EXHIBIT 4.7.5
$360,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MAY 5, 2003
AMONG
▇▇▇▇▇▇ COMMUNICATIONS CORPORATION
AS BORROWER
AND
THE LENDERS AND ISSUERS PARTY HERETO
AND
CITICORP USA, INC.
AS ADMINISTRATIVE AGENT AND AS COLLATERAL AGENT
AND
UNION BANK OF CALIFORNIA, N.A.
AS SYNDICATION AGENT
AND
GENERAL ELECTRIC CAPITAL CORPORATION
AS DOCUMENTATION AGENT
-------------------------
CITIGROUP GLOBAL MARKETS INC.
AS SOLE BOOK MANAGER AND SOLE LEAD ARRANGER
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 5,
2003, among ▇▇▇▇▇▇ COMMUNICATIONS CORPORATION, a Delaware corporation (the
"Borrower"), the Lenders (as defined below), the Issuers (as defined below),
CITICORP USA, INC. ("Citicorp"), as administrative agent for the Lenders and the
Issuers and as collateral agent for the Secured Parties under the Collateral
Documents (in each such capacity, the "Administrative Agent"), UNION BANK OF
CALIFORNIA, N.A. ("UBOC"), as syndication agent for the Lenders and the Issuers
(in such capacity, the "Syndication Agent"), and GENERAL ELECTRIC CAPITAL
CORPORATION ("GECC"), as documentation agent for the Lenders and the Issuers (in
such capacity, the "Documentation Agent"), amends and restates in its entirety
the Original Credit Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement, dated as
of July 12, 2001, among the Borrower, the Lenders party thereto, Citicorp, as
administrative agent for the Lenders and as collateral agent for the Secured
Parties, UBOC, as syndication agent for the Lenders, and CIBC, Inc. and GECC,
each as co-documentation agents for the Lenders, as amended by Amendment No. 1,
dated as of January 7, 2002, Amendment No. 2, dated as of June 28, 2002,
Amendment No. 3, dated as of November 4, 2002, and the Waiver, dated as of March
13, 2003 (as amended, the "Original Credit Agreement"), the Lenders have made
term loans and revolving loans to the Borrower;
WHEREAS, the Borrower has requested that the Lenders amend and
restate the Original Credit Agreement to, among other things, make available for
the purposes specified in this Agreement a new letter of credit subfacility;
WHEREAS, the Lenders constituting the Requisite Lenders are
willing to amend and restate the Original Credit Agreement in its entirety to
make available to the Borrower such letter of credit subfacility upon the terms
and subject to the conditions set forth herein;
WHEREAS, it is the intent of the parties hereto that this
Agreement does not constitute a novation of rights, obligations and liabilities
of the respective parties (including the Obligations) existing under the
Original Credit Agreement or evidence payment of all or any of such obligations
and liabilities and such rights, obligation and liabilities shall continue and
remain outstanding, and that this Agreement amends and restates in its entirety
the Original Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS
SECTION 1.1. DEFINED TERMS. As used in this Agreement, the
following terms have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acknowledgment and Consent" means the Acknowledgment and
Consent, in substantially the form of Exhibit G.
"Acquisition Agreement" means any agreement, contract or other
document pursuant to which a Loan Party has agreed to consummate a Permitted
Acquisition.
"Adjusted Working Capital" means, for any Person at any date,
the amount by which the Consolidated Current Assets of such Person (excluding
cash and cash equivalents) at such date exceeds the Consolidated Current
Liabilities of such Person at such date.
"Administrative Agent" has the meaning specified in the
preamble to this Agreement.
"Affiliate" means, with respect to any Person, any other
Person which, directly or indirectly, controls, is controlled by or is under
common control with such Person, each general partner or joint venturer of such
Person and each Person who is the beneficial owner of 10% or more of the Voting
Stock of such Person. For the purposes of this definition, "control" means the
possession of the power to direct or cause the direction of management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
"Affirmation of Liens and Guaranties" means an agreement dated
as of the Effective Date, in substantially the form of Exhibit F, executed by
the Administrative Agent, the Borrower and each Subsidiary Guarantor.
"Agency Commissions" means compensation to advertising
agencies based on a percentage of gross revenue sold through such agencies.
"Agreement" means the Original Credit Agreement as amended and
restated by this Amended and Restated Credit Agreement.
"Alternative Currency" means any lawful currency other than
Dollars that is freely exchangeable into Dollars, including the lawful
currencies of Australia, Canada and Great Britain.
"Applicable Lending Office" means, with respect to each
Lender, its Domestic Lending Office in the case of a Base Rate Loan, and its
Eurodollar Lending Office in the case of a Eurodollar Rate Loan.
"Applicable Margin" means (a) with respect to the Term B Loans
maintained as (i) Base Rate Loans, a rate equal to 2.25% per annum and (ii)
Eurodollar Rate Loans, a rate equal to 3.25% per annum and (b) with respect to
Term A Loans and Revolving Loans, (x) during the period commencing on the
Closing Date and ending one Business Day after the receipt by the Administrative
Agent of the financial statements required to be delivered by Section 6.1(b) for
the full fiscal quarter ending December 31, 2003, if maintained (i) as Base Rate
Loans, a rate equal to 2.25% per annum and (ii) as Eurodollar Rate Loans, a rate
equal to 3.25% per annum, and (y) thereafter, as of any date of determination, a
per annum rate equal to the rate set forth below opposite the applicable type of
Loan and the then applicable Leverage Ratio (determined for the twelve-month
period ending on the last day of the most recent Fiscal Quarter or Fiscal Year,
as applicable, for which Financial Statements have been delivered pursuant to
Section 6.1) set forth below:
2
TERM A LOANS & REVOLVING LOANS
--------------------------------------------------------------
LEVERAGE RATIO BASE RATE LOANS EURODOLLAR RATE LOANS
-------------------------------------- ------------------------------- ------------------------------
Greater than 6 to 1 2.25% 3.25%
-------------------------------------- ------------------------------- ------------------------------
Equal to or less than 6 to 1 and
greater than 4.5 to 1 2.00% 3.00%
-------------------------------------- ------------------------------- ------------------------------
Equal to or less than 4.5 to 1 1.75% 2.75%
-------------------------------------- ------------------------------- ------------------------------
-------------------------------------- ------------------------------- ------------------------------
Subsequent changes in the Applicable Margin resulting from a change in the
Leverage Ratio shall become effective as to all Loans one Business Day after
delivery by the Borrower to the Administrative Agent of new financial statements
pursuant to Section 6.1(b) for each of the first three Fiscal Quarters of each
Fiscal Year and Section 6.1(c) for each Fiscal Year. Notwithstanding anything to
the contrary set forth in this Agreement (including the then effective Leverage
Ratio), if the Borrower shall fail to deliver such financial statements within
the time periods specified in Section 6.1(b) or (c), as applicable, the
Applicable Margin from and including the 46th day after the end of such Fiscal
Quarter or the 91st day after the end of such Fiscal Year, as the case may be,
to but not including the date the Borrower delivers to the Administrative Agent
such financial statements shall equal the highest Applicable Margin set forth
above.
"Applicable Unused Commitment Fee Rate" means 0.50% per annum.
"Approved Electronic Communications" means each notice,
demand, communication, information, document and other material that any Loan
Party is obligated to, or otherwise chooses to, provide to the Administrative
Agent pursuant to any Loan Document or the transactions contemplated therein,
including (a) any supplement to the Guaranty, any joinder to the Pledge and
Security Agreement and any other written contractual obligation delivered or
required to be delivered in respect of any Loan Document or the transactions
contemplated therein and (b) any financial statement, financial and other
report, notice, request, certificate and other information material; provided,
however, that, "Approved Electronic Communications" shall exclude (i) any Notice
of Borrowing, any Letter of Credit Request, any Notice of Conversion or
Continuation, and any other notice, demand, communication, information, document
and other material relating to a request for a new, or a conversion of an
existing, Borrowing, (ii) any notice pursuant to Sections 2.7 and 2.8 and any
other notice relating to the payment of any principal or other amount due under
any Loan Document prior to the scheduled date therefor, (iii) all notices of any
Default or Event of Default and (iv) any notice, demand, communication,
information, document and other material required to be delivered to satisfy any
of the conditions set forth in Sections 2.2, 2.3 or 3.2 or any other condition
to any Borrowing or other extension of credit hereunder or any condition
precedent to the effectiveness of this Agreement.
