate of all
expenditures by the Borrower and its Subsidiaries for property, plant and
equipment (including renewals, improvements, replacements and capitalized
repairs) during such period, and all Capital Leases entered into during such
period, which would be reflected as additions to property, plant or equipment
(other than as a result of a Permitted Acquisition) on a consolidated balance
sheet of the Borrower and its Subsidiaries prepared in accordance with generally
accepted accounting principles.
"Capital Lease" means any lease which is or should be, in accordance
with generally accepted accounting principles, recorded as a capital lease.
"Capital Lease Obligations" means, with respect to any lease of property
which in accordance with generally accepted accounting principles should be
6
capitalized on the lessee's balance sheet or for which the amount of the assets
and liabilities thereunder, if so capitalized, should be disclosed in a note to
such balance sheet, the amount of the liability which should be so capitalized
or disclosed.
"CD Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "CD Lending Office" opposite its name in its
Administrative Questionnaire (or, if no such office is specified, its Domestic
Lending Office) or such other office of such Lender as such Lender may from time
to time specify to the Borrower and the Administrative Agent.
"CD Rate Margin" means a rate per annum determined daily in accordance
with the Pricing Schedule.
"CD Reference Banks" means BTCo, CIBC and FUNB.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 (42 U.S.C. Sections 9601 et seq.), as amended from
-- ---
time to time, and regulations promulgated thereunder.
"CIBC" has the meaning specified in the preamble to this Agreement.
"Chronicle" has the meaning specified in the second recital to this
Agreement.
"Closing Date" means the date on which the conditions set forth in
Section 3.01 shall have been satisfied or waived in accordance with Section 8
----
provided that such date shall be no later than June 30, 2000.
"Closing Date Transactions" means, collectively, the effectiveness of
this Agreement, the other Loan Documents (except for any Interest Rate
Protection Agreements), the Bridge Facility, the Existing Credit Agreement and
the Acquisition.
"Closing Time" means the time on the Closing Date at which this
Agreement shall become effective, in accordance with the provisions of Section
3.01.
----
"Co-Arrangers" means the Lead Arranger and Book Runner, First Union
Securities, Inc., and CIBC World Markets Corp.
7
"Code" means the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"Collateral" means, collectively, the "Collateral" as defined in the
Security Agreements, the "Collateral" as defined in the Pledge Agreements, the
"Trust Property" and "Mortgaged Property" described in the Mortgages and all
other property and assets of the Borrower or any Guarantor to which any
Collateral Document relates.
"Collateral Agent" means BTCo. in its capacity as the secured party
under the various pledge and security agreements and mortgages executed and
delivered by the Borrower and its Subsidiaries in connection with this
Agreement, the Existing Credit Agreement and the Bridge Facility.
"Collateral Documents" means the Security Agreements, the Pledge
Agreements and the Mortgages, including without limitation the agreements,
documents and instruments listed on Schedule 1.01-1.
"Communications Act" means the Communications Act of 1934, as amended
from time to time, and the regulations promulgated thereunder.
"Consolidated" refers to the consolidation of accounts of the Borrower
and its Subsidiaries in accordance with generally accepted accounting
principles, including principles of consolidation.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of another Type pursuant to Section 2.15 or
----
2.17.
----
"CTSI" means Community Television Service, Inc., a South Dakota
corporation.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money or to pay the deferred purchase
price of property or services (including, without limitation, all obligations,
contingent or otherwise, of such Person in connection with letter of credit
facilities, acceptance facilities or other similar facilities and in connection
with any agreement to purchase, redeem, exchange, convert or otherwise acquire
for value any capital stock of such Person, but excluding all amounts payable
with respect to Programming Liabilities), (ii) all obligations of such Person
evidenced by bonds, notes, debentures or other similar instruments, (iii) all
obligations created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and
8
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), (iv) all obligations of
such Person under Capital Leases, (v) all Debt of any other entity of the type
referred to in clause (i), (ii), (iii) or (iv) above secured by (or for which
the holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property (including, without limitation,
accounts and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Debt, (vi) all equity
securities of such Person subject to repurchase or redemption other than at the
sole option of such Person, valued at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends, (vii) all
Guaranteed Debt of such Person, (viii) all liabilities incurred by the Borrower
or any ERISA Affiliate to the PBGC upon the termination under Section 4041 or
Section 4042 of ERISA of any Plan, (ix) all Withdrawal Liabilities of such
Person or any of its ERISA Affiliates, (x) all increases in the amount of
contributions required to be made by the Borrower and its ERISA Affiliates in
each fiscal year of the Borrower to Multiemployer Plans, due to the
reorganization or termination of any such Multiemployer Plan within the meaning
of Title IV of ERISA, over the average annual amount of such contributions
required to be made during the last 3 years preceding such reorganization or
termination and (xi) the aggregate amount of Derivatives Obligations of such
Person; provided that for the purposes of calculating Debt to determine the Debt
to Operating Cash Flow Ratio and of calculating Senior Debt to determine
compliance with Section 5.01(n), Debt shall be reduced by the aggregate amount
-------
of Temporary Cash Investments held by the Borrower or any Guarantor (excluding
Permitted Acquisition Deposits) on the date of determination, to the extent that
such amount exceeds the greater of (A) $5,000,000 and (B) the product of (x)
$400,000 and (y) the sum of (X) the number of television broadcast stations
owned by the Subsidiaries of the Borrower as of such date and (Y) the number
one.
"Debt to Operating Cash Flow Ratio" means, as of any day, the ratio of
(i) the aggregate unpaid Consolidated principal amount of all Debt of the
Borrower and its Subsidiaries (including Debt of the License Companies) on such
day to (ii) Operating Cash Flow of the Borrower and its Subsidiaries for the
twelve consecutive calendar months then most recently ended or ending on such
day.
"Default" means any Event of Default or any event that would constitute
an Event of Default but for the requirement that notice be given or time elapse
or both.
"Deferred Term Loan B Advance Unscheduled Payment Date" has the meaning
specified in Section 2.09(c)(ii).
-----------
9
"Derivatives Obligations" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
"Designated Lender" means, with respect to any Designating Lender, an
SPC designated by it pursuant to Section 8.07(e) as a Designated Lender for
purposes of this Agreement.
"Designating Lender" means, with respect to each Designated Lender, the
Lender that designated such Designated Lender pursuant to Section 8.07(e).
"Disclosed Litigation" has the meaning specified in Section 4.01(h).
-------
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized by law to close.
"Domestic Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "Domestic Lending Office" opposite its name in
the Administrative Questionnaire or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Administrative
Agent.
"Environmental Laws" means any and all applicable federal, state, local
and foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, codes, plans, injunctions, permits, concessions,
grants, franchises, licenses, agreements and governmental restrictions, whether
now or hereafter in effect, relating to human health, the environment or to
emissions, discharges or releases of pollutants, contaminants, Hazardous
Materials or wastes into the environment, including ambient air, surface water,
ground water or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, Hazardous Materials or wastes or the clean-up or other
remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. References to sections or parts of ERISA as in effect on the date
hereof include corresponding successor provisions after the date hereof.
10
"ERISA Affiliate" means any trade or business (whether or not
incorporated) which is a member of a group of which the Borrower is a member or
which is under common control with the Borrower within the meaning of Section
414 of the Code, and the regulations promulgated and rulings issued thereunder.
"Eurodollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite its
name in its Administrative Questionnaire (or, if no such office is specified,
its Domestic Lending Office) or such other office of such Lender as such Lender
may from time to time specify to the Borrower and the Administrative Agent.
"Eurodollar Margin" means a rate per annum determined daily in
accordance with the Pricing Schedule.
"Eurodollar Rate Advance" means an Advance which bears interest as
provided in Section 2.05(c).
-------
"Eurodollar Reference Banks" means the principal London offices of BTCo,
CIBC and FUNB.
"Events of Default" has the meaning specified in Section 6.01.
----
"Excess Cash Flow" means, for any Fiscal Year:
(a) the sum of (i) the Borrower's Operating Cash Flow for such
Fiscal Year, plus (ii) the cash proceeds received by the Borrower and
its Subsidiaries in respect of Asset Sales during such Fiscal Year, plus
(iii) any decrease in Net Working Investment between the beginning and
end of such Fiscal Year,
minus
(b) the sum of (i) the amount of Total Interest Expense for such
Fiscal Year, plus (ii) the amount of Capital Expenditures for such
Fiscal Year, to the extent that such Capital Expenditures are not
financed during such Fiscal Year (and will not later be financed) with
the proceeds of Debt permitted by clause (C) or (D) of Section 5.02(b),
-------
plus (iii) any increase in Net Working Investment between the beginning
and end of such Fiscal
11
Year, plus (iv) the aggregate amount of Restricted Payments made in cash
during such Fiscal Year in accordance with Section 5.02(g)(iii), plus
------------
(v) the aggregate amount of all scheduled principal payments on all Debt
of the Borrower or any of its Subsidiaries then required to be made and
made during such Fiscal Year (excluding any prepayments during any
Fiscal Year pursuant to Section 2.09(b) and Section 2.09(b) of the
------- -------
Existing Credit Agreement, other than prepayments made pursuant to
Section 2.09(b)(iv) and Section 2.09(b)(iv) of the Existing Credit
Agreement in respect of Permitted Asset Sales), plus (vi) all optional
prepayments during such Fiscal Year of the Term Loan A Advances and Term
Loan B Advances pursuant to Section 2.09(a) and of the Other Term Loan A
Advances pursuant to Section 2.09(a) of the Existing Credit Agreement,
all determined in accordance with generally accepted accounting principles;
provided that if the Acquisition or any Permitted Acquisition occurs during such
Fiscal Year, the calculation of Excess Cash Flow for such Fiscal Year shall give
effect to the items set forth above (including Operating Cash Flow for this
purpose, notwithstanding the proviso contained in the definition thereof) to the
extent that they are properly attributable to the acquired assets or properties,
related costs or expenses or the financing therefor only for periods on and
----
after the closing date for the Acquisition or Permitted Acquisition.
"Existing Credit Agreement" means the Original Existing Credit Agreement
as amended and restated by the $200 Million Second Amended and Restated Credit
Agreement dated as of the date hereof among the Borrower, the banks and
financial institutions party thereto after giving effect to such amendment and
restatement and BTCo., as administrative agent, and the other agents party
thereto, as further amended from time to time.
"Existing Facility Obligations" means the Revolving Advances and Term
Loan A Advances outstanding under the Existing Credit Agreement, and all other
obligations of the Borrower and its Subsidiaries in connection with the Existing
Credit Agreement.
"Existing Financing Statements" has the meaning specified in Section
3.01(g)(5)(C).
"Existing Guarantors" means all of the Guarantors on the Closing Date
other than YB of San Francisco and the License Companies.
12
"Existing Subordinated Debt" means the 1994 Subordinated Notes, the 1995
Subordinated Notes, the 1996 Subordinated Notes and the 1997 Subordinated Notes.
"FCC" means the Federal Communications Commission and any successor
thereto.
"FCC License" means any license, permit, certificate of compliance,
franchise, approval or authorization granted or issued by the FCC and owned or
held by the Borrower or any of its Subsidiaries in order to conduct the
broadcast operations of a television station.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Domestic Business Day next
succeeding such day; provided that (i) if such day is not a Domestic Business
Day, the Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Domestic Business Day and so published on the next
succeeding Domestic Business Day, and (ii) if no such rate is so published on
such next succeeding Domestic Business Day, the Federal Funds Rate for such day
shall be the average rate quoted to the Administrative Agent on such day on such
transactions as determined by the Administrative Agent.
"Fidelity" means Fidelity Television, Inc., a California corporation.
"Film Expense" means, with respect to any accounting period, all amounts
which become due and payable by the Borrower or any of its Subsidiaries during
such period in respect of Programming Liabilities of the Borrower or any of its
Subsidiaries, as determined in accordance with generally accepted accounting
principles.
"Final Order" means an action by the FCC that has not been reversed,
stayed, enjoined, set aside, or suspended, and with respect to which no requests
are pending for administrative or judicial review, reconsideration, appeal, or
stay, and the time for filing any such requests and the time for the FCC to set
aside the action on its own motion have expired.
"Financing Statements" means the ▇▇▇▇ Financing Statements and the
Existing Financing Statements.
13
"Fiscal Quarter" means a fiscal quarter of the Borrower consisting of a
calendar quarter ending on March 31, June 30, September 30 or December 31, as
the case may be.
"Fiscal Year" means a fiscal year of the Borrower consisting of a
calendar year ending on December 31.
"Fixed Rate Advances" means Adjusted CD Rate Advances or Eurodollar Rate
Advances or any combination thereof.
"Fixed Rate Borrowing" means a borrowing consisting of Adjusted CD Rate
Advances or Eurodollar Rate Advances made on the same day by the Lenders.
"FUNB" has the meaning specified in the preamble to this Agreement.
"Guaranteed Debt" of any Person means all Debt referred to in clause
(i), (ii), (iii) or (iv) of the definition of "Debt" in this section guaranteed
directly or indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (i) to pay or
purchase such Debt or to advance or supply funds for the payment or purchase of
such Debt, (ii) to purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of enabling the debtor to
make payment of such Debt or to assure the holder of such Debt against loss,
(iii) to supply funds to, or in any other manner invest in, the debtor
(including any agreement to pay for property or services irrespective of whether
such property is received or such services are rendered) or (iv) otherwise to
assure a creditor against loss.
"Guarantor" means each of the Subsidiaries of the Borrower listed on
Schedule 4.01(a) and each of the Subsidiaries of the Borrower which shall become
a Guarantor in accordance with this Agreement (including Section 5.02(f)),
-------
including YB of San Francisco and each License Company.
"Guarantor Pledge Agreements" means, collectively, (i) the Guarantor
Pledge Agreement dated as of November 15, 1996 between YB of Los Angeles and the
Collateral Agent and (ii) the Guarantor Pledge Agreement dated as of May 31,
1996 between YB of Sioux Falls and the Collateral Agent, each as amended to the
date hereof and as the same are amended and restated on the Closing Date by the
Amended and Restated Guarantor Pledge Agreement between YB of Los Angeles and
the Collateral Agent substantially in the form of Exhibit B-3 and the Amended
and Restated Guarantor Pledge Agreement between YB of Sioux Falls and the
Collateral Agent substantially in the form of Exhibit B-3, respectively, as well
as (iii) each other pledge agreement entered into by any
14
Guarantor pursuant to this Agreement substantially in the form of Exhibit B-3
hereto and (iv) the Bridge Pledge Agreement, in each case as further amended
from time to time.
"Guarantor Security Agreements" means, collectively (i) the Guarantor
Security Agreements dated as of November 15, 1996 between each of YB of Los
Angeles and Fidelity, respectively, and the Collateral Agent, (ii) each of the
Guarantor Security Agreements dated as of April 15, 1996 between each of YB of
▇▇▇▇▇▇▇▇▇, ▇▇ of Sioux Falls and YB of Rapid City, respectively, and the
Collateral Agent and (iii) each of the Guarantor Security Agreements dated as of
November 14, 1994, between each of the Guarantors other than YB of ▇▇▇▇▇▇▇▇▇, ▇▇
of Sioux Falls, YB of Rapid City, YB of Los Angeles, Fidelity, YB of San
Francisco and the License Companies, and the Collateral Agent, each as amended
to the date hereof and as the same are amended and restated on the Closing Date
by the respective Amended and Restated Guarantor Security Agreements
substantially in the form of Exhibit B-4, as well as (iv) each other security
agreement entered into by any Guarantor pursuant to this Agreement substantially
in the form of Exhibit B-4 (including the Guarantor Security Agreement entered
into by YB of San Francisco substantially in the form of Exhibit B-4 on the
Closing Date) and (v) the Bridge Security Agreements, in each case as further
amended from time to time.
"Guaranty Agreements" means (i) the Amended and Restated Guaranty
Agreement dated as of April 15, 1996 and as amended to the date hereof, among
the Borrower, each of the Guarantors (other than each License Company) and the
Administrative Agent, as amended and restated on the Closing Date by the Second
Amended and Restated Guaranty Agreement substantially in the form of Exhibit
B-5, and (ii) the Bridge Guaranty Agreements, in each case as further amended
from time to time.
"Hazardous Materials" means (i) any "hazardous substance" as defined in
CERCLA; (ii) asbestos; (iii) polychlorinated biphenyls; (iv) petroleum, its
derivatives, by-products and other hydrocarbons; and (v) any other toxic,
radioactive, caustic or otherwise hazardous substance regulated under
Environmental Laws.
"Independent Public Accountants" means Ernst & Young LLP or another
independent public accounting firm of nationally recognized standing reasonably
acceptable to the Majority Lenders.
"Insufficiency" means, with respect to any Plan, the amount, if any, by
which the present value of the accrued benefits under such Plan, as determined
using the actuarial assumptions then used for the purpose of determining the
15
contributions to be made to such Plan, exceeds the fair market value of the
assets of such Plan allocable to such benefits.
"Interest Period" means: (i) with respect to each Eurodollar Rate
Advance, the period commencing on the date of such Borrowing and ending 1, 2 3
or 6 months thereafter, as the Borrower may elect in the applicable Notice of
Borrowing or Notice of Interest Rate Election; provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Eurodollar Business Day shall be extended to the next
succeeding Eurodollar Business Day unless such Eurodollar Business Day
falls in another calendar month, in which case such Interest Period
shall end on the next preceding Eurodollar Business Day;
(b) any Interest Period which begins on the last Eurodollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Eurodollar Business Day of a calendar month; and
(c) if any Interest Period includes a date on which a payment of
principal of the Advances is required to be made under Section 2.04 but
----
does not end on such date, then (i) the principal amount (if any) of
each Eurodollar Rate Advance required to be repaid on such date shall
have an Interest Period ending on such date and (ii) the remainder (if
any) of each such Eurodollar Rate Advance shall have an Interest Period
determined as set forth above; and
(ii) with respect to each Adjusted CD Rate Advance, the period commencing on the
date of such Borrowing and ending 30, 60, 90 or 180 days thereafter, as the
Borrower may elect in the applicable Notice of Borrowing or Notice of Interest
Rate Election; provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b)(i) below) which would otherwise end on
a day which is not a Eurodollar Business Day shall be extended to the
next succeeding Eurodollar Business Day; and
(b) if any Interest Period includes a date on which a payment of
principal of the Advances is required to be made under Section 2.04 but
----
does not end on such date, then (i) the principal amount (if any) of
each Adjusted CD Rate Advance required to be repaid on such date shall
have an Interest Period ending on such date and (ii) the remainder (if
any) of
16
each such Adjusted CD Rate Advance shall have an Interest Period
determined as set forth above.
"Interest Rate Protection Agreement" means any interest rate cap
agreement, interest rate swap agreement and any other interest rate protection
agreement between the Borrower and any Person that is a Lender or any Affiliate
of any Lender on conditions acceptable to the Agents (such acceptance of the
Agents not to be unreasonably denied) and in accordance with Section 5.02(s), as
-------
such agreement may be amended from time to time with the consent (not to be
unreasonably withheld) of the Agents, provided that no Interest Rate Protection
Agreement will have an expiry date which is later than December 31, 2006.
"KLFY Partnership" means KLFY, L.P., a Delaware limited partnership of
which YB of Louisiana is the sole general partner and of which LAT is the sole
limited partner and which is governed by the KLFY Partnership Agreement.
"KLFY Partnership Agreement" means the Agreement of Limited Partnership
of KLFY, L.P. dated as of December 29, 1989 by and among YB of Louisiana and
LAT, as the same may be amended from time to time.
"▇▇▇▇-TV" has the meaning specified in the second recital to this
Agreement.
"▇▇▇▇ Financing Statements" has the meaning specified in Section
3.01(g)(5)(B).
-------
"▇▇▇▇ Mortgage" means a Mortgage substantially in the form of Exhibit
C-2 hereto effective as of the Closing Date from YB of San Francisco, as
trustor, to Chicago Title Insurance Company, as trustee, for the benefit of the
Collateral Agent, as beneficiary on behalf of the holders of the New Facility
Obligations and the Existing Facility Obligations, covering the Real Property
located at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
"LAT" means LAT, Inc., a Delaware corporation and wholly owned
subsidiary of the Borrower.
"Lead Arranger and Book Runner" means Deutsche Bank Securities
Inc.
"Leaseholds" means all of the right, title and interest of the Borrower
or any of its Subsidiaries in, to and under any leases, licenses or other
agreements granting to the Borrower or any of its Subsidiaries, directly or
indirectly, rights to
17
enter, occupy or use any land, improvements and fixtures, including, without
limitation, the "Ground Leases" as described in certain of the Mortgages.
"Lender Share" means, with respect to any Lender, (x) before the Closing
Date, an amount equal to such Lender's Term Loan A Commitment and Term Loan B
Commitment and (y) after the Closing Date, the aggregate outstanding amount of
such Lender's Term Loan A Advances and Term Loan B Advances.
"Lenders" means the Banks listed on the signature pages hereof, each
Person becoming a party hereto as a Lender in connection with making additional
Term Loan B Advances pursuant to Section 2.21 and each Assignee that shall
----
become a party hereto pursuant to Section 8.07.
----
"License Companies" means License Co. Parent and License Co. Sub.
"License Co. Parent" means Young Holding Company, Inc., a Delaware
corporation and a wholly owned subsidiary of the Borrower.
"License Co. Sub" has the meaning specified in the second recital to
this
Agreement.
Lien" means, with respect to any asset, any mortgage, deed of trust,
pledge, lien, charge, security interest or encumbrance of any kind, or any other
type of preferential arrangement that has the practical effect of creating a
security interest in respect of such asset. For the purposes of this Agreement,
the Borrower or any Subsidiary shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or
lessor under a conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loan Documents" means this Agreement, the Notes, the Guaranty
Agreements, the Collateral Documents and any Interest Rate Protection
Agreements, in each case as the same may hereafter be amended or otherwise
modified from time to time.
"Loan Party" means each of the Borrower and each Guarantor.
"Major Casualty Proceeds" means (i) the aggregate insurance proceeds
received in connection with one or more related events by the Borrower or any of
its Subsidiaries under any insurance policy maintained to cover losses with
respect to tangible real or personal property or improvements or losses from
business interruption or (ii) any award or other compensation with respect to
any condemnation of property (or any transfer or disposition of property in lieu
of
18
condemnation) received by the Borrower or any of its Subsidiaries, if the amount
of such aggregate insurance proceeds or award or other compensation exceeds
$1,000,000.
"Majority Lenders" means Lenders under this Agreement and Lenders (as
defined in the Existing Credit Agreement) under the Existing Credit Agreement
having at least 51% of the aggregate amount of (x) Lender Shares for all Lenders
under this Agreement and (y) Lender Shares (as defined in the Existing Credit
Agreement) for all Lenders under the Existing Credit Agreement.
"Material Financial Obligations" means a principal or face amount of
Debt and/or payment obligations in respect of Derivatives Obligations of the
Borrower and/or one or more of its Subsidiaries, arising in one or more related
or unrelated transactions, exceeding in the aggregate $1,000,000.
"Mortgage Amendment" means, with respect to each Mortgage (other than
the ▇▇▇▇ Mortgage, the Existing New York Mortgage and the Additional Mortgages)
executed pursuant to the Original Existing Credit Agreement, an amendment and
restatement thereof dated as of the Closing Date substantially in the form of
Exhibit D-1 hereto for a mortgage or Exhibit D-2 hereto for a deed of trust.
"Mortgages" means the mortgages and deeds of trust listed on Schedule
1.01-1, in each case as amended on the Closing Date by the relevant Mortgage
Amendment, the ▇▇▇▇ Mortgage, the Additional Mortgages and any other mortgages,
deeds of trust or similar instruments in substantially the form of Exhibit C-1
hereto for a mortgage and Exhibit C-2 hereto for a deed of trust executed from
time to time pursuant hereto, as the same may be amended or otherwise modified
from time to time.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions, including
for these purposes any Person that ceased to be an ERISA Affiliate during such
five year period.
"Multiple Employer Plan" means an employee benefit plan, other than a
Multiemployer Plan, subject to Title IV of ERISA to which the Borrower or any
ERISA Affiliate, and at least one employer other than the Borrower or an ERISA
Affiliate, are making or accruing an obligation to make contributions or, in the
event that any such plan has been terminated, to which the Borrower or any ERISA
Affiliate made or accrued an obligation to make contributions during any
19
of the five plan years preceding the date of termination of such plan, including
for these purposes any Person that ceased to be an ERISA Affiliate during such
five year period.
"NAIC" means the National Association of Insurance Commissioners.
"Net Income" means, for any accounting period, net income (or net
deficit, as the case may be), as determined in accordance with generally
accepted accounting principles.
"Net Proceeds" means, with respect to any issuance by the Borrower of
any equity securities or Permitted Subordinated Debt or any Permitted Asset Sale
by any Loan Party, an amount equal to the net cash proceeds received by the
Borrower or such Loan Party with respect to such equity securities or Permitted
Subordinated Debt or pursuant to such Permitted Asset Sale, as the case may be,
less (without duplication) any fees and other expenses relating thereto
reasonably incurred by the Borrower or such Loan Party in connection therewith.
"Net Working Investment" means at any date (x) the Consolidated current
assets of the Borrower and its Subsidiaries (excluding cash, short-term
investments and Television Film Exhibition Rights) minus (y) the Consolidated
current liabilities of the Borrower and its Subsidiaries (excluding Programming
Liabilities and principal of and interest on Debt), all determined as of such
date.
Net Working Investment at any date may be a positive or negative number. Net
Working Investment increases when it becomes more positive or less negative and
decreases when it becomes less positive or more negative.
"New Facility Obligations" means the Term Loan A Advances, the Term Loan
B Advances and all other obligations of the Borrower and its Subsidiaries in
connection with this Agreement.
"1994 Subordinated Note Documents" means the 1994 Subordinated Notes and
the Indenture dated as of November 14, 1994, as supplemented, among the
Borrower, as issuer, each of the Subsidiaries of the Borrower named therein as
the Initial Guarantors, as guarantors thereunder, and State Street Bank and
Trust Company, as successor trustee.
"1994 Subordinated Notes" means the Borrower's 11-3/4% Senior
Subordinated Notes due 2004.
"1995 Subordinated Note Documents" means the 1995 Subordinated Notes and
the Indenture dated as of June 1, 1995, as supplemented, among the Borrower, as
issuer, each of the Subsidiaries of the Borrower named therein as the
20
Initial Guarantors, as guarantors thereunder, and State Street Bank and Trust
Company, as successor trustee.
"1995 Subordinated Notes" means the Borrower's 10-1/8% Senior
Subordinated Notes due 2005.
"1996 Subordinated Note Documents" means the 1996 Subordinated Notes and
the Indenture dated as of January 1, 1996, as supplemented, among the Borrower,
as issuer, each of the Subsidiaries of the Borrower named therein as the Initial
Guarantors, as guarantors thereunder, and State Street Bank and Trust Company,
as trustee.
"1996 Subordinated Notes" means the Borrower's 9% Senior Subordinated
Notes due 2006.
"1997 Subordinated Note Documents" means the 1997 Subordinated Notes and
the Indenture dated as of June 15, 1997, as supplemented, among the Borrower, as
issuer, each of the Subsidiaries of the Borrower named therein as the Initial
Guarantors, as guarantors hereunder, and First Union Nation Bank, as trustee.
"1997 Subordinated Notes" means the Borrower's 8-3/4% Senior
Subordinated Notes due 2007.
"Non-Cash Expenses" means, for any accounting period, expenses properly
attributable to such period for depreciation, amortization (including
amortization of film rights) and other non-cash items as determined in
accordance with generally accepted accounting principles; provided that Non-Cash
Expenses shall include amortization of transaction fees and expenses incurred in
connection with the Closing Date Transactions (as defined herein) and non-cash
compensation provided to employees of the Borrower or any of its Subsidiaries.
"Notes" means the Term Loan A Notes and the Term Loan B Notes.
"Notice of Borrowing" has the meaning specified in Section 2.02.
"Notice of Debt to Operating Cash Flow Ratio" means (i) until the
Borrower delivers a Notice of Debt to Operating Cash Flow Ratio pursuant to
Section 5.03(a), the certificate delivered by the Borrower pursuant to Section
------
3.01(g)(21) and (ii) thereafter, a Notice of Debt to Operating Cash Flow Ratio
-------
delivered pursuant to Section 5.03(a).
-------
21
"Notice of Interest Rate Election" has the meaning specified in Section
2.15.
----
"Obligations" means all obligations described in any Loan Document.
"Operating Cash Flow" means, for any accounting period, the amount
calculated as follows:
Consolidated Net Income for such period,
plus to the extent deducted in determining such Consolidated
Net Income, Consolidated Non-Cash Expenses and any other
extraordinary non-cash losses (including any losses from
the sale of assets) for such period,
plus Total Interest Expense (net of interest income),
plus Consolidated income tax expense for such period,
plus if such accounting period includes any one or more of the
first twelve consecutive calendar months, following the
Closing Date, the amount identified as "Total Cost
Savings" opposite the latest such month on Schedule 1.01-
2 (each, a "Total Cost Savings Add-Back"),
minus all cash payments in respect of income taxes by the Borrower or
any of its Subsidiaries during such period,
minus to the extent included in Consolidated Net Income for such
period, any extraordinary non-cash gains (including gains from
the sale of assets) for such period,
minus Consolidated cash payments of Film Expense made during such
period,
all determined in accordance with generally accepted accounting principles;
provided that if any Permitted Acquisition (including for purposes of this
definition the Acquisition) occurs during such accounting period, the
calculation of Operating Cash Flow for such accounting period shall give effect,
on a Pro Forma Basis, to the items set forth above for periods during such
accounting period but prior to the closing date for such Permitted Acquisition,
to the extent
22
such items are properly attributable to the acquired assets or properties,
related costs or expenses or the financing therefor.
"Original Existing Credit Agreement" has the meaning specified in the
first recital to this Agreement.
"Other Term Loan A Advances" means Term Loan A Advances (as defined in
the Existing Credit Agreement) made to the Borrower and outstanding under the
Existing Credit Agreement.
"Other Financings" means the loans contemplated to be made pursuant to
the Other Financing Documents.
"Other Financing Documents" means the Existing Credit Agreement, the
Bridge Facility, the Bridge Guaranty Agreements, the Bridge Security Agreements
and the Bridge Pledge Agreement, including the exhibits and schedules thereto
and all agreements, documents and instruments executed and delivered pursuant
thereto or in connection therewith.
"Other Transaction Documents" means the Acquisition Documents and the
Other Financing Documents and, in each case, all amendments thereto.
"Parent" means, with respect to any Lender, any Person controlling such
Lender.
"Participant" has the meaning specified in Section 8.07(b).
"Payment Date" means the last day of each March, June, September and
December (or, if such day is not a Domestic Business Day, the next succeeding
Domestic Business Day), commencing with the first such date occurring after the
Closing Date.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Acquisition" means an acquisition by any one or more
wholly-owned Subsidiaries of the Borrower of any one or more television stations
or of any one or more businesses incidental to the ownership and operation of
television stations (which shall include any television representation
business), or an acquisition by the Borrower or any one or more wholly-owned
Subsidiaries of the Borrower of all of the capital stock of a corporation
principally engaged in owning one or more television stations or one or more
businesses incidental to the ownership and operation of such television
stations; provided that:
23
(a) at least ten (10) days prior to the closing date for such
acquisition, the Borrower shall have delivered to each of the Lenders
(i) a compliance certificate, substantially in the form of Exhibit J,
certifying the Borrower's compliance with the provisions of this
Agreement set forth in Exhibit J, as of the most recent date for
compliance prior to the date of such certificate, and also demonstrating
that the Debt to Operating Cash Flow Ratio as of such date would be less
than 6.0x, in all cases after giving effect on a Pro Forma Basis to such
acquisition, and (ii) a report of the chief financial officer of the
Borrower, in a form and providing sufficient detail and justification
for the information provided therein, including assumptions, as shall be
found to be reasonable by each of the Agents in its sole good faith
discretion, after completion of reasonable due diligence, establishing
that, after giving effect to such acquisition and the financing
therefor, the Borrower shall be in compliance at the end of each fiscal
year until the Termination Date (determined without regard to any
potential but not yet fixed acceleration of Term Loan A Advances or
Other Term Loan A Advances on account of any failure to Refinance) with
the covenants contained in Sections 5.01(l), 5.01(m), 5.01(n), 5.01(o),
------- ------- ------- -------
5.02(a), 5.02(b), 5.02(d), 5.02(f), 5.02(g) and 5.02(h);
------- ------- ------- ------- ------- -------
(b) at the time of such acquisition, no Default is then
continuing or would result therefrom; and
(c) at the time of such acquisition, the stock of any new
Subsidiaries of the Borrower acquired or created in connection therewith
or resulting therefrom shall be pledged to the Administrative Agent for
its benefit and the benefit of the Lenders, each of such new
Subsidiaries shall become a Guarantor hereunder and each of such new
Subsidiaries shall grant liens and security interests in all of its
assets to the Administrative Agent for its benefit and the benefit of
the Secured Parties, all as more fully set forth in Section 3.03 (or, in
----
the case of the Acquisition, Section 3.01).