"Approved Electronic Platform" has the meaning specified in
Section 10.3.
"Approved Fund" means any Fund that is advised or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Citigroup Global Markets Inc. (formerly
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.), in its capacity as sole book manager and sole lead
arranger.
3
"Asset Sale" has the meaning specified in Section 8.4.
"Asset Swap" means any exchange, with any other Person, of (a)
assets owned by the Borrower or any of its Subsidiaries for (b) Equivalent
Assets of such other Person.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit A.
"Available Credit" means, at any time, an amount equal to (i)
the then effective Revolving Credit Commitments minus (ii) the aggregate
Revolving Credit Outstandings at such time (after giving effect to the
concurrent repayment, if any, of Reimbursement Obligations with proceeds of
Revolving Loans pursuant to Section 2.3(h)).
"Base Rate" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time, which rate per annum shall be
equal at all times to the highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 0.25% or, if there is no
nearest 0.25%, to the next higher 0.25%) of (i) 0.5% per annum plus
(ii) the rate per annum obtained by dividing (A) the latest three-week
moving average of secondary market morning offering rates in the United
States for three-month certificates of deposit of major United States
money market banks, such three-week moving average being determined
weekly on each Monday (or, if any such day is not a Business Day, on
the next succeeding Business Day) for the three-week period ending on
the previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Federal Reserve Board for determining the
maximum reserve requirement (including any emergency, supplemental or
other marginal reserve requirement) for Citibank in respect of
liabilities consisting of or including (among other liabilities)
three-month U.S. dollar nonpersonal time deposits in the United States,
plus (iii) the average during such three-week period of the maximum
annual assessment rates estimated by Citibank for determining the then
current annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring Dollar deposits
in the United States; and
(c) the sum of (i) 0.5% per annum plus (ii) the Federal Funds
Rate.
"Base Rate Loan" means any Loan during any period in which it
bears interest based on the Base Rate.
"Borrowing" means a borrowing consisting of Loans made on the
same day by the Lenders ratably according to their respective Commitments. A
Borrowing may be a Revolving Credit Borrowing, a Term A Loan Borrowing or a Term
B Loan Borrowing.
"Broadcast Permit" means any Permit relating to the operation
of Stations.
4
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable Business
Day relates to notices, determinations, fundings and payments in connection with
the Eurodollar Rate or any Eurodollar Rate Loans, a day on which dealings in
Dollar deposits are also carried on in the London interbank market.
"Capital Expenditures" means for any period, the aggregate of
all expenditures (whether paid in cash or accrued as a liability and including
that portion of Capital Leases which is capitalized on the consolidated balance
sheet of the Borrower) by the Borrower and its Subsidiaries during such period
that, in conformity with GAAP, are included as additions to property, plant or
equipment as reflected in the consolidated statement of changes in financial
position of the Borrower and its Subsidiaries, including, but not limited to,
capital expenditures (a) made in connection with the conversion of a Station
from an analog broadcast format to a digital broadcast format, (b) pursuant to
joint sales agreements and (c) on capital maintenance; provided, however, that
Capital Expenditures shall not include for purposes hereof Programming Rights
Payments.
"Capital Lease" means, with respect to any Person, any lease
of property by such Person as lessee which would be accounted for as a capital
lease on a balance sheet of such Person prepared in conformity with GAAP.
"Capital Lease Obligations" means, with respect to any Person,
the capitalized amount of all obligations of such Person or any of its
Subsidiaries under Capital Leases, as determined on a consolidated basis in
conformity with GAAP.
"Cash Collateral Account" has the meaning specified in the
Pledge and Security Agreement.
"Cash Equivalents" means any of the following:
(a) U.S. Government Obligations maturing within 365 days of
the date of acquisition thereof;
(b) time deposit accounts, certificates of deposit and money
market deposits maturing within 90 days of the date of acquisition
thereof issued by a bank or trust company organized under the laws of
the United States of America or any state thereof having capital,
surplus and undivided profits aggregating in excess of $500,000,000 and
whose long-term debt is rated "A-3" or A-" or higher according to
▇▇▇▇▇'▇ Investor Services Inc. ("▇▇▇▇▇'▇") or Standard & Poors Rating
Services ("S&P") (or such similar equivalent rating by at least one
"nationally recognized statistical rating organization" (as defined in
Rule 436 under the Securities Act of 1933));
(c) repurchase obligations with a term of not more than 30
days for underlying securities of the types described in clause (a)
entered into with: (i) a bank meeting the qualifications described in
clause (b) above; or (ii) any primary government securities dealer
reporting to the Market Reports Division of the Federal Reserve Bank of
New York;
(d) commercial paper, maturing not more than 90 days after the
date of acquisition, issued by a corporation (other than an Affiliate
of the Borrower) organized and in existence under the laws of the
United States of America with a rating at the time
5
as of which any Investment therein is made of "P-1" (or higher)
according to ▇▇▇▇▇'▇ or "A-1" (or higher) according to S&P (or such
similar equivalent rating by at least one "nationally recognized
statistical rating organization" (as defined in Rule 436 under the
Securities Act)); and
(e) direct obligations (or certificates representing an
ownership interest in such obligations) of any state of the United
States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of such state is pledged
and which are not callable or redeemable at the issuer's option,
provided that: (i) the long-term debt of such state is rated "A-3" or
"A-" or higher according to ▇▇▇▇▇'▇ or S&P (or such similar equivalent
rating by at least one "nationally recognized statistical rating
organization" (as defined in Rule 436 under the Securities Act)); and
(ii) such obligations mature within 180 days of the date of acquisition
thereof.
"Change of Control" means any event, transaction or occurrence
as a result of which (i) neither (A) the Permitted Holders nor (B) NBC and its
Affiliates owns and controls, beneficially, Stock of the Borrower possessing the
voting power under normal circumstances to cast 51% or more of the Borrower's
Voting Stock or (ii) neither (A) the Permitted Holders nor (B) NBC and its
Affiliates has the voting power or the contractual right to elect a majority of
the Borrower's board of directors.
"Citibank" means Citibank, N.A., a national banking
association.
"Citicorp" has the meaning specified in the preamble to this
Agreement.
"Closing Date" means July 12, 2001, the date on which Loans
were first made under the Original Credit Agreement.
"Code" means the Internal Revenue Code of 1986 (or any
successor legislation thereto), as amended from time to time.
"Collateral" means all property and interests in property and
proceeds thereof now owned or hereafter acquired by any Loan Party in or upon
which a Lien is granted under any of the Collateral Documents.
"Collateral Documents" means the Pledge and Security Agreement
and any other document executed and delivered by a Loan Party granting a Lien on
any of its property to secure payment of the Secured Obligations.
"Commitment" means, with respect to any Lender, such Lender's
Revolving Credit Commitment, if any, Term A Loan Commitment, if any, and Term B
Loan Commitment and "Commitments" means the aggregate Revolving Credit
Commitments, Term A Loan Commitments and Term B Loan Commitments of all Lenders.
"Common Stock" means the Class A or Class C Common Stock, par
value $0.001 per share, of the Borrower.