----
provided further that, for the avoidance of doubt, the parties hereto agree that
the Acquisition will be a Permitted Acquisition without the requirement that the
Borrower satisfy the requirements of clause (a) above in connection therewith.
"Permitted Acquisition Deposit" means a deposit made by the Borrower or
any of its Subsidiaries pursuant to any purchase agreement to which it is or is
to be a party in connection with an acquisition that it proposes to make as a
Permitted Acquisition; provided that at the time of the making of such deposit,
no Default is then continuing or would result therefrom.
24
"Permitted Acquisition Mortgage" has the meaning specified in Section
3.03(e)(5).
"Permitted Asset Sale" means any Asset Sale by the Borrower or any of
its Subsidiaries (a) where the Net Proceeds of such Asset Sale, when added to
the Net Proceeds of any related Asset Sales, are less than $1,500,000, unless
such Asset Sale is the disposition of property and assets comprising a
television station or a business incidental thereto; or (b) where the Net
Proceeds of such Asset Sale are greater than or equal to $1,500,000 or such
Asset Sale is the disposition of property and assets comprising a television
station or a business incidental thereto, if (x) before and after giving effect
thereto no Default shall have occurred abe continuing; (y) except in the case of
a Qualifying FCC-Mandated Sale, the aggregate total amount of the Asset
Operating Cash Flow with respect to all such Asset Sales since the Closing Date
(excluding any Qualifying FCC-Mandated Sale) constitutes less than fifteen
percent (15%) of the greatest amount of Operating Cash Flow for any consecutive
twelve-month period commencing after the Closing Date; and (z) at least ten (10)
days prior to the date of each such Asset Sale, the Borrower shall have
delivered to each of the Lenders (i) a compliance certificate, substantially in
the form of Exhibit J, certifying the Borrower's compliance with the provisions
of this Agreement set forth in Exhibit J, as of the most recent date for
compliance prior to the date of such certificate, after giving effect on a Pro
Forma Basis to such Asset Sale, and (ii) a report of the chief financial officer
of the Borrower, in a form and providing sufficient detail and justification for
the information provided therein, including assumptions, as shall be found to be
reasonable by each of the Agents in its sole good faith discretion, after
completion of reasonable due diligence, establishing that after giving effect to
such Asset Sale, the Borrower shall be in compliance at the end of each fiscal
year until the Termination Date (determined without regard to any potential but
not yet fixed acceleration of Term Loan A Advances or Other Term Loan A Advances
on account of any failure to Refinance) with the covenants contained in Sections
5.01(l), 5.01(m), 5.01(n), 5.01(o), 5.02(a), 5.02(b), 5.02(d), 5.02(f), 5.02(g)
------- ------- ------- ------- ------- ------- ------- ------- -------
and 5.02(h).
-------
"Permitted Common Stock Purchase Amount" means the lesser of (i)
$680,000,000 less the cash portion of the purchase price for the Acquisition and
(ii) $30,000,000.
"Permitted Holders" means (i) any of ▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇; (ii)
the spouse, ancestors, siblings, descendants (including children or
grandchildren by adoption) of any such siblings or the spouse of any of the
Persons described in clause (i); (iii) in the event of the incompetence or death
of any of the Persons described in clauses (i) and (ii), such Person's estate,
executor, administrator, committee or other personal representative, in each
case who at any
25
particular date shall beneficially own or have the right to acquire, directly or
indirectly, capital stock of the Borrower; (iv) any trusts created for the
benefit of the Persons described in clause (i), (ii) or (iii) or any trust for
the benefit of any such trust; or (v) any Person controlled by any of the
persons described in clause (i), (ii), (iii), or (iv).
"Permitted Liens" means:
(i) Liens for taxes, assessments or governmental charges or
claims the payment of which is not at the time required by Section
5.01(f);
-------
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics and materialmen incurred in the ordinary course
of business for sums not yet due or being contested in good faith and by
appropriate proceedings promptly initiated and diligently conducted, if
a reserve or other appropriate provision, if any, as shall required by
generally accepted accounting principles shall have been made therefor;
(iii) Liens, other than Liens created by Section 4068 of ERISA,
incurred or deposits made in the ordinary course of business in
connection with workmen's compensation, unemployment insurance and other
types of social security, or to secure the performance of tenders,
statutory obligations, surety, customs and appeal bonds, bids, leases,
performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
(iv) Liens, securing obligations in an aggregate amount existing
from time to time not to exceed $2,000,000, which Liens (A) arise in the
ordinary course of business, (B) do not secure Debt or Derivatives
Obligations and (C) do not in the aggregate materially detract from the
value of the assets of the Borrower or any of its Subsidiaries or
materially impair the use thereof in the operation of such party's
business;
(v) leases or subleases granted to others in the ordinary
course of business or existing on property at the time acquired and not
interfering with the ordinary conduct of the business of the Borrower or
any of its Subsidiaries;
(vi) Permitted Encumbrances, as defined in each Mortgage,
with respect to the Real Property covered thereby;
26
(vii) purchase money Liens upon or in any property acquired or
held by the Borrower or any of its Subsidiaries in the ordinary course
of business to secure the purchase price of such property or to secure
Debt incurred solely for the purpose of financing the acquisition of
such property, or Liens existing on such property at the time of its
acquisition, or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount; provided that (A) the
aggregate amount of the obligations secured by Liens described in this
clause (vii) that are outstanding or existing at any time shall not
exceed $25,000,000 and (B) no such Lien shall extend to or cover any
property other than the property being acquired, and no such extension,
renewal or replacement shall extend to or cover any property not
theretofore subject to the Lien being extended, renewed or replaced;
provided further that Liens on property acquired or held by the Borrower
or any of its Subsidiaries to secure the purchase price of any Asset
Purchase or Permitted Acquisition or to secure Debt incurred for the
purpose of financing any Asset Purchase or Permitted Acquisition are
understood not to be Liens described of a type in this clause (vii);
(viii) Liens existing on the Closing Date and set forth in
Schedule 4.01(i) of this Agreement;
(ix) Liens created by the Collateral Documents;
(x) one or more attachments or judgment Liens not exceeding
$1,000,000 in the aggregate unless the judgment such Lien secures shall
not, within 30 days after the entry thereof, have been discharged or
execution thereof stayed pending appeal, or shall not have been
discharged within 30 days after the expiration of any such stay; and
(xi) Liens created after the Closing Date upon any Real
Property owned by the Borrower or any of its Subsidiaries; provided that
(A) such Liens shall be junior and subordinate to the Liens created by
or pursuant to the Loan Documents, (B) the aggregate amount of the
obligations secured by such Liens shall not at any time exceed
$10,000,000 and (C) each of such Liens and such Liens in the aggregate
must not interfere with the ordinary conduct of business of the Borrower
or any of its Subsidiaries;
provided that no Lien in favor of the PBGC shall, in any event, be a "Permitted
Lien"; and provided further that no Lien shall constitute a Permitted Lien on
and after the commencement in respect thereof of any enforcement, collection,
27
execution, levy or foreclosure proceeding where such Lien secures any obligation
in an amount equal to or exceeding $100,000.
"Permitted Subordinated Debt" means Debt other than Existing
Subordinated Debt for which the Borrower is directly and primarily liable, but
which may be guaranteed by any one or more Guarantors (provided that any
obligations of any Guarantor in respect thereof are subordinate to such
Guarantor's obligations under the Guaranty Agreements to the same extent and on
similar terms as such Guarantor's obligations in respect of the Existing
Subordinated Debt), and which (v) is subordinated in right of payment to the
prior payment in full in cash of all of the obligations of the Borrower and the
Guarantors to pay principal of and interest on the Notes and all fees and other
amounts payable hereunder or under any other Loan Document, pursuant to
subordination provisions that are no less favorable to the Lenders than the
subordination provisions for any Existing Subordinated Debt; (w) contains no
mandatory redemption provisions which would require any redemption in
circumstances in which the mandatory redemption provisions for any Existing
Subordinated Debt would not require redemption of any Existing Subordinated
Debt; (x) contains financial covenants and events of default that are no more
onerous to the Borrower and its Subsidiaries than the financial covenants and
events of default for any Existing Subordinated Debt; (y) has a maturity date no
earlier than June 15, 2007; and (z) is not secured by any Lien; provided that at
least fifteen (15) days prior to the incurrence of such Debt, the Borrower shall
have delivered to each of the Lenders (i) a compliance certificate,
substantially in the form of Exhibit J, certifying the Borrower's compliance
with the provisions of this Agreement set forth in Exhibit J, as of the most
recent date for compliance prior to the date of such certificate, after giving
effect on a Pro Forma Basis to the incurrence of such Debt, and (ii) a report of
the chief financial officer of the Borrower, in a form and providing sufficient
detail and justification for the information provided therein, including
assumptions, as shall be found to be reasonable by each of the Agents in its
sole good faith discretion, after completion of reasonable due diligence,
establishing that after giving effect to the incurrence of such Debt, the
Borrower shall be in compliance at the end of each fiscal year until the
Termination Date (determined without regard to any potential but not yet fixed
acceleration thereof or account of any failure to Refinance) with the covenants
contained in Sections 5.01(l), 5.01(m), 5.01(n), 5.01(o), 5.02(a), 5.02(b),
------- ------- ------- ------- ------- -------
5.02(d), 5.02(f), 5.02(g) and 5.02(h).
------- ------- ------- -------
"Permitted Subordinated Debt Repurchase" means a prepayment, redemption,
defeasance or purchase of any Existing Subordinated Debt or Permitted
Subordinated Debt to the extent permitted by clause (v) of Section 5.02(h).
-------
28
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.
"Plan" means an employee benefit plan, other than a Multiemployer Plan,
(i) which is maintained for employees of the Borrower or any ERISA Affiliate and
subject to Title IV of ERISA or (ii) which could subject the Borrower or any
ERISA Affiliate to liability under Section 4069 of ERISA in the event that such
plan has been or was to be terminated.
"Pledge Agreements" means the Borrower Pledge Agreement, the Guarantor
Pledge Agreements and the Bridge Pledge Agreement.
"Pledged Instruments" means the Pledged Instruments as defined in the
Pledge Agreements and all Instruments as defined in the Security Agreements.
"Pledged Stock" has the meaning specified in the Pledge Agreements.
"Pricing Schedule" means the Schedule attached hereto and identified as
such.
"Prime Rate" means the rate of interest publicly announced by BTCo in
New York City from time to time as its Prime Rate.
"Pro Forma Basis" means, at any time, a pro forma basis as agreed among
the Borrower and the Agents at such time.
"Pro Forma Debt Service" means, at any date, the sum of (i) Total
Interest Expense for the four consecutive Fiscal Quarters then most recently
ended plus (ii) the aggregate amount of all scheduled principal payments
(including mandatory principal repayments required by Section 2.04 hereof and
----
Section 2.04 of the Existing Credit Agreement), including the portion of any
----
payments under Capital Leases that is allocable to principal, for the four
consecutive Fiscal Quarters immediately following the Fiscal Quarter during
which such date occurs, provided that Pro Forma Debt Service (x) shall not
include any amount in respect of any principal of the Term Loan B Advances or
Revolving Advances (as defined in the Existing Credit Agreement), and (y) shall
be determined without regard to any potential but not yet fixed acceleration of
Term Loan A Advances or Other Term Loan A Advances on account of any failure to
Refinance.
"Programming Liabilities" means, as to any Person, all obligations of
such Person under contracts for the acquisition of broadcast rights to
television
29
programs and films, as determined in accordance with generally accepted
accounting principles.
"Quad Cities Joint Venture" means PCI/RIBCO, the joint venture formed
pursuant to the Joint Venture Agreement dated as of September 30, 1981, between
YB of ▇▇▇▇▇▇▇▇▇, as successor to ▇▇▇▇▇▇ Communications Incorporated, and Coronet
Communications Company, as successor to Rock Island Broadcasting Co.
"Qualifying FCC-Mandated Sale" means an Asset Sale by the Borrower or
any of its Subsidiaries (a) which is the disposition of property and assets
comprising a television station or a business incidental thereto, (b) which is
required by the FCC as a condition to or otherwise in connection with a
Permitted Acquisition and (c) where Operating Cash Flow on a Pro Forma Basis for
the twelve-month period immediately after the consummation of both such Asset
Sale and the related Permitted Acquisition is at least ninety-five percent (95%)
of the greatest amount of Operating Cash Flow for any consecutive twelve-month
period commencing after the Closing Date (but prior to the earlier of such FCC-
Mandated Sale and such related Permitted Acquisition).
"Real Property" means all of the Borrower's and its Subsidiaries' right,
title and interest (including Leaseholds) in and to land, improvements and
fixtures, including, without limitation, the "Property" described in each of the
Mortgages.
"Reference Banks" means the CD Reference Banks or the Eurodollar
Reference Banks, as the context may require, and "Reference Bank" means any one
of such Reference Banks.
"Refinance" means, when used with reference to any Existing Subordinated
Debt, that the Borrower has repaid in full the outstanding principal amount of
such Existing Subordinated Debt, together with accrued interest and any premium,
using only the proceeds of Permitted Subordinated Debt issued no more than three
months prior to the date of such repayment; "Refinancing" has a corresponding
meaning.
"Refinancing Permitted Subordinated Debt" means Permitted Subordinated
Debt incurred by the Borrower, the Net Proceeds of which shall be used at the
time of issuance thereof solely for the prepayment, redemption, defeasance or
purchase of any Existing Subordinated Debt or Permitted Subordinated Debt to the
extent permitted by clause (iv) of Section 5.02(h).
-------
"Register" has the meaning specified in Section 8.07(f).
-------
30
"Regulation T" means Regulation T of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Related Documents" means the Acquisition Documents, the Subordinated
Debt Documents and the Other Financing Documents and, in each case, all
amendments thereto.
"Restricted Payment" means, (i) any dividend or other distribution on
any shares of the Borrower's capital stock (except dividends payable solely in
shares of its capital stock of the same class) or (ii) any payment on account
of the purchase, redemption, retirement, defeasance, acquisition, return or
distribution with respect to (a) any shares of the Borrower's capital stock or
(b) any option, warrant or other right to acquire shares of the Borrower's
capital stock.
"Secured Parties" means the Secured Parties as defined in the Collateral
Documents.
"Security Agreements" means the Borrower Security Agreement, the
Guarantor Security Agreements and the Bridge Security Agreements.
"Senior Debt" means, as of any date, the aggregate unpaid principal
amount on such date of all Debt of the Borrower and its Subsidiaries other than
the Existing Subordinated Debt and Permitted Subordinated Debt.
"Senior Debt to Operating Cash Flow Ratio" means, as of any day, the
ratio of Senior Debt as of the last day of the then ending or most recently
ended Fiscal Quarter to Operating Cash Flow for the four consecutive Fiscal
Quarters ending on such last day.
"Solvency Certificate" has the meaning specified in Section 3.01(g)(11).
"Solvent" means, with respect to any Person on a particular date, that
on such date (i) the fair value of the property of such Person is greater than
the total amount of its liabilities (including, without limitation, liabilities
on all claims, whether or not reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured) of such Person, (ii) the present fair salable value of the
assets of such Person not less than the amount that will be required to pay the
probable liability of such Person on its existing debts as they become absolute
and matured, (iii) such Person is able to realize upon its assets and pay its
debts and other liabilities,
31
contingent obligations and other commitments as they mature in the normal course
of business, (iv) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature and (v) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person's property would constitute unreasonably small capital after giving
due consideration to the prevailing practice in each respective industry in
which such person is engaged.
"SPC" means a special purpose corporation that (i) is organized under
the laws of the United States or any state thereof, (ii) is engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary course of
its business and (iii) issues (or the parent of which issues) commercial paper
rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the
equivalent thereof by Moody's.
"Subordinated Debt Documents" means the 1994 Subordinated Note
Documents, the 1995 Subordinated Note Documents, the 1996 Subordinated Note
Documents, the 1997 Subordinated Note Documents and any notes, indentures and
other documents governing any other Permitted Subordinated Debt, and, in each
case, all amendments thereto.
"Subsidiary" of any Person means (i) any corporation of which more than
50% of the outstanding capital stock having ordinary voting power to elect a
majority of the Board of Directors of such corporation (irrespective of whether
or not at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such Person, by such
Person and one or more other Subsidiaries, or by one or more other Subsidiaries
and (ii) any partnership, joint venture or similar entity of which the Borrower
or any Subsidiary is, directly or indirectly, a general partner or of which the
Borrower or any Subsidiary has the right, directly or indirectly, by law,
contract or otherwise, to control or to manage the business and affairs,
including without limitation the KLFY Partnership, the WKRN Partnership and the
WATE Partnership; provided that no Tower Affiliate shall be deemed to be a
Subsidiary of the Borrower or of any of its Subsidiaries.
"Syndication Agents" means FUNB and CIBC in their capacity as
Syndication Agents for the Lenders hereunder, and their successors in such
capacity.
"Target Refinancing Date" means (i) August 15, 2004 with respect to the
Refinancing of the 1994 Subordinated Notes, (ii) November 15, 2004 with respect
32
to the Refinancing of the 1995 Subordinated Notes and (iii) October 15, 2005
with respect to the Refinancing of the 1996 Subordinated Notes.
"Television Film Exhibition Rights" means the asset on the Borrower's
Consolidated balance sheet which, in accordance with generally accepted
accounting principles, should represent contract rights of the Borrower and its
Consolidated Subsidiaries relating to television film exhibition.
"Temporary Cash Investments" means (i) commercial paper of any
corporation incorporated under the laws of the United States of America or any
State thereof rated (x) at least P-1 or its equivalent by ▇▇▇▇▇'▇ Investors
Service, Inc. or A1 or its equivalent by Standard and Poor's Corporation or
(y)at least A3 or its equivalent by ▇▇▇▇▇'▇ Investors Services, Inc. or P-3 or
its equivalent by Standard and Poor's Corporation if the Senior Debt to
Operating Cash Flow Ratio on the date of acquisition is less than 2.0x, in
either case maturing within 2day of the date of acquisition thereof, (ii) direct
obligations of, or obligations the principal of or any interest on which are
unconditionally guaranteed by, the United States of America, in each case
maturing within one year from the date of acquisition thereof by the Borrower or
any Subsidiary (as the case may be) and (iii) any time deposit with, including
certificates of deposit issued by, a commercial bank of recognized standing
operating in the United States of America having combined capital and surplus of
at least $50,000,000.
"Term Loan A Advance" has the meaning specified in Section 2.01(a).
-------
"Term Loan A Borrowing" means a borrowing consisting of Term Loan A
Advances made or Converted on the same day by the Lenders having Term Loan A
Commitments.
"Term Loan A Commitment" means, with respect to each Lender, the amount
set forth opposite such Lender's name on Appendix I hereto under the caption
"Term Loan A Commitment", in each case as such amount may be reduced or
terminated pursuant to Section 2.07 or 6.01; provided that if at any time a
---- ----
Lender shall have entered into one or more Assignment and Assumption Agreements,
such Lender's Term Loan A Commitment thereafter shall be the amount set forth
for such Lender as its Term Loan A Commitment in the Register maintained by the
Administrative Agent pursuant to Section 8.07(f), as such amount may be reduced
-------
or terminated pursuant to Section 2.07 or 6.01.
---- ----
"Term Loan A Note" means a promissory note issued by the Borrower
payable to the order of a Lender, in substantially the form of Exhibit A-1
hereto, evidencing the indebtedness of the Borrower to such Lender in respect of
the Term Loan A Advances made by such Lender.
33
"Term Loan A Termination Date" means the earlier of (i) November 30,
2005, (ii) the date of termination in whole of the Term Loan A Commitments
pursuant to Section 2.07 or 6.01, (iii) September 30, 2004, but only if the
---- ----
Borrower fails to Refinance the 1994 Subordinated Notes on or before August 15,
2004, and (iv) December 31, 2004, but only if the Borrower fails to Refinance
the 1995 Subordinated Notes on or before November 15, 2004.
"Term Loan B Advance" has the meaning specified in Section 2.01(b), and,
-------
if additional advances are made pursuant to Section 2.21, the term "Term Loan B
----
Advance" shall include such advances.
"Term Loan B Advance Prepayment Notice" has the meaning specified in
Section 2.09(c)(i).
----------
"Term Loan B Advance Unscheduled Payment" has the meaning specified in
Section 2.09(c)(i).
----------
"Term Loan B Borrowing" means a borrowing consisting of Term Loan B
Advances made or Converted on the same day by the Lenders having Term Loan B
Commitments.
"Term Loan B Note" means a promissory note issued by the Borrower
payable to the order of a Lender, in substantially the form of Exhibit A-2
hereto, evidencing the indebtedness of the Borrower to such Lender in respect of
the Term Loan B Advances made by such Lender.
"Term Loan B Commitment" means, with respect to each Lender, the amount
set forth opposite such Lender's name on Appendix I hereto under the caption
"Term Loan B Commitment", in each case as such amount may be reduced or
terminated pursuant to Section 2.07 or 6.01; provided that if at any time a
---- ----
Lender shall have entered into one or more Assignment and Assumption Agreements,
such Lender's Term Loan B Commitment thereafter shall be the amount set forth
for such Lender as its Term Loan B Commitment in the Register maintained by the
Administrative Agent pursuant to Section 8.07(f), as such amount may be reduced
-------
or terminated pursuant to Section 2.07 or 6.01.
---- ----
"Term Loan B Lenders" means each Lender (a) before the Closing Date,
having a Term Loan B Commitment and (b) thereafter, having an outstanding Term
Loan B Advance, including any Person that becomes such a Lender pursuant to
Section 2.21.
----
"Term Loan B Termination Date" means the earlier of (i) December 31,
2006, and (ii) the date of termination in whole of the Term Loan B Commitments
34
pursuant to Section 2.07 or 6.01, as well as, subject to the fourth proviso of
---- ----
Section 8.01(a), (iii) October 30, 2004, but only if the Borrower fails to
-------
Refinance the 1994 Subordinated Notes on or before August 15, 2004, (iv) January
30, 2005, but only if the Borrower fails to Refinance the 1995 Subordinated
Notes on or before November 15, 2004, and (v) November 30, 2005, but only if the
Borrower fails to Refinance the 1996 Subordinated Notes on or before October 15,
2005.
"Termination Date" means the latest to occur of the Term Loan A
Termination Date, the Term Loan B Termination Date and the date when all Term
Loan A Advances and Term Loan B Advances shall have terminated or been repaid in
full.
"Termination Event" means (i) a "reportable event", as such term is
described in Section 4043 of ERISA (other than a "reportable event" as to which
the 30-day notice requirement has been waived by the PBGC), or an event
described in Section 4068(a) of ERISA, or (ii) the withdrawal of the Borrower or
any ERISA Affiliate from a Multiple Employer Plan during a plan year in which it
was a "substantial employer", as such term is defined in Section 4001(a)(2) of
ERISA, or the incurrence of liability by the Borrower or any ERISA Affiliate
under Section 4064 of ERISA upon the termination of a Multiple Employer Plan, or
(iii) providing notice of intent to terminate a Plan pursuant to Section
4041(a)(2) of ERISA or the treatment of a Plan amendment as a termination under
Section 4041 of ERISA, or (iv) the institution of proceedings to terminate a
Plan by the PBGC under Section 4042 or ERISA, or (v) any other event or
condition which might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan.
"Total Interest Expense" means, for any accounting period, the
Consolidated amount of all interest charges, whether expensed or capitalized,
including the portion of any obligation under Capital Leases allocable to
interest expense in accordance with generally accepted accounting principles
(after giving effect to all costs of, and savings realized by, each interest
rate swap or cap agreement which the Borrower may enter into with respect to
interest payable on any Debt or any portion thereof) and all premiums and other
amounts that are amortized (other than interest charges and principal), in each
case with respect any Debt of the Borrower or any of its Subsidiaries during
such period; provided that if any Permitted Acquisition (including for purposes
of this definition the Acquisition) occurs during such accounting period, the
calculation of Total Interest Expense for such accounting period shall give
effect, on a Pro Forma Basis, to the items set forth above for periods during
such accounting period but prior to the closing date for such Permitted
Acquisition, to the extent such items are properly attributable to the acquired
assets or properties, related costs or expenses or the financing therefor.
35
"Tower Affiliate" means (i) the Quad Cities Joint Venture, (ii) CTSI and
(iii) any other Person (A) of which the Borrower or any Guarantor shall acquire
an ownership interest as a result of a Permitted Acquisition and (B) of which
the sole activity is the ownership and operation of a transmission tower or
towers.
"Trade Debt" means, for any accounting period, accounts payable accrued
during such period for the deferred purchase price of property or services (but
excluding Film Expense) to the extent such payables and obligations are not
overdue by more than 6 months.
"Type" has the meaning specified in the definition of the term "Advance"
contained in this Article 1.
"Unscheduled Prepayment Date" has the meaning specified in Section
2.09(c)(i).
----------
"Voting Stock" of any Person means stock of any class or classes (or
equivalent interests), if the holders of the stock of such class or classes (or
equivalent interests) are ordinarily, in the absence of contingencies, entitled
to vote for the election of a majority of the directors (or persons performing
similar functions) of such Person, even though the right so to vote has been
suspended by the happening of such a contingency.
"WATE Partnership" means WATE, G.P., a Delaware general partnership of
which YB of Knoxville and YBK are the sole general partners and which is
governed by the WATE Partnership Agreement.
"WATE Partnership Agreement" means the Agreement of Partnership of WATE,
G.P. dated as of November 10, 1994 between YB of Knoxville and YBK, as the same
may be amended from time to time.
"Withdrawal Liability" shall have the meaning given such term under Part
I of Subtitle E of Title IV of ERISA.
"WKRN Partnership" means WKRN, G.P., a Delaware general partnership of
which YB of Nashville and YBT are the sole general partners and which is
governed by the WKRN Partnership Agreement.
"WKRN Partnership Agreement" means the Agreement of Partnership of WKRN,
G.P. dated as of December 29, 1989 by and among YB of Nashville and YBT, as the
same may be amended from time to time.
36
"YB of ▇▇▇▇▇▇▇▇▇" means Young Broadcasting of ▇▇▇▇▇▇▇▇▇, Inc., a
Delaware corporation.
"YB of Knoxville" means Young Broadcasting of Knoxville, Inc., a
Delaware corporation.
"YB of Los Angeles" means Young Broadcasting of Los Angeles, Inc., a
Delaware corporation.
"YB of Louisiana" means Young Broadcasting of Louisiana, Inc., a
Delaware corporation.
"YB of Nashville" means Young Broadcasting of Nashville, Inc., a
Delaware corporation.
"YB of Rapid City" means Young Broadcasting of Rapid City, Inc., a
Delaware corporation.
"YB of San Francisco" has the meaning specified in the second recital to
this Agreement.
"YB of Sioux Falls" means Young Broadcasting of Sioux Falls, Inc., a
Delaware corporation.
"YBK" means YBK, Inc., a Delaware corporation and wholly owned
subsidiary of the Borrower.
"YBT" means YBT, Inc., a Delaware corporation and wholly owned
subsidiary of the Borrower.
Section 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
Section 1.03. Accounting Terms. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be delivered
hereunder shall be prepared in accordance with generally accepted accounting
principles as in effect from time to time, applied on a basis consistent (for
changes concurred in by the Independent Public Accountants) with the most recent
audited consolidated financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Lenders; provided that, if there is a
37
change in generally accepted accounting principles at any time and the Borrower
notifies the Administrative Agent that the Borrower wishes to amend any covenant
in Article 5 (or the definition of any term used therein), as well as the
-
comparable provisions of the Existing Credit Agreement, to eliminate the effect
of such change on the operation of such covenant (or if the Administrative Agent
notifies the Borrower that the Majority Lenders wish to amend Article 1 or 5, as
- -
well as the comparable provisions of the Existing Credit Agreement, for such
purpose), then the Borrower's compliance with such covenant shall be determined
on the basis of generally accepted accounting principles in effect immediately
before the relevant change in generally accepted accounting principles became
effective, until either such notice is withdrawn or such covenant is amended in
a manner satisfactory to the Borrower and the Majority Lenders.
ARTICLE 2
Amounts and Terms of the Advances
Section 2.01. The Advances.
(a) The Term Loan A Advances. (i) Each Lender severally agrees, on the
terms and conditions set forth herein, to make a single advance to the Borrower
on the Closing Date (each such advance, a "Term Loan A Advance") pursuant to
this Section 2.01(a) in an amount equal to the amount of such Lender's Term Loan
-------
A Commitment. Each Term Loan A Advance made on the Closing Date shall be a Base
Rate Advance and shall remain a Base Rate Advance until Converted to a Fixed
Rate Advance pursuant to Section 2.15.
----
(ii) [Intentionally Omitted]
(iii) The Term Loan A Advances are not revolving in nature and any
amounts of any Term Loan A Advances that are repaid pursuant to Section
2.04 or prepaid pursuant to Section 2.09 or Section 2.17 may not be
---- ---- ----
reborrowed. The Term Loan A Commitments shall terminate at the close of
business on the Closing Date.
(b) The Term Loan B Advances. (i) Each Lender severally agrees, on the
terms and conditions set forth herein, to make a single advance to the Borrower
on the Closing Date (each such advance, a "Term Loan B Advance") pursuant to
this Section 2.01(b) in an amount equal to the amount of such Lender's Term Loan
-------
B Commitment. Each Term Loan B Advance made on the Closing Date shall be a Base
Rate Advance and shall remain a Base Rate Advance until Converted to a Fixed
Rate Advance pursuant to Section 2.15.
----
38
(ii) [Intentionally Omitted]
(iii) The Term Loan B Advances are not revolving in nature and any
amounts of any Term Loan B Advances that are repaid pursuant to Section
2.04 or prepaid pursuant to Section 2.09 or Section 2.17 may not be
---- ---- ----
reborrowed. The Term Loan B Commitments shall terminate at the close of
business on the Closing Date.
Section 2.02. Method of Borrowing. (a) The Borrower shall give the
Administrative Agent notice (a "Notice of Borrowing") of the Borrowings to be
made on the Closing Date no later than the Domestic Business Day prior to the
Closing Date, specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day,
(ii) the aggregate amount of such Borrowing, and
(iii) the Type of Advances comprising such Borrowing.
(b) Upon receipt of a Notice of Borrowing, the Administrative Agent
shall promptly notify each Lender of the contents thereof and of such Lender's
share of such Borrowing and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(c) Not later than Noon (New York City time) on the Closing Date, each
Lender shall make available its share of such Borrowing, in Federal or other
funds immediately available in New York City, to the Administrative Agent at its
address specified in or pursuant to Section 8.02. Unless the Administrative
----
Agent determines that any applicable condition specified in Article 3 has not
been satisfied, the Administrative Agent will make the funds so received from
the Lenders available to the Borrower at the Administrative Agent's aforesaid
address.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of Borrowing that such Lender will not make available
to the Administrative Agent such Lender's share of Borrowing, the Administrative
Agent may assume that such Lender has made such share available to the
Administrative Agent on the Closing Date in accordance with subsection (c) of
this Section 2.02 and the Administrative Agent may, in reliance upon such
----
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent that such Lender shall not have so made such share
39
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of the Borrower, a rate
per annum equal to the higher of the Federal Funds Rate and the interest rate
applicable thereto pursuant to Section 2.05 and (ii) in the case of such Lender
----
Federal Funds Rate. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Lender's
Advance included in such Borrowing for purposes of this Agreement. Nothing
herein shall affect any rights that the Borrower may have against such
defaulting Lender.