"Communications Act" means the Communications Act of 1934, as
amended (including, without limitation, the Cable Communications Policy Act of
1984 and the Cable Television Consumer Protection and Competition Act of 1992)
and all rules and regulations of the FCC, in each case as from time to time in
effect.
6
"Compliance Certificate" has the meaning specified in Section
6.1(d).
"Consolidated Current Assets" means, with respect to any
Person at any date, the total consolidated current assets of such Person and its
Subsidiaries at such date, determined in conformity with GAAP.
"Consolidated Current Liabilities" means, with respect to any
Person at any date, all liabilities of such Person and its Subsidiaries at such
date which should, in accordance with GAAP, be classified as current liabilities
on a consolidated balance sheet of such Person and its Subsidiaries prepared in
conformity with GAAP, but excluding, in the case of the Borrower the sum of (a)
the principal amount of any current portion of long-term Total Debt and (b)
(without duplication of clause (a) above) the then outstanding principal amount
of the Loans.
"Consolidated Net Income" means, for any Person for any
period, the net income (or loss) of such Person and its Subsidiaries for such
period, determined on a consolidated basis in conformity with GAAP.
"Constituent Documents" means, with respect to any Person, (a)
the articles/certificate of incorporation (or the equivalent organizational
documents) of such Person, (b) the by-laws (or the equivalent governing
documents) of such Person and (c) any document setting forth the manner of
election and duties of the directors or managing members of such Person (if any)
and the designation, amount and/or relative rights, limitations and preferences
of any class or series of such Person's Stock.
"Contractual Obligation" of any Person means any obligation,
agreement, undertaking or similar provision of any Security issued by such
Person or of any agreement, undertaking, contract, lease, indenture, mortgage,
deed of trust or other instrument (excluding a Loan Document) to which such
Person is a party or by which it or any of its property is bound or to which any
of its properties is subject.
"Control Account Letter" has the meaning specified in the
Pledge and Security Agreement.
"Core Business" means the ownership or operation of network
television stations and cable television channels; the production or purchase of
television or cable television programming; the exhibition of television
programming via one or more satellite television networks owned by one or more
Persons other than the Borrower or any of its Subsidiaries; long form
advertising production, in each case (without limiting the ability of the
Borrower or its Subsidiaries to distribute or make broadcasts or other
transmissions in respect of the foregoing to any location) located in the United
States and its territories, including Puerto Rico and the Virgin Islands; and
any ancillary activities conducted as of the Closing Date and all other
ancillary activities, all of which ancillary activities are and shall at all
times be incidental to any of the foregoing.
"Customary Permitted Liens" means, with respect to any Person,
any of the following Liens:
(a) Liens with respect to the payment of taxes, assessments or
governmental charges in all cases which are not yet due or which are
being contested in good faith by appropriate proceedings and with
respect to which adequate reserves or other appropriate provisions are
being maintained to the extent required by GAAP;
7
(b) Liens of landlords arising by statute and liens of
suppliers, mechanics, carriers, materialmen, warehousemen or workmen
and other liens imposed by law created in the ordinary course of
business for amounts not yet due or which are being contested in good
faith by appropriate proceedings and with respect to which adequate
reserves or other appropriate provisions are being maintained to the
extent required by GAAP;
(c) deposits made in the ordinary course of business in
connection with worker's compensation, unemployment insurance or other
types of social security benefits, to secure the performance of bids,
tenders, sales, contracts (other than for the repayment of borrowed
money) or pursuant to the terms of Acquisition Agreements and surety,
appeal, customs or performance bonds;
(d) encumbrances arising by reason of zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar encumbrances on the
use of real property which do not materially detract from the value of
such real property or materially interfere with the ordinary conduct of
the business conducted and proposed to be conducted at such real
property;
(e) attachments or judgment Liens not constituting an Event of
Default under Section 9.1(g).
(f) encumbrances arising under leases or subleases of real
property which do not in the aggregate materially detract from the
value of such real property or materially interfere with the ordinary
conduct of the business conducted and proposed to be conducted at such
real property; and
(g) financing statements of a lessor's rights in and to
property leased to such Person relating to leases permitted by this
Agreement.
"Debt Issuance" means the incurrence of Indebtedness of the
type specified in clause (a) and (b) of the definition of "Indebtedness" by the
Borrower or any of its Subsidiaries.
"Default" means any event which with the passing of time or
the giving of notice or both would become an Event of Default.
"Dissolution Subsidiaries" means each Subsidiary of the
Borrower identified as such on Schedule 4.3.
"Dividend Payment Ratio" means, with respect to the Borrower
for any period, the ratio of (a) EBITDA of the Borrower and its Subsidiaries for
such period to (b) the sum of (i) Interest Expense of the Borrower and its
Subsidiaries for such period, (ii) scheduled principal payments during such
period of Total Debt of the Borrower and each of its Subsidiaries determined on
a consolidated basis in conformity with GAAP, and (iii) all cash dividends
payable by the Borrower on its 12-1/2% Cumulative Exchangeable Preferred Stock
in respect of such period.
"Documentary Letter of Credit" means any Letter of Credit that
is drawable upon presentation of documents evidencing the sale or shipment of
goods or services (including Programs, Program Contracts and Program Rights)
purchased by the Borrower or any of its Subsidiaries in the ordinary course of
its business.
8
"Dollar Equivalent" of any amount means, at the time of
determination thereof, (a) if such amount is expressed in Dollars, such amount,
(b) if such amount is expressed in an Alternative Currency, the equivalent of
such amount in Dollars determined by using the rate of exchange quoted by
Citibank in New York, New York at 11:00 a.m. (New York time) on the date of
determination to prime banks in New York for the spot purchase in Dollars in the
New York foreign exchange market of such amount of Alternative Currency and (c)
if such amount is denominated in any other currency, the equivalent of such
amount in Dollars as determined by the Administrative Agent using any method of
determination it deems appropriate.
"Dollars" and the sign "$" each mean the lawful money of the
United States of America.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office" in the
Register or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Administrative Agent.
"Domestic Subsidiary" means any Subsidiary of the Borrower
organized under the laws of any state or territory of the United States of
America or the District of Columbia.
"EBITDA" means for any period, the sum (without duplication)
of the amounts for such period of (a) Consolidated Net Income, (b) Interest
Expense (including, for this purpose, dividends and accretions on Preferred
Stock to the extent deducted in the calculation of Consolidated Net Income), (c)
taxes payable by the Borrower and its Subsidiaries on a consolidated basis to
the extent deducted from Consolidated Net Income, (d) total depreciation
expense, (e) total amortization expense (excluding Programming Amortization
Expense), (f) (to the extent included in such Consolidated Net Income for such
period) losses on sales of assets, (g) non-recurring restructuring charges
related to the implementation of joint sales agreements, (h) restructuring
charges incurred during the twelve months ended June 30, 2003 in an aggregate
amount not to exceed $10,000,000, losses on Pre-Approved Securitization
Transactions in an aggregate amount not to exceed $3,500,000 for any
twelve-month period, and costs incurred to execute Pre-Approved Securitization
Transactions in an aggregate amount not to exceed $1,600,000, and (i) other
non-cash items reducing Consolidated Net Income, including (without limitation)
stock based compensation, non-cash write-offs of syndicated programming rights
contracts entered into before December 31, 2000, non-cash write-offs of
programming rights contracts to their net realizable value in an aggregate
amount not to exceed $40,000,000 and incurred during the twelve months ended
June 30, 2003, and equity losses from any equity Investments resulting from the
operation of such business in ordinary course, without giving effect to any
extraordinary unusual and non-recurring gains less the sum (without duplication)
of the amounts for such period of (x) non-cash items increasing Consolidated Net
Income, including (without limitation) equity gains from any equity Investments
resulting from the operation of such business in ordinary course and (y) (to the
extent included in such Consolidated Net Income for such period) gains on the
sales of assets, all of the foregoing as determined on a consolidated basis for
the Borrower and its Subsidiaries and (unless otherwise defined) in conformity
with GAAP. For the purposes of calculating EBITDA for any period, any Permitted
Acquisition shall be deemed to have occurred on the first day of such period,
any Asset Sale shall be deemed to have occurred as of the day before the first
day of such period, and EBITDA shall be adjusted to give effect to such
Permitted Acquisition or Asset Sale in accordance with the foregoing.
"8% Series B Convertible Exchangeable Preferred Stock" means
the convertible exchangeable preferred stock of the Borrower designated the 8%
Series B Convertible
9
Exchangeable Preferred Stock, issued by the Borrower pursuant to, and with such
rights, restrictions, privileges and preferences as set forth in a Certificate
of Designation dated September 15, 1999.
"Effective Date" has the meaning set forth in Section 3.1.
"Eligible Assignee" means (a) a Lender or any Affiliate or
Approved Fund of such Lender; (b) a commercial bank having total assets in
excess of $5,000,000,000; (c) a finance company, insurance company, other
financial institution or fund reasonably acceptable to the Administrative Agent,
which is regularly engaged in making, purchasing or investing in loans
including, with respect to any proposed assignment of all or a portion of a
Lender's Revolving Credit Commitment, revolving loans, and having a net worth in
excess of $250,000,000 or, to the extent net worth is less than such amount, a
finance company, insurance company, other financial institution or fund,
reasonably acceptable to the Administrative Agent and the Borrower; or (d) a
savings and loan association or savings bank organized under the laws of the
United States or any State thereof which has a net worth, determined in
accordance with GAAP, in excess of $250,000,000.
"Environmental Claim" means any accusation, allegation, notice
of violation, claim, demand, abatement order or other order or direction
(conditional or otherwise) by any governmental authority or any Person for any
damage, including, without limitation, personal injury (including sickness,
disease or death), tangible or intangible property damage, contribution,
indemnity, indirect or consequential damages, damage to the environment,
nuisance, pollution, contamination or other adverse effects on the environment,
or for fines, penalties or restrictions, resulting from or based upon (i) the
existence of a Release (whether sudden or non-sudden or accidental or
non-accidental), of, or exposure to, any Hazardous Material, in, into or onto
the environment, (ii) the use, handling, transportation, storage, treatment or
disposal of Hazardous Materials, or (iii) the violation, or alleged violation,
of any Environmental Laws.
"Environmental Laws" means any and all foreign, Federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority or other
Requirements of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health or the
environment, as now or may at any time hereafter be in effect.
"Equity Issuance" means the issue or sale of any Stock of the
Borrower or any of the Subsidiaries of the Borrower by the Borrower or any of
the Subsidiaries of the Borrower to any Person other than the Borrower or any of
such Subsidiaries.
"Equivalent Assets" means in respect of (i) any Station, any
television station or television stations; and (ii) any Non-Core Business, any
Core Business
"ERISA" means the Employee Retirement Income Security Act of
1974 (or any successor legislation thereto), as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control or treated as a single employer with the
Borrower or any of its Subsidiaries within the meaning of Section 414 (b), (c),
(m) or (o) of the Code.
"ERISA Event" means (a) a reportable event described in
Section 4043(b) or 4043(c)(1), (2), (3), (5), (6), (8) or (9) of ERISA with
respect to a Title IV Plan or a
10
Multiemployer Plan; (b) the withdrawal of the Borrower, any of its Subsidiaries
or any ERISA Affiliate from a Title IV Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (c) the complete or partial withdrawal of the Borrower, any
of its Subsidiaries or any ERISA Affiliate from any Multiemployer Plan; (d)
notice of reorganization or insolvency of a Multiemployer Plan; (e) the filing
of a notice of intent to terminate a Title IV Plan or the treatment of a plan
amendment as a termination under Section 4041 of ERISA; (f) the institution of
proceedings to terminate a Title IV Plan or Multiemployer Plan by the PBGC; (g)
the failure to make any required contribution to a Title IV Plan or
Multiemployer Plan; (h) the imposition of a lien under Section 412 of the Code
or Section 302 of ERISA on the Borrower or any of its Subsidiaries or any ERISA
Affiliate; or (i) any other event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Title IV Plan or
Multiemployer Plan or the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Federal Reserve Board, as in effect from time to
time.
"Eurodollar Base Rate" means, with respect to any Interest
Period for any Eurodollar Rate Loan, the rate determined by the Administrative
Agent to be the offered rate for deposits in Dollars for the applicable Interest
Period which appears on the Dow ▇▇▇▇▇ Markets Telerate Page 3750 as of 11:00
a.m., London time, on the second full Business Day next preceding the first day
of each Interest Period. In the event that such rate does not appear on the Dow
▇▇▇▇▇ Markets Telerate Page 3750 (or otherwise on the Dow ▇▇▇▇▇ Markets screen),
the Eurodollar Base Rate for the purposes of this definition shall be determined
by reference to such other comparable publicly available service for displaying
eurodollar rates as may be selected by the Administrative Agent.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office" opposite
its name on Schedule II to the Original Credit Agreement or on the Assignment
and Acceptance by which it became a Lender (or, if no such office is specified,
its Domestic Lending Office) or such other office of such Lender as such Lender
may from time to time specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, with respect to any Interest Period
for any Eurodollar Rate Loan, an interest rate per annum equal to the rate per
annum obtained by dividing (a) the Eurodollar Base Rate by (b) a percentage
equal to 100% minus the reserve percentage applicable two Business Days before
the first day of such Interest Period under regulations issued from time to time
by the Federal Reserve Board for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve requirement)
for a member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities (or
with respect to any other category of liabilities which includes deposits by
reference to which the Eurodollar Rate is determined) having a term equal to
such Interest Period.
"Eurodollar Rate Loan" means any Loan that, for an Interest
Period, bears interest based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 9.1.
11
"Excess Cash Flow" means, for the Borrower for any period,
EBITDA of the Borrower for such period plus the sum of (without duplication) (a)
the excess, if any, of the Adjusted Working Capital of the Borrower at the
beginning of such period over the Adjusted Working Capital of the Borrower at
the end of such period and (b) the excess, if any, of Programming Amortization
Expense for such period over Programming Rights Payments for such period less
the sum of (without duplication) (i) scheduled and mandatory cash interest and
principal payments on the Facilities during such period and optional cash
principal payments on the Facilities during such period (but, in the case of the
Revolving Credit Facility, only to the extent that the Revolving Credit
Commitments are permanently reduced by the amount of such payments), (ii)
scheduled cash principal payments and cash payments of Preferred Stock dividends
made by the Borrower or any of its Subsidiaries during such period on other
Indebtedness or on Preferred Stock (as the case may be) to the extent such other
Indebtedness, Preferred Stock and such payments in respect thereof are permitted
by this Agreement, (iii) taxes paid by the Borrower and its Subsidiaries on a
consolidated basis, (iv) Capital Expenditures made by the Borrower or any of its
Subsidiaries during such period to the extent permitted by this Agreement, (v)
Programming Rights Payments in excess of Programming Amortization Expense and
(vi) the excess, if any, of the Adjusted Working Capital of the Borrower at the
end of such period over the Adjusted Working Capital of the Borrower at the
beginning of such period.
"Facilities" means (a) the Term A Loan Facility, (b) the Term
B Loan Facility and (c) the Revolving Credit Facility.
"Fair Market Value" means (a) with respect to any asset or
group of assets (other than a marketable Security) at any date, the value of the
consideration obtainable in a sale or other disposition of such asset (or
assets) at such date assuming a sale by a willing seller to a willing purchaser
dealing at arm's length and arranged in an orderly manner over a reasonable
period of time having regard to the nature and characteristics of such asset (or
assets), as reasonably determined by the board of directors of the Borrower and
(b) with respect to any marketable Security at any date, the closing sale price
of such Security on the Business Day next preceding such date, as appearing in
any published list of any national securities exchange or the Nasdaq Stock
Market or, if there is no such closing sale price of such Security, the final
price for the purchase of such Security at face value quoted on such business
day by a financial institution of recognized standing which regularly deals in
securities of such type selected by the Administrative Agent.