(e) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
Section 2.03. Notes. (a) The Term Loan A Advances and Term Loan B
Advances of each Lender shall be evidenced, respectively, by a Term Loan A Note
and a Term Loan B Note payable to the order of such Lender for the account of
its Applicable Lending Office in an amount equal to the aggregate unpaid
principal amount of such Lender's Term Loan A Advances and Term Loan B Advances,
respectively.
(b) Upon receipt of each Lender's Notes from the Borrower pursuant to
Section 3.01 or Section 3.04, the Administrative Agent shall mail such Notes to
---- ----
such Lender. Each Lender shall record the date, amount and maturity of each
Advance made by it and the date and amount of each payment of principal made by
the Borrower with respect thereto, and prior to any transfer of its Note shall
endorse on the schedule forming a part thereof appropriate notations to evidence
the foregoing information with respect to each such Advance then outstanding;
provided that the failure of any Lender to make any such recordation or
endorsement, or any error in such recordation or endorsement, shall not affect
the obligations of the Borrower hereunder or under the Notes. Each Lender is
hereby irrevocably authorized by the Borrower so to endorse its Note and to
attach to and make a part of its Note a continuation of any such schedule as and
when required.
Section 2.04. Maturity of Term Loan A Advances and Term Loan B Advances.
The Borrower shall repay the principal amount of all outstanding Term Loan A
Advances and Term Loan B Advances in installments on each Payment Date as set
forth in the table below. The principal amount due on each Payment
40
Date for all outstanding Term Loan A Advances and Term Loan B Advances shall be
an aggregate amount equal to the amount specified in the table below for such
Payment Date, which shall be applied ratably among the Lenders on the basis of
the aggregate amount of each Lender's outstanding Term Loan A Advances or Term
Loan B Advances, as the case may be:
Principal Amount Due on
Payment Date Specified
------------------------
Principal Amount Due
-------------------------------------------------------
Term Loan A Term Loan B
Payment Date During Advances Advances
------------------- -------------------------- --------------------------
March, 2001 4,687,500 1,187,500
June, 2001 4,687,500 1,187,500
September, 2001 4,687,500 1,187,500
December, 2001 4,687,500 1,187,500
March, 2002 6,250,000 1,187,500
June, 2002 6,250,000 1,187,500
September, 2002 6,250,000 1,187,500
December, 2002 6,250,000 1,187,500
March, 2003 6,250,000 1,187,500
June, 2003 6,250,000 1,187,500
September, 2003 6,250,000 1,187,500
December, 2003 6,250,000 1,187,500
March, 2004 6,250,000 1,187,500
June, 2004 6,250,000 1,187,500
September, 2004 6,250,000 1,187,500
December, 2004 6,250,000 1,187,500
March, 2005 7,812,500 1,187,500
June, 2005 7,812,500 1,187,500
September, 2005 7,812,500 1,187,500
December, 2005 - 1,187,500
March, 2006 - 112,812,500
June, 2006 - 112,812,500
September, 2006 - 112,812,500
provided that (i) the outstanding principal amount of the Term Loan A Advances
shall be repaid in full on the Term Loan A Termination Date, together with
accrued interest thereon to the date of repayment, and the outstanding principal
amount of the Term Loan B Advances, together with accrued interest thereon to
the date of repayment, shall be repaid in full on the Term Loan B Termination
Date (whether or not such Termination Date, as determined from time to time, is
41
earlier than any of the applicable dates above) and (ii) in the event that
additional Term Loan B Advances are made pursuant to Section 2.21 (the aggregate
----
initial amount of such additional Term Loan B Advances being referred to as the
"Additional Term Loan B Amount"), the amount of each installment in the column
"Term Loan B Advances" shall, as of the Additional Closing Date, be
automatically increased by (A) for any Payment Date after the Additional Closing
Date but before 2006, .0025% of the Additional Term Loan B Amount and (B) for
each Payment Date in 2006, an amount equal to 25% of the remainder after
subtracting from the Additional Term Loan B Amount the aggregate amount by which
all pre-2006 installments were increased pursuant to clause (A).
Section 2.05. Interest Rates. (a) Each Base Rate Advance shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Advance is made until it becomes due, at a rate per annum equal to the sum
of (i) the applicable Base Rate Margin plus (ii) the Base Rate for such day.
Except as provided in Section 2.05(f), such interest shall be payable in aon
-------
each Payment Date and, with respect to the principal amount of any Base Rate
Advance converted to a Fixed Rate Advance, on the date when such Base Rate
Advance is so converted.
(b) Each Adjusted CD Rate Advance shall bear interest on the outstanding
principal amount thereof, for each day from and after the Closing Date during
the Interest Period applicable thereto, at a rate per annum equal to the sum of
(i) the applicable CD Rate Margin plus (ii) the applicable Adjusted CD Rate,
provided that if any Adjusted CD Rate Advance or any portion thereof shall, as a
result of clause (ii)(b)(i) of the definition of Interest Period, have an
Interest Period of less than 30 days, such portion shall bear interest during
such Interest Period at the rate applicable to Base Rate Advances during such
period. Except as otherwise provided in Section 2.05(f), such interest shall be
-------
payable for each Interest Period on the last day thereof and, if such Interest
Period is longer than 90 days, at intervals of 90 days after the first day
thereof.
The "Adjusted CD Rate" applicable to any Interest Period means a rate per annum
determined pursuant to the following formula:
[ CDBR ]*
ACDR = [---------- ] + AR
[ 1.00 - DRP]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
42
____________
* The amount in brackets being rounded upwards, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the next higher 1/100 of 1%) of the prevailing rates
per annum bid at 10:00 A.M. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period by two or more New York
certificate of deposit dealers of recognized standing for the purchase at face
value from each CD Reference Bank of its certificates of deposit in an amount
comparable to the unpaid principal amount of the Adjusted CD Rate Advance of
such CD Reference Bank to which such Interest Period applies and having a
maturity comparable to such Interest Period.
"Domestic Reserve Percentage" means for any day that percentage (expressed
as a decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including without limitation any basic,
supplemental or emergency reserves) for a member bank of the Federal Reserve
System in New York City with deposits exceeding five billion dollars in respect
of new non-personal time deposits in dollars in New York City having a maturity
comparable to the related Interest Period and in an amount of $100,000 or more.
The Adjusted CD Rate shall be adjusted automatically on and as of the effective
date of any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate in effect on
such day which is payable by a member of the Bank Insurance Fund classified as
adequately capitalized and within supervisory subgroup "A" (or a comparable
successor assessment risk classification) within the meaning of 12 C.F.R.
(S)327.3(e) (or any successor provision) to the Federal Deposit Insurance
Corporation (or any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the United States. The
Adjusted CD Rate shall be adjusted automatically on and as of the effective date
of any change in the Assessment Rate.
(c) Each Eurodollar Rate Advance shall bear interest on the outstanding
principal amount thereof, for each day from and after the Closing Date during
the Interest Period applicable thereto, at a rate per annum equal to the sum of
(i) the applicable Eurodollar Margin plus (ii) the applicable Adjusted London
Interbank Offered Rate. Except as otherwise provided in Section 2.05(f), such
-------
interest shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than three months, at intervals of three
months after the first day thereof.
43
The "Adjusted London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upwards,
if necessary, to the next higher 1/100 of 1%) by dividing (i) the applicable
London Interbank Offered Rate by (ii) 1.00 minus the Eurodollar Reserve
Percentage.
The "London Interbank Offered Rate" applicable to any Interest Period means
the average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which deposits in dollars are offered to each of
the Eurodollar Reference Banks in the London interbank market at approximately
11:00 A.M. (London time) two Eurodollar Business Days before the first day of
such Interest Period in an amount approximately equal to the principal amount of
the Eurodollar Rate Advance of such Eurodollar Reference Bank to which such
Interest Period is to apply and for a period of time comparable to such Interest
Period.
"Eurodollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurodollar Rate Advances is determined or any category of extensions of credit
or other assets which includes loans by a non-United States office of any Lender
to United States residents). The Adjusted London Interbank Offered Rate shall be
adjusted automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
(d) The Administrative Agent shall determine each interest rate applicable
to the Advances hereunder. The Administrative Agent shall give prompt notice to
the Borrower and the Lenders of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(e) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated hereby. If any Reference
Bank does not furnish a timely quotation, the Administrative Agent shall
determine the relevant interest rate on the basis of the quotation or quotations
furnished by the remaining Reference Bank or Banks or, if none of such
quotations is available on a timely basis, the provisions of Section 2.16 shall
----
apply.
44
(f) Any overdue interest on any Advance shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the rate of
interest borne by such Advance for such day.
Section 2.06. Fees.
(a) Arrangement Fees. On the Closing Date, the Borrower shall pay to the
Administrative Agent, for the account of the Co-Arrangers as previously agreed
among them, arrangement fees in the amounts previously agreed among the Borrower
and the Co-Arrangers.
(b) Participation Fees. On the Closing Date, the Borrower shall pay to
the Administrative Agent, for the account of the Lenders as previously agreed
among them, participation fees in the amounts previously agreed among the
Borrower and the Co-Arrangers.
(c) Administrative Fees. On the Closing Date and on each anniversary of
the Closing Date and on the Termination Date, the Borrower shall pay to the
Administrative Agent for its own account annual administrative fees in the
amounts previously agreed between the Borrower and the Administrative Agent,
provided that if the Termination Date is not an anniversary of the Closing Date,
the administrative fees payable on the Termination Date shall be a proportionate
amount of the annual administrative fees, based on the number of days elapsed
since the immediately preceding anniversary of the Closing Date.
Section 2.07. Optional Termination or Reduction of Commitments. The
Borrower may, upon at least three Domestic Business Days' notice to the
Administrative Agent, terminate the Term Loan A Commitments or Term Loan B
Commitments at any time if no Term Loan A Advances or Term Loan B Advances,
respectively, are outstanding at such time.
Section 2.08. [Intentionally Omitted].
Section 2.09. Prepayments.
(a) Optional Prepayments. The Borrower may, upon notice to the
Administrative Agent in accordance with Section 2.09(d), prepay any Advance in
-------
whole at any time, or from time to time in part, in amounts aggregating
$5,000,000 or any larger multiple of $500,000 in the case of Term Loan A
Advances and in amounts aggregating $500,000 or any larger multiple of $100,000
in the case of Term Loan B Advances, by paying the principal amount to be
prepaid together with accrued interest thereon to the date of prepayment, in
45
the case of Term Loan B Advances, any premium payable pursuant to Section
2.09(e), and all amounts then owing under Section 2.12 in respect of such
------- ----
prepayment, provided that if the Borrower prepays any principal amount of Other
Term Loan A Advances pursuant to Section 2.09(a) of the Existing Credit
-------
Agreement, it shall pursuant to this Section prepay a principal amount of the
Term Loan A Advances that bears the same proportion to the outstanding principal
amount of Term Loan A Advances as such principal amount of Other Term Loan A
Advances bears to the outstanding principal amount of Other Term Loan A
Advances. Each such optional prepayment in respect of Term Loan A Advances or
Term Loan B Advances shall be applied to reduce ratably all then remaining
unpaid installments of principal of the Term Loan A Advances or the Term Loan B
Advances, as the case may be (based on the schedule set forth in Section 2.04,
as the amounts therein may have been reduced or increased from time to time in
accordance with this Agreement), and shall be applied ratably between the Term
Loan A Advances or the Term Loan B Advances, as the case may be, of the several
Lenders.
(b) Mandatory Prepayments.
(i) If the Debt to Operating Cash Flow Ratio as of the last day
of any Fiscal Year beginning with Fiscal Year 2001 is equal to or greater
than 5.5x, then no later than the next April 30, the Borrower shall prepay
an outstanding principal amount of the Term Loan A Advances and Term Loan B
Advances equal to the Allocable Portion of 75% of Excess Cash Flow for such
Fiscal Year. If the Debt to Operating Cash Flow Ratio as of the last day of
any Fiscal Year is less than 5.5x but greater than or equal to 5.0x, then
no later than the next April 30, the Borrower shall prepay an outstanding
principal amount of the Term Loan A Advances and Term Loan B Advances equal
to the Allocable Portion of 50% of Excess Cash Flow for such Fiscal Year.
Subject to Section 2.09(c), in each case, the Borrower shall pay the
-------
principal amount to be prepaid (allocated between the Term Loan A Advances
and the Term Loan B Advances in proportion to the outstanding principal
amount of such Advances) together with accrued interest thereon to the date
of prepayment and all amounts then owing under Section 2.12 in respect of
----
such prepayment and such prepayment shall be applied to reduce ratably all
then remaining unpaid installments of principal of the Term Loan A Advances
and Term Loan B Advances (based on the schedule set forth in Section 2.04,
----
as the amounts therein may have been reduced or increased from time to time
in accordance with this Agreement). For purposes of this Section 2.09(b):
------
(x) Excess Cash Flow for any Fiscal Year shall be determined on the basis
of the amount of Excess Cash Flow for such Fiscal Year set forth on the
certificate delivered to the Lenders pursuant to Section 5.03(t); and (y)
-------
46
Excess Cash Flow shall be determined using an amount for Operating Cash
Flow that is calculated in accordance with the definition thereof but
excluding any Total Cost Savings Add-Back (as defined in the definition of
Operating Cash Flow).
(ii) If on any date the Borrower receives the Net Proceeds of any
issuance of equity securities (including, without limitation, any common
stock, preferred stock, rights to subscribe for or to purchase, or any
warrants or options to acquire any equity security or any instrument
convertible into any equity security), then no later than the fourth
Eurodollar Business Day after such date of issuance, the Borrower shall
repay an outstanding principal amount of the Term Loan A Advances and Term
Loan B Advances equal to the Allocable Portion of such Net Proceeds ,
provided that (A) if on or before such date of issuance the Borrower has
entered into an agreement or letter of intent to make an Asset Purchase
that it reasonably expects will be a Permitted Acquisition that will be
consummated within 16 weeks of such date, the Borrower may defer making
such repayment (to the extent of the estimated cash portion of the purchase
price for such Permitted Acquisition) until the earlier of the date it
consummates such Permitted Acquisition and the date 16 weeks after such
date of issuance, and the principal amount of Term Loan A Advances and Term
Loan B Advances required to be repaid shall be the Allocable Portion of the
excess of such Net Proceeds (less any amount repaid concurrently with such
date of issuance on account of such Net Proceeds) over the cash portion of
the purchase price actually paid for such Permitted Acquisition by such
date and (B) if at the date of such issuance (1) the Senior Debt to
Operating Cash Flow Ratio is less than 2.0x and (2) the Borrower is in good
faith considering making a redemption of any Permitted Subordinated Debt
within the next 12 weeks, the Borrower may defer making such repayment (to
the extent of the estimated amount to be applied to such redemption) until
the earlier of the date it makes such redemption and the date 12 weeks
after such date of issuance, and the principal amount of Term Loan A
Advances and Term Loan B Advances required to be repaid shall be the
Allocable Portion of the excess of such Net Proceeds (less any amount
repaid concurrently with such date of issuance on account of such Net
Proceeds) over the amount actually applied to redeem Permitted Subordinated
Debt by such date. Subject to Section 2.09(c), in any case, the Borrower
-------
shall pay the principal amount to be prepaid (allocated between the Term
Loan A Advances and the Term Loan B Advances in proportion to the
outstanding principal amount of such Advances) together with accrued
interest thereon to the date of prepayment, in the case of Term Loan B
Advances, any premium payable pursuant to Section 2.09(e), and all amounts
-------
then owing
47
under Section 2.12 in respect of such prepayment and such prepayment shall
----
be applied to reduce ratably all then remaining unpaid installments of
principal of the Term Loan A Advances and Term Loan B Advances (based on
the schedule set forth in Section 2.04, as the amounts therein may have
----
been reduced or increased from time to time in accordance with this
Agreement).
(iii) If, on the date the Borrower shall issue any Permitted
Subordinated Debt (other than any Refinancing Permitted Subordinated Debt),
the Senior Debt to Operating Cash Flow Ratio (measured on such date after
giving effect to the issuance of such Permitted Subordinated Debt and the
receipt of the Net Proceeds thereof), is greater than or equal to 2.0x,
then within four Eurodollar Business Days after the date on which the
Borrower shall issue such Permitted Subordinated Debt, the Borrower shall
prepay an outstanding principal amount of the Term Loan A Advances and Term
Loan B Advances equal to the Allocable Portion of the amount of the Net
Proceeds of such issuance of Permitted Subordinated Debt, or such lesser
amount as may be necessary to reduce such Senior Debt to Operating Cash
Flow Ratio to less than 2.0x. Subject to Section 2.09(c), the Borrower
-------
shall pay the principal amount to be prepaid (allocated between the Term
Loan A Advances and the Term Loan B Advances in proportion to the
outstanding principal amount of such Advances) together with accrued
interest thereon to the date of prepayment, in the case of Term Loan B
Advances, any premium payable pursuant to Section 2.09(e), and all amounts
-------
then owing under Section 2.12 in respect of such prepayment and such
----
prepayment shall be applied to reduce ratably all then remaining unpaid
installments of principal of the Term Loan A Advances and Term Loan B
Advances (based on the schedule set forth in Section 2.04, as the amounts
----
therein may have been reduced or increased from time to time in accordance
with this Agreement).
(iv) If the Borrower makes any Permitted Asset Sale, then within
four Eurodollar Business Days after the date the Borrower makes such
Permitted Asset Sale, the Borrower shall prepay an outstanding principal
amount of the Term Loan A Advances and Term Loan B Advances equal to the
Allocable Portion of the amount of the Net Proceeds of such Permitted Asset
Sale, provided that if on the date the Borrower makes such Permitted Asset
Sale the Borrower plans to, and has a reasonable expectation that it will,
make an Asset Purchase that it reasonably expects will be a Permitted
Acquisition that will be consummated within 180 days of such date, the
Borrower may defer making such repayment (to the extent of the estimated
cash portion of the purchase price for such
48
Permitted Acquisition) until the earliest of (A) the date it no longer has
a reasonable expectation that it will make an Asset Purchase that it
reasonably expects will be a Permitted Acquisition during such 180 day time
period, (B) the date it consummates such Permitted Acquisition and (C) the
date 180 days after the date the Borrower makes such Permitted Asset Sale,
and the principal amount of the Term Loan A Advances and Term Loan B
Advances required to be repaid shall be the Allocable Portion of the excess
of such Net Proceeds (less any amount repaid concurrently with the date of
such Permitted Asset Sale on account of such Net Proceeds) over the cash
portion of the purchase price actually paid for such Permitted Acquisition
by such date. Subject to Section 2.09(c), the Borrower shall pay the
--------------
principal amount to be prepaid (allocated between the Term Loan A Advances
and the Term Loan B Advances in proportion to the outstanding principal
amount of such Advances) together with accrued interest thereon to the date
of prepayment and all amounts then owing under Section 2.12 in respect of
----
such prepayment and such prepayment shall be applied to reduce ratably all
then remaining unpaid installments of principal of the Term Loan A Advances
and Term Loan B Advances (based on the schedule set forth in Section 2.04,
----
as the amounts therein may have been reduced or increased from time to time
in accordance with this Agreement).
(v) If on any date the Borrower or any of its Subsidiaries receive
any Major Casualty Proceeds, and the aggregate amount of such Major
Casualty Proceeds exceeds the aggregate amount of costs incurred by the
Borrower or such Subsidiary within 180 days after such date or to be
incurred thereafter for the purpose of repairing, reconstructing or
replacing the property in respect of which such Major Casualty Proceeds
were received, then on the first anniversary of such date (or, if such
repairs, reconstruction or replacement shall be continuing in due course,
on such later date when such repairs, reconstruction or replacement shall
have been completed or discontinued): (x) if no Event of Default shall have
occurred and be continuing, the Borrower shall, subject to Section 2.09(c),
------
apply an amount equal to the Allocable Portion of such excess to prepay
ratably an outstanding principal amount of the Term Loan A Advances and
Term Loan B Advances (allocated between the Term Loan A Advances and the
Term Loan B Advances in proportion to the outstanding principal amount of
such Advances), and the Borrower shall pay accrued interest thereon to the
date of such prepayment and all amounts then owing under Section 2.12 in
----
respect of such prepayment or (y) if an Event of Default shall have
occurred and be continuing, an amount equal to the Allocable Portion of
such excess shall be applied to satisfy obligations owed by the Borrower
such Subsidiary based on the order of priorities set forth in Section 9 of
49
the Security Agreements. Any such amount applied to prepay the Term Loan A
Advances and Term Loan B Advances shall be applied to reduce ratably all
then remaining unpaid installments of principal of the Term Loan A Advances
and Term Loan B Advances (based on the schedule set forth in Section 2.04,
----
as the amounts therein may have been reduced or increased from time to time
in accordance with this Agreement).
(c) Option of B Lender Not to Accept Mandatory Prepayments. (i) At least
three Domestic Business Day in the case of the prepayment of Base Rate Advances
or five Eurodollar Business Days in the case of the prepayment of Eurodollar
Rate Advances or Adjusted CD Rate Advances prior to any date (an "Unscheduled
Prepayment Date") on which any prepayment of the Term Loan B Advances (a "Term
Loan B Advance Unscheduled Prepayment") would, but for the provisions of this
subsection (c), otherwise be required pursuant to subsection (b) of this
Section, the Borrower shall deliver a notice conforming to the requirements of
subsection (c)(ii) (a "Term Loan B Advance Prepayment Notice") to the
Administrative Agent. Upon receipt of any Term Loan B Advance Prepayment Notice,
the Administrative Agent shall promptly notify each Term Loan B Lender of the
contents thereof, and such Term Loan B Advance Unscheduled Prepayment shall not
occur on such Unscheduled Payment Date but shall instead be deferred as
hereinafter provided in this subsection (c).
(ii) Each Term Loan B Advance Prepayment Notice shall refer to this
Section and shall (w) set forth the amount of the Term Loan B Advance
Unscheduled Prepayment and the prepayment that the applicable Term Loan B
Lender will be entitled to receive if it accepts prepayment of its Term
Loan B Advance in accordance with this subsection, (x) contain an offer to
prepay on a specified date (each such date, a "Deferred Term Loan B Advance
Unscheduled Prepayment Date"), which shall be the tenth Euro-Dollar
Business Day after the date of such Term Loan B Advance Prepayment Notice,
the Term Loan B Advance of such Term Loan B Lender by an aggregate
principal amount equal to such Term Loan B Lender's ratable share of such
Term Loan B Advance Unscheduled Prepayment (determined by reference to the
outstanding principal amount of such Lender's Term Loan B Advance as a
proportion of the aggregate outstanding principal amount of the Term Loan B
Advances of all of the Term Loan B Lenders), (y) request such Term Loan B
Lender to notify the Borrower and the Administrative Agent in writing, no
later than the third Euro-Dollar Business Day prior to the Term Loan B
Advance Unscheduled Prepayment Date, of such Term Loan B Lender's
acceptance or rejection (in each case, in whole and not in part) of such
offer of prepayment and (z) inform such Term Loan B Lender that the failure
by such Term Loan B Lender to reject such offer in writing on or before the
50
third Euro-Dollar Business Day prior to such Deferred Term Loan B Advance
Unscheduled Prepayment Date shall be deemed an acceptance of such
prepayment offer. Each Term Loan B Advance Prepayment Notice shall be given
by telecopy, confirmed hand delivery or overnight courier service, in each
case addressed to the Administrative Agent who shall promptly notify each
Term Loan B Lender of the contents thereof.
(iii) On each Deferred Term Loan B Advance Unscheduled Prepayment
Date, the Borrower shall pay to the Administrative Agent an amount equal to
the amount that would have been payable by the Borrower pursuant to
subsection (b) of this Section on the related Unscheduled Prepayment Date
but for the provisions of this subsection (c) (plus an amount equal to
additional interest that has accrued from the Unscheduled Prepayment Date
to the Deferred Term Loan B Advance Unscheduled Prepayment Date on the Term
Loan B Advance Unscheduled Prepayment amount and any additional amount then
owing under Section 2.12). Of such amount, the Administrative Agent shall
-----
apply to the prepayment of the outstanding Term Loan B Advances of each of
the Term Loan B Lenders that shall have accepted (or been deemed to have
accepted) prepayment (each, an "Accepting Term Loan B Lender") its ratable
share (allocated pro rata among all Term Loan B Lenders) of the amount so
paid by the Borrower, and shall apply the balance of the amount so paid by
the Borrower to repay (together with accrued interest thereon to the date
of repayment and all amounts then owing under Section 2.12 in respect of
----
such repayment) the principal of the Term Loan A Advances and the Term Loan
B Advances (allocated between the Term Loan A Advances and the Term Loan B
Advances in proportion to the outstanding principal amount of such
Advances, after giving effect to repayments made to Accepting Term Loan B
Lenders) and such repayment shall be applied to reduce ratably all then
remaining unpaid installments of principal of the Term Loan A Advances and
the then outstanding Term Loan B Advances of the Accepting Term Loan B
Lenders (based on the schedule set forth in Section 2.04, as the amounts
----
therein may have been reduced or increased from time to time in accordance
with this Agreement).
(d) Notice of Prepayment. In the case of any optional or mandatory
prepayment pursuant to this Section 2.09 (in addition to the notice referred to
----
in Section 2.09(c)), the Borrower shall give the Administrative Agent prior
--------
notice of one Domestic Business Day in the case of the prepayment of Base Rate
Advances and of three Domestic Business Days in the case of the prepayment of
Eurodollar Rate Advances or Adjusted CD Rate Advances, stating the proposed date
and aggregate principal amount of such prepayment. Upon receipt of a notice of
51
prepayment pursuant to this Section 2.09, the Administrative Agent shall
----
promptly notify each Lender of the contents thereof and of such Lender's ratable
share of such prepayment and such notice shall not thereafter be revocable by
the Borrower.
(e) Prepayment Premium. In the case of the prepayment of any Term B
Advance pursuant to Section 2.09(a) or Sections 2.09(b)(ii) or (iii) prior to
------- -----------
the second anniversary of the Closing Date, the Borrower shall also pay a
premium for the account of each Term Loan B Lender in an amount equal to the
Applicable Premium Percentage calculated on the aggregate principal amount of
the Term B Advance being prepaid.
Section 2.10. [Intentionally Omitted].
Section 2.11. General Provisions as to Payments. (a) The Borrower shall
make each payment of principal of, and interest on, the Advances and of all
fees, expenses and other amounts payable hereunder without setoff or
counterclaim, not later than Noon (New York City time) on the date when due, in
Federal or other funds immediately available in New York City, to the
Administrative Agent at its address referred to in Section 8.02. Payments
----
received by the Administrative Agent on such date but after such time shall be
deemed to have been received on the next Domestic Business Day. The
Administrative Agent will promptly distribute to each Lender its ratable share
of each such payment received by the Administrative Agent for the account of the
Lenders. Whenever any payment of principal of, or interest on, the Base Rate
Advances or Adjusted CD Rate Advances or other fees shall be due on a day which
is not a Domestic Business Day, the date for payment thereof shall be extended
to the next succeeding Domestic Business Day. Whenever any payment of principal
of, or interest on, the Eurodollar Rate Advances shall be due on a day which is
not a Eurodollar Business Day, the date for payment thereof shall be extended to
the next succeeding Eurodollar Business Day unless such Eurodollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Eurodollar Business Day. If the date for any payment
of principal is extended by operation of law or otherwise, interest thereon
shall be payable for such extended time.
(b) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such payment in full, the Administrative Agent
may assume that the Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Lender on such due date an amount
equal to the amount then due such Lender. If and to the extent that the
52
Borrower shall not have so made such payment, each Lender shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
Section 2.12. Funding Losses. If the Borrower makes any payment
(including any prepayment) of principal with respect to any Fixed Rate Advances
(pursuant to this Article 2, Article 6 or otherwise) on any day other than the
- -
last day of the Interest Period applicable thereto, or if the Borrower fails to
borrow or Convert any Fixed Rate Advances after notice has been given to any
Lender in accordance with Section 2.02(b) or Section 2.15, as the case may be,
------- ----
the Borrower shall reimburse each Lender within 15 days after demand for any
resulting loss or expense incurred by it (or by an existing or prospective
Participant in the related Advance), including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits from third parties, but
excluding loss of margin for the period after any such payment or failure to
borrow; provided that such Lender shall have delivered to the Borrower a
certificate as to the amount of such loss or expense, which certificate shall be
conclusive in the absence of manifest error.
Section 2.13. Computation of Interest and Fees. Interest based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in
a leap year) and paid for the actual number of days elapsed (including the first
day but excluding the last day). All other interest and fees hereunder shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day).
Section 2.14. Taxes. (a) For purposes of this Section 2.14, the
----
following terms have the following meanings:
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by the
Borrower pursuant to this Agreement or under any Note, and all liabilities with
respect thereto, excluding (i) in the case of each Lender and the Administrative
Agent, taxes imposed on its net income, and franchise or similar taxes imposed
on its net income, by a jurisdiction under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized or in which its principal
executive office is located or, in the case of each Lender, in which its
Applicable Lending Office is located and (ii) in the case of each Lender, any
United States withholding tax imposed on such payments but only to the extent
that such Lender is subject to United States withholding tax at the time such
Lender first becomes a party to this Agreement.
53
"Other Taxes" means any present or future stamp or documentary taxes and
any other excise or property taxes, or similar charges or levies, which arise
from any payment made pursuant to this Agreement or under any Note or from the
execution or delivery of, or otherwise with respect to, this Agreement or any
Note.
(b) Any and all payments by the Borrower to or for the account of any
Lender or the Administrative Agent hereunder or under any Note shall be made
without deduction for any Taxes or Other Taxes; provided that, if the Borrower
shall be required by law to deduct any Taxes or Other Taxes from any such
payments, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.14) such Lender or the Administrative Agent
----
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv) the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 8.02 the original or a certified copy of a receipt evidencing payment
----
thereof.
(c) The Borrower agrees to indemnify each Lender and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section 2.14) paid by such Lender or the
----
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
This indemnification shall be paid within 15 days after such Lender or the
Administrative Agent (as the case may be) makes demand therefor.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
(but only so long as such Lender remains lawfully able to do so), shall provide
the Borrower with such properly completed and executed documentation prescribed
by the Internal Revenue Service, certifying that (i) if such Lender is a "bank"
within the meaning of Section 881(c)(3)(A) of the Code, such Lender is entitled
to benefits under an income tax treaty to which the United States is a party
which exempts the Lender from United States withholding tax or reduces the rate
of withholding tax on payments of interest for the account of such Lender or
certifying that the income receivable pursuant to this Agreement is effectively
54
connected with the conduct of a trade or business in the United States or, (ii)
if such Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code and intends to claim exemption from U.S. Federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfoli
interest", a Form W-8, or any subsequent versions thereof or successors thereto
(and, if such Lender delivers a Form W-8, a certificate representing that such
Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-
perc shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Borrower and is not a controlled foreign corporation related to the B(within the
meaning of Section 864(d)(4) of the Code)), properly completed and duly executed
by such Lender claiming complete exemption from, or a reduced rate of, U.S.
Federal withholding tax on payments of interest by the Borrower under this
Agreement and the other Loan Documents.
(e) For any period with respect to which a Lender has failed to provide
the Borrower with the appropriate form pursuant to Section 2.14(d) (unless such
-------
failure is due to a change in treaty, law or regulation occurring subsequent to
the date on which such form originally was required to be provided), such Lender
shall not be entitled to indemnification under Section 2.14(b) or (c) with
-------
respect to Taxes imposed by the United States; provided that if a Lender, which
is otherwise exempt from or subject to a reduced rate of withholding tax,
becomes subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as such Lender shall reasonably
request to assist such Lender to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 2.14, then such Lender will
----
change the jurisdiction of its Applicable Lending Office if, in the judgment of
such Lender, such change (i) will eliminate or reduce any such additional
payment which may thereafter accrue and (ii) is not otherwise disadvantageous to
such Lender.