"FCC" means the Federal Communications Commission and any
successor governmental agency performing functions similar to those performed by
the Federal Communications Commission on the date hereof.
"FCC Licenses" means broadcasting and other licenses,
authorizations, waivers and permits which are issued from time to time by the
FCC.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
12
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System, or any successor thereto.
"Fee Letter" shall mean the letter dated as of June 12, 2001
addressed to the Borrower from Citicorp, the Arranger, UBOC, CIBC World Markets
Corp. and Canadian Imperial Bank of Commerce and accepted by the Borrower on
June 12, 2001, with respect to certain fees to be paid by the Borrower from time
to time to the other parties thereto.
"Final Maturity Date" means, at any time, the latest to occur
of the Term A Loan Maturity Date, the Term B Loan Maturity Date and the
Scheduled Termination Date.
"Financial Statements" means the financial statements of the
Borrower and its Subsidiaries delivered in accordance with Sections 4.5 and 6.1.
"Fiscal Quarter" means each of the three month periods ending
on March 31, June 30, September 30 and December 31.
"Fiscal Year" means the twelve month period ending on December
31.
"Fixed Charge Coverage Ratio" means, with respect to any
period, the ratio of (a) EBITDA for such period to (b) the consolidated Fixed
Charges of the Borrower and its Subsidiaries for such period.
"Fixed Charges" means, for any Person for any period, the sum
of (a) the Interest Expense of such Person for such period, (b) the total
federal income tax liability actually payable by such Person in respect of such
period, (c) the principal amount of Total Debt of such Person and each of its
Subsidiaries determined on a consolidated basis in conformity with GAAP having a
scheduled due date during such period, (d) all cash dividends paid by such
Person and its Subsidiaries on Preferred Stock in respect of such period to
Persons other than such Person and its Subsidiaries and (e) Programming Rights
Payments in excess of Programming Amortization Expense.
"Fund" means any Person (other than a natural Person) that is
or will be engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and the statements and pronouncements
of the Financial Accounting Standards Board, or in such other statements by such
other entity as may be in general use by significant segments of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"GE Capital Facility" means the Borrower's existing credit
facility pursuant to the Credit Agreement dated August 28, 1998 among the
Borrower, the lenders party thereto and General Electric Capital Corporation, as
agent.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
13
"Guaranty" means the Guaranty, dated as of July 12, 2001, by
each Subsidiary Guarantor, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"Guaranty Obligation" means, as applied to any Person, any
direct or indirect liability, contingent or otherwise, of such Person with
respect to any Indebtedness of another Person, if the purpose or intent of such
Person in incurring the Guaranty Obligation is to provide assurance to the
obligee of such Indebtedness that such Indebtedness will be paid or discharged,
or that any agreement relating thereto will be complied with, or that any holder
of such Indebtedness will be protected (in whole or in part) against loss in
respect thereof including, (a) the direct or indirect guaranty, endorsement
(other than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such Person of
Indebtedness of another Person and (b) any liability of such Person for
Indebtedness of another Person through any agreement (contingent or otherwise)
(i) to purchase, repurchase or otherwise acquire such Indebtedness or any
security therefor, or to provide funds for the payment or discharge of such
Indebtedness (whether in the form of a loan, advance, stock purchase, capital
contribution or otherwise), (ii) to maintain the solvency or any balance sheet
item, level of income or financial condition of another Person, (iii) to make
take-or-pay or similar payments, if required, regardless of non-performance by
any other party or parties to an agreement, (iv) to purchase, sell or lease (as
lessor or lessee) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Indebtedness or to assure
the holder of such Indebtedness against loss, or (v) to supply funds to or in
any other manner invest in such other Person (including to pay for property or
services irrespective of whether such property is received or such services are
rendered), if in the case of any agreement described under subclause (i), (ii),
(iii), (iv) or (v) of clause (b) of this sentence the primary purpose or intent
thereof is as described in the preceding sentence. The amount of any Guaranty
Obligation shall be equal to the lesser of (x) the amount of the Indebtedness so
guaranteed or otherwise supported and (b) the maximum amount of such Person's
liability (contingent or otherwise) under such Guaranty Obligation.
"Hazardous Materials" means (a) any chemical, material or
substance defined as or included in the definition of "hazardous substances,"
"hazardous wastes," "hazardous materials," "extremely hazardous waste,"
"restricted hazardous waste," or "toxic substances" or words of similar import
under any applicable Environmental Laws, (b) any oil, petroleum or petroleum
derived substance, any drilling fluids, produced waters and other wastes
associated with the exploration, development or production of crude oil, any,
flammable substances or explosives, any radioactive materials, any hazardous
wastes or substances, any toxic wastes or substances or any other materials or
pollutants which (i) pose a material hazard to any property of the Borrower or
any of its Subsidiaries or to Persons on or about such property or (ii) cause
such property to be in violation of any Environmental Laws, (c) asbestos in any
form which is or could become friable, urea formaldehyde foam insulation,
polychlorinated biphenyls, and (d) any other chemical, material or substance,
exposure to which is prohibited, limited or regulated by any governmental
authority or may or could pose a hazard to the health and safety of the owners,
occupants or any Persons surrounding the Facilities.
"Hedging Contracts" means all Interest Rate Contracts, foreign
exchange contracts, currency swap or option agreements, forward contracts,
commodity swap, purchase or option agreements, other commodity price hedging
arrangements, and all other similar agreements or arrangements designed to alter
the risks of any Person arising from fluctuations in interest rates, currency
values or commodity prices.
14
"Indebtedness" of any Person means, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person evidenced by instruments or which bear interest, (c) all reimbursement
and all obligations with respect to letters of credit, bankers' acceptances,
surety bonds and performance bonds, whether or not matured, (d) all indebtedness
for the deferred purchase price of property (other than trade payables incurred
in the ordinary course of business), (e) all indebtedness of such Person created
or arising under any conditional sale or other title retention agreement, (f)
all capital lease obligations of such Person, (g) all Guaranty Obligations of
such Person, (h) all obligations of such Person to purchase, redeem, retire,
defease or otherwise acquire for value, prior to the 91st day after the Final
Maturity Date, any capital stock of such Person, (i) all payments that such
Person would have to make in the event of an early termination on the date
Indebtedness of such Person is being determined in respect of Hedging Contracts
of such Person and (j) any of the foregoing Indebtedness secured by any Lien
upon or in property owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness.
"Indemnitees" has the meaning specified in Section 11.4.
"Information Memorandum" means the information memorandum
dated June 14, 2001 prepared by the Borrower in connection with the syndication
of the Facilities.
"Interest Coverage Ratio" means, with respect to any period,
the ratio of (a) EBITDA for such period to (b) consolidated Interest Expense of
the Borrower and its Subsidiaries for such period.
"Interest Expense" means, for any period, the sum of (a) total
interest expense (including that portion attributable to Capital Leases in
accordance with GAAP and capitalized interest and the net cash costs associated
with Hedging Contracts) of the Borrower and its Subsidiaries on a consolidated
basis for such period with respect to all outstanding Indebtedness of the
Borrower and its Subsidiaries, including, without limitation, (i) all interest
payable to the Senior Lenders and all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance financing
and (ii) time brokerage and affiliate fees under LMA Agreements relating to the
financing of radio or television stations as to which the Borrower or any of its
Subsidiaries has an agreement or option to acquire if such Station is not owned
by the Borrower at the end of such period, plus (b) losses on Pre-Approved
Securitization Transactions, less (c) total interest income of the Borrower and
its Subsidiaries on a consolidated basis for such period. In determining
Interest Expense for any period, there shall be (x) included all interest
expense attributable to Indebtedness incurred or assumed by the Borrower or any
of their Subsidiaries during the period in connection with any Permitted
Acquisition as if such Indebtedness was incurred or assumed on the day before
the first day of such period and bore interest from the first day of such period
until the date of such incurrence or assumption at a rate per annum equal to the
weighted average rate of interest on the other Indebtedness outstanding during
such period and (y) excluded Interest Expense attributable to that portion of
the principal amount of Indebtedness repaid in connection with an Asset Sale as
if such portion of the principal amount of Indebtedness was prepaid on the day
before the first day of such period.
"Interest Period" means, in the case of any Eurodollar Rate
Loan, (a) initially, the period commencing on the date such Eurodollar Rate Loan
is made or on the date of conversion of a Base Rate Loan to such Eurodollar Rate
Loan and ending one, two, three or six months thereafter (or (x) if deposits of
such duration are available to the Administrative Agent, ending nine months
thereafter or (y) if deposits of such duration are available to all Lenders,
ending twelve months thereafter), as selected by the Borrower in its Notice of
Borrowing or
15
Notice of Conversion or Continuation given to the Administrative Agent pursuant
to Section 2.2 or 2.10, and (b) thereafter, if such Loan is continued, in whole
or in part, as a Eurodollar Rate Loan pursuant to Section 2.10, a period
commencing on the last day of the immediately preceding Interest Period therefor
and ending one, two, three or six months thereafter (or (x) if deposits of such
duration are available to the Administrative Agent, ending nine months
thereafter or (y) if deposits of such duration are available to all Lenders,
ending twelve months thereafter), as selected by the Borrower in its Notice of
Conversion or Continuation given to the Administrative Agent pursuant to Section
2.10; provided, however, that all of the foregoing provisions relating to
Interest Periods in respect of Eurodollar Rate Loans are subject to the
following:
(i) if any Interest Period would otherwise end on a
day which is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day, unless the result of such
extension would be to extend such Interest Period into another calendar
month, in which event such Interest Period shall end on the immediately
preceding Business Day;
(ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar
month;
(iii) the Borrower may not select any Interest Period
that ends after the date of a scheduled principal payment on the Loans
as set forth in Article II unless, after giving effect to such
selection, the aggregate unpaid principal amount of the Loans for which
Interest Periods end after such scheduled principal payment shall be
equal to or less than the principal amount to which the Loans are
required to be reduced after such scheduled principal payment is made;
(iv) the Borrower may only select an Interest Period
in respect of Loans having an aggregate principal amount of at least
$2,000,000 or an integral multiple of $1,000,000 in excess thereof; and
(v) there shall be outstanding at any one time no
more than eight Interest Periods in the aggregate.
"Interest Rate Contracts" means all interest rate swap
agreements, interest rate cap agreements, interest rate collar agreements and
interest rate insurance.
"Investment" means, with respect to any Person, (a) any
purchase or other acquisition by that Person of (i) any Security issued by, (ii)
a beneficial interest in any Security issued by, or (iii) any other equity
ownership interest in, any other Person, (b) any purchase by that Person of all
or a significant part of the assets of a business conducted by another Person,
(c) any loan, advance (other than deposits with financial institutions available
for withdrawal on demand, prepaid expenses, accounts receivable and similar
items made or incurred in the ordinary course of business as presently
conducted), or capital contribution by that Person to any other Person,
including all Indebtedness of any other Person to that Person arising from a
sale of property by that Person other than in the ordinary course of its
business, and (d) any Guaranty Obligation incurred by that Person in respect of
Indebtedness of any other Person.
"Inventory" has the meaning specified in the Pledge and
Security Agreement.
16
"IRS" means the Internal Revenue Service of the United States
or any successor thereto.
"Issue" means with respect to any Letter of Credit, to issue,
extend the expiry of, renew or increase the maximum face amount (including by
deleting or reducing any scheduled decrease in such maximum face amount) of,
such Letter of Credit. The terms "Issued" and "Issuance" shall have a
corresponding meaning.
"Issuer" means (a) Citibank, (b) UBOC and (c) each Lender or
Affiliate of a Lender that hereafter becomes an Issuer with the approval of the
Administrative Agent and the Borrower by agreeing pursuant to an agreement with
and in form and substance satisfactory to the Administrative Agent and the
Borrower to be bound by the terms hereof applicable to Issuers.
"Joint Venture" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal form.
"Leases" means, with respect to any Person, all of those
leasehold estates in real property of such Person, as lessee, as such may be
amended, supplemented or otherwise modified from time to time.
"Lender" means each financial institution or other entity that
(a) is a party hereto as a "Lender" on the Effective Date or (b) from time to
time after the Effective Date becomes a party hereto by execution of an
Assignment and Acceptance.
"Letter of Credit" means any letter of credit issued or deemed
issued pursuant to Section 2.3.
"Letter of Credit Obligations" means, at any time, the
aggregate of all liabilities at such time of the Borrower to all Issuers with
respect to Letters of Credit, whether or not any such liability is contingent,
including, without duplication, the sum of (a) the Dollar Equivalents of the
Reimbursement Obligations at such time and (b) the Dollar Equivalents of the
Letter of Credit Undrawn Amounts at such time.
"Letter of Credit Reimbursement Agreement" has the meaning
specified in Section 2.3(e).
"Letter of Credit Request" has the meaning specified in
Section 2.3(c).
"Letter of Credit Sublimit" means (a) with respect to
Citibank, $12,500,000, (b) with respect to UBOC, $20,000,000, and (c) with
respect to any other Issuer, such amount acceptable to the Borrower, the
Administrative Agent and such Issuer; provided, however, that in no event shall
the aggregate Letter of Credit Obligations at any time exceed the aggregate
Revolving Credit Commitments then in effect.
"Letter of Credit Undrawn Amounts" means, at any time, the
aggregate undrawn face amount of all Letters of Credit outstanding at such time.
"Leverage Ratio" means, with respect to any period, the ratio
of (a) consolidated Total Debt of the Borrower and its Subsidiaries as of the
last day of such period to (b) EBITDA for such period.
17
"License Subsidiary" means any wholly-owned Subsidiary of the
Borrower which now or hereafter holds a Material FCC License, including the
Restricted License Subsidiary.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, charge, deposit arrangement, encumbrance, lien
(statutory or other), security interest or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
intended to assure payment of any Indebtedness or other obligation, including
any conditional sale or other title retention agreement, the interest of a
lessor under a Capital Lease, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction naming the owner of the asset to which such Lien relates as debtor.
"Liquidity" means, as at any date of determination, the sum of
(a) the Available Credit in respect of the Revolving Credit Facility and (b)
cash and Cash Equivalents of the Borrower at such time.
"LMA Agreement" means any agreement pursuant to which the
Borrower or any Subsidiary operates an LMA Television Station.
"LMA Television Station" means any television station operated
by the Borrower or any of its Subsidiaries pursuant to a local marketing
agreement, time brokerage agreement or similar arrangement.
"Loan" means any loan made by any Lender pursuant to this
Agreement.
"Loan Documents" means, collectively, this Agreement, the
Notes (if any), each Guaranty, the Fee Letter, each Letter of Credit
Reimbursement Agreement, each Hedging Contract to which a Loan Party and a
Lender or an Affiliate of a Lender is a party, each agreement pursuant to which
a Lender or an Affiliate of a Lender provides cash management services to a Loan
Party, the Collateral Documents, the Affirmation of Liens and Guaranties and
each certificate, agreement or document executed by a Loan Party and delivered
to the Administrative Agent or any Lender in connection with or pursuant to any
of the foregoing.