Section 2.15. Method of Electing Interest Rates. (a) The Advances
included in each Borrowing shall bear interest initially at the type of rate
specified by the Borrower in the applicable Notice of Borrowing. Thereafter, the
Borrower may from time to time elect to change or continue the type of interest
rate borne by each group of Advances (subject in each case to the provisions of
Sections 2.16 and 2.17), as follows:
---- ----
(i) if such Advances are Base Rate Advances, the Borrower may
elect to convert such Advances to Fixed Rate Advances as of any Euro-
Dollar Business Day, and
55
(ii) if such Advances are Fixed Rate Advances, the Borrower may elect
to convert such Advances to Base Rate Advances or elect to continue such
Advances as Fixed Rate Advances for an additional Interest Period, subject
to Section 2.12 in the case of any such conversion or continuation
----
effective on any day other than the last day of the then current Interest
Period applicable to such Advances.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Administrative Agent not later than 10:30 A.M. (New York
City time) on the third Eurodollar Business Day before the conversion or
continuation selected in such notice is to be effective. A Notice of Interest
Rate Election may, if it so specifies, apply to only a portion of the aggregate
principal amount of the relevant group of Advances; provided that (i) such
portion is allocated ratably among the Loans comprising such group and (ii) the
portion to which such Notice applies, and the remaining portion to which it does
not apply, are each $10,000,000, in the case of Term Loan A Advances, and
$1,000,000, in the case of Term Loan B Advances, or, in each case, any larger
multiple of $500,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the group of Advances (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation selected
in such notice is to be effective, which shall comply with the
applicable clause of subsection (a) above;
(iii) if the Advances comprising such group are to be converted,
the new Type of Advances and, if the Advances being converted are to be
Fixed Rate Advances, the duration of the next succeeding Interest Period
applicable thereto; and
(iv) if such Advances are to be continued as the same Type of
Fixed Rate Advances for an additional Interest Period, the duration of
such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the Borrower
pursuant to subsection (a) above, the Administrative Agent shall promptly notify
56
each Lender of the contents thereof and such notice shall not thereafter be
revocable by the Borrower.
(d) If the Borrower shall fail to select the duration of any Interest
Period for any Fixed Rate Advances in accordance with the provisions of Section
2.15(a) or if at the end of any such Interest Period an Event of Default exists
-------
and the Administrative Agent has been directed to do so by the Majority Lenders,
the Administrative Agent will forthwith so notify the Borrower and the Lenders
and such Advances will automatically, on the last day of the then existing
Interest Period therefor, Convert into Base Rate Advances.
(e) If the aggregate unpaid principal amount of Term Loan A Advances
comprising any Borrowing or Borrowings shall be reduced, by payment or
prepayment or otherwise, to less than $10,000,000, such Term Loan A Advances
shall, if they are Fixed Rate Advances, automatically Convert into Base Rate
Advances on the last day of the Interest Period for such Fixed Rate Advances,
and on and after such date the right of the Borrower to Convert such Advances
into Term Loan A Advances of a Type other than Base Rate Advances shall
terminate, provided that if and so long as each such Term Loan A Advance shall
be of the same Type and have the same Interest Period as any other Term Loan A
Advances comprising another Borrowing and other Borrowings, and the aggregate
unpaid principal amount of all such Term Loan A Advances shall equal or exceed
$10,000,000, the Borrower shall have the right to continue all such Term Loan A
Advances as, and to Convert all such Term Loan A Advances into, Term Loan A
Advances of such Type having such Interest Period.
(f) If the aggregate unpaid principal amount of Term Loan B Advances
comprising any Borrowing or Borrowings shall be reduced, by payment or
prepayment or otherwise, to less than $1,000,000, such Term Loan B Advances
shall, if they are Fixed Rate Advances, automatically Convert into Base Rate
Advances on the last day of the Interest Period for such Fixed Rate Advances,
and on and after such date the right of the Borrower to Convert such Advances
into Term Loan B Advances of a Type other than Base Rate Advances shall
terminate, provided that if and so long as each such Term Loan B Advance shall
be of the same Type and have the same Interest Period as any other Term Loan B
Advances comprising another Borrowing and other Borrowings, and the aggregate
unpaid principal amount of all such Term Loan B Advances shall equal or exceed
$1,000,000, the Borrower shall have the right to continue all such Term Loan B
Advances as, and to Convert all such Term Loan B Advances into, Term Loan B
Advances of such Type having such Interest Period.
Section 2.16. Basis for Determining Interest Rate Inadequate or U If on
or prior to the first day of any Interest Period for any Fixed Rate Borrowing:
57
(a) the Administrative Agent is advised by the Reference Banks
that deposits in dollars (in the applicable amounts) are not being
offered to the Reference Banks in the relevant market for such Interest
Period, or
(b) any Lender advises the Administrative Agent that the Adjusted
CD Rate or the Adjusted London Interbank Offered Rate, as the case may
be, as determined by the Administrative Agent will not adequately and
fairly reflect the cost to such Lender of funding its Adjusted CD Rate
Advance or Eurodollar Rate Advance, as the case may be, for such
Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Lenders, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, the
obligations of the Lenders to make Adjusted CD Rate Advances or Eurodollar Rate
Advances, as the case may be, shall be suspended. Unless the Borrower notifies
the Administrative Agent at least two Domestic Business Days before the date of
any Fixed Rate Borrowing for which a Notice of Borrowing has previously been
given that it elects not to borrow on such date, such Borrowing shall instead ba
Base Rate Advance Borrowing.
Section 2.17. Illegality. If, on or after the date of this Agreement,
the adoption of any applicable law, rule or regulation, or any change therein,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Eurodollar Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency
(including the NAIC) shall make it unlawful or impossible for any Lender (or its
Eurodollar Lending Office) to make, maintain or fund its Eurodollar Advances and
such Lender shall so notify the Administrative Agent, the Administrative Agent
shall forthwith give notice thereof to the other Lenders and the Borrower,
whereupon until such Lender notifies the Borrower and the Administrative Agent
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Lender to make Eurodollar Advances shall be suspended. Before
giving any notice to the Administrative Agent pursuant to this Section, such
Lender shall designate a different Eurodollar Lending Office if such designation
will avoid the need for giving such notice and will not, in the judgment of such
Lender, be otherwise disadvantageous to such Lender. If such Lender shall
determine that it may not lawfully continue to maintain and fund any of its
outstanding Eurodollar Advances to maturity and shall so specify in such notice,
(i) the obligation of such Lender to make Eurodollar Rate Advances and to
Convert Advances into Eurodollar Rate Advances shall terminate and (ii) the
Borrower shall forthwith
58
prepay in full all Eurodollar Rate Advances of such Lender then outstanding,
together with accrued interest thereon, unless the Borrower, within five
Domestic Business Days of such notice and demand, Converts all Eurodollar Rate
Advances of all Lenders then outstanding into Base Rate Advances in accordance
with Section 2.15(a), except that such Conversion may occur, notwithstanding
-------
Section 2.15(a), other than on the last day of the respective Interest Periods
-------
for such Eurodollar Rate Advances, if the Borrower has paid any amounts payable
under Section 2.12.
----
Section 2.18. Increased Cost and Reduced Return. (a) If on or after the
date hereof, the adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency (including the
NAIC) charged with the interpretation or administration thereof, or compliance
by any Lender (or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency (including the NAIC) shall impose, modify or deem applicable
any reserve (including, without limitation, any such requirement imposed by the
Board of Governors of the Federal Reserve System, but excluding (i) with respect
to any Adjusted CD Rate Advance any such requirement included in an applicable
Domestic Reserve Percentage and (ii) with respect to any Eurodollar Rate Advance
any such requirement included in an applicable Eurodollar Reserve Percentage),
special deposit, insurance assessment (excluding, with respect to any Adjusted
CD Rate Advance, any such requirement reflected in an applicable Assessment
Rate) or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (or its Applicable Lending Office) or
shall impose on any Lender (or its Applicable Lending Office) or on the United
States market for certificates of deposit or the London interbank market any
other condition affecting its Fixed Rate Advances, its Note or its obligation to
make Fixed Rate Advances and the result of any of the foregoing is to increase
the cost to such Lender (or its Applicable Lending Office) of making or
maintaining any Fixed Rate Advance, or of issuing or maintaining any Letter of
Credit or its obligations with respect thereto as the Issuing Bank or as a
Lender participating therein, or to reduce the amount of any sum received or
receivable by such Lender (or its Applicable Lending Office) under this
Agreement or under its Note with respect thereto, by an amount deemed by such
Lender to be material, then, within 15 days after demand by such Lender (with a
copy to the Administrative Agent), the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender on an after-tax
basis for such increased cost or reduction.
(b) If any Lender shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any such law, rule or regulation, or any change in the
interpretation
59
or administration thereof by any governmental authority, central bank or
comparable agency (including the NAIC) charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency (including the NAIC), has or would have the effect of reducing
the rate of return on capital of such Lender (or its Parent) as a consequence of
such Lender's obligations hereunder to a level below that which such Lender (or
its Parent) could have achieved but for such adoption, change, request or
directive (taking into consideration its policies with respect to capital
adequacy) by an amount deemed by such Lender to be material, then from time to
time, within 15 days after demand by such Lender (with a copy to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender (or its Parent) on an after-tax
basis for such reduction.
(c) Each Lender will promptly notify the Borrower and the Administrative
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Lender to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Lender, be otherwise disadvantageous to such Lender. A
certificate of any Lender claiming compensation under this Section and setting
forth the additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution methods.
Section 2.19. Base Rate Advances Substituted for Affected Fixed Rate
Advances. If (i) the obligation of any Lender to make Eurodollar Rate Advances
had been suspended pursuant to Section 2.17 or (ii) any Lender has demanded
----
compensation under Section 2.14 or 2.18(a) and the Borrower shall, by at least
---- -------
five Eurodollar Business Days' prior notice to such Lender through the
Administrative Agent, have elected that the provisions of this Section shall
apply to such Lender, then, unless and until such Lender notifies the Borrower
that the circumstances giving rise to such suspension or demand for compensation
no longer apply:
(a) all Advances which would otherwise be made by such Lender as Adjusted
CD Rate Advances or Eurodollar Rate Advances, as the case may be, shall be made
instead as Base Rate Advances (on which interest and principal shall be payable
contemporaneously with the payment of interest and principal on the related
Fixed Rate Advances of the other Lenders), and
60
(b) after each of its Adjusted CD Rate Advances or Eurodollar Rate
Advances, as the case may be, has been repaid, all payments of principal which
would otherwise be applied to repay such Fixed Rate Advances shall be applied to
repay its Base Rate Advances instead.
Section 2.20. Use of Proceeds. The Borrower will use the proceeds of all
Borrowings made on the Closing Date solely for the payment of amounts due in
respect of the Acquisition, including transaction fees and expenses in
connection therewith, for payment of outstanding obligations under the Original
Existing Credit Agreement and for payment of outstanding obligations under the
Bridge Facility. The Borrower will use the proceeds of any additional Term Loan
B Advances made pursuant to Section 2.21 for the general corporate purposes of
----
the Borrower and the Guarantors. None of the proceeds will be used, directly or
indirectly, for the purpose, whether immediate, incidental or ultimate, of
buying or carrying any "margin stock" within the meaning of Regulation T or
Regulation U.
Section 2.21. Optional Increase in Term Loan B. On or prior to December
31, 2001, Borrower may incur additional Term Loan B Advances in an aggregate
amount of up to $150,000,000 as follows:
(a) If the Borrower wishes to incur additional Term Loan B Advances, it
shall give notice of its request to that effect (specifying the aggregate aof
such proposed additional Term Loan B Advances (the "Proposed Increase Amount"),
which shall be in a minimum aggregate amount of $25,000,000, to the
Administrative Agent no later than November 15, 2001, whereupon the
Administrative Agent shall notify each Term Loan B Lender of such notice. Each
Term Loan B Lender may deliver to the Administrative Agent a response within 15
Domestic Business Days of such Term Loan B Lender's receipt of such notice,
specifying whether or not such Term Loan B Lender is willing to make additional
Term Loan B Advances in an amount equal to its ratable share (determined on the
basis of the then-existing Term Loan B Advances of all of the Term Loan B
Lenders) of the total requested in such notice by the Borrower. No Term Loan B
Lender shall be obligated to respond or to make additional Term Loan B Advances,
and the failure of any Term Loan B Lender to notify the Administrative Agent of
its decision within such 15 Domestic Business Day period shall be deemed to be a
rejection of such request.
(b) If the aggregate amount of additional Term Loan B Advances committed
to be made by Term Loan B Lenders pursuant to subsection (a) is less than the
Proposed Increase Amount, the Borrower may arrange for the balance of the
Proposed Increase Amount by (A) adding as Lender parties to this Agreement
additional financial institutions that are willing to make additional Term Loan
B
61
Advances, (B) agreeing with any existing Lender for it to make additional Term
Loan B Advances or (C) a combination of the procedures described in clauses (A)
and (B).
(c) Each additional Term Loan B Advance made pursuant to this Section 2.21
----
shall, once made, be identical and indistinguishable from the Term Loan B
Advances made on the Closing Date, and, without limiting the generality of the
foregoing, shall bear interest on the same terms as are applicable to such other
Term Loan B Advances.
(d) Any additional Term Loan B Advances to be made pursuant to this
Section 2.21 shall be made on the Additional Closing Date and subject to the
----
satisfaction of the conditions set forth in Section 3.04. No consent of any
----
existing Lenders shall be required for the Borrower to exercise its rights
pursuant to this Section 2.21, but no waiver or amendment of the provisions of
----
Section 3.04 shall be effective without the approval of the Majority Lenders
----
(determined before giving effect to the incurrence of any additional Term Loan B
Advances). The Borrower may exercise its rights under this Section 2.21 only
----
once, regardless of the actual amount of additional Term Loan B Advances
incurred on the Additional Closing Date.
ARTICLE 3
Conditions Precedent
Section 3.01. Conditions Precedent to Closing Date. The obligation of each
Lender to make its Term Loan A Advance and Term Loan B Advance, if any, on the
Closing Date shall be subject to the satisfaction of the conditions precedent
that:
(a) The Administrative Agent shall have received certified copies of the
respective certificates of incorporation and bylaws of the Borrower and its
corporate Subsidiaries and the respective certificates of limited partnership
and agreements of limited partnership for the partnership Subsidiaries;
(b) The Borrower shall have demonstrated to the reasonable satisfaction of
the Administrative Agent in its sole good faith discretion that all conditions
to the closing of the Acquisition, the making of Bridge Loans under the Bridge
Facility and the effectiveness of the Existing Credit Agreement shall occur or
have been waived pursuant to Section 8.01 on or before the Closing Date
----
(including payment of all amounts due under the Acquisition Documents), and that
all transactions contemplated by the Related Documents to be consummated
62
on the closing date of the Acquisition will take place prior to or
simultaneously with the transactions hereunder contemplated to take place on the
Closing Date and that the cash portion of the purchase price for the Acquisition
does not exceed $650 million (subject to post-closing purchase price adjustments
contemplated by the Acquisition Agreement), provided that the cash portion of
the purchase price may be increased (up to an aggregate maximum of $680 million
(subject to post-closing purchase price adjustments contemplated by the
Acquisition Agreement)) to the extent that after giving effect to the
Acquisition and the other transactions occurring on the Closing Date, including
such increase in the cash purchase price, the Debt to Operating Cash Flow Ratio
is less than or equal to 6.85x, all of which is being funded solely with
proceeds of the Advances and the Bridge Loans and the Majority Lenders shall be
satisfied in their sole good faith discretion with terms and conditions of each
of the Other Transaction Documents;
(c) The Borrower shall have paid or caused to be paid, or the
Administrative Agent shall have received evidence satisfactory to it in its sole
good faith discretion that on the Closing Date the Borrower shall pay, or cause
to be paid, (i) all accrued fees and expenses of the Administrative Agent, the
Syndication Agents, the Co-Arrangers and the Lenders, including without
limitation the arrangement fees payable under Section 2.06(a), participation
-------
fees payable under Section 2.06(b) and the administrative fees payable under
-------
Section 2.06(c), and (ii) all fees and expenses of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ in
-------
connection with the preparation, execution and delivery of this Agreement, the
other Loan Documents and the consummation of the transactions contemplated
hereby and thereby, in each case for which the Borrower has received a statement
on or before the Closing Date;
(d) There shall not have been since December 31, 1999 any material
adverse change in the business, condition (financial or otherwise), operations,
properties or prospects of the Borrower and its Subsidiaries, considered as a
whole (but on a pro forma basis assuming consummation of the Acquisition);
(e) Except for the Disclosed Litigation, there shall exist no pending or
threatened action, suit, investigation, litigation or proceeding in any court or
before any arbitrator or governmental instrumentality which, in the reasonable
opinion of the Lenders, could have a material adverse effect on the business,
condition (financial or otherwise), operations, properties or prospects of the
Borrower and its Subsidiaries, considered as a whole (but on a pro forma basis
assuming consummation of the Acquisition), or which, in the reasonable opinion
of the Majority Lenders, may adversely affect the legality, validity or enforce
ability of this Agreement, any other Loan Document or any Related Document, the
ability of any Loan Party to perform its obligations hereunder or thereunder, or
63
the rights of any Lender hereunder or thereunder or the ability of any Lender to
exercise such rights;
(f) All material governmental and third party consents and approvals
necessary or, in the reasonable opinion of the Majority Lenders, desirable or
appropriate in connection with the Closing Date Transactions shall have been
obtained (without the imposition of any conditions other than conditions that
have been satisfied or waived on or before the Closing Date) and shall be in
effect and final and non-appealable (it being understood that all Federal
governmental consents and approvals are material), and without limiting the
generality of the foregoing the Administrative Agent shall have received
evidence satisfactory to it that the FCC shall have granted its consent to the
assignment of the ▇▇▇▇-TV station licenses to License Co. Sub, and such consent
is in full force and effect and is a Final Order;
(g) BT Co. shall have received, in its capacity as Administrative Agent
or Collateral Agent, as appropriate, the following, each effective on the
Closing Date (unless otherwise indicated below), in form and substance
reasonably satisfactory to it in such capacity and in sufficient copies for each
Lender (except for the Notes and certificates and stock powers relating to
Pledged Stock):
(1) A Notice of Borrowing as required by Section 2.02(a) in respect
of each Term Loan A Borrowing and Term Loan B Borrowing to be borrowed on
the Closing Date, dated the date of its delivery;
(2) The Term Loan A Notes and Term Loan B Notes to the order of the
respective Lenders;
(3) Duly executed counterparts of this Agreement, signed by each of
the parties hereto (or, in the case of any Lender as to which an executed
counterpart shall not have been received, receipt by the Administrative
Agent in form satisfactory to it of telegraphic, telex or other written
confirmation from such Lender of execution of a counterpart hereof by
such Lender);
(4) [Intentionally Omitted.]
(5) Duly executed counterparts of the Borrower Security Agreement,
the Guarantor Security Agreements, the Borrower Pledge Agreement, the
Guarantor Pledge Agreements, the Guaranty Agreement and the Bridge
Guaranty Agreements, together with
64
(A) certificates representing the Pledged Stock relating to
YB of San Francisco and License Co. Parent, accompanied by duly
executed instruments of transfer or assignment in blank, in form
and substance satisfactory to the Collateral Agent;
(B) financing statements signed by the Borrower, YB of San
Francisco and each License Company (the "▇▇▇▇ Financing
Statements"), with evidence reasonably satisfactory to the
Collateral Agent that such financing statements will be duly
filed under the Uniform Commercial Code of all jurisdictions as
may be necessary or, in the opinion of the Collateral Agent,
desirable or appropriate to perfect the security interests
created by the Security Agreements, the Pledge Agreements and the
▇▇▇▇ Mortgage;
(C) evidence reasonably satisfactory to the Collateral Agent
that financing statements (the "Existing Financing Statements")
have previously been duly filed under the Uniform Commercial Code
of all jurisdictions as may be necessary or, in the opinion of
the Collateral Agent, desirable or appropriate to perfect the
security interests created by the Security Agreements, the Pledge
Agreements and the Mortgages, as such agreements relate to the
Borrower or any Existing Guarantors; and
(D) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable or
appropriate to perfect and protect the security interests and
liens created by, and to reflect the fact that the Collateral
Agent is the secured party under, the Pledge Agreements and the
Security Agreements have been taken;
(6) Duly executed counterparts of the ▇▇▇▇ Mortgage, the Mortgage
Amendments and the Additional Mortgages, and:
(A) with respect to each Mortgage (other than the ▇▇▇▇
Mortgage and the Additional Mortgages) an endorsement to the
policy of title insurance issued under the Existing Credit
Agreement with respect thereto confirming the insurance of the
Lien of such Mortgage, as amended by the relevant Mortgage
Amendment, and continuing the coverage of such policy to the
Termination Date, in each case issued by the title company
insuring the Lien of such Mortgage under the Existing Credit
Agreement; and
65
(B) with respect to each of the ▇▇▇▇ Mortgage and the
Additional Mortgages, a policy of title insurance dated the
Closing Date (or an irrevocable commitment to issue such policy,
with all conditions marked satisfied, dated and recertified the
Closing Date) insuring the perfection, enforceability and first
priority of the Lien created under each of the ▇▇▇▇ Mortgage and
the Additional Mortgages, as applicable, as a valid first
mortgage Lien on the Real Property described therein in form and
substance and in an amount satisfactory to the Collateral Agent
(with all premiums, expenses and fees paid or caused to be paid
by the Borrower), which policy shall (w) be issued by a title
company reasonably satisfactory tth Collateral Agent, (x) include
such reinsurance arrangements (with provisions for direct access)
as shall be reasonably acceptable to the Collateral Agent, (y)
have been supplemented by such endorsements as shall be requested
by Collateral Agent (including, without limitation, endorsements
or opinion letters on matters relating to usury, contiguity,
revolving credit, doing business, last dollar and so-called
comprehensive coverage over covenants and restrictions), or,
where such endorsements are not available at commercially
reasonable premium costs, opinion letters of special counsel,
architects or other professionals, which counsel, architects or
other professionals shall be reasonably acceptable to the
Collateral Agent and (z) contain only such exceptions to title as
shall be reasonably satisfactory to the Collateral Agent;
(C) with respect to the Real Property encumbered by the ▇▇▇▇
Mortgage, an ALTA survey with respect to such Real Property, in
form and substance reasonably satisfactory to the Collateral
Agent and, with respect to the Real Property encumbered by each
Additional Mortgage, an ALTA survey with respect to such Real
Property, in form and substance reasonably satisfactory to the
Collateral Agent; and
(D) evidence satisfactory to the Collateral Agent that
arrangements shall have been made for the recording of the ▇▇▇▇
Mortgage, each Mortgage Amendment and each Additional Mortgage
and the payment by the Borrower of any mortgage, recording,
documentary stamp, privilege or other taxes and recording charges
payable with respect to the ▇▇▇▇ Mortgage, each Mortgage
Amendment and each Additional Mortgage;
66
(7) Certified copies of the resolutions of the Board of Directors of the
Borrower approving each Loan Document and each Other Transaction Document to
which it is or is to be a party and of the resolutions of the Board of Directors
of each Guarantor approving each Loan Document and each Other Document to which
it is or is to be a party;
(8) A certificate of the Secretary or an Assistant Secretary of the
Borrower and each Guarantor certifying the names and true signatures of the
officers of such Loan Party authorized to sign each Loan Document and each Other
Transaction Document to which it is or is to be a party and the other documents
to be delivered by it hereunder;
(9) Copies of duly executed copies of each Other Transaction Document and
each other agreement, document and certificate prepared or delivered in
connection with any Other Transaction Document that the Administrative Agent or
any Lender through the Administrative Agent may request;
(10) Copies of all authorizations, consents and approvals of, evidence of
other actions by, notices to and filings with all governmental authorities and
regulatory bodies required for the due execution, delivery and performance by
each of the Borrower and the Guarantors of the Loan Documents and the
Acquisition Documents;
(11) Certificates of the chief financial officer of the Borrower and of
each Guarantor, in substantially the form of Exhibit L or Exhibit M, as the case
may be (each being a "Solvency Certificate").
(12) Copies of the financial statements described in Section 4.01(f);
-------
(13) Evidence of insurance for the business and properties of the Borrower
and its Subsidiaries, in form and substance satisfactory to the Administrative
Agent and (i) in the case of property and casualty insurance, naming the
Collateral Agent as co-insured and loss payee, and (ii) in the case of liability
insurance, naming the Collateral Agent, the Administrative Agent and the Lenders
as additional insureds, in each case with responsible and reputable insurance
companies or associations satisfactory to the Majority Lenders in such amounts
and covering such risks as are satisfactory to the Majority Lenders;
67
(14) To the extent not previously delivered to the Administrative Agent
under the Existing Credit Agreement, copies of each agreement, note, instrument
or other document evidencing Debt listed on Schedule 4.01(n) having an unpaid
principal amount in excess of $100,000, together with copies of all consents of
the obligees of the Debt listed on Schedule 4.01(n) (regardless of principal
amount) necessary or, in the judgment of the Majority Lenders, desirable;
(15) A favorable opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
P.C., counsel for the Borrower and each Guarantor, in substantially the form of
Exhibit F and as to such other matters as any Lender through the Administrative
Agent may reasonably request, and a favorable opinion of special FCC counsel for
the Borrower, in substantially the form of Exhibit H, and such other opinions as
any Lender through the Administrative Agent may reasonably request;
(16) Favorable opinions of the following local counsel in the respective
states as indicated: CA, ▇▇▇▇ and ▇▇▇▇▇; IL, Wildman, Harrold, ▇▇▇▇▇ & ▇▇▇▇▇;
IA, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇; LA, ▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇; MI, ▇▇▇▇▇▇ & Story;
SD, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ P.C., TN, ▇▇▇▇▇▇▇▇ & ▇▇▇, PLC; VA, The ▇▇▇▇▇▇▇
Law Firm, P.C.; and WI, ▇▇▇▇, Skemp, Hanson, ▇▇▇▇▇ & ▇▇▇▇▇, and such other
opinions as any Lender through the Administrative Agent may reasonably request;
(17) An opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, in substantially the form of
Exhibit I;
(18) A letter, in form and substance satisfactory to the Administrative
Agent and the Lenders, from the Borrower to the Independent Public Accountants,
advising such accountants that the Agents and the Lenders have been authorized
to exercise all rights of the Borrower to require such accountants to disclose
any and all financial statements and any other information of any kind that they
may have with respect to the Borrower and each of its Subsidiaries, directing
such accountants to comply with any request of any Agent or any Lender for such
information and advising such accountants that the Lenders will rely on such
information in making credit decisions with respect to the Borrower;
(19) An environmental report, in form and substance satisfactory to the
Majority Lenders, from Engineering/Remediation Resources Group, Inc. with
respect to the properties to be owned, leased or operated by the Borrower or any
of its Subsidiaries in connection with ▇▇▇▇-TV and a
68
letter from Engineering Remediation Resources Group, Inc. providing that
the Administrative Agent and the Lenders may rely on such environmental
report;
(20) [Intentionally Omitted.]
(21) A certificate of the chief financial officer of the Borrower, in
substantially the form of Exhibit J, determining the Debt to Operating Cash
Flow Ratio as of March 31, 2000 and giving effect, on a Pro Forma Basis, to
the Borrowings and Other Financings to be made on the Closing Date and the
consummation of the Acquisition (which shall not exceed 7.15x) and
certifying the Borrower's compliance as of March 31, 2000 with the
provisions of this Agreement set forth therein;
(22) A certificate of the chief financial officer of the Borrower to
the effect that both before and immediately after the making of the
Borrowings and Other Financings to be made on the Closing Date and the
consummation of the Acquisition, (i) no Default shall have occurred and be
continuing and (ii) the representations and warranties of the Borrower and
its Subsidiaries made in this Agreement and the other Loan Documents are
true;
(23) A copy of (i) a written notice delivered by the Borrower to the
trustee under each of the indentures governing the Existing Subordinated
Debt, that all of the obligations of the Borrower and the Guarantors under
this Agreement and the other Loan Documents are "Designated Senior Debt"
under each such indenture and (ii) written confirmation by each such
trustee of receipt of such notice;
(24) Such other financial and non-financial information regarding the
Borrower or any of its Subsidiaries and such other approvals, opinions or
documents as any Lender through the Administrative Agent may reasonably
request; and
(25) Evidence that the advances to be made hereby and pursuant to the
Existing Credit Agreement have been rated by ▇▇▇▇▇'▇ Investors Services,
Inc. and Standard & Poor's Ratings Service.
Section 3.02. [Intentionally Omitted].
Section 3.03. Conditions Precedent to Permitted Acquisitions. The right of
the Borrower to make any Permitted Acquisition shall be subject to the
conditions precedent that:
69
(a) The Borrower shall have demonstrated to the reasonable satisfaction
of the Agents that the acquisition constitutes a Permitted Acquisition;
(b) [Intentionally Omitted];
(c) Except for the Disclosed Litigation, there shall exist no pending
or threatened action, suit, investigation, litigation or proceeding in any court
or before any arbitrator or governmental instrumentality which, in the
reasonable opinion of the Agents, could have a material adverse effect on the
condition (financial or otherwise), operations, properties or prospects of the
Borrower or any of its Subsidiaries, whether before or after giving effect to
such Permitted Acquisition, or which, in the reasonable opinion of the Agents,
may adversely affect the legality, validity or enforceability of this Agreement
or any other Loan Document, the ability of any Loan Party to perform its
obligations hereunder or thereunder, or the rights of any Lender hereunder or
thereunder or the ability of any Lender to exercise such rights;
(d) All material governmental and third party consents and approvals
necessary or, in the opinion of the Agents, desirable or appropriate in
connection with the consummation of such Permitted Acquisition shall have been
obtained (without the imposition of any material adverse conditions) and shall
be in effect (it being understood that all Federal governmental consents and
approvals are material), and the Administrative Agent shall have received
evidence satisfactory to it that the station licenses issued by the FCC relating
to the television broadcasting operations of any television stations to be
acquired pursuant to such Permitted Acquisition shall have been validly assigned
to one or more Subsidiaries of the Borrower, and shall be in full force and
effect;
(e) The Collateral Agent shall have received the following, each dated
the closing date for such Permitted Acquisition (unless otherwise indicated
below), in form and substance satisfactory to the Collateral Agent and in
sufficient copies for each Lender (except for the certificates representing any
Pledged Stock to be pledged to the Collateral Agent, the stock powers delivered
in connection with such Pledged Stock, and any instruments representing Pledged
Instruments to be pledged to the Collateral Agent):
(1) [Intentionally Omitted];
(2) Duly executed counterparts of an agreement pursuant to which
each Subsidiary created or acquired in connection with such Permitted
Acquisition shall become obligated as a Guarantor under the Guaranty
Agreement;
70
(3) Certificates and instruments representing any Pledged Stock or
Pledged Instruments required to be delivered by the Borrower or any
Subsidiary on or before the closing date for such Permitted Acquisition,
including certificates representing all shares of capital stock of each
Subsidiary created or acquired in connection with such Permitted
Acquisition, accompanied by duly executed instruments of transfer or
assignment in blank, in form and substance satisfactory to the
Administrative Agent;
(4) Duly executed counterparts of a Guarantor Security Agreement,
and, if applicable, of a Guarantor Pledge Agreement with respect to each
Subsidiary created or acquired in connection with such Permitted
Acquisition, together with:
(A) financing statements signed by each Subsidiary created or
acquired in connection with such Permitted Acquisition, with
evidence reasonably satisfactory to the Collateral Agent that such
financing statements will be duly filed under the Uniform
Commercial Code of all jurisdictions as may be necessary or, in the
opinion of the Collateral Agent, desirable or appropriate to
perfect the security interests created by the Security Agreements
and the Mortgages, and
(B) evidence that all other actions necessary or, in the
opinion of the Collateral Agent, desirable or appropriate to
perfect and protect the security interests and liens created by,
and to reflect the fact that the Collateral Agent is the secured
party under, the Borrower Pledge Agreement, any applicable
Guarantor Pledge Agreement and the Security Agreements shall have
been taken;
(5) Duly executed counterparts of Mortgages (each, a "Permitted
Acquisition Mortgage") with respect to any Real Property to be acquired
by the Borrower or any of its Subsidiaries in connection with such
Permitted Acquisition and, with respect to each Permitted Acquisition
Mortgage:
(A) a policy of title insurance dated the closing date for such
Permitted Acquisition (or an irrevocable commitment to issue such
policy, with all conditions marked satisfied, dated and recertified
the closing date for such Permitted Acquisition) insuring the
perfection, enforce ability and first priority of the Lien created
under such Permitted Acquisition Mortgage as a valid first mortgage
Lien on the Real Property described therein in form and
71
substance and in an amount satisfactory to the Collateral Agent (with
all premiums, expenses and fees paid or caused to be paid by the
Borrower), which policy shall (w) be issued by a title company
reasonably satisfactory to the Collateral Agent, (x) include such
reinsurance arrangements (with provisions for direct access) as shall
be reasonably acceptable to the Collateral Agent, (y) have been
supplemented by such endorsements as shall be requested by Collateral
Agent (including, without limitation, endorsements or opinion letters
on matters relating to usury, contiguity, variable rate, revolving
credit, doing business, and so-called comprehensive coverage over
covenants and restrictions), or, where such endorsements are not
available at commercially reasonable premium costs, opinion letters of
special counsel, architects or other professionals, which counsel,
architects or other professionals shall be reasonably acceptable to
the Collateral Agent and (z) contain only such exceptions to title as
shall be reasonably satisfactory to the Collateral Agent;
(B) with respect to the Real Property encumbered by each
Permitted Acquisition Mortgage, an ALTA survey with respect to such
Real Property, in form and substance reasonably satisfactory to the
Collateral Agent; and
(C) evidence satisfactory to the Collateral Agent that
arrangements shall have been made for the recording of each Permitted
Acquisition Mortgage and the payment by the Borrower of any mortgage,
recording, documentary stamp, privilege or other taxes and recording
charges payable with respect to each Permitted Acquisition Mortgage;
(6) Certified copies of the resolutions of the Board of Directors of
the Borrower and each Subsidiary party hereto and thereto approving each
agreement to which it is or is to be a party in connection with such
Permitted Acquisition;
(7) A certificate of the Secretary or an Assistant Secretary of the
Borrower and each Subsidiary certifying the names and true signatures of
the officers of the Borrower or such Subsidiary who shall be authorized to
sign each agreement to which it is or is to be a party in connection with
such Permitted Acquisition and the other documents to be delivered by it
hereunder or thereunder;
72
(8) Copies of all authorizations, consents and approvals of,
evidence of other actions by, notices to and filings with, all
governmental authorities and regulatory bodies required for the due
execution, delivery and performance by the Borrower or any Subsidiary
of each agreement to which it is or is to be a party in connection
with such Permitted Acquisition and the other documents to be
delivered by it thereunder;
(9) Certificates of the chief financial officer of the Borrower
and of each Subsidiary created or acquired in connection with such
Permitted be;
(10) Evidence of insurance for the business and properties of
each Subsidiary created or acquired in connection with such Permitted
Acquisition, in form and substance satisfactory to the Administrative
Agent (and if requested by the Administrative Agent, naming the
Administrative Agent as additional insured and loss payee) with
responsible and reputable insurance companies or associations
satisfactory to the Co-Arrangers in such amounts and covering such
risks as are satisfactory to the Agents;
(11) A favorable opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇, P.C., counsel for the Borrower and each Guarantor, in
substantially the form of Exhibit F (but expressing opinions with
respect to such Permitted Acquisition) and as to such other matters as
any Lender through the Administrative Agent may reasonably request.