"Loan Party" means each of the Borrower, each Subsidiary
Guarantor and each other Subsidiary of the Borrower that executes and delivers a
Loan Document.
"Loan Sub-Portion" means the portion of the Term B Loan Loans
which are applied on the Closing Date to redeem the 12% Junior Preferred Stock
in an aggregate amount of $59,100,000.
"Market Ranked Stations" means, from time to time, Stations in
order of the highest to lowest "market rank " based on the number of television
households in the television market or "Designated Market Area (DMA)", as most
recently determined by ▇▇▇▇▇▇▇ Media Research (or its successor) at such time.
"Material Adverse Change" means an event or development (a)
that would have a material adverse effect on the business, assets, operations,
properties, condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries, taken as a whole, (b) that would adversely affect the
legality, validity or enforceability of the Loan Documents or (c) that would
18
adversely affect the ability of the Borrower to repay the Obligations or of the
Loan Parties to perform their obligations under the Loan Documents.
"Material Agreement" means any Subordinated Debt Document, any
Preferred Stock Document and the NBC Investment Agreement.
"Material FCC License" means a FCC License, the cancellation
or termination (except pursuant to an Asset Sale permitted hereby) of which
could reasonably be expected to (a) result in a Material Adverse Change or (b)
prevent any of the top ten Market Ranked Stations from broadcasting its digital
or analog signal in accordance with the rules, regulations and requirements of
the FCC.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower, any of its Subsidiaries or
any ERISA Affiliate has any obligation or liability, contingent or otherwise.
"NBC" means National Broadcasting Company, Inc., a Delaware
corporation.
"NBC Investment Agreement" means the investment agreement
dated as of September 15, 1999 between the Borrower and NBC and the other
agreements entered into in connection therewith.
"Net Cash Proceeds" means proceeds received by the Borrower or
any of its Subsidiaries after the Closing Date in cash or Cash Equivalents from
any (a) Asset Sale, other than an Asset Sale permitted under clauses (a) through
(e) of Section 8.4, net of (i) the reasonable cash costs of sale, assignment or
other disposition, (ii) taxes paid or payable as a result thereof and (iii) any
amount required to be paid or prepaid on Indebtedness (other than the
Obligations) secured by the assets subject to such Asset Sale; provided,
however, that the evidence of each of (i), (ii) and (iii) are provided to the
Administrative Agent in form and substance reasonably satisfactory to it; (b)
Property Loss Event; or (c) (i) Equity Issuance (other than any such issuance of
Common Stock occurring in the ordinary course of business to any current or
former director, member of the management or employee of the Borrower or its
Subsidiaries), or (ii) Debt Issuance, other than a Debt Issuance referred to in
Section 8.1, in each case net of brokers' and advisors' fees and other costs
incurred in connection with such transaction; provided, however, that in the
case of this clause (c) evidence of such costs is provided to the Administrative
Agent in form and substance reasonably satisfactory to it.
"Net Revenue" means with respect to the Borrower and its
Subsidiaries for any period, (a) the aggregate of gross revenues earned during
such period less (b) the aggregate of Agency Commissions incurred during such
period.
"New Preferred Stock" means any Stock of the Borrower
designated as preferred stock and issued after the Closing Date (other than
shares of Preferred Stock issued as dividends with respect to outstanding shares
of Preferred Stock), the terms of which provide that (i) no cash dividends shall
be paid on such New Preferred Stock prior to the 91st day after the Final
Maturity Date and (ii) such New Preferred Stock shall not be mandatorily
redeemable or require any other cash payment to the holders thereof prior to the
91st day after the Final Maturity Date and which shall otherwise be on terms
(including in respect of the redemption and dividend amount, redemption and
dividend payment dates, and redemption and payment provisions) which, taken as a
whole, are no less favorable to the Borrower and the Lenders than the terms of
the Preferred Stock being redeemed or exchanged pursuant to Section 8.5(b);
provided, however, that no such
19
New Preferred Stock shall be permitted to be issued if a Default or Event of
Default has occurred which is continuing or would result therefrom.
"New Senior Subordinated Notes" means the 10-3/4% Senior
Subordinated Notes due July 15, 2008 of the Borrower in the aggregate principal
amount of $200,000,000.
"New Senior Subordinated Debt Documents" means the New Senior
Subordinated Notes and the Indenture dated as of July 12, 2001 among the
Borrower and The Bank of New York, as trustee, pursuant to which the New Senior
Subordinated Notes shall be issued in a public offering or in a Rule 144A or
other private placement.
"9-3/4% Series A Convertible Preferred Stock" means the
convertible preferred stock of the Borrower designated the 9-3/4% Series A
Convertible Preferred Stock, issued by the Borrower pursuant to, and with such
rights, restrictions, privileges and preferences as set forth in, a Certificate
of Designation dated June 9, 1998.
"Non-Funding Lender" has the meaning specified in Section
2.2(e).
"Non-U.S. Lender" means each Lender or Administrative Agent
that is not a United States person as defined in Section 7701(a)(30) of the
Code.
"Note" means any Revolving Credit Note, Term A Loan Note or
Term B Loan Note.
"Notice of Borrowing" has the meaning specified in Section
2.2(a).
"Notice of Conversion or Continuation" has the meaning
specified in Section 2.10.
"Obligations" means the Loans, the Letter of Credit
Obligations and all other amounts, obligations, covenants and duties owing by
the Borrower to the Administrative Agent, any Lender, any Issuer, any Affiliate
of any of them or any Indemnitee, of every type and description (whether by
reason of an extension of credit, opening or amendment of a letter of credit or
payment of any draft drawn thereunder, loan, guaranty, indemnification, foreign
exchange or currency swap transaction, interest rate hedging transaction or
otherwise), present or future, arising under this Agreement, any other Loan
Document, any Hedging Contract, any agreement for cash management services
entered into in connection with this Agreement or any other Loan Document,
whether direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and however
acquired and whether or not evidenced by any note, guaranty or other instrument
or for the payment of money, and includes all letter of credit, cash management
and other fees, interest, charges, expenses, fees, attorneys' fees and
disbursements and other sums chargeable to the Borrower under this Agreement,
any other Loan Document, any Hedging Contract or any agreement for cash
management services entered into in connection with this Agreement or any other
Loan Document and all obligations of the Borrower under any Loan Document to
provide cash collateral for Letter of Credit Obligations.
"Owned Television Station" means any television station owned
by the Borrower or any of its Subsidiaries.
20
"Ownership Report" means with respect to any broadcast radio
or television station owned by the Borrower or any of its Subsidiaries, the
reports and certifications filed with the FCC pursuant to 47 C.F.R. Section
73.3615, or any comparable reports filed pursuant to any successor regulation
thereto.
"▇▇▇▇▇▇" means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, or after his death, his heirs
or estate or both.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"Permit" means any permit, approval, authorization, license,
variance or permission required from a Governmental Authority under an
applicable Requirement of Law.