(12) Favorable opinions of local counsel for the Borrower with
respect to each jurisdiction where any Real Property to be acquired in
connection with such Permitted Acquisition shall be located, in each
case in substantially the form of Exhibit G (but expressing opinions
with respect to such Permitted Acquisition), and a favorable opinion
of special FCC counsel for the Borrower, in substantially the form of
Exhibit H (but expressing opinions with respect to such Permitted
Acquisition), and such other opinions as any Lender through the
Administrative Agent may reasonably request;
(13) An environmental report, in each case in form and substance
satisfactory to the Agents, with respect to properties to be acquired,
leased or operated by the Borrower or any of its Subsidiaries in
connection with such Permitted Acquisition;
73
(14) The written consent of each party (other than the Borrower
or any of its Subsidiaries) to any agreement to which it is or is to
be a party in connection with such Permitted Acquisition to the
assignment by the Borrower or any Guarantor of its rights and claims
under such agreement to the Administrative Agent under the Borrower
Security Agreement or a Guarantor Security Agreement;
(15) A certificate of the chief financial officer of the
Borrower, in substantially the form of Exhibit J, certifying the
Borrower's compliance as of the most recent date for compliance prior
to the date of such certificate, after giving effect on a Pro Forma
Basis to such Permitted Acquisition, with the provisions of this
Agreement set forth therein; and
(16) Such other financial and non-financial information regarding
the Borrower or any of its Subsidiaries and such other approvals,
opinions or documents as any Lender through the Administrative Agent
may reasonably request.
Section 3.04. Conditions Precedent to Incurrence of Additional Term
Loan B Advances. The right of the Borrower to incur additional Term Loan B
Advances pursuant to Section 2.21, and the obligation of any Lender or proposed
----
new Lender that has committed to make such an additional Term Loan B Advance to
make such additional Term Loan B Advance, shall be subject to the satisfaction
of the conditions precedent that:
(a) the representations and warranties of the Borrower and the
Guarantors contained in this Agreement, each Collateral Document and each
Guaranty Agreement shall be correct on and as of the Additional Closing Date
before and after giving effect to such Borrowing, and to the application of the
proceeds therefrom, as though made on and as of such date;
(b) no event shall have occurred and be continuing, or would result
from such Borrowing, or from the application of the proceeds therefrom, which
constitutes a Default;
(c) if such Borrowing is to be secured, directly or indirectly, by
any "margin stock" (within the meaning of Regulation U), the Administrative
Agent shall have received (i) a duly executed Federal Reserve Form FR U-1 for
each Lender that is a bank, for the Issuing Bank or for the Swingline Lender, as
the case may be, and (ii) a duly executed Federal Reserve Form FR G-3 for each
Lender that is not a bank, in each case signed and accepted by a duly authorized
representative of the applicable Lender;
74
(d) the Administrative Agent shall have received a report of the
chief financial officer of the Borrower, in a form and providing sufficient
detail and justification for the information provided therein, including
assumptions, as shall be found reasonable by the Administrative Agent in its
sole good faith discretion, after completion of reasonable due diligence,
establishing that, after giving effect to such incurrence of additional Term
Loan B Advances and any intended application of the proceeds thereof, the
Borrower shall be in compliance at the end of each fiscal year until the
Termination Date (determined without regard to any potential but not yet fixed
acceleration thereof on account of any failure to Refinance) with the covenants
contained in Sections 5.01(l), 5.01(m), 5.01(n), 5.01(o), 5.02(a), 5.02(b),
------- ------- ------- ------- ------- -------
5.02(d), 5.02(f), 5.02(g) and 5.02(h); and
------- ------- ------- -------
(e) the Administrative Agent shall have received
(i) a duly executed Term Loan B Note for each Person making an
additional Term Loan B Advance that is not already a Term Loan B
Lender;
(ii) an appropriate instrument executed by each Person making
an additional Term Loan B Advance (with the agreement of the Borrower
endorsed thereon) evidencing its agreement to do so and, in the case
of any such Person that is not already a Term Loan B Lender,
evidencing the addition of such Person as a Lender party to this
Agreement; and
(iii) such other approvals, title search reports or
endorsements, opinions or documents as the Administrative Agent or any
Lender through the Administrative Agent may reasonably request in form
and substance reasonably satisfactory to the Administrative Agent and
any such requesting Lender.
Promptly after any incurrence of additional Term Loan B Advances, the
Administrative Agent shall notify each Lender (with a copy to the Borrower) of
the amount of additional Term Loan B Advances incurred, the identity of each
Person making an additional Term Loan B Advance and the amount thereof and the
revised amounts under the caption "Term Loan B Advances" in the table in Section
2.04.
----
75
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) Due Incorporation, Etc. Each of the Borrower and its Subsidiaries that
is a corporation is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction indicated next to such corporation's
name on Schedule 4.01(a) and has all requisite corporate powers and all FCC and
all other material governmental licenses, authorizations, consents and approvals
required to own or lease and operate its properties and to carry on its business
as now conducted and as proposed to be conducted and to execute and deliver, and
to perform all of its obligations under, the Loan Documents and Other
Transaction Documents to which it is or will be a party. Each of the Borrower
and each of its Subsidiaries that is a corporation is duly qualified or licensed
to do business as a (NY) 27009/512/CA/new.ca.conf.wpd foreign corporation in
good standing in all jurisdictions in which it owns or leases assets and
property or in which the conduct of its business requires it to so qualify or be
licensed, except for such jurisdictions in which the failure to so quality or be
licensed would not have a material adverse effect on the business, condition
(financial or otherwise), operations, properties or prospects of the Borrower or
such Subsidiary, as the case may be. Each of the Borrower's Subsidiaries that is
a partnership is a partnership duly organized, validly existing and in good
standing under the laws of the jurisdiction under which it is organized and has
all requisite power and authority to own or lease and operate its properties and
to carry on its business as now conducted and as proposed to be conducted and to
execute and deliver, and to perform all of its obligations under, the Loan
Documents and Other Transaction Documents to which it is or will be a party.
Each of the Borrower's Subsidiaries that is a partnership is duly qualified or
licensed to do business and has complied with all fictitious name statutes and
other similar laws in all jurisdictions in which it owns or leases assets and
property or in which the conduct of its business requires it to so qualify or be
licensed or comply, except for such jurisdictions in which the failure to so
qualify or be licensed or comply would not have a material adverse effect on the
business, condition (financial or otherwise), operations, properties or
prospects of such Subsidiary.
(b) Due Authorization and Execution, Etc. The execution, delivery and
performance by the Borrower and each of its Subsidiaries of each Loan Document
and each Other Transaction Document to which it is or will be a party and the
consummation of the Acquisition and the transactions contemplated by the Loan
Documents and Other Transaction Documents are within the Borrower's and such
Subsidiary's corporate powers (or its partnership powers, in the case of each
Subsidiary that is a partnership), have been duly authorized by all necessary
76
corporate action (or all necessary action of the partners, in the case of each
Subsidiary that is a partnership) and do not and will not (i) require any
consent or approval of the stockholders or partners of the Borrower or such
Subsidiary except such consents and approvals as shall have been duly obtained
and shall be in full force and effect, (ii) contravene the Borrower's or such
Subsidiary's certificate of incorporation or by-laws, in the case of each
Subsidiary that is a corporation, or the partnership agreement governing such
Subsidiary, in the case of each Subsidiary that is a partnership, (iii) violate
any law, rule, regulation (including, without limitation, Regulations T, U and X
of the Board of Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award or any contractual restriction
binding on or affecting the Borrower or such Subsidiary, or any of their
respective properties, or (iv) result in or require the creation or imposition
of any mortgage, deed of trust, pledge, lien, security interest or other charge
or encumbrance of any nature (other than pursuant to the Loan Documents
hereunder and pursuant to Collateral Documents upon or with respect to any of
the properties now owned or hereafter acquired by the Borrower or any of its
Subsidiaries). Neither the Borrower nor any of its Subsidiaries is in default
under any such law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or restriction.
(c) Government Consents. No authorization, consent, approval or other
action by, and no notice to or filing with, any governmental, administrative or
judicial authority or regulatory body is currently, or is reasonably expected to
be required for the due execution, delivery or performance by the Borrower or
any of its Subsidiaries of any Loan Document to which it is or will be a party
and the operation of the television broadcasting business of the Borrower and
its Subsidiaries other than the filing of the Financing Statements and the
recording of the Mortgages, all of which have been made and are in full force
and effect, and except for the filing of certain of the Loan Documents with the
FCC within 30 days of their execution pursuant to 47 C.F.R. Section 73.3613. No
authorization, consent, approval or other action by, and, except for the
requirement to notify the FCC of the consummation of the Acquisition and to file
certain documents with the FCC pursuant to 47 C.F.R. Section 73.3613, (which
notice and filing the Borrower shall deliver to the FCC as soon as practicable
after the Closing Date) no notice to or filing with, any governmental,
administrative or judicial authority or regulatory body is currently, or is
reasonably expected to be, required for the consummation of the Acquisition,
except such authorizations, consents, approvals, other actions, notices or
filings as shall have been duly obtained, taken, given or made and shall be in
full force and effect and shall not have been appealed and shall no longer be
subject to appeal, rehearing, certiorari or other administrative review.
77
(d) Legal, Valid and Binding Nature. This Agreement is, and each other
Loan Document and each Related Document to which the Borrower or any of its
Subsidiaries is or will be a party will, when delivered, be, a legal, valid and
binding obligation of the Borrower and such Subsidiaries as are or will be
parties thereto, enforceable against the Borrower and such Subsidiaries in
accordance with its respective terms, except (other than in the case of Article
X of the indentures governing the Existing Subordinated Debt and any similar
provisions of any indentures governing any other Permitted Subordinated Debt) as
such enforcement may be limited by the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting creditors'
rights generally and general principles of equity.
(e) Capitalization and Subsidiaries. On the Closing Date, the authorized
capital stock of the Borrower will consist of: 20,000,000 shares of Class A
Common Stock, par value $.001 per share; 20,000,000 shares of Class B Common
Stock, par value $.001 per share; and 20,000,000 shares of Class C Common Stock,
par value $.001 per share. Set forth on Schedule 4.01(a) is a complete and
accurate list of all of the Borrower's Subsidiaries as of the Closing Date,
showing as of such date (as to each such Subsidiary) the jurisdiction of its
incorporation, the number of shares of each class of capital stock authorized,
the number of shares of each class of capital stock outstanding on the date
hereof, the direct owner of the outstanding shares of each such class owned and
the jurisdictions in which such Subsidiary is qualified to do business as a
foreign corporation. All of the general and limited partnership interests of
each Subsidiary that is a partnership are owned, legally and beneficially, by
the Borrower or a wholly owned Subsidiary of the Borrower, in each case free and
clear of all liens, security interests and other charges or encumbrances other
than the liens and security interests under the Security Agreements. Except as
set forth in Schedule 4.01(e), there are no outstanding options, warrants,
rights of conversion or purchase, or similar rights to acquire capital stock or
partnership interests of the Borrower or any of its Subsidiaries or other
agreements of any character whatsoever relating to any shares of capital stock
or partnership interests of the Borrower or any such Subsidiaries; all of the
issued and outstanding capital stock of the Borrower and each of its
Subsidiaries that is a corporation has been duly authorized, validly issued and
is fully paid and non-assessable; all of the partnership interests of each
Subsidiary that is a partnership have been validly issued pursuant to the terms
of the applicable partnership agreement; all of the issued and outstanding
capital stock of each Subsidiary of the Borrower that is a corporation is
directly owned, legally and beneficially, by the Borrower, in each case free and
clear of all liens, security interests and other charges or encumbrances other
than the Liens created by the Pledge Agreements and Security Agreements.
78
(f) Financial Statements; No Material Adverse Change. The consolidated
balance sheet of the Borrower and its Subsidiaries as at December 31, 1999 and
the related consolidated statements of income and shareholders' equity and
statement of changes in cash flows of the Borrower and its Subsidiaries for the
fiscal year then ended, fairly present, respectively, the consolidated financial
condition of the Borrower and its Subsidiaries as at such date and the
consolidated results of operations of the Borrower and its Subsidiaries for the
period ended on such date, all in accordance with generally accepted accounting
principles. To the knowledge of the Borrower, the financial statements of
Chronicle for the fiscal years ended December 31, 1998 and 1999 which were
delivered to the Lenders prior to the Closing Date fairly present the results of
operations and operating cash flow of Chronicle for the respective period ended
on such date, in accordance with generally accepted accounting principles. The
pro forma financial statements described on Schedule 4.01(f) fairly present the
information shown therein, have been properly compiled on the pro forma basis
described therein, and, in the opinion of the Borrower, the assumptions used in
the preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein. Copies of each of the financial statements described in this Section
4.01(f) have been furnished to each Lender. Since December 31, 1999 there has
-------
been no material adverse change in the business, condition (financial or
otherwise), operations, properties or prospects of the Borrower or of any of its
Subsidiaries or of the Borrower and its Subsidiaries taken as a whole. To the
knowledge of the Borrower, after reasonable and customary due diligence, since
December 31, 1999, there has been no material adverse change in the respective
business, condition (financial or otherwise), operations, properties or
prospects of Chronicle. The effectiveness of the Closing Date Transactions shall
not be deemed to be such a change.
(g) Solvency. Each of the Borrower and the Borrower and its Subsidiaries
taken as a whole and each Guarantor individually and taken as a whole with its
Subsidiaries is and, after receipt and application of the Advances in accordance
with the terms of this Agreement and the Other Financing Documents, will be
Solvent.
(h) Absence of Litigation; Litigation Description.
(i) No actions, suits, investigations, litigation or proceedings are
pending or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any of its Subsidiaries or the properties of the
Borrower or any such Subsidiary before any court, arbitrator or
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (A) which may materially adversely
79
affect the business, condition (financial or otherwise), operations,
properties or prospects of the Borrower or any such Subsidiary, except
as disclosed in Schedule 4.01(h) (the "Disclosed Litigation"), or (B)
which purports to affect the legality, validity or enforceability of
this Agreement or any other Loan Document or any Related Document, the
ability of any Loan Party to perform its obligations hereunder or
thereunder, or the rights of any Lender hereunder or thereunder or the
ability of any Lender to exercise such rights.
(ii) Except for the Disclosed Litigation, no action, suit,
investigation, litigation or proceeding is pending or, to the knowledge
of the Borrower, threatened in any court or before any arbitrator or
governmental entity specified above in connection with the Acquisition
or the Closing Date Transactions or in connection with the use of the
proceeds hereof or thereof.
(iii) On the Closing Date and at all times thereafter, there
shall have been no change since the date of this Agreement in the status
of any of the actions, suits, investigations, litigation or proceedings
referred to in Schedule 4.01(h) that is materially adverse to the
Borrower or any of its Subsidiaries, the Acquisition or the Closing Date
Transactions or the Loan Documents.
(i) Ownership of Properties; Absence of Liens and Encumbrances. The
Borrower and its Subsidiaries have good and marketable title to and are in
lawful possession of, or have valid leasehold interests in, or have the right to
use pursuant to valid and enforceable agreements or arrangements, all of their
respective properties and other assets (real or personal, tangible, intangible
or mixed), except where the failure to have or possess the same with respect to
such properties or other assets would not, in the aggregate, have a material
adverse effect on the business, condition (financial or otherwise), operations,
properties or prospects of the Borrower or any of its Subsidiaries. Except as
disclosed on Schedule 4.01(i) of this Agreement, there are no material Liens on
any property or asset of the Borrower or any of its Subsidiaries except for the
security interests created under the Pledge Agreements, the Security Agreements
and the Mortgages, it being understood that, for purposes only of this Section
4.01(i), any Lien securing an obligation of $300,000 or more on property or
assets is material.
(j) No Burdensome Agreements. Neither the Borrower nor any of its
Subsidiaries is a party to any indenture, loan or credit agreement or any lease
or other agreement or instrument or subject to any charter or corporate
restriction or partnership agreement or other partnership restriction that would
have a material adverse effect (i) on the business, condition (financial or
otherwise), operations,
80
properties or prospects of the Borrower or any of its Subsidiaries, or (ii) on
the ability of the Borrower or any of its Subsidiaries to carry out its
obligations under any of the Loan Documents or Related Documents to which it is
or will be a party; provided that it is agreed that the Existing Credit
Agreement, the Bridge Facility and the indentures governing the Existing
Subordinated Debt and any other indentures in substantially the same form as
such indentures, do not have any such effect.
(k) Payment of Taxes. The Borrower and each of its Subsidiaries has filed
or caused to be filed all Federal, state and franchise tax returns and
information and other similar filings, and all material other tax returns and
information and other similar filings, required to be filed, and paid all
amounts of taxes, including interest and penalties, which have become due
pursuant to such returns or pursuant to any assessments received by the Borrower
or any of its Subsidiaries, except to the extent of any taxes being contested by
or on behalf of the Borrower or such Subsidiary in good faith and by proper
proceedings and for which adequate provision for payment has been made and
adequate reserves are being maintained in accordance with generally accepted
accounting principles consistently applied by the Borrower or such Subsidiary,
as the case may be, and so long as the proceedings referred to above could not
subject any Agent or any Lender to any civil or criminal penalty or liability or
involve any risk of loss, sale or forfeiture of any material item of Collateral.
The Borrower has no knowledge of any actual or proposed additional tax
assessments against it or any of its Subsidiaries which, singly or in the
aggregate, could have a material adverse effect on the Borrower or any of its
Subsidiaries.
(l) Accuracy of Information Given to Lenders. No information, exhibit,
report, document, certificate or written statement, including without limitation
this Agreement, furnished in writing to any Lender by or on behalf of the
Borrower in connection herewith contained any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
contained therein, in light of the circumstances under which such information,
exhibit, report or other written information was or is to be used, not
misleading, nor do such information, exhibits, reports, documents, certificates
and statements, taken as a whole, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
contained therein not misleading. There is no fact known to the Borrower or any
officer of the Borrower which the Borrower has not disclosed to the Lenders in
writing which in the reasonable judgment of the Borrower and its officers would
materially adversely affect the business, condition (financial or otherwise),
operations, properties or prospects of the Borrower or any of its Subsidiaries
or the ability of the Borrower or any of its Subsidiaries to perform its
respective obligations under any Loan Document or any document contemplated
hereby or thereby. The financial projections and forecasts of the Borrower
delivered by the Borrower to any of the Agents, the Co-Arrangers and the Lenders
were prepared on the basis of the assumptions stated therein and represented, at
the time of delivery, the Borrower's best estimate of its future financial
performance and such assumptions were fair in the light of business conditions
existing at the time of such delivery of such projections and forecasts; and any
such financial projections and forecasts, if prepared as of the date hereof,
would contain estimates of the Borrower's future financial performance which
would not materially adversely differ from the respective estimates contained in
the financial projections and
81
forecasts of the Borrower delivered by the Borrower to any of the Agents, the
Co-Arrangers and the Lenders were prepared on the basis of the assumptions
stated therein and represented, at the time of delivery, the Borrower's best
estimate of its future financial performance and such assumptions were fair in
the light of business conditions existing at the time of such delivery of such
projections and forecasts; and any such financial projections and forecasts, if
prepared as of the date hereof, would contain estimates of the Borrower's future
financial performance which would not materially adversely differ from the
respective estimates contained in the financial projections and forecasts
delivered by the Borrower to any of the Agents, the Co-Arrangers and the
Lenders.
(m) ERISA. Except as described in Schedule 4.01(m), no Plan or
Multiemployer Plan exists as of the date of this Agreement. With respect to each
Plan described in Schedule 4.01(m) and any other Plan which shall exist: (i) no
Termination Event has occurred or is reasonably expected to occur with respect
to any Plan and (ii) no event requiring notice to the PBGC under Section
302(f)(4)(A) of ERISA has occurred or is reasonably expected to occur with
respect to any Plan. With respect to each Multiemployer Plan described in
Schedule 4.01(m) and any other Multiemployer Plan which shall exist: (i) neither
the Borrower nor any ERISA Affiliate of the Borrower has incurred, or is
reasonably expected to incur, any Withdrawal Liability to any Multiemployer Plan
and (ii) neither the Borrower nor any ERISA Affiliate of the Borrower has
received any notification that any Multiemployer Plan is in reorganization or
has been terminated, within the meaning of Title IV of ERISA, and no
Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated within the meaning of Title IV of ERISA.
(n) List of Debt. Set forth on Schedule 4.01(n) is a complete and accurate
list of all Debt of the Borrower and its Subsidiaries that will be outstanding
as of the Closing Date following the Borrowings hereunder and the application of
the proceeds thereof as contemplated hereby, other than (i) Debt arising under
the Loan Documents and the Subordinated Debt Documents, (ii) Debt arising under
the Existing Credit Agreement, (iii) Debt arising under the Bridge Facility and
(iv) Debt having a principal amount of less than $500,000.
(o) Not a Purpose Credit. The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying "margin stock"
(within the meaning of Regulation T or Regulation U), and no proceeds of any
Advance, other than proceeds of Advances used to purchase shares of common stock
of the Borrower to the extent permitted by clauses (iv) or (v) of Section
5.02(g) hereof, will be used to purchase or carry any margin stock or to extend
-------
credit to others for the purpose of purchasing or carrying any margin stock;
none of the Pledged Stock constitutes margin stock.
82
(p) Prohibited Securities Transactions. No proceeds of any Advance will
be used by the Borrower or any of its Subsidiaries to acquire any security in
any transaction that is subject to Section 12 of the Securities Exchange Act of
1934, as amended, other than proceeds of Advances used to purchase shares of
common stock of the Borrower to the extent permitted by clauses (iv) or (v) of
Section 5.02(g) hereof.
-------
(q) Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
(r) Casualties. Neither the business nor the properties of the Borrower or
any of its Subsidiaries are affected by any fire, explosion, accident, strike,
lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act
of God or of the public enemy or other casualty, materially adversely affecting
the business, condition (financial or otherwise), operations, properties or
prospects of the Borrower or any such Subsidiary.
(s) Executive Compensation Agreements. Set forth in Schedule 4.01(s) is a
complete and accurate list of all compensation arrangements in effect as of the
date of this Agreement between the Borrower or any of its Subsidiaries and the
five most highly compensated executive officers of the Borrower and its
Subsidiaries.
(t) Collateral, Etc.
(i) Schedule 4.01(t) contains a complete and accurate description
and list as of the Closing Date of the location, by state, county and
street address and operating division, of all of the Real Property of the
Borrower and its Subsidiaries, together with the lessors thereof, the
status of any consent from the lessor with respect to any such Leasehold
obtained or proposed to be obtained in connection with the Acquisition, any
Loan Document or any Related Document.
(ii) The Borrower or a Guarantor is the record and beneficial owner
of all of the presently existing Collateral covered by (A) the Security
Agreements, (B) the Pledge Agreements and (C) the Mortgages, in each case
free and clear of all mortgages, deeds of trust, pledges, liens, security
interests, options and other charges or encumbrances, except for those
created or permitted by this Agreement, the Other Financing Documents and
the Collateral Documents.
83
(iii) The Borrower or a Guarantor has good, marketable and insurable
fee simple title to all Real Property and a valid and indefeasible
leasehold interest in all Leaseholds, free and clear of all liens, charges
and encumbrances of every kind and character, except for those created or
permitted by this Agreement, the Other Financing Documents and the
Collateral Documents.
(iv) Each Ground Lease (as defined in the Mortgages) is a valid and
subsisting lease in full force and effect in accordance with the terms
thereof; the Borrower or a Guarantor, as the case may be, is in possession
of all Real Property and the Leaseholds constituting part of the Collateral
and no material default by the Borrower or such Guarantor, as the case may
be, exists and neither the Borrower nor any Guarantor has knowledge of any
other default under such Ground Lease or other agreement relating to any
Real Property or Leaseholds constituting part of the Collateral; and no
lien, charge or encumbrance of any kind or character exists on or with
respect to the Borrower's or the Guarantor's, as the case may be, interest
in any such Real Property or Leasehold, other than Permitted Liens.
(u) Consents. Set forth in Schedule 4.01(u) is a complete and accurate
list of all consents required in connection with the Acquisition, the Closing
Date Transactions and the Loan Documents (including, but not limited to,
consents relating to all network affiliation contracts, power site leases and
FCC matters), all of which will have been duly obtained and shall be in full
force and effect on the Closing Date and at all times thereafter, except where
the failure to obtain such consents will not have a material adverse effect,
alone or in the aggregate, on the business, condition (financial or otherwise),
operations, properties or prospects of the Borrower or any of its Subsidiaries.
(v) Security Agreements. As of the Closing Date and at all times
thereafter, each Security Agreement will create valid and perfected first
priority security interests in and liens on the Collateral covered thereby
(except as provided therein), such security interests and liens being in each
case enforceable against all third parties and securing the payment of all
obligations purported to be secured thereby, and all filings and other actions
necessary or advisable to perfect and protect such security interests shall have
been duly made or taken.
(w) Mortgages. From and after the recording of the ▇▇▇▇ Mortgage, the
Mortgage Amendments and each Mortgage will create a valid and enforceable first
priority mortgage lien on and security interest in the Real Property covered
thereby, enforceable against the Borrower or the Guarantor granting such
Mortgage, as the case may be, and all third parties, and securing the payment of
84
all obligations purported to be secured thereby, and all filings and other
actions necessary or desirable to perfect and protect such mortgage lien and
security interest will have been duly taken.
(x) Status Under Communications Act. Each material license, permit and
other authority issued, granted, approved or otherwise authorized by the FCC for
the benefit of the Borrower or any of its Subsidiaries is in good standing,
unimpaired by any act or omission of the Borrower or any of its Subsidiaries or
any of their respective officers, directors, employees or agents. Neither the
Borrower nor any of its Subsidiaries is the subject of any outstanding citation,
order or, to the knowledge of the Borrower, investigation by the FCC which would
have a material adverse effect on the business, condition (financial or
otherwise), operations, properties or prospects of the Borrower or any of its
Subsidiaries, and no such citation, order or investigation to the knowledge of
the Borrower or any of its Subsidiaries is contemplated by the FCC. The Borrower
and each of its Subsidiaries has filed all material reports and applications
required to be filed by the FCC or the Communications Act and has paid all fees
required to be paid by the FCC or the Communications Act.
(y) Compliance with Environmental Requirements; No Hazardous Materials.
Except as described on Schedule 4.01(y) and except to the extent the matters
referred to below would result in liabilities for the Borrower and its
Subsidiaries of less than $300,000 in the aggregate, after giving effect to the
Acquisition:
(i) Other than in compliance with all applicable Environmental Laws,
no Hazardous Materials are located on any properties now or previously
owned, leased or operated by the Borrower or any of its Subsidiaries or
have been released into the environment, or deposited, discharged, placed
or disposed of at, on or under any of such properties. No portion of any
such property is being used, or has been used at any previous time, for the
disposal, storage, treatment, processing or other handling of Hazardous
Materials (other than processing or handling incidental to the generation
of Hazardous Materials in compliance with all applicable Environmental
Laws).
(ii) No asbestos or asbestos-containing materials in airborne or
friable form are present on any of the properties now or previously owned,
leased or operated by the Borrower or any of its Subsidiaries.
(iii) No polychlorinated biphenyls are located on or in any properties
now or previously owned, leased or operated by the Borrower or any of its
Subsidiaries, in the form of electrical transformers,
85
fluorescent light fixtures with ballasts, cooling oils or any other device
or form.
(iv) No underground storage tanks are located on any properties now
or previously owned, leased or operated by the Borrower or any of its
Subsidiaries, or were located on any such property and subsequently removed
or filled.
(v) No notice, notification, demand, request for information,
complaint, citation, summons, investigation, administrative order, consent
order and agreement, litigation or settlement with respect to Hazardous
Materials has been received by the Borrower or any of its Subsidiaries or,
to the Borrower's knowledge, is proposed, threatened or anticipated with
respect to or in connection with the operation of any properties now or
previously owned, leased or operated by the Borrower or any of its
Subsidiaries. All such properties and their existing and prior uses comply
and at all times have complied with any applicable governmental
requirements relating to environmental matters or Hazardous Materials.
There is no condition on any of such properties which is in violation of
any applicable governmental requirements relating to Hazardous Materials,
and neither the Borrower nor any of its Subsidiaries has received any
communication from or on behalf of any governmental authority that any such
condition exists. None of such properties nor any property to which the
Borrower has, directly or indirectly, transported or arranged for the
transportation of any material is listed or, to the Borrower's knowledge,
proposed for listing on the National Priorities List promulgated pursuant
to CERCLA, on CERCLIS (as defined in CERCLA) or on any similar federal,
state or foreign list of sites requiring investigation or cleanup, nor, to
the knowledge of the Borrower, is any such property anticipated or
threatened to be placed on any such list.
(vi) There has been no environmental investigation, study, audit,
test, review or other analysis conducted of which the Borrower has
knowledge in relation to the current or prior business of the Borrower or
any property or facility now or previously owned, leased or operated by the
Borrower or any of its Subsidiaries which has not been delivered to the
Lenders or will not have been delivered to the Lenders at least five days
prior to the Closing Date.
For purposes of this Section 4.01(y), (x) the terms "Borrower" and "Subsidiary"
-------
shall include any business or business entity (including a corporation) which
is, in whole or in part, a predecessor of the Borrower or any Subsidiary if the
Borrower or such Subsidiary, as a successor to such business or business entity,
is or could
86
be subject to successor liability under applicable law and (y) any
representation made with respect to properties not presently owned, leased or
operated by the Borrower or any of its Subsidiaries shall be limited to
conditions, activities or requirements at or in connection with such properties
for which the Borrower or any of its Subsidiaries is or could be subject to
liability.
(z) Compliance with Laws. The Borrower and its Subsidiaries are in
compliance in all material respects with all applicable laws, rules and
regulations, other than such laws, rules or regulations (i) the validity or
applicability of which the Borrower or such Subsidiary is contesting in good
faith or (ii) the failure to comply with which would not have a material adverse
effect on the business, condition (financial or otherwise), operations,
properties or prospects of the Borrower or any of its Subsidiaries.
(aa) Obligations are Senior Debt and Designated Senior Debt. All
obligations of the Borrower and the Guarantors under this Agreement, the Notes,
the Guaranty Agreement, the other Loan Documents and any Interest Rate
Protection Agreements are "Senior Debt" and "Designated Senior Debt" within the
meaning of, and are entitled to the benefits of, Article X of the indentures
governing the Existing Subordinated Debt and of any indentures governing any
other Permitted Subordinated Debt.
(bb) Year 2000 Compliance. The Borrower has completed any reprogramming
and related tested required to permit the proper functioning of computer systems
and applications used by the Borrower and its Subsidiaries in and following the
year 2000 (including any necessary to address the so-called "Year 2000
Problem"), and the computer and management information systems of the Borrower
and its Subsidiaries are and, with ordinary course upgrading and maintenance,
will continue to be, adequate for the conduct of their business.
(cc) Representations in Other Transaction Documents are True and Correct.
Each of the representations and warranties of the Borrower and its Subsidiaries
contained in the Other Transaction Documents is true and correct in all material
respects.
87
ARTICLE 5
Covenants of the Borrower
Section 5.01. Affirmative Covenants. So long as any Obligation hereunder or
under any Loan Document shall remain unpaid, or any Term Loan A Advance or Term
Loan B Advance shall be outstanding, or any Lender shall have any Term Loan A
Commitment or Term Loan B Commitment hereunder, the Borrower will, unless the
Majority Lenders, otherwise consent in writing:
(a) Compliance with Laws, Etc. Perform and promptly comply, and cause
each of its Subsidiaries to perform and promptly comply, in all material
respects, and cause all property of the Borrower and each such Subsidiary to be
maintained, used and operated in all material respects in accordance with all
(present and future laws, ordinances, rules, regulations, orders and
requirements (including, without limitation, the Communications Act,
Environmental Laws and ERISA) of every duly constituted governmental or quasi-
governmental authority or agency applicable to the Borrower, any of its
Subsidiaries or any of their properties, (ii) similarly applicable orders, rules
and regulations of any regulatory, licensing, accrediting, insurance
underwriting or rating organization or other body exercising similar functions,
and (iii) similarly applicable duties or obligations of any kind imposed under
any certificate of occupancy, Leasehold or otherwise by law, covenant,
conditions, agreement or easement, public or private, in each case except where
the failure to perform and promptly comply would not result in a material
adverse affect on the business, condition (financial or otherwise), operations,
properties or prospects of the Borrower, of any of its Subsidiaries or of the
Borrower and its Subsidiaries taken as a whole.
(b) Conduct of Business; Preservation of Corporate Existence. Continue,
and cause each of its Subsidiaries to continue, to engage only in business of
the same general type as conducted by the Borrower and its Subsidiaries as of
the Closing Date, and preserve and maintain, and cause each of its Subsidiaries
that is a corporation to preserve and maintain, its corporate existence and
corporate rights (charter and statutory), and those corporate franchises
material to the business or operations of the Borrower or such Subsidiary and to
cause each of its Subsidiaries that is a partnership to preserve and maintain
its existence as a partnership and its rights (both under law and pursuant to
its partnership agreement) as such, and those franchises material to the
business or operations of such partnership.
(c) Visitation Rights. At any reasonable time and from time to time, upon
reasonable notice permit any Agent or any of the Lenders or any agents or
representatives thereof to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, the Borrower and
any
88
of its Subsidiaries, and to discuss the business and financial affairs, finances
accounts of the Borrower and any of its Subsidiaries with any of their officers
or directors and with its independent certified public accountants and advise
such accountants that the Agents and the Lenders have been authorized to
exercise all rights of the Borrower to require such accountants to disclose any
and all financial statements and other information of any kind that they may
have with respect to the Borrower and any of its Subsidiaries and direct such
accountants to comply with any requirements of any Agent or any Lender for such
information.
(d) Keeping of Books. Keep, and cause each of its Subsidiaries to keep,
proper books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of the Borrower
and each of its Subsidiaries in accordance with generally accepted accounting
principles.
(e) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries
to maintain, insurance with responsible and reputable insurance companies or
associations in such amounts, with such deductibles and covering such risks as
is usually carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which the Borrower or such Subsidiary
operates. If the Borrower or any Subsidiary receives any Major Casualty
Proceeds, notwithstanding any requirements contained in the Collateral Documents
requiring that Major Casualty Proceeds must be paid directly to the Collateral
Agent, the Borrower shall deliver, and shall cause each of its Subsidiaries to
deliver, such Major Casualty Proceeds to the Collateral Agent, to be held,
applied and distributed in accordance with Section 5 of the Security Agreement.
Until so delivered, any such Major Casualty Proceeds shall be held in trust for
the benefit of the Collateral Agent and shall not be commingled with any other
funds or property of the Borrower or any of its Subsidiaries.
(f) Payment of Taxes, Etc. (i) File, and cause each of its Subsidiaries
to file, all tax returns and information and other similar filings (Federal,
state local and foreign) required to be filed; (ii) pay and discharge, and cause
each of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (A) all taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (B) all lawful claims that, if unpaid,
might by law become Lien upon its property, provided that neither the Borrower
nor any such Subsidiary shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by proper
proceedings and in respect of which adequate provision for payment has been made
and adequate reserves are being maintained in accordance with generally accepted
accounting principles and as long as the proceedings referred to above could not
subject any Agent or any Lender to any civil or criminal penalty or liability or
involve any
89
risk of the sale, loss or forfeiture of any item of Collateral and, where
applicable accordance with the Mortgages; and provided further that in the case
of any item of the foregoing description involving in excess of $250,000, the
appropriateness of the proceedings shall be supported by an opinion of the
independent counsel responsible for such proceedings and the adequacy of such
reserves, if any, shall be supported by an opinion of the independent
accountants of the contesting Person (which opinions shall be delivered to the
Lenders); and (iii) maintain, and cause each of its Subsidiaries to maintain,
appropriate reserves in respect of all taxes, assessments, governmental charges
and levies imposed on it or upon its property.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause each
of its Subsidiaries to maintain and preserve, in good working order and
condition, ordinary wear and tear excepted, all of its properties with respect
to which failure to so maintain and preserve would have a material adverse
effect on the business, condition (financial or otherwise), operations,
properties or prospects of the Borrower or any Subsidiary or on the value or
utility to the Borrower or such Subsidiary of any property material to its
business.
(h) Maintenance of FCC Licenses, Affiliation Agreements, Etc. Maintain and
preserve, and cause each of its Subsidiaries to maintain and preserve, each
license, franchise, permit and other authorization necessary or desirable under
the Communications Act or otherwise with respect to which the failure to so
maintain and preserve would have a material adverse effect on the business,
condition (financial or otherwise), operations, properties or prospects of the
Borrower or any such Subsidiary or on the value or utility to the Borrower or
such Subsidiary of any such authorization, including, but not limited to,
performing and observing (except as otherwise provided by law) each term and
provision of each network affiliation agreement to which it is a party and
maintaining each such agreement in full force and effect, it being understood
that failure to maintain any such network affiliation agreement in full force
and effect shall be deemed to result in such a material adverse effect, such
material adverse effect being deemed to occur at such time as programming ceases
to be provided pursuant to such network affiliation agreement, provided that
such material adverse effect shall not be deemed to occur if, prior to the time
that such programming ceases, the Borrower or such Subsidiary shall have entered
into a network affiliation agreement with another network which agreement and
network are reasonably satisfactory to the Majority Lenders and further provided
that the expiration of YB of San Francisco's network affiliation agreement with
NBC on December 31, 2001 shall not be deemed to result in a material adverse
effect.
(i) Arm's-Length Transactions. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the Loan
90
Documents with any of its Affiliates on terms that are fair and reasonable and
no less favorable to the Borrower or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate of the
Borrower or any such Subsidiary, as the case may be, and, in each case in which
any Affiliate of the Borrower acts as sales representative, commission agent or
the like on behalf of the Borrower or any of its Subsidiaries, cause the
arrangements with respect thereto to provide that such Affiliate (i) shall not
receive, directly or indirectly, compensation (including percentage of the sales
price to be paid, time and terms of payment) or other benefits greater than that
which is then typical in the industry for similar transactions, and (ii) shall
deal at all times with the Borrower and its Subsidiaries at arm's length,
provided that, so long as the Borrower owns (directly or indirectly) 100% of the
capital stock or partnership interests of each Guarantor, transactions between
the Borrower and any Guarantor or between any two Guarantors need not be on
terms no less favorable than any such party would obtain in a comparable arm's-
length transaction.
(j) Solvency. Continue to be Solvent and cause each of its Subsidiaries to
continue to be Solvent.
(k) Plan Contribution. Make, and cause each Subsidiary to make, when due,
all contributions required by law to be made to all Plans.
(l) Pro Forma Debt Service Coverage. Cause, at all times, the ratio of (i)
Operating Cash Flow minus Capital Expenditures, in each case for the four
consecutive Fiscal Quarters then most recently ended, to (ii) Pro Forma Debt
Service at such time to be not less than 1.10x.
(m) Interest Coverage. Cause, (i) as of the Closing Date, the ratio of
Operating Cash Flow to Total Interest Expense, in each case for the four
consecutive Fiscal Quarters then most recently ended and giving effect, on a Pro
Forma Basis, to the Borrowings and Other Financings to be made on the Closing
Date and the consummation of the Acquisition, to be not less than 1.50x and (ii)
as of the last day of each Fiscal Quarter during any year set forth below, the
ratio of Operating Cash Flow to Total Interest Expense, in each case for the
four consecutive Fiscal Quarters ending on such day, to be not less than the
required ratio set forth below opposite such year:
Fiscal Quarter Required
Ending During Ratio
---------------- ----------
2000 1.50x
2001 1.50x
91
2002 1.65x
2003 1.75x
2004 and thereafter 2.00x
(n) Senior Debt to Operating Cash Flow Ratio. Cause, (i) the Senior Debt
to Operating Cash Flow Ratio to be not greater than 4.25x after giving effect,
on a Pro Forma Basis, to the Borrowings and Other Financings to be made on the
Closing Date and the consummation of the Acquisition as of the Closing Date and
(ii) as of the last day of each Fiscal Quarter set forth below, the ratio of (A)
Senior Debt as of such day to (B) Operating Cash Flow for the four consecutive
Fiscal Quarters ending on such day to be not greater than the required ratio set
forth below opposite the last day of such Fiscal Quarter:
Fiscal Quarter Required
Ending Ratio
--------------- ----------
June 30, 2000 4.00x
September 30, 2000 4.00x
December 31, 2000 3.75x
March 31, 2001 3.75x
June 30, 2001 3.50x
September 30, 2001 3.50x
December 31, 2001 3.50x
March 31, 2002 3.25x
June 30, 2002 3.00x
September 30, 2002 3.00x
December 31, 2002 3.00x
March 31, 2003 2.75x
June 30, 2003 2.75x
September 30, 2003 2.75x
December 31, 2003 2.75x
March 31, 2004 2.25x
92
June 30, 2004 2.25x
September 30, 2004 2.25x
December 31, 2004 2.25x
March 31, 2005 and thereafter 2.00x
(o) Debt to Operating Cash Flow Ratio. Cause the Debt to Operating Cash
Flow Ratio (i) as of the Closing Date to be equal to or less than 7.25x after
giving effect, on a Pro Forma Basis, to the Borrowings and Other Financings to
be made on the Closing Date and the consummation of the Acquisition as of the
Closing Date and (ii) as of the last day of each Fiscal Quarter set forth below,
to be equal to or less than the required ratio set forth below opposite the last
day of such Fiscal Quarter:
Fiscal Quarter Required
Ending Ratio
-------------- --------
June 30, 2000 7.25x
September 30, 2000 7.00x
December 31, 2000 6.50x
March 31, 2001 6.50x
June 30, 2001 6.50x
September 30, 2001 6.25x
December 31, 2001 6.25x
March 31, 2002 5.75x
June 30, 2002 5.75x
September 30, 2002 5.75x
December 31, 2002 5.75x
March 31, 2003 5.50x
June 30, 2003 5.50x
September 30, 2003 5.50x
93
December 31, 2003 5.50x
March 31, 2004 5.00x
June 30, 2004 5.00x
September 30, 2004 5.00x
December 31, 2004 5.00x
March 31, 2005 and thereafter 4.50x
(p) Accuracy of Information Given to Lenders. Use its best efforts to
ensure that all written information, exhibits or reports furnished by the
Borrower or any of its Subsidiaries to any Agent or any Lender will contain no
untrue statement of a material fact and will not omit to state any material fact
or any fact necessary to make the statements contained therein not misleading.
(q) Management. Retain as its chief executive officer its present
Chairman. Notwithstanding anything to the contrary in this Agreement, all policy
and operational decisions relating to the operations of any television
broadcasting stations now or hereafter owned or operated by the Borrower or any
of its Subsidiaries will remain within the exclusive control of the Borrower or
its Subsidiaries.
(r) Further Assurances. Promptly, upon request by any Agent or any Lender
through the Administrative Agent, correct, and cause each party to a Loan
Document to promptly correct, any defect or error that may be discovered in any
Loan Document or in the execution, acknowledgment or recordation thereof.
Promptly, upon request by any Agent or any Lender through the Administrative
Agent, the Borrower will also, and will cause each Guarantor to, do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and
re-register, any and all such further acts, deeds, conveyances, pledge
agreements, security agreements, mortgages, deeds of trust, trust deeds,
assignments, estoppel certificates, financing statements and continuations
thereof, notices of assignment, transfers, certificates, assurances and other
instruments (including but not limited to subleases or other grants of rights
with respect to the Leasehold interests) as any Agent or any Lender through the
Administrative Agent may require from time to time in order (i) to carry out
more effectively the purposes of this Agreement or any other Loan Document, (ii)
to subject to the Liens created by any of the Loan Documents any of the
Borrower's and its Subsidiaries' properties, rights or interests covered or now
or hereafter intended to be covered by any of the Loan Documents, (iii) to
perfect and maintain the validity, effectiveness and priority of any of the
Collateral Documents and the Liens intended to be created thereby, and
94
(iv) to better assure, convey, grant, assign, transfer, preserve, protect and
confirm to the Agents and the Lenders the rights granted or now or hereafter
intended to be granted to the Agents and/or the Lenders under any Loan Document
or under any other instrument executed in connection with any Loan Document to
which the Borrower or any of its Subsidiaries is or may become a party.
(s) Management of Partnerships. Cause the KLFY Partnership, the WKRN
Partnership and the WATE Partnership to be managed and operated, and cause their
respective affairs to be conducted, in accordance with the terms and conditions
of the KLFY Partnership Agreement, the WKRN Partnership Agreement and the WATE
Partnership Agreement, respectively.
(t) Hazardous Materials; Remediation. (i) Promptly give notice to the
Lenders in writing of any complaint, order, citation, notice or other written
communication from any Person with respect to, or if the Borrower becomes aware
of, (x) the existence or alleged existence of a violation of any applicable
Environmental Law or the incurrence of any material liability, obligation, loss,
damage, cost, expense, fine, penalty or sanction or the requirement to commence
any material remedial action resulting from or in connection with any air
emission, water discharge, noise emission, Hazardous Material or any other
environmental, health or safety matter at, upon, under or within any of the
properties now or previously owned, leased or operated by the Borrower or any of
its Subsidiaries, or due to the operations or activities of the Borrower, any
Subsidiary or any other Person on or in connection with any such property or any
part thereof, in each case if the Borrower or any of its Subsidiaries is or
could be subject to liability therefor or (y) any release on any of such
properties of Hazardous Materials in a quantity that is reportable under any
applicable Environmental Law; and (ii) promptly comply with any governmental
requirements requiring the removal, treatment or disposal of such Hazardous
Materials or correction of any violation of any material Environmental Law and
provide evidence satisfactory to the Majority Lenders of such compliance.
(u) FCC Filings. Within 30 days of the execution hereof and thereof, file
with the FCC a copy of this Agreement and of each other Loan Document required
to be filed with the FCC pursuant to 47 C.F.R. Section 73.3613, and confirm in
writing to the Administrative Agent that such copies have been duly and timely
filed.
(v) Refinancing Notices. (i) At least 30 days before each Target
Refinancing Date, the Borrower shall deliver a notice to the Administrative
Agent (a copy of which the Administrative Agent shall promptly send to each
Lender), stating whether the Borrower intends to Refinance the related issue of
Existing
95
Subordinated Debt and, if so, describing in reasonable detail its current plans
for such Refinancing (including any target date for completing it).
(ii) On each Target Refinancing Date, the Borrower shall deliver a notice
to the Administrative Agent (a copy of which the Administrative Agent shall
promptly send to each Lender), stating whether the Borrower has Refinanced the
related issue of Existing Subordinated Debt and, if it has failed to do so,
stating that the holders of the Term Loan A Advances and Other Term Loan A
Advances, together with Lenders (as defined in the Existing Credit Agreement)
under the Existing Credit Agreement having Revolving Facility Commitments (as
defined in the Existing Credit Agreement) may give a "Term Loan A Non-
Acceleration Notice" (as defined in and pursuant to provisions of Section
8.01(a)) and that doing so will cause the related Accelerated Termination Date
-------
not to be the Term Loan A Termination Date.
(iii) On each Target Refinancing Date, the Borrower shall deliver a
notice to the Administrative Agent (a copy of which the Administrative Agent
shall promptly send to each Lender) stating whether the Borrower has
successfully Refinanced the related issue of Existing Subordinated Debt and, if
it has failed to do so, stating that the holders of the Term Loan B Advances may
give a "Term Loan B Acceleration Notice" (as defined in and pursuant to the
provisions of Section 8.01(a)) and that failure to do so will result in the
--------
related Accelerated Termination Date not being the Term Loan B Termination Date.
Section 5.02. Negative Covenants. So long as any Obligation hereunder or
under any Loan Document shall remain unpaid, or any Term Loan A Advance or Term
Loan B Advance shall be outstanding, or any Lender shall have any Term Loan A
Commitment or Term Loan B Commitment hereunder, the Borrower will not, without
the written consent of the Majority Lenders or, in the case of Section 5.02(c),
-------
without the written consent of each Lender:
(a) Liens, Etc. Other than Permitted Liens, create, incur, assume or
suffer to exist, or permit any of its Subsidiaries to create, incur, assume or
suffer to exist, any Lien upon or with respect to any of its assets or
properties of any character (including, without limitation, accounts and shares
of capital stock and partnership interests of the Borrower's Subsidiaries),
whether now owned or hereafter acquired, or assign any right to receive income,
or sign or file, or permit any of its Subsidiaries to sign or file, under the
Uniform Commercial Code or any comparable statute of any jurisdiction a
financing statement that names the Borrower or any of its Subsidiaries as
debtor, or sign, or permit any of its Subsidiaries to sign, any security
agreement authorizing any secured party thereunder to file such a financing
statement, or assign, or permit any of its Subsidiaries to assign, any accounts.
96
(b) Debt. Create, incur, assume, guarantee or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume, guarantee or suffer to exist,
any Debt, other than (i) Debt under the Loan Documents, (ii) Debt under the
Other Financing Documents, (iii) Debt existing on the Closing Date and listed on
Schedule 4.01(n) of this Agreement, (iv) Debt existing on the date of this
Agreement and not listed on Schedule 4.01(n) in an aggregate principal amount
not to exceed $250,000, (v) Existing Subordinated Debt, and (vi) Debt incurred
after the Closing Date when no Default is then continuing or would result
therefrom as follows:
(A) Debt incurred by the Borrower or any Subsidiary of the
Borrower in the ordinary course of business, consistent with past
practice, for the deferred purchase price of goods or services;
(B) Permitted Subordinated Debt;
(C) Debt of the Borrower or any Subsidiary of the Borrower
secured by a Lien described in clause (vii) of the definition of
Permitted Liens, in an aggregate principal amount outstanding at any
time not to exceed $25,000,000;
(D) Capital Lease Obligations of the Borrower or any Subsidiary
with an aggregate amount outstanding at any time not to exceed
$40,000,000.
(E) Guaranteed Debt in an aggregate principal amount outstanding
at any time not to exceed $3,000,000; and
(F) Obligations of the Borrower under any Interest Rate
Protection Agreements and other Derivatives Obligations to the extent
permitted by Section 5.02(s).
-------
(c) Mergers. Merge or consolidate with or into any Person, or permit any
of its Subsidiaries to do so or agree to any such transaction, provided that (i)
no Default shall have occurred and be continuing, and the Borrower or such
Subsidiary is the surviving entity, the prior written consent of each Lender (as
defined above) shall not be required but the prior written consent of the
Majority Lenders shall be required and (ii) no consent of any Lender shall be
required for the merger of the License Companies into YB of San Francisco.
(d) Sales, Etc., of Assets. Unless the Borrower obtains the prior written
consent of Majority Lenders, sell, lease, transfer or otherwise dispose of, or
permit
97
any of its Subsidiaries to sell, lease, transfer or otherwise dispose of, any
assets, except (i) sales, leases, transfers and other dispositions of inventory
and used, surplus or worn-out equipment (including abandonment of assets having
no further useful life to the Borrower or such Subsidiary, as the case may be)
made in the ordinary course of business of the Borrower or such Subsidiary, as
the case may be, (ii) transfers by the Borrower or a Guarantor to another
Guarantor or the Borrower so long as the Borrower owns directly 100% of the
capital stock of each Guarantor that is a corporation and directly or through
one or more wholly owned Subsidiaries 100% of the partnership interests of each
Guarantor that is a partnership, and (iii) Permitted Asset Sales.
(e) Maintenance of Ownership of Subsidiaries; Issuance of Stock and
Partnership Interests, Etc. Sell or otherwise dispose of, or commit to sell or
otherwise dispose of, any shares of capital stock of or any partnership
interests in any of its Subsidiaries (except for the sale of YB of San
Francisco's interest in Bay TV Joint Venture in the event that the minority
partner of Bay TV Joint Venture exercises its call right pursuant to Section 8.3
of the Agreement of General Partnership of Bay TV Joint Venture and the letter
agreement dated June 23, 2000 between Chronicle and the minority partner of Bay
TV Joint Venture) unless such disposition constitutes a Permitted Asset Sale, or
permit any of its Subsidiaries to issue, sell or otherwise dispose of, or commit
to issue, sell or otherwise dispose of, any shares of its capital stock or any
partnership interests or capital stock of or partnership interests in any other
Subsidiary of the Borrower.
(f) Investments in Other Persons and Asset Purchases. Make, or permit any
of its Subsidiaries to make, any loan or advance to, or investment in, any other
Person, or purchase or otherwise acquire, or permit any of its Subsidiaries to
purchase or otherwise acquire, any shares of capital stock, obligations or other
securities of, make any capital contribution to, or otherwise invest in, any
other Person (an "Investment"), or make any Asset Purchase except for (i)
Temporary Cash Investments, (ii) trade receivables created in the ordinary
course of the business of the Borrower or its Subsidiaries, (iii) Investments in
the Borrower by any Guarantor, Investments in any Guarantor by the Borrower or
by any other Guarantor and purchases of shares of common stock of the Borrower
to the extent permitted by clauses (iv) or (v) of Section 5.02(g) hereof, (iv)
-------
Asset Pan Investments made after the date hereof in any one or more Persons,
other than the Borrower or any Guarantor, in an aggregate amount of all Asset
Purchases made since the Closing Date, together with Investments outstanding at
any time, not exceeding $15,000,000, (v) Permitted Acquisitions, (vi) Permitted
Acquisition Deposits, (vii) Investments in Tower Affiliates, to the extent
incidental to the ownership and operation of the transmission towers owned by
such Tower Affiliates and (viii) Investments in customers of the Borrower or its
Subsidiaries in exchange for advertising time provided to such customers, such
98
advertising time having a value in an aggregate amount not exceeding $15,000,000
through and including the Termination Date, provided that no Investments shall
be made by any Subsidiary unless and until such Subsidiary is a Guarantor
pursuant to the terms of this Agreement, and such Subsidiary has delivered, to
the Collateral Agent, financing statements signed by such Subsidiary, with
evidence reasonably satisfactory to the Collateral Agent that such financing
statements will be duly filed under the Uniform Commercial Code of all
jurisdictions as may be necessary or, in the opinion of the Collateral Agent,
desirable or appropriate to perfect the security interests in Investment
Property (as defined in the Security Agreements) created by the Security
Agreements. The Borrower will not, and will not permit any Subsidiary to, allow
any party other than the Collateral Agent to obtain "control" (as defined in the
Uniform Commercial Code of the applicable jurisdiction) of any investment
property obtained pursuant to Investments permitted by clause (viii). Without
limiting the generality of the foregoing, the Borrower will not, and will not
permit any Subsidiary to, acquire or create any Subsidiary (except for Bay TV
Joint Venture), unless (x) arrangements satisfactory to the Agents shall have
been made for (A) the pledge of the stock of such Subsidiary to the Collateral
Agent for its benefit and the benefit of the Secured Parties, (B) such
Subsidiary to become a Guarantor hereunder and (C) the granting of liens and
security interests in substantially all of the assets of such Subsidiary to the
Collateral Agent for its benefit and the benefit of the Secured Parties or (y)
such Subsidiary is created in anticipation of a Permitted Acquisition and, prior
to the time of such Permitted Acquisition, neither the book value nor the fair
market value of the assets of such Subsidiary (disregarding its rights, if any,
under the related acquisition agreement) exceeds $50,000, provided that the
provisions of clause (c) of the definition of "Permitted Acquisition" must be
satisfied at the time of such Permitted Acquisition.
(g) Restricted Payments. Declare or make any Restricted Payment, or return
any capital to its stockholders as such, or make any distribution of assets,
stock, warrants, rights, obligations or securities to its stockholders as such,
or permit any of its Subsidiaries to declare or make any Restricted Payment, or
return any capital to any of their stockholders or to any of the Borrower's
stockholders, or make any distribution of assets to any of their stockholders or
any of the Borrower's stockholders as such, except that (i) the Borrower's
Subsidiaries may pay cash dividends to the Borrower, (ii) any wholly-owned
Subsidiary of the Borrower that is a partnership may make distributions to its
partners in accordance with the provisions of the partnership agreement
governing such partnership, ( the Borrower may purchase shares of (or options to
purchase shares of) its common stock from employees of the Borrower or any
Subsidiary of the Borrower so long as (x) before and after giving effect to any
such purchase, no Default shall have occurred and be continuing and (y) the
aggregate number of shares (including the equivalent number of shares in the
case of options)
99
purchased by the Borrower from all employees since the Closing Date shall not
exceed 2% of the aggregate number of shares of the Borrower's Class A Common
Stock, Class B Common Stock and Class C Common Stock outstanding on the Closing
Date, (iv) at any time when, as of the last day of the immediately preceding
month, the Debt to Operating Cash Flow Ratio was less than or equal to the lower
of (x) 6.85x and (y) the then applicable required ratio set forth in Section
5.01(o), the Borrower may purchase shares of its common stock so long as before
and after giving effect to such purchase, the aggregate amount paid by the
Borrower for all such purchases pursuant to this clause (iv) from and after the
Closing Date shall not exceed the Permitted Common Stock Purchase Amount and (v)
at any time when, as of the last day of the immediately preceding month, the
Senior Debt to Operating Cash Flow Ratio was less than or equal to 2.5x, the
Borrower may purchase, or make distributions of cash dividends on, shares of its
common stock so long as before and after giving effect to any such purchase or
distribution, the aggregate amount paid by the Borrower for all such purchases
and distributions pursuant to this clause (v) from and after the Closing Date
shall not exceed (1) $35,000,000 or (2) at any time when, as of the last day of
the immediately preceding month, the Senior Debt to Operating Cash Flow Ratio
was less than or equal to 1.0x, $70,000,000; provided that any amount so paid by
the Borrower in excess of $35,000,000 when the immediately preceding clause (2)
was applicable shall not constitute a Default, provided that in the case of any
purchase or distribution pursuant to clause (iv) or (v) it shall also be a
condition that (I) in each case the Administrative Agent shall have received a
certificate of the Borrower's chief financial officer for such period,
substantially in the form of Exhibit J, and (II) before and after giving effect
to any such purchase or distribution, no Default shall have occurred and be
continuing and the Borrower shall be in compliance with Section 4.05(a) of the
indenture governing any Existing Subordinated Debt as in effect on the Closing
Date, and of any equivalent provisions of any indentures governing any Permitted
Subordinated Debt.
(h) Prepayment of Debt. Prepay, redeem, defease (whether actually or in
substance) or purchase, in any manner (or deposit or set aside funds for the
purpose of any of the foregoing), make any payment in respect of principal of or
premium on, or make any payment in respect of interest on any Debt (including,
without limitation, any Existing Subordinated Debt and any Permitted
Subordinated Debt), or permit any of its Subsidiaries to prepay, redeem, defease
(whether actually or in substance) or purchase in any manner, make any payment
in respect of principal of or premium on, or make any payment in respect of
interest on any Debt (including, without limitation, any Existing Subordinated
Debt and any Permitted Subordinated Debt), in each case other than:
100
(i) regularly scheduled repayments of principal or payments of
interest required in accordance with the terms of the instruments governing
the respective Debt;
(ii) any repayments or prepayments of principal and any payments of
interest in respect of the Notes or any Other Financing;
(iii) regularly scheduled rental payments in respect of Capital
Leases;
(iv) any prepayment, redemption, defeasance or purchase of any
Existing Subordinated Debt from the Net Proceeds of Refinancing Permitted
Subordinated Debt at the time of issuance thereof so long as before and
after giving effect thereto, no Default shall have occurred and be
continuing and the Borrower shall be in compliance with all Subordinated
Debt Documents; and
(v) any prepayment, redemption, defeasance or purchase of any
Existing Subordinated Debt or Permitted Subordinated Debt in an unlimited
amount, so long as before and after giving effect thereto, (no Default
shall have occurred and be continuing and (B) the Borrower shall be in
compliance with all Subordinated Debt Documents;
(i) Change in Business; Cease Broadcasting. Engage, or permit any of its
Subsidiaries to engage, in any business other than over-the-air television
broadcasting and activities incidental or reasonably related thereto; or permit
any broadcast station operated by the Borrower or any of its Subsidiaries to
cease broadcasting for a period in excess of 10 consecutive days.
(j) Change of Accountants. Replace its then current Independent Public
Accountants unless the successor independent public accountants qualify as an
Independent Public Accountant as defined in this Agreement and the Borrower
shall have delivered to the successor independent public accountants a letter
complying with the provisions of Section 3.01(g)(19).
-------
(k) Amendment of Charter or By-Laws. Amend, modify or change in any
manner, or permit any of its Subsidiaries to amend, modify or change in any
manner, the provisions of its certificate of incorporation or by-laws or any
agreement entered into by it or any of its Subsidiaries with respect to its
capital stock or partnership interests, including the KLFY Partnership
Agreement, the WKRN Partnership Agreement and the WATE Partnership Agreement,
unless in each case such amendment, modification or change would not be
disadvantageous
101
to the Lenders and the Borrower shall have delivered prior written notice to the
Lenders of such amendment, modification or change, with a copy thereof.