"Permitted Acquisition" means the acquisition by the Borrower
or any of its Subsidiaries of all or substantially all of the assets of any
Person or operating division of any Person, or all or substantially all the
Stock of any Person which (i) is or operates a television broadcasting station
or (ii) is consistent with the Borrower's Core Business (such Person being the
"Target"), or the merger of the Target with or into the Borrower or any
Subsidiary of the Borrower (with the Borrower, in the case of a merger with the
Borrower, being the surviving corporation) subject to the satisfaction of each
of the following conditions:
(a) the Administrative Agent shall receive at least thirty
days' prior written notice of such proposed acquisition, which notice
shall include a reasonably detailed description of such proposed
acquisition;
(b) such proposed acquisition shall not be consummated prior
to delivery by the Borrower of a Compliance Certificate for the Fiscal
Quarter ended March 31, 2005 and the Borrower shall have demonstrated,
to the Administrative Agent's reasonable satisfaction, that the
Borrower shall be in compliance with the financial covenants set forth
in Sections 5.3 through 5.7 on an historical pro forma basis for the
period of four Fiscal Quarters ending immediately prior to such
proposed acquisition (assuming such acquisition occurred on the first
day of the applicable period);
(c) such proposed acquisition shall only involve assets
located in the United States and its territories, including Puerto Rico
and the Virgin Islands;
(d) if the Securities of the Target are publicly traded, such
proposed acquisition shall be consensual and shall have been approved
by the Target's board of directors;
(e) no additional Indebtedness shall be incurred, assumed or
otherwise be reflected on a consolidated balance sheet of the Borrower
and Target after giving effect to such proposed acquisition, except
Indebtedness permitted under Section 8.1;
(f) the consideration payable, whether in cash or in non-cash
assets of the Borrower and its Subsidiaries (determined by reference to
the Fair Market Value of such assets), in connection with such proposed
acquisition shall not exceed (excluding any portion of such
consideration which is paid from an Equity Issuance of the Borrower)
$20,000,000 in the aggregate (except that the consideration payable for
the proposed acquisitions of the New Orleans and Memphis television
broadcasting stations may exceed $20,000,000 individually but shall not
exceed $44,000,000 in the aggregate);
21
(g) at or prior to the closing of any proposed acquisition,
the Borrower (or the Subsidiary making such acquisition) and the Target
shall have executed such documents and taken such actions as may be
required under Section 7.12;
(h) concurrently with delivery of the notice referred to in
clause (a) above, the Borrower shall have delivered to the
Administrative Agent, in form and substance reasonably satisfactory to
the Administrative Agent and the Requisite Lenders, such other
financial information, financial analysis, documentation or other
information relating to such proposed acquisition as the Administrative
Agent or the Requisite Lenders shall reasonably request;
(i) on or prior to the date of such proposed acquisition, all
necessary and material consents or approvals from or by, all necessary
filings with, and all necessary notices to, each Governmental Authority
having jurisdiction, including the FCC and the Securities and Exchange
Commission, to the extent required to consummate such acquisition,
shall have been obtained or made, as the case may be;
(j) on or prior to the date of such proposed acquisition, the
Administrative Agent shall have received, in form and substance
reasonably satisfactory to the Administrative Agent, copies of the
acquisition agreement and related agreements and instruments, and all
opinions, certificates, lien search results and other documents
reasonably requested by the Administrative Agent; and
(k) at the time of such proposed acquisition and after giving
effect thereto, no Default or Event of Default shall have occurred and
be continuing and all representations and warranties contained in
Article IV and in the other Loan Documents shall be true and correct in
all material respects (except to the extent such representation and
warranty expressly relates to an earlier date).
"Permitted Holders" means, collectively, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, his
spouse, his children or other lineal descendants (whether adoptive or
biological), and any revocable or irrevocable inter vivos or testamentary trust
or the probate estate of any such individual, so long as one or more of the
foregoing individuals is the principal beneficiary of such trust or probate
estate.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, estate, trust, limited
liability company, unincorporated association, joint venture or other entity, or
a Governmental Authority.
"Pledge and Security Agreement" means the Pledge and Security
Agreement, dated as of July 12, 2001, by the Borrower and each Subsidiary
Guarantor, as the same may be amended, restated, supplemented or otherwise
modified from time to time.
"Pledged Notes" has the meaning specified in the Pledge and
Security Agreement.
"Pledged Stock" has the meaning specified in the Pledge and
Security Agreement.
"Pre-Approved Securitization Transaction" means a
securitization transaction to be entered into by the Borrower or its
Subsidiaries and one or more Unrestricted Subsidiaries
22
with respect to Receivables; provided, however, that all documentation providing
for such securitization arrangements shall be in form and substance reasonably
acceptable to the Administrative Agent, the obligations thereunder shall be
non-recourse to the Borrower or its Subsidiaries and the aggregate outstanding
amount thereof shall not exceed $35,000,000.
"Pre-Approved Station Sale" means any Asset Sale in respect of
the Borrower's broadcasting stations in each of (a) WJPX-TV, San ▇▇▇▇, Puerto
Rico, (b) WKPV-TV, ▇▇▇▇▇, Puerto Rico (c) WJWN-TV, San Sebastian, Puerto Rico,
(d) KPXO(TV), Kaneohe, Hawaii,(e) WPXB (TV), Merrimack, New Hampshire, (f)
W34CP, East Orange, New Jersey, (g) WPXU-LP, Amityville, New York, (h) WPXO(TV),
Christiansted, St. Croix, U.S. Virgin Islands, (i) KBPX-LP, Houston, Texas, (j)
WBPX-LP, West Palm Beach, Florida, (k) W33BZ, ▇▇▇▇▇▇, Maine, (l) WIPX-LP,
Indianapolis, Indiana, (m) KAPX, Albuquerque, New Mexico and (n) KPXF, Fresno,
California.
"Pre-Approved Transaction" means any Pre-Approved
Securitization Transaction, any Pre-Approved Station Sale or any sale and
leaseback transaction permitted by Section 8.6.
"Preferred Stock" means the 8% Series B Convertible
Exchangeable Preferred Stock, the 13-1/4% Cumulative Junior Exchangeable
Preferred Stock, the 9-3/4% Series A Convertible Preferred Stock, the 12-1/2%
Cumulative Exchangeable Preferred Stock and any New Preferred Stock.
"Preferred Stock Documents" means, in respect of any Preferred
Stock, the certificates of designation and any indentures and exchange
debentures relating to such Preferred Stock as set forth on Schedule I and the
certificates of designation and any indentures and exchange debentures relating
to any New Preferred Stock.
"Program" means any television series or other program
produced or distributed for television or cable release (including any
syndicated series or other program regardless of its medium of initial
exploitation), in each case whether recorded on film, videotape, audiotape,
cassette, cartridge, disc or by any other means, method, process or device,
whether now known or hereafter developed.
"Program Contracts" means all contracts for television
broadcast or cable distribution rights of Programs, including, but not limited
to, film, music and related audio rights (other than fees payable by the
Borrower to BMI, ASCAP, SECAP and similar organizations for its own accounts)
and syndicated series exhibition rights acquired under license agreements.
"Program Development Expenses" means for any period, the
aggregate cash payments made by the Borrower and/or any of its Subsidiaries
during such period in connection with the development or production of
television programming.
"Program Rights" means any right, whether arising under
Program Contracts or otherwise, to broadcast, sell, distribute, subdistribute,
exhibit, lease, sublease, license, sublicense or otherwise exploit Programs.
"Program Rights Costs" means the maximum amount which the
Borrower and/or any of its Subsidiaries or its or their co-venturers have
furnished or have contractually committed to furnish (to the extent such
commitments shall be reflected as an asset or liability on the consolidated
balance sheet and the notes thereto of the Borrower) toward the production or
23
acquisition by the Borrower and/or any of its Subsidiaries or its or their
co-venturers of any Program Rights with respect to any Program.
"Programming Amortization Expense" means, for any period,
total amortization expense of the Borrower and/or any of its Subsidiaries for
such period which is directly attributable to Programs, Program Rights or
Program Contracts, determined on a consolidated basis in conformity with GAAP.
"Programming Obligations" means at any date of determination,
all direct or indirect liabilities, contingent or otherwise, with respect to
Program Contracts, Programs or Program Rights (including, without limitation,
all Program Rights Costs) of the Borrower and its Subsidiaries, to the extent
reflected on the consolidated balance sheet and the notes thereto of the
Borrower and its Subsidiaries prepared in conformity with GAAP.
"Programming Rights Payments" means, for any period, the
aggregate cash payments made by the Borrower and/or any of its Subsidiaries for
such period in respect of Programming Obligations, determined