(l) Termination of Licenses. Terminate, lose, fail to hold or fail to
renew, or permit any of its Subsidiaries to terminate, lose, fail to hold or
fail to renew, any license, permit or authorization granted by the FCC if such
termination, loss or failure to hold or failure to renew would have a materially
adverse effect upon the business, condition (financial or otherwise),
operations, properties or prospects of the Borrower or any such Subsidiary.
(m) Amendment, Etc. of Related Documents. Without the express prior
written consent of the Majority Lenders, (i) cancel or terminate any Related
Document or consent to or accept any cancellation or termination thereof (other
than in connection with the repayment in full of the related Subordinated Notes
or Other Financing in compliance with the provisions hereof (including Section
5.02(h) hereof), (ii) amend or otherwise modify any material term or provision
-------
of any Related Document or give any consent, waiver or approval with respect
thereto (provided that the provisions of Article X of the indentures governing
the Existing Subordinated Debt, any similar provisions of any indentures
governing any other Permitted Subordinated Debt and the definitions of any
defined terms used therein shall be deemed to be material), or (iii) take or
fail to take any other action in connection with the Related Documents that
would impair the interests or rights of any Agent or any Lender.
(n) Trade Debt. Create, incur, assume, guarantee, or suffer to exist Trade
Debt other than in the ordinary course of business.
(o) Employee Benefit Costs and Liabilities. Create, incur, assume,
guarantee or suffer to exist, or permit any ERISA Affiliate to create, incur,
assume, guarantee or suffer to exist, (i) any Insufficiency with respect to a
Plan or any obligation with respect to a Multiemployer Plan or (ii) any
liability with respect to welfare plans (as defined in Section 3(1) of ERISA,
but excluding medical plans established for the benefit of employees of the
Borrower or any Subsidiaries) if, immediately after giving effect to such
liability, the aggregate annualized cost (including, without limitation, the
cost of insurance premiums) with respect to such plans for which the Borrower is
or may become liable in any fiscal year of the Borrower would exceed $250,000.
(p) Plan Amendments. Adopt an amendment with respect to which security is
required under Section 307 of ERISA to any Plan.
(q) Limited and General Partners. Permit LAT, YBT or YBK (i) to conduct
any business other than to acquire and hold, respectively, a limited
102
partnership interest in the KLFY Partnership, a general partnership interest in
the WKRN Partnership and a general partnership interest in the WATE Partnership
and to exercise their rights and perform their obligations under the KLFY
Partnership Agreement, the WKRN Partnership Agreement and the WATE Partnership
Agreement, respectively, (ii) other than Liens created by the Collateral
Documents, to cause or permit, or agree to cause or permit in the future (upon
the happening of a contingency or otherwise), any consensual security interest,
lien or other encumbrance upon any of its assets or (iii) to hold any interest
whatsoever in any asset other than (A) a limited partnership interest in the
KLFY Partnership, and a general partnership interest in the WKRN Partnership or
the WATE Partnership and (B) cash; provided that any cash in excess of $10,000
is distributed to the Borrower or paid to the KLFY Partnership, the WKRN
Partnership or the WATE Partnership within 30 days of receipt thereof by LAT,
YBT or YBK.
(r) Limitation on Payment Restrictions Affecting Subsidiaries. Permit to
exist, directly or indirectly, or create or otherwise cause or suffer to exist
or become effective any encumbrance or restriction on the ability of any
Subsidiary to: (i) pay any dividends or make any other distributions on its
capital stock or partnership or other equity interests owned by the Borrower or
any Subsidiary of the Borrower; (ii) pay any obligations owed to the Borrower or
any other Subsidiary; (iii) make loans or advances to the Borrower or any other
Subsidiary; or (iv) transfer any of its properties or assets to the Borrower or
any other Subsidiary, except for encumbrances or restrictions existing under
applicable law or pursuant to any Other Financing Document.
(s) Interest Rate Protection. Enter into, or permit any of its
Subsidiaries to enter into, interest rate cap agreements or other interest rate
protection, except (i) Interest Rate Protection Agreements or (ii) other
interest rate cap agreements or other interest rate protection that do not
require or provide for the imposition of any Lien on any asset of the Borrower
or any of its Subsidiaries, and which contain conditions and are with financial
institutions acceptable to the Agents (such acceptance of the Agents not to be
unreasonably denied).
(t) Fiscal Year. The Borrower will not change its fiscal year from a
fiscal year ending December 31.
Section 5.03. Reporting Requirements. So long as any Obligation hereunder
or under any Loan Document shall remain unpaid, or any Lender shall have any
Term Loan A Commitment or Term Loan B Commitment hereunder, the Borrower will
furnish to each Lender (and, in the case of the Notice of Debt to Operating Cash
Flow Ratio, also to the Administrative Agent) the following:
103
(a) In a form reasonably acceptable to the Majority Lenders (i) on or
before the 25th day after the end of each month that is not the last month of a
Fiscal Quarter, Consolidated balance sheets of the Borrower and its Subsidiaries
as of the last day of such month and Consolidated statements of income and
retained earnings (including the sales and Operating Cash Flow components
thereof) and Consolidated statements of changes in cash flow (including, without
limitation, cash payments in respect of Capital Expenditures and Film Expense)
of the Borrower and its Subsidiaries for such month and for the period
commencing on the first day of such Fiscal Year and ending on the last day of
such month (and, in the case of such statements of income, comparing the actual
amounts thereof with the amounts budgeted therefor and with the actual amounts
thereof in the equivalent periods of the immediately preceding Fiscal Year), in
each case certified by the chief financial officer of the Borrower, together
with a certificate of the chief financial officer of the Borrower stating that
no Default has occurred and is continuing or, if a Default has occurred and is
continuing, a statement as to the nature thereof and the action that the
Borrower has taken or proposes to take with respect thereto, and (ii) on or
before the 25/th/ day after the end of each Fiscal Quarter, a schedule (each, a
"Notice of Debt to Operating Cash Flow Ratio") prepared by the chief financial
officer of the Borrower, in form satisfactory to the Lenders, of the
computations used by the Borrower to determine the Debt to Operating Cash Flow
Ratio as of the last day of such Fiscal Quarter.
(b) As soon as available and in any event within 45 days after the end of
each of the first three quarters of each Fiscal Year of the Borrower, the
Consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
such quarter, and the related Consolidated statements of income and retained
earnings and Consolidated statements of changes in cash flow of the Borrower and
its Subsidiaries for each of such quarters and the period commencing at the end
of the previous Fiscal Year and ending with the end of such quarter, in each
case in form and substance satisfactory to the Lenders, certified by the chief
financial officer of the Borrower as having been prepared in accordance with
generally accepted accounting principles, together with (i) a certificate of the
chief financial officer of the Borrower, substantially in the form of Exhibit J
and ( a schedule prepared by the chief financial officer of the Borrower, in
form satisfactory to the Lenders, of the computations used by the Borrower in
determining, as of the end of such fiscal quarter, compliance with the
limitations contained in Sections 5.01(l), 5.01(m), 5.01(n), 5.01(o), 5.02(a),
------- ------- ------- ------- -------
5.02(b), 5.02(d), 5.02(f), 5.02(g), 5.02(h), 6.01(d), 6.01(g), 6.01(k), 6.01(m),
------- ------- ------- ------- ------- ------- ------- ------- -------
6.01(n) and 6.01(o).
------- -------
(c) As soon as available and in any event within 90 days after the end of
each Fiscal Year of the Borrower, a copy of the annual report for such year for
the Borrower and its Subsidiaries, including therein a Consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and
a
104
Consolidated statement of income and retained earnings and a Consolidated
statement of changes in cash flow, of the Borrower and its Subsidiaries for such
Fiscal Year, certified in a manner acceptable to the Lenders by the Independent
Public Accountants, together with (i) a certificate of such accounting firm to
the Lenders stating that, in the course of the regular audit of the business of
the Borrower and its Subsidiaries, which audit was conducted by such accounting
firm in accordance with generally accepted auditing standards, such accounting
firm has obtained no knowledge that a Default has occurred and is continuing, or
if, in the opinion of such accounting firm, a Default has occurred and is
continuing, a statement as to the nature thereof, (ii) a certificate of the
chief financial officer of the Borrower substantially in the form of Exhibit J,
(iii) a schedule prepared by the chief financial officer of the Borrower, in
form satisfactory to the Lenders, of the computations used by the Borrower in
determining, as of the end of such Fiscal Year, compliance with limitations
contained in Sections 5.01(l), 5.01(m), 5.01(n), 5.01(o), 5.02(a), 5.02(b),
------- ------- ------- ------- ------- -------
5.02(d), 5.02(f), 5.02(g), 5.02(h), 6.01(d), 6.01(g), 6.01(k), 6.01(m), 6.01(n)
------- ------- ------- ------- ------- ------- ------- ------- -------
and 6.01(o) and the calculation of the Debt to Operating Cash Flow Ratio as of
-------
the last day of such Fiscal Year, and (iv) unaudited consolidating balance
sheets as of the end of such Fiscal Year and statements of income and retained
earnings and statements of the sources and uses of funds for such Fiscal Year
for the Borrower and each of its Subsidiaries, certified by the chief financial
officer of the Borrower;
(d) As soon as available and in any event by the end of each Fiscal Year,
a copy of the annual business and financial plan of the Borrower and its
Consolidated Subsidiaries for the next ending Fiscal Year on a monthly basis
(for each fiscal month) and for the subsequent Fiscal Year on an annual basis,
in form and substance satisfactory to the Administrative Agent, which plan will
include (i) projected Consolidated balance sheets of the Borrower for the next
ending Fiscal Year, on an annual basis; (ii) projected Consolidated cash flow
analyses of the Borrower and each of its Subsidiaries for each of the twelve
months following the end of such Fiscal Year, on a monthly basis, and for the
next ending Fiscal Year on an annual basis; and (iii) projected Consolidated
income statements of the Borrower and each of its Subsidiaries for each of the
twelve months following the end of such Fiscal Year, on a monthly basis, and for
the next ending Fiscal Year on an annual basis;
(e) Promptly after the sending or filing thereof, copies of all proxy
statements, financial statements and reports which the Borrower or any of its
Subsidiaries sends to their respective shareholders and copies of all
registration statements and reports on Forms 10-K, 10-Q and 8-K (or their
equivalent) which the Borrower or any of its Subsidiaries files with the
Securities and Exchange Commission or any national securities exchange;
105
(f) Promptly after the commencement thereof, notice of all actions, suits,
hearings and proceedings before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
affecting the Borrower or any of its Subsidiaries of the type described in
Section 4.01(h) or in Section 6.01(g);
------- -------
(g) As soon as possible and in any event within five days after the
occurrence of any Default, a statement by the chief financial officer of the
Borrower setting forth details of such Default and the action which the Borrower
has taken or proposes to take with respect thereto;
(h) Promptly upon becoming aware that any Termination Event with respect
to any Plan has occurred, a statement by the chief financial officer of the
Borrower describing such Termination Event and each action, if any, which the
Borrower and each such ERISA Affiliate proposes to take with respect thereto;
(i) Promptly and in any event within two Domestic Business Days after
receipt thereof by the Borrower or any ERISA Affiliate from the PBGC, copies of
each notice received by the Borrower or any ERISA Affiliate from the PBGC
stating the PBGC's intention to terminate any Plan or to have a trustee
appointed to administer any Plan;
(j) Promptly and in any event within 30 days after the filing thereof with
the Internal Revenue Service, copies of each Schedule B (Actuarial Information)
to the annual report (Form 5500 Series) with respect to each Plan
(k) At the time notice is given or required to be given to the PBGC under
Section 302(f)(4)(A) of ERISA of the failure to make timely payments to a Plan,
a copy of any such notice filed and a statement of the chief financial officer
of the Borrower setting forth (A) sufficient information necessary to determine
the amount of the lien under Section 302(f)(3), (B) the reason for the failure
to make the required payments and (C) the action, if any, which the Borrower or
its ERISA Affiliates proposes to take with respect thereto;
(l) Promptly and in any event within five Domestic Business Days after
receipt thereof by the Borrower or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, a copy of each notice received by the Borrower or any ERISA
Affiliate concerning (A) the imposition of Withdrawal Liability by a
Multiemployer Plan, (B) the determination that a Multiemployer Plan is, or is
expected to be, in reorganization within the meaning of Title IV of ERISA, (C)
the termination of a Multiemployer Plan within the meaning of Title IV of ERISA
or (D) the amount of liability incurred, or expected to be incurred, by the
106
Borrower or any ERISA Affiliate in connection with any event described in c (A),
(B) or (C) above;
(m) Promptly notify, and cause each of its Subsidiaries to promptly
notify, the Administrative Agent (i) of any lapse, termination or relinquishment
of any station license, permit or other authorization from the FCC held by the
Borrower or any of its Subsidiaries or any failure by the FCC to renew or extend
any such license, permit or other authorization for other than the usual period
thereof, which lapse, termination, relinquishment, failure to renew or extend
would have a material adverse effect on the business, condition (financial or
otherwise), operations, properties or prospects of the Borrower or any of its
Subsidiaries; and (ii) of any complaint or other matter filed with or
communicated to the FCC, of which the Borrower or any of its Subsidiaries has
knowledge and which might have a materially adverse effect upon the renewal or
extension of any station license, permit or other authorization held by the
Borrower or any of its Subsidiaries, including, without limitation, (A) any
complaint to which the FCC has requested an answer, (B) any petition to deny, or
informal objection filed with regard to, an application filed by the Borrower or
any of its Subsidiaries with the FCC or any mutually exclusive competing
application filed for authority to broadcast on the frequencies or channels
licensed to the Borrower or any of its Subsidiaries and (C) any citation or
notice of violation or order to show cause or order to become a party to a
proceeding issued by the FCC against the Borrower or any of its Subsidiaries;
(n) Promptly after any significant change in accounting policies or
reporting practices, notice and a description in reasonable detail of such
change;
(o) Copies of any statement or report to be furnished to any other holder
of the securities of the Borrower or any of its Subsidiaries pursuant to the
terms of any indenture, loan or credit or similar agreement and not otherwise
required to be furnished to the Lenders pursuant to any other clause of this
Section 5.03, at such time as such statement or report is to be furnished to
such other holder pursuant to such terms;
(p) As soon as possible after the end of each Fiscal Year, a statement
certified by the chief financial officer of the Borrower setting forth in
reasonable detail any changes since the date of this Agreement, not previously
reported pursuant to this paragraph (p), in the information set forth in
Schedules 4.01(h), 4.01(m), 4.01(t) and 4.01(y), or stating that no such changes
have occurred;
(q) Such other information respecting the condition or operations,
financial or otherwise, of the Borrower or any of its Subsidiaries as the
Administrative Agent or any Lender may from time to time reasonably request;
107
(r) Promptly after (i) the Borrower shall fail to make any payment when
due under the Related Documents, (ii) there shall have been an acceleration of
the maturity of any Existing Subordinated Debt or any Permitted Subordinated
Debt, (iii) the trustee under the indenture for any Existing Subordinated Debt
or any Permitted Subordinated Debt or any holder thereof shall have asserted in
writing that an "Event of Default" as defined therein shall have occurred or
(iv) the commencement of any enforcement proceeding with respect to any Existing
Subordinated Debt or any Permitted Subordinated Debt, notice thereof, including
a description in reasonable detail of the circumstances, and a statement of the
chief financial officer of the Borrower setting forth the action the Borrower
has taken or proposes to take with respect thereto;
(s) Promptly after the expiration or any termination of any network
affiliation agreements of the Borrower or any Subsidiary, notice thereof,
including a description in reasonable detail of the circumstances, and a
statement of the chief financial officer of the Borrower setting forth the
action the Borrower has taken or proposes to take with respect thereto; and
(t) On or before the 90th day of each Fiscal Year, a certificate of the
Independent Public Accountants, in form satisfactory to the Lenders, setting
forth their calculation of Excess Cash Flow for the immediately preceding Fiscal
Year, both before and after giving effect to clause (y) of the last sentence of
Section 2.09(b).
-------
ARTICLE 6
Events of Default
Section 6.01. Events of Default. If any of the following events ("Even of
Default") shall occur and be continuing:
(a) The Borrower shall fail to pay within two days of the due date any
interest on any Note or shall fail to pay when due any principal on any Note,
any fees or other amounts payable under any Loan Document; or
(b) Any representation or warranty made by any Loan Party in or in
connection with any Loan Document or any amendment thereto or Other Transaction
Document to which it is a party or any certificate or financial information
delivered pursuant to any Loan Document or any amendment thereto or Other
Transaction Document shall prove to have been incorrect in any material respect
when made; or
108
(c) Any Loan Party (i) shall fail to perform or observe any term, covenant
or agreement contained in Section 2.20, 5.01, 5.02 or 5.03(g) of this Agreement,
---- ---- ---- -------
in any Mortgage, in Sections 4, 6, 7, 8, 9 or 10 of any Security Agreement or in
any other provision of any Collateral Document that is comparable to any such
Section of any Security Agreement or (ii) shall fail to perform or observe any
other term, covenant or agreement contained in any Loan Document on its part to
be performed or observed if such failure shall remain unremedied for 10 days
after written notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender; or
(d) The Borrower or any Subsidiary shall fail to make when due or within
any applicable grace period any payment in respect of any Material Financial
Obligations (other than the Notes issued under this Agreement); any event or
condition shall occur which results in the acceleration of the maturity of any
Debt (excluding Debt evidenced by the Notes issued under this Agreement) of the
Borrower or any of its Subsidiaries (as the case may be) having an aggregate
unpaid principal amount in excess of $3,000,000 or enables (or, with the giving
of notice or lapse of time or both, would enable) the holder of such Debt or any
Person acting on such holder's behalf to accelerate the maturity thereof; the
Borrower or any of its Subsidiaries shall fail to pay when the same becomes due
any rental payments in respect of any leases (other than payments with respect
to Capital Lease Obligations) requiring in the aggregate, annual lease payments
in excess of $1,000,000, and such failure shall continue after the applicable
grace period, if any, specified in the lease or leases relating to such rental
payment; or any such Debt shall be declared to be due and payable, or required
to be prepaid (other than by a regularly scheduled required prepayment), prior
to the stated maturity thereof; or
(e) Any "Event of Default" as defined in any Subordinated Debt Document or
Other Financing Document; or
(f) The Borrower or any of its Subsidiaries shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Borrower or
any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee, or other
similar official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain
109
undismissed or unstayed for a period of 30 days or any of the actions sought in
such proceeding (including, without limitation, the entry of an order for relief
against it or the appointment of a receiver, trustee, custodian or other similar
official for it or any substantial part of its property) shall occur; or the
Borrower or any of its Subsidiaries shall take any corporate action to authorize
any of the actions set forth above in this subsection (f); or
(g) One or more judgments or orders for the payment of money aggregating
more than $1,000,000 shall be rendered against the Borrower or any of its
Subsidiaries and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment(s) or order(s) or (ii) there shall be any period
of 10 consecutive days (or, if such proceedings are in a state court, such
longer period (not to exceed 30 days) following the entry of such judgement or
order during which the Borrower shall be entitled under applicable state law to
file an appeal as of right) during which a stay of enforcement of such
judgment(s) or order(s), by reason of a pending appeal or otherwise, shall not
be in effect; or
(h) Any non-monetary judgment or order shall be rendered against the
Borrower or any of its Subsidiaries that is materially adverse to the Borrower
and its Subsidiaries taken as a whole, and either (i) enforcement proceedings
shall have been commenced by any Person upon such judgment or order or (ii)
there shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(i) Any provision of any Loan Document after delivery thereof shall for
any reason cease to be valid and binding on any Loan Party, or any Loan Party
shall so state in writing;
(j) Any Collateral Document after delivery thereof shall for any reason
cease to create a valid and perfected first priority security interest in any
Collateral purported to be covered thereby; or
(k) Any Termination Event with respect to a Plan shall have occurred and,
30 days after notice thereof was required by the terms hereof to have been given
to the Administrative Agent by the Borrower, (i) such Termination Event shall
still exist and (ii) the sum (determined as of the date of occurrence of such
Termination Event) of the Insufficiency of such Plan and the Insufficiency of
any and all other Plans with respect to which a Termination Event shall have
occurred and then exist (or, in the case of a Plan with respect to which a
Termination Event described in clause (ii) of the definition of Termination
Event shall have occurred and then exist, the liability related thereto) is
equal to or greater than $250,000; or
110
(l) The Borrower shall cease to own directly 100% of the issued and
outstanding Voting Stock of each Subsidiary that is a corporation (other than
Fidelity and License Co. Sub, which may be so owned indirectly) or shall cease
to own, directly or through one or more wholly owned Subsidiaries, 100% of the
partnership interests of each Subsidiary that is a partnership, except in the
case of (i) Bay TV Joint Venture, in which YB of San Francisco will own,
pursuant to the Acquisition, a 51% interest, and which interest may be sold to
the minority partner of Bay TV Joint Venture in the event the minority partner
exercises its call right pursuant to Section 8.3 of the Agreement of General
Partnership of Bay TV Joint Venture and the letter agreement dated June 23, 2000
between Chronicle and the minority partner of Bay TV Joint Venture) and (ii) any
Subsidiary of which the Borrower shall have disposed of all Voting Stock and all
partnership interests pursuant to a Permitted Asset Sale; or
(m) The Borrower or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to
such Multiemployer Plan in an amount which, when aggregated with all other
amounts required to be paid to Multiemployer Plans in connection with Withdrawal
Liabilities (determined as of the date of such notification), exceeds $250,000;
or
(n) The Borrower or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
if as a result of such reorganization or termination the aggregate annual
contributions of the Borrower and its ERISA Affiliates to all Multiemployer
Plans which are then in reorganization or being terminated have been or will be
increased over the average annual amounts contributed to such Multiemployer
Plans for the three most recent plan years which include the date hereof by an
amount exceeding $250,000; or
(o) The Borrower or any ERISA Affiliate shall have committed a failure
described in Section 302(f)(1) of ERISA and the amount determined under Section
302(f)(3) of ERISA is equal to or greater than $500,000; or
(p) The Acquisition shall be voided or otherwise declared ineffective
before any court or governmental entity; or any such proceeding shall be
commenced and shall not be dismissed within 60 days and the Administrative Agent
shall not have received an opinion of counsel satisfactory to the Majority
Lenders to the effect that there is no substantial likelihood that the outcome
of the proceedings would have the effect of voiding or otherwise declaring
ineffective the Acquisition; or
111
(q) The FCC shall designate for hearing any station license or permit
held by the Borrower or any of its Subsidiaries (i) to determine whether the
station license or permit should be revoked or modified in a materially adverse
manner, (ii) to determine whether the station license should be renewed or ( to
determine whether an application for renewal of a license for a station operated
by the Borrower or any of its Subsidiaries should be granted or whether the
application of another party for said frequency or channel should be granted and
in each such case there is a reasonable possibility of an adverse decision which
could adversely affect the condition (financial or otherwise), operations or
properties of the Borrower or such Subsidiary; or
(r) There shall occur a material adverse change in the condition
(financial or otherwise), operations or properties of (i) the Borrower or (ii)
any of its Subsidiaries or (iii) the Borrower and its Subsidiaries taken as a
whole; or
(s) ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, members of their respective immediate
families, Persons controlled (as defined in the definition of Affiliate) by
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ or members of their respective immediate families and
members of management of the Borrower shall fail to hold, in the aggregate for
all such individuals and other Persons, record and beneficial title to at least
51% (by number of votes) of the Voting Stock of the Borrower; or
(t) Either (i) any "person" or "group" (as such terms are used in Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended), other than
Permitted Holders, is or becomes the "beneficial owner" (as defined in Rule
13d-3 and 13d-5 promulgated by the Securities and Exchange Commission under said
Act, except that a Person shall be deemed to have beneficial ownership of all
shares that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 30% of the total outstanding Voting Stock of the
Borrower; provided that the Permitted Holders "beneficially own" (as so defined)
a lesser percentage of such Voting Stock than such other Person and do not have
the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the board of directors of the Borrower; or
(ii) during any period of two consecutive years, individuals who at the
beginning of such period constituted the board of directors of the Borrower
(together with any new directors whose election to such board of directors, or
whose nomination for election by the stockholders of the Borrower, was approved
by a vote of 662/3% of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) shall cease for any reason to constitute a
majority of the board of directors of the Borrower then in office;
112
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Majority Lenders, by notice to the Borrower,
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Majority Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Notes, all interest
thereon and all such other amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower, provided that in the event
of the acceleration of the maturity of any Permitted Subordinated Debt or the
commencement of any voluntary proceeding or the taking of any corporate action
referred to in subsection (f) above, or the actual or deemed entry of an order
for relief with respect to the Borrower or any of its Subsidiaries under the
Bankruptcy Reform Act of 1978, as amended, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Notes, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE 7
The Agents
Section 7.01. Appointment and Authorization. Each Lender appoints and
authorizes each Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement, the Notes and the Collateral Documents as are
delegated to such Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto.
Section 7.02. Agents and Affiliates. Each Agent shall have the same rights
and powers under this Agreement as any other Lender and may exercise or refrain
from exercising the same as though it were not an Agent. Each Agent and each of
their respective affiliates may accept deposits from, lend money to, acquire
equity interests in and generally engage in any kind of business with the
Borrower or any Subsidiary or affiliate of the Borrower as if it were not an
Agent hereunder.
Section 7.03. Actions by Agents. The obligations of the Agents hereunder
are only those expressly set forth herein and neither the Agents nor the Co-
Arrangers shall have or be deemed to have any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations
113
or liabilities shall be read into this Agreement or otherwise exist with respect
to the Agents or the Co-Arrangers. Without limiting the generality of the
foregoing, no Agent shall be required to take any action with respect to any
Default, except as expressly provided in Article 6 or Section 7.10.
- ----
Section 7.04. Consultation with Experts. Each of the Agents may consult
with legal counsel (who may be internal counsel or counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
Section 7.05. Liability of Agents. No Agent or any of such Agent's
affiliates nor any of their respective directors, officers, agents, or
employees shall be liable for any action taken or not taken by it in connection
herewith (i) with the consent or at the request of the Majority Lenders or (ii)
in the absence of its own gross negligence or willful misconduct. No Agent nor
any of their respective directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into or verify (i) any
statement, warranty or representation made in connection with this Agreement or
any borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of the Borrower; (iii) the satisfaction of any condition
specified in Article 3, except receipt of items required to be delivered to the
-
Administrative Agent; or (iv) the validity, effectiveness or genuineness of this
Agreement, the Notes or any other instrument or writing furnished in connection
herewith. No Agent shall incur any liability by acting in reliance upon any
notice, consent, certificate, statement, or other writing (which may be a bank
wire, telex or similar writing) believed by it to be genuine or to be signed by
the proper party or parties.
Section 7.06. Indemnification. Each Lender shall, ratably in accordance
with its Lender Share, indemnify each of the Agents, their respective
affiliates and the directors, officers, agents and employees of each of the
Agents or of their respective affiliates (each an "Indemnitee") (to the extent
not reimbursed by the Borrower) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from the Indemnitee's gross negligence or willful
misconduct) that the Indemnitee may suffer or incur in connection with this
Agreement or any action taken or omitted by the Indemnitee hereunder. The
provisions of this Section 7.06 shall survive any termination of this Agreement.
----
Section 7.07. Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon any Agent, any Co-Arranger, any Agent's
affiliate, any Co-Arranger's affiliate, any other Lender or any of their
respective directors, officers, agents or employees, and based on such documents
114
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon any Agent, any Co-Arranger, any
Agent's affiliate, any Co-Arranger's affiliate, any other Lender or any of their
respective directors, officers, agents or employees, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking any action under this Agreement.
Section 7.08. Successor Agent. Any Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Majority Lenders shall have the right to appoint a successor to
such Agent. If no such successor for such Agent shall have been so appointed by
the Majority Lenders, and shall have accepted such appointment within 30 days
after the retiring Agent gives notice of resignation, then the retiring Agent
may, on behalf of the Lenders, appoint a successor Agent, which shall be a
Lender organized or licensed under the laws of the United States of America or
of any State thereof and having a combined capital and surplus of at least
$50,000,00. Upon the acceptance of its appointment as an Agent hereunder by a
successor Agent in the same capacity, such successor Agent shall thereupon
succeed to and become vested with all the rights and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation hereunder, the
provisions of this Article shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was an Agent.
Section 7.09. [Intentionally Omitted].
Section 7.10. Notice of Default; Collateral Documents. (a) The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or the Borrower or any
Guarantor referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". If the
Administrative Agent receives such a notice, it shall give prompt notice thereof
to each of the Lenders.
(b) Subject to Section 8.01, as to any matters not expressly provided for
----
in the Collateral Documents (including the timing and methods of realization
upon any Collateral), the Collateral Agent shall act or refrain from acting in
accordance with written instructions from the Majority Lenders or, in the
absence of such instructions, in accordance with its discretion, provided that
the Collateral Agent shall not be obligated to take any action if the Collateral
Agent believes that such action is or may be contrary to any applicable law or
might cause the
115
Collateral Agent to incur any loss or liability for which it has not been
indemnified to its reasonable satisfaction.
(c) The Collateral Agent shall not be responsible for the existence,
genuineness or value of any Collateral or for the validity, perfection, priority
or enforce ability of the security interests in any Collateral, whether impaired
by operation of law or by reason of any action or omission to act on its part
under any Collateral Document. The Collateral Agent shall have no duty to
ascertain or inquire as to the performance or observance of any terms of any
Collateral Document by any Person.
ARTICLE 8
Miscellaneous
Section 8.01. Amendments, Etc. (a) No amendment or waiver of any provision
of this Agreement or of any Note, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Majority Lenders (and, if the rights or duties of any Agent
are affected thereby, by such Agent), and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given, provided that no such amendment, waiver or consent shall, unless in
writing and signed by all Lenders, do any of the following:
(i) waive any of the conditions specified in Article 3,
-
(ii) change the percentage of the Lender Shares or the percentage of
any of the Term Loan A Commitments, Term Loan B Commitments or of the
aggregate unpaid principal amount of the Notes, or the number of Lenders,
which shall be required for the Lenders or any of them to take any action
hereunder,
(iii) amend this Section 8.01, or
----
(iv) change the definition of Majority Lenders or the definitions
contained in Section 8.01(b);
-------
and provided further that no such amendment, waiver or consent shall, unless in
writing and signed by all Lenders holding Term Loan A Advances, do any of the
following:
116
(v) reduce the amount of or postpone any date fixed for any
repayment or prepayment of principal of any Term Loan A Advance pursuant to
Section 2.04 (except as contemplated by clause (z) of this proviso in
----
respect of the Term Loan A Termination Date);
(w) increase the Term Loan A Commitments or subject such Lenders to
any additional obligations,
(x) reduce the principal of or the interest rate or accrued interest
on the Term Loan A Advances or any fees to any such Lenders or modify the
ratable sharing of payments under any Loan Document,
(y) postpone any date for the payment of interest or fees in respect
of any Term Loan A Advances, or
(z) postpone the Term Loan A Termination Date, except that if any
Accelerated Termination Date for the Term Loan A Advances would otherwise
occur on account of a failure by the Borrower to complete the related
Refinancing but the Supermajority RC/A Lenders (as defined in Section
8.01(b)) give a notice (a "Term Loan A Non-Acceleration Notice") at least
-------
25 days prior to such Accelerated Termination Date to the Administrative
Agent (which shall promptly send a copy to the Borrower and each other
Lender) stating that such Accelerated Termination Date shall be waived,
then such Accelerated Termination Date shall not be the Term Loan A
Termination Date;
and provided further that no such amendment, waiver or consent shall, unless in
writing and signed by all Lenders holding Term Loan B Advances, do any of the
following:
(v) reduce the amount of or postpone any date fixed for any
repayment or prepayment of principal of any Term Loan B Advance pursuant to
Section 2.04.
----
(w) increase the Term Loan B Commitments or subject such Lenders to
any additional obligations.
(x) reduce the principal of or the interest rate or accrued interest
on the Term Loan B Advances or any fees payable to any such Lenders or
modify the ratable sharing of payments under any Loan Document,
(y) postpone any date for the payment of interest or fees in respect
of any Term Loan B Advance, or
117
(z) postpone the Term Loan B Termination Date;
and provided further that if the Borrower fails to complete the Refinancing of
an issue of Existing Subordinated Debt by the related Target Refinancing Date,
the related Accelerated Termination Date shall not be the Term Loan B
Termination Date unless the Supermajority B Lenders (as defined in Section
8.01(b)) give a notice (a "Term Loan B Acceleration Notice") at least 25 days
-------
prior to such Accelerated Termination Date to the Administrative Agent (which
shall promptly send a copy to the Borrower and each other Lender) stating that
such Accelerated Termination Date shall be the Term Loan B Termination Date;
and provided further that no such amendment, waiver or consent shall
(y) reduce the amount or extend the payment date of any mandatory
repayment or prepayment of any Term Loan A Advance pursuant to Section 2.09(b),
-------
unless it is in writing and signed by the Majority A Lenders (as defined in
Section 8.01(b)); provided that no such date shall be postponed beyond the Term
--------
Loan A Termination Date (except as expressly contemplated by the second proviso
to this Section 8.01(a)) unless it is in writing and signed by all Lenders
--------
holding Term Loan A Advances, or
(z) modify Section 2.09(c) or reduce the amount or extend the
-------
payment date of any mandatory repayment or prepayment of any Term Loan B Advance
pursuant to Section 2.09(b), unless it is in writing and signed by the Majority
-------
B Lenders (as defined in Section 8.01(b)); provided that no such date shall be
--------
postponed beyond the Term Loan B Termination Date (except as expressly
contemplated by the fourth proviso to this Section 8.01(a)) unless it is in
--------
writing and signed by all Lenders holding Term Loan B Advances.
(b) As used in Section 8.01(a), the following terms have the meanings set
-------
forth below:
"Majority A Lenders" means Lenders under this Agreement and
Lenders (as defined in the Existing Credit Agreement) under the
Existing Credit Agreement holding at least 51% of the aggregate
outstanding amount of the Term Loan A Advances and the Other Term
Loan A Advances.
"Majority B Lenders" means Lenders holding at least 51% of the
aggregate outstanding amount of the Term Loan B Advances.
118
"Supermajority B Lenders" means Lenders holding at least 75% of
the aggregate outstanding amount of the Term Loan B Advances.
"Supermajority RC/A Lenders" means Lenders under this Agreement
and Lenders (as defined in the Existing Credit Agreement) under the
Existing Credit Agreement holding at least 75% of the aggregate
outstanding amount of the (x) Revolving Facility Commitments (as
defined in the Existing Credit Agreement) or, if the Revolving
Facility Commitments have been terminated, Revolving Advances (as
defined in the Existing Credit Agreement) and (y) Term Loan A
Advances and the Other Term Loan A Advances.
(c) No amendment or waiver of any provision of any other Loan
Document, nor consent to any departure by the applicable Loan Party
therefrom, shall be effective except in accordance with the terms
thereof.
Section 8.02. Notices, Etc. All notices and other communications
provided for hereunder or under any other Loan Document shall be in writing
(including telegraphic, telecopy, telex or cable communication) and mailed
(prepaid registered or certified mail, return receipt requested), telegraphed,
telecopied, telexed, cabled or delivered (by hand or other courier service): if
to the Borrower, at its address at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman, with a copy to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.; if to any Guarantor, at its ac/o the
Borrower, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Chairman, with a copy to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.;
if to any Bank, at its Domestic Lending Office specified in its Administrative
Questionnaire; if to any other Lender, at its Domestic Lending Office specified
in the Assignment and Assumption Agreement pursuant to which it became a Lender;
if to the Syndication Agents, both at First Union Securities, Inc., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇▇ and at CIBC
World Markets Corp., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇, Executive Director; and if to the Administrative Agent, at its address
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Mail Stop ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Agency Services Group, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ or, as to each party, at such
other address as shall be designated by such party in a written notice to the
other parties. All such notices and communications shall, when mailed, be
effective three days after being mailed and, when telegraphed, telecopied,
telexed or cabled, be effective when
119
delivered to the telegraph company, sent by telecopy, confirmed by telex answer
back or delivered to the cable company, respectively, except that notices and
communications to the Administrative Agent pursuant to Article 2 shall not be
-
effective until received by the Administrative Agent.
Section 8.03. No Waiver; Remedies. No failure on the part of any Lender or
any Agent to exercise, and no delay in exercising, any right under any Loan
Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any right under any Loan Document preclude any other or further
exercise thereof or the exercise of any other right. The remedies provided in
the Loan Documents are cumulative and not exclusive of any remedies provided by
law.
Section 8.04. Costs and Expenses; Indemnities. (a) The Borrower agrees to
pay on demand all reasonable costs and expenses incurred by any Agent or any
Affiliate of an Agent or by a Person acting upon the request or on behalf of any
Agent or any Affiliate of an Agent in connection with the preparation,
execution, delivery, filing, recording, administration, modification and
amendment of the Loan Documents and the other documents to be delivered
thereunder (such administration costs and expenses shall include, without
limitation, reasonable costs incurred in connection with any audits of the
Borrower and its Subsidiaries, all costs and expenses incurred in connection
with appraisals, audits and search reports, all costs, expenses, fees and
disbursements incurred in connection with any Default and any workout,
restructuring, collection, bankruptcy, insolvency and other enforcement
proceedings resulting therefrom, all filing fees, and the fees and expenses of
counsel that any Agent or any Affiliate of an Agent may consult, from time to
time, in connection with the Loan Documents), including, without limitation, the
reasonable fees and out-of-pocket expenses of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, local
counsel who may be retained by any of said counsel or by any Agent or any
Affiliate of an Agent with respect thereto and with respect to advising any
Agent or any Affiliate of an Agent as to its rights and responsibilities under
the Loan Documents, and all reasonable costs and expenses, if any (including
reasonable fees and out-of-pocket expenses of counsel to any Agent or Affiliate
of an Agent, or any Lender or Affiliate of a Lender (including in-house counsel
of any Lender or of such Affiliate of a Lender) and all other FCC fees),
incurred by any Agent, any Affiliate of an Agent, any Lender or any Affiliate of
a Lender or any Person acting upon the request or on behalf of any Agent, any
Affiliate of an Agent, any Lender or any Affiliate of a Lender in connection
with the enforcement of the Loan Documents and the other documents to be
delivered under the Loan Documents.
(b) The Borrower agrees to indemnify, pay and hold harmless each Agent,
each Affiliate of an Agent, each Lender, each Affiliate of a Lender, each
120
trustee and investment advisor of a Lender that is a fund and their respective
officers, directors, employees and agents (collectively called the " from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and disbursements of any kind
or nature whatsoever (including the fees and disbursements of counsel for such
Indemnitee in connection with any investigative, administrative or judicial
proceeding, whether or not such Indemnitee shall be designated a party thereto,
and the expenses of investigation by engineers, environmental consultants and
similar technical personnel and any commission, fee or compensation claimed by
any broker (other than any broker retained by or on behalf of any Agent or any
Lender) asserting any right to payment for the transactions contemplated
hereby), which may be imposed on, incurred by or asserted against such
Indemnitee as a result of or in connection with the transactions contemplated
hereby or by the other Loan Documents or by other Related Documents (including
(i) (A) as a direct or indirect result of the presence on or under, or escape,
seepage, leakage, spillage, discharge, emission or release from, any property
now or previously owned, leased or operated by the Borrower or any of its
Subsidiaries of any Hazardous Materials, (B) arising out of or relating to the
offsite disposal of any materials generated or present on any such property, (C)
arising out of or resulting from the environmental condition of any such
property or the applicability of any governmental requirements relating to
Hazardous Materials, whether or not occasioned wholly or in part by any
condition, accident or event caused by any act or omission of the Borrower or
any of its Subsidiaries or (D) arising out of or relating to any violation by,
or liability of, the Borrower or any of its Subsidiaries under any Environmental
Law and (ii) proposed and actual extensions of credit under this Agreement) and
the use or intended use of the proceeds of any Borrowing, except that the
Borrower shall have no obligation hereunder to an Indemnitee with respect to any
liability resulting from the gross negligence or wilful misconduct of such
Indemnitee. To the extent that the undertaking set forth in the immediately
preceding sentence may be unenforceable, the Borrower shall contribute the
maximum portion which it is permitted to pay and satisfy under applicable law to
the payment and satisfaction of all such indemnified liabilities incurred by the
Indemnitees or any of them. Without limiting the generality of any provision of
this Section, to the fullest extent permitted by law, the Borrower hereby waives
all rights for contribution or any other rights of recovery with respect to
liabilities, losses, damages, costs and expenses arising under or relating to
Environmental Laws that it or its Subsidiaries might have by statute or
otherwise against any Indemnitee.
Section 8.05. Right to Set-off. (a) Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
----
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section
121
6.01, each Lender (and a Participant thereof) is hereby authorized, subject to
-----
the provisions of Section 8.05(b), at any time and from time to time, to the
-------
fullest extent permitted by law (without penalty, sanction or loss of
collateral), to set off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and other indebtedness at any
time owing to such Lender to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or hereafter existing
under any Loan Document, irrespective of whether or not such Lender shall have
made any demand under such Loan Document and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after such set-off
and application made by such Lender, provided that such failure to give such
notice shall not affect the validity of such set-off and application. The rights
of each Lender under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Lender may
have. Each Lender agrees that if it shall, by exercising any right of set-off or
counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of principal and interest due with respect to any Note held by it which
is greater than the proportion received by any other Lender in respect of the
aggregate amount of principal and interest due with respect to any Note held by
such other Lender, such adjustments shall be made as may be required so that all
such payments of principal and interest with respect to the Notes held by the
Lenders shall be shared by the Lenders pro rata.
(b) The Lenders agree among themselves that, except upon the written
consent of the Majority Lenders, no Lender shall, with respect to any Note or
other obligation under any Loan Document, exercise any right described in
Section 8.05(a). If a Lender breaches its obligation under the foregoing
-------
sentence, then such Lender shall be deemed to have waived any right to the
benefits of the Collateral Documents, as against any other Lender. Each Lender
waives all rights to enforce any rights under this Agreement, under the Notes or
under any other Loan Document without the prior written consent of the Majority
Lenders. Each Lender further agrees that all rights under the Collateral
Documents shall be exercised only through the Administrative Agent.
Section 8.06. BINDING EFFECT; GOVERNING LAW. THIS AGREEMENT SHALL BECOME
EFFECTIVE WHEN IT SHALL HAVE BEEN EXECUTED BY THE BORROWER, EACH GUARANTOR, THE
ADMINISTRATIVE AGENT, EACH SYNDICATION AGENT AND WHEN THE ADMINISTRATIVE AGENT
SHALL HAVE BEEN NOTIFIED BY EACH BANK THAT SUCH BANK HAS EXECUTED IT (WHICH
NOTIFICATION MAY BE IN THE FORM OF DELIVERY OF AN EXECUTED SIGNATURE PAGE TO THE
ADMINISTRATIVE AGENT BY FACSIMILE TRANSMISSION) AND THEREAFTER SHALL BE BINDING
122
UPON AND INURE TO THE BENEFIT OF THE BORROWER, THE ADMINISTRATIVE AGENT, EACH
SYNDICATION AGENT AND EACH LENDER AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS,
EXCEPT THAT THE BORROWER SHALL NOT HAVE THE RIGHT TO ASSIGN ITS RIGHTS HEREUNDER
OR ANY INTEREST HEREIN WITHOUT THE PRIOR WRITTEN CONSENT OF ALL LENDERS. IF THE
CLOSING DATE SHALL NOT HAVE OCCURRED BY JUNE 30, 2000 THIS AGREEMENT SHALL
TERMINATE AND CEASE TO BE OF ANY FORCE OR EFFECT. THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
Section 8.07. Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Borrower may not assign or
otherwise transfer any of its rights under this Agreement without the prior
written consent of all Lenders.
(b) Any Lender may at any time grant to one or more commercial banks,
mutual funds, financial institutions or other "accredited investors" (as din
Regulation D of the Securities Act of 1933, as amended) (each a "Participant")
participating interests in its Term Loan A Commitment, Term Loan B Commitment or
any or all of its Advances. In the event of any such grant by a Lender of a
participating interest to a Participant, whether or not any notice thereof is
given to the Borrower or the Administrative Agent, such Lender shall remain
responsible for the performance of its obligations hereunder, and the Borrower
and the Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement pursuant to which any Lender may grant such a
participating interest shall provide that such Lender shall retain the sole
right and responsibility to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement, provided that such participation
agreement may provide that such Lender will not agree to any modification,
amendment or waiver of this Agreement described in clause (w) of the second
proviso or clause (w) of the third proviso to Section 8.01(a) (unless the
-------
participant's share of such Lender's Term Loan A Commitment or Term Loan B
Commitment would not be increased and any additional obligations imposed on the
Lenders would not be imposed upon the participant) or in clauses (v), (x), (y)
or (z) of the second proviso or clauses (v), (x), (y) or (z) of the third
proviso of Section 8.01(a) without the consent of the Participant. The Borrower
-------
agrees that each Participant shall, to the extent provided in its participation
agreement, be entitled to the benefits of Sections 2.12, 2.14, 2.16, 2.17, 2.18,
---- ---- ---- ---- ----
2.19 and 8.04 with respect to its
---- ----
123
participating interest. An assignment or other transfer which is not permitted
by subsection (c) or (d) below shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in accordance
with this subsection (b).
(c) Any Lender may at any time assign to one or more commercial banks,
mutual funds, financial institutions or other "accredited investors" (as defined
in Regulation D of the Securities Act of 1933, as amended) (each an "Assignee")
(treating any fund that invests in bank loans and any other fund that is managed
by the same investment advisor of such fund or an Affiliate of such investment
advisor as single Assignee) all or any part (equivalent, except when the
Assignee is either an Affiliate of such transferor Lender, already a Lender or a
fund managed by the same investment advisor (or an Affiliate of such investment
advisor) as an existing Lender prior to such assignment, to at least $of its
rights and obligations under this Agreement, and such Assignee shall assume such
rights and obligations in respect of (i) its Term Loan A Commitment and all of
its outstanding Term Loan A Advances, and/or (ii) its Term Loan B Commitment and
all of its outstanding Term Loan B Advances, provided that no Lender may assign
all or any portion of its Term Loan A Commitment and outstanding Term Loan A
Advances unless it concurrently assigns a proportionate amount of its Term Loan
A Commitment under the Existing Credit Agreement and its outstanding Other Term
Loan A Advances. When all of the following conditions shall have been satisfied,
such Assignee shall be a Lender party to this Agreement and shall have all the
rights and obligations of a Lender with a Term Loan A Commitment, Term Loan B
Commitment, Term Loan A Advances or Term Loan B Advances, as the case may be, as
set forth in such Assignment and Assumption Agreement, and the transferor Lender
shall be released from its obligations hereunder to a corresponding extent, and
no further consent or action by any party shall be required:
(w) delivery of an Assignment and Assumption Agreement executed by such
Assignee and such transferor Lender, with the subscribed consent of the
Borrower and the Administrative Agent, which consents shall not be
unreasonably withheld or delayed; provided that (i) if the Assignee is an
Affiliate of such transferor Lender, a fund managed by the same investment
advisor (or an Affiliate of such investment advisor) as an existing Lender
or was a Lender immediately prior to such assignment, no such consents
shall be required and (ii) if such assignment is made while any Default is
continuing or during the first 30 days following the Closing Date only in
connection with the syndication of the Term A Loan Commitments and Term B
Loan Commitments hereunder, the consent of the Borrower shall not be
required;
124
(x) payment by such Assignee to such transferor Lender of an amount
equal to the purchase price agreed between such transferor Lender and
such Assignee;
(y) payment to the Administrative Agent of a non-refundable
administrative fee for processing such assignment in the amount of $1,000
if the Assignee was either a Lender or a fund managed by the same
investment advisor (or an Affiliate of such investment advisor) as an
existing Lender immediately prior to such assignment, or $3,500 otherwise;
provided that only one such fee shall be payable pursuant to this Section
8.07(c)(z) and Section 8.07(c)(z) of the Existing Credit Agreement in
------ ------
connection with any one assignment of proportionate amounts of a Lender's
Term Loan A Commitment pursuant to Section 8.07(c); and
------
(z) recordation of such assignment in the Register.
If the Assignee is not incorporated under the laws of the United States of
America or a state thereof, it shall deliver to the Borrower and the
Administrative Agent certification as to exemption from deduction or withholding
of any United States federal income taxes in accordance with Section 2.14.
----
(d) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time pledge or assign all or any portion of its rights under
this Agreement and the other Loan Documents (including, without limitation, the
Notes held by it) to any Federal Reserve Bank without notice to or consent of
Borrower or Agent and any Lender which is a fund may pledge all or any portion
of its rights under this Agreement and the other Loan Documents (including,
without limitation, the Notes held by it) to any holders of obligations owed, or
securities issued, by such fund as security for such obligations or securities,
or to any trustee for, or any other representative of such holders, provided
that any foreclosure or other exercise of remedies by such holder or trustee
shall be subject to the provisions of this Section 8 regarding assignments in
all respects. No such pledge or assignment shall release the transferor Lender
from its obligations hereunder.
(e) Subject to the provisions of this subsection (e), any Lender may at
any time designate an SPC to provide all or a portion of the Advances to be made
by such Lender pursuant to this Agreement; provided that such designation shall
not be effective unless the Borrower and the Administrative Agent consent
thereto in writing (which consents shall not be unreasonably withheld). When a
Lender and its SPC shall have signed a designation agreement acceptable in form
and substance to the Administrative Agent and the Borrower and the
Administrative
125
Agent shall have signed their respective consents thereto, such SPC shall become
a Designated Lender for purposes of this Agreement. The Designating Lender shall
thereafter have the right to permit such Designated Lender to provide all or a
portion of the Advances to be made by such Designating Lender pursuant to this
Agreement, and the making of such Advances or portion thereof shall satisfy the
obligation of the Designating Lender to the same extent, and as if, such
Advances or portion thereof were made by the Designating Lender. As to any
Advances or portion thereof made by it, each Designated Lender shall have all
the rights that a Lender making such Advances or portion thereof would have had
under this Agreement and otherwise; provided that (x) its voting rights under
this Agreement shall be exercised solely by its Designating Lender and (y) its
Designating Lender shall remain solely responsible to the other parties hereto
for the performance of such Designated Lender's obligations under this
Agreement, including its obligations in respect of the Advances or portion
thereof made by it. Each party hereto hereby agrees that (i) no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement for
which a Lender would otherwise be liable and (ii) no SPC shall be entitled to
the benefits of Sections 2.16 and 2.18 (or any other increased costs protection
---- ----
provision). No additional Note shall be required to evidence the Advances or
portion thereof made by a Designated Lender; and the Designating Lender shall be
deemed to hold its Note as agent for its Designated Lender to the extent of the
Advances or portion thereof funded by such Designated Lender. Each Designating
Lender shall act as administrative agent for its Designated Lender and give and
receive notices and other communications on its behalf. Any payments for the
account of any Designated Lender shall be paid to its Designating Lender as
administrative agent for such Designated Lender and neither the Borrower nor the
Administrative Agent shall be responsible for any Designating Lender's
application of such payments. In addition, any Designated Lender may, with
notice to (but without the prior written consent of) the Borrower and the
Administrative Agent, (i) assign all or portions of its interest in any Advances
to its Designating Lender and (ii) disclose on a confidential basis any non-
public information relating to its Advances or portions thereof to any rating
agency, commercial paper dealer or provider of any guarantee, surety, credit or
liquidity enhancement to such Designated Lender. This clause (e) of Section 8.07
----
may not be amended without the prior written consent of each Designating Lender,
all or any part of whose Advances are being funded by an SPC at the time of such
amendment. For the avoidance of doubt, with respect to the Agents, the other
Lenders and the Borrower, the Designating Lender shall for all purposes,
including, without limitation, the approval of any amendment or waiver of any
provision of any Loan Document or the obligation to pay any amount otherwise
payable by the Designating Lender under the Loan Documents, be the Lender of
record hereunder.
126
(f) The Administrative Agent, acting, for this purpose only, as
agent of the Borrower, shall maintain at its address referred to in Section
8.02a copy of each Assignment and Assumption Agreement delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lenders and the Term Loan A Commitment and Term Loan B Commitment of, and
principal amount of the Advances owing to, each Lender from time to time (the
"Register"). All assignments shall be effective only upon recordation in the
Register. The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. 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.
(g) Upon its receipt of a completed Assignment and Assumption Agreement
that has been executed and consented to in accordance with Section 8.07(c),
-------
together with any Note or Notes subject to such assignment, the Administrative
Agent shall (i) accept such Assignment and Assumption Agreement, (ii) record the
information contained therein in the Register and (ii) give prompt notice
thereof to the Borrower. Within five Domestic Business Days after its receipt of
such notice, the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Note or Notes, appropriate
new Note or Notes, to the order of such Assignee and, if the assigning Lender
has retained any Advances, appropriate new Note or Notes to the order of the
assigning Lender. Such new Note or Notes shall be in an aggregate principal
amount equal to the aggregate principal amount of such surrendered Note or
Notes, shall be dated the effective date of such Assignment and Assumption
Agreement and shall otherwise be in substantially the form of Exhibit A-1 or
Exhibit A-2, as the case may be.
(h) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 8.07, disclose to
----
the assignee or participant or proposed assignee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any confidential information relating to the Borrower
received by it from such Lender.
SECTION 8.08. Headings. Article and Section headings in this Agreement
are included for convenience of reference only and shall not constitute a part
of this Agreement for any other purpose.
127
SECTION 8.09. Execution in Counterparts; Integration. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
SECTION 8.10. Severability of Provisions. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall be ineffective to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforce ability of such
provision in any other jurisdiction.
SECTION 8.11. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, EACH OF THE
SYNDICATION AGENTS, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREBY.
SECTION 8.12. Submission to Jurisdiction; Consent to Service of Process.
The Borrower hereby submits to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and of any New York
State court sitting in New York City for purposes of all legal proceedings
arising out of or relating to this Agreement or the transactions contemplated
hereby. The Borrower irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
Each of the parties hereto irrevocably consents to service of process in the
manner provided for notices in Section 8.02 (except that process may not be
----
served by telecopy). Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner permitted by law.
SECTION 8.13. Survival. The obligations of the Borrower under Sections
2.12, 2.14, 2.18 and 8.04 hereof and the obligations of the Lenders under
---- ---- ---- ----
Section 7.06 hereof shall survive the repayment of the Advances and the
----
termination of the Term Loan A Commitment and the Term Loan B Commitment.
128
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
YOUNG BROADCASTING INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Title: Executive Vice President
and Chief Financial Officer
129
BANKERS TRUST COMPANY, AS
COLLATERAL AGENT
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Title: Director
130
FIRST UNION NATIONAL BANK, AS
SYNDICATION AGENT
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Title: Director
131
CIBC WORLD MARKETS CORP., AS
SYNDICATION AGENT
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Title: Executive Director
132
BANKS
-----
BANKERS TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Title: Director
133
CANADIAN IMPERIAL BANK OF
COMMERCE
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Title: Executive Director
134
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Title: Director
135
NATEXIS BANQUE
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Assistant Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Vice President Group Manager
136
SUNTRUST BANK
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Title: Vice President
137
BANK OF TOKYO MITSUBISHI TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Vice President and Manager
138
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Title: Vice President
139
CREDIT INDUSTRIEL ET
COMMERCIAL
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------
Title: Vice President
140
ERSTE BANK DER
OESTERREICHISCHEN SPARKASSEN
AG
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Title: Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Title: First Vice President
141
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------
Title: Vice President
142
MELLON BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------
Title: Lending Officer
143
FIRSTAR BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Title: Vice President
144
U.S. BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Title: Senior Vice President
145
Each of the undersigned Guarantors hereby consents
to the foregoing Agreement:
YOUNG BROADCASTING OF LANSING, INC.
YOUNG BROADCASTING OF LOUISIANA, INC.
YOUNG BROADCASTING OF LA CROSSE, INC.
YOUNG BROADCASTING OF NASHVILLE, INC.
YOUNG BROADCASTING OF ALBANY, INC.
WINNEBAGO TELEVISION CORPORATION
KLFY, L.P.
By: Young Broadcasting of Louisiana, Inc., its General Partner
WKRN, G.P.
By: Young Broadcasting of Nashville, Inc., its General Partner
LAT, INC.
YBT, INC.
YOUNG BROADCASTING OF RICHMOND, INC.
YOUNG BROADCASTING OF GREEN BAY, INC.
YOUNG BROADCASTING OF KNOXVILLE, INC.
WATE, G.P.
By: Young Broadcasting of Knoxville, Inc., its General Partner
YBK, INC.
YOUNG BROADCASTING OF ▇▇▇▇▇▇▇▇▇, INC.
▇▇▇▇▇ BROADCASTING OF SIOUX FALLS, INC.
YOUNG BROADCASTING OF RAPID CITY, INC.
YOUNG BROADCASTING OF LOS ANGELES, INC.
FIDELITY TELEVISION, INC.
YOUNG BROADCASTING OF SAN FRANCISCO, INC.
YOUNG HOLDING COMPANY, INC.
YBSF INC.
▇▇▇▇ ▇▇▇▇▇ INC.
HONEY BUCKET FILMS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Title: Assistant Secretary
146
PRICING SCHEDULE
With respect to Term Loan A Advances, each of "Base Rate Margin", "CD Rate
Margin" and "Eurodollar Margin" means, for any day, the percentage set forth
below opposite the applicable range for the Debt to Operating Cash Flow Ratio as
specified in the most recent Notice of Debt to Operating Cash Flow Ratio
received by the Administrative Agent on or before such day:
-------------------------------------------------------------------------
Debt to Operating Base Rate Margin CD Rate Margin Eurodollar
----------------- ---------------- --------------- ----------
Cash Flow Ratio Margin
--------------- ------
-------------------------------------------------------------------------
* 7.00x 1.500% 2.875% 2.750%
-------------------------------------------------------------------------
* 6.50x 1.250% 2.625% 2.500%
-------------------------------------------------------------------------
* 6.00x 1.000% 2.375% 2.250%
-------------------------------------------------------------------------
* 5.50x 0.750% 2.125% 2.000%
-------------------------------------------------------------------------
* 5.00x 0.500% 1.875% 1.750%
-------------------------------------------------------------------------
**5.00x 0.250% 1.625% 1.500%
-------------------------------------------------------------------------
provided that, (i) for each day during the six-month period beginning on the
Closing Date, each of the Base Rate Margin, CD Rate Margin and Eurodollar Margin
shall be determined as if the Debt to Operating Cash Flow Ratio is 7.00x, (ii)
if the Borrower shall fail to provide the quarterly Notice of Debt to Operating
Cash Flow Ratio in accordance with the provisions of Section 5.03(a), each of
the Base Rate Margin, CD Rate Margin and Eurodollar Margin shall, on the date
that is five (5) Business Days after the date by which the Borrower was so
required to provide such Notice of Debt to Operating Cash Flow Ratio to the
Administrative Agent and each Lender, be determined as if the Debt to Operating
Cash Flow Ratio is 7.00x until such time as such Notice of Debt to Operating
Cash Flow Ratio is provided, whereupon each of the Base Rate Margin, CD Rate
Margin and Eurodollar Margin shall be determined in accordance with the Debt to
Operating Cash Flow Ratio therein presented and (iii) during any period in which
an Event of Default shall have occurred and be continuing, each of the Base Rate
Margin, CD Rate Margin and Eurodollar Margin shall be the applicable margin
indicated in the above table plus 2% per annum.
With respect to Term Loan B Advances, each of "Base Rate Margin", "CD Rate
Margin" and "Eurodollar Margin" means, for any day, the percentage set forth
below:
___________
* Less than or equal to.
** Greater than.
147
----------------------------------------------------
Base Rate Margin CD Rate Margin Eurodollar
---------------- -------------- ----------
Margin
------
----------------------------------------------------
1.750% 3.125% 3.000%
----------------------------------------------------
provided that, during any period in which an Event of Default shall have
occurred and be continuing, each of the Base Rate Margin, CD Rate Margin and
Eurodollar Margin shall be the applicable margin indicated in the above table
plus 2% per annum.
148
CROSS-REFERENCE TARGET LIST
NOTE: Due to the number of targets some target names may not
appear in the target pull-down list.
(This list is for the use of the wordprocessor only, is not a part
of this document and may be discarded.)
ARTICLE/SECTION TARGET NAME
=============== ===========
1................................................................Article 1
1.01..................................................................1.01
2................................................................Article 2
2.01(b)............................................................2.01(b)
2.02..................................................................2.02
2.02(a)............................................................2.02(a)
2.02(b)............................................................2.02(b)
2.03(a)............................................................2.03(a)
2.04..................................................................2.04
2.05..................................................................2.05
2.05(b)............................................................2.05(b)
2.05(c)............................................................2.05(c)
2.05(f)............................................................2.05(f)
2.06(b)............................................................2.06(b)
2.06(c)............................................................2.06(c)
2.07..................................................................2.07
2.08..................................................................2.08
2.09..................................................................2.09
2.09(a)............................................................2.09(a)
2.09(b)............................................................2.09(b)
2.09(b)(i)......................................................2.09(b)(i)
2.09(b)(ii)....................................................2.09(b)(ii)
2.09(c).............................................................209(c)
2.09(c)(i)........................................................2.09.c.i
2.09(c)(ii)......................................................2.09.c.ii
2.09(c)(iii)....................................................2.09.c.iii
2.09(e)............................................................2.09(e)
2.11..................................................................2.11
2.12..................................................................2.12
2.14(b)............................................................2.14(b)
2.14(d)............................................................2.14(d)
2.15..................................................................2.15
2.15(a)............................................................2.15(a)
2.15(d)............................................................2.15(b)
2.16..................................................................2.16
2.17..................................................................2.17
2.18..................................................................2.18
2.18(a)............................................................2.18(a)
2.19..................................................................2.19
2.20..................................................................2.20
2.21..................................................................2.21
2.21(a)............................................................2.21(a)
2.21(b)............................................................2.21(b)
3................................................................Article 3
3.01..................................................................3.01
?..................................................................3.01(c)
3.01(f)(21)....................................................3.01(f)(21)
3.01(g)........................................................3.01(g)(19)
3.02..................................................................3.02
3.03..................................................................3.03
4.01(f)............................................................4.01(f)
4.01(h)............................................................4.01(h)
4.01(i)............................................................4.01(i)
4.01(y)............................................................4.01(y)
5................................................................Article 5
5.01..................................................................5.01
5.01(f)............................................................5.01(f)
5.01(l)............................................................5.01(l)
5.01(m)............................................................5.01(m)
5.01(n)............................................................5.01(n)
5.01(o)............................................................5.01(o)
5.02..................................................................5.02
5.02(a)............................................................5.02(a)
5.02(b)............................................................5.02(b)
5.02(c)............................................................5.02(c)
5.02(d)............................................................5.02(d)
5.02(f)............................................................5.02(f)
5.02(g)............................................................5.02(g)
5.02(g)(iii)..............................................................
5.02(h)............................................................5.02(h)
5.02(s)............................................................5.02(s)
5.03..................................................................5.03
5.03(a)............................................................5.03(a)
5.03(g)............................................................5.03(g)
6................................................................Article 6
6.01..................................................................6.01
6.01(d)............................................................6.01(d)
6.01(g)............................................................6.01(g)
6.01(k)............................................................6.01(k)
6.01(m)............................................................6.01(m)
6.01(n)............................................................6.01(n)
6.01(o)............................................................6.01(o)
7.06..................................................................7.06
7.10..................................................................7.10
8.01..................................................................8.01
8.01(b)............................................................8.01(b)
8.02..................................................................8.02
8.04..................................................................8.04
8.05(a)............................................................8.05(a)
8.05(b)............................................................8.05(b)
8.07..................................................................8.07
8.07(b)............................................................8.07(b)
8.07(c)............................................................8.07(c)
8.07(f)............................................................8.07(e)
ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME
=============== =========== =============== =========== =============== =========== =============== ===========
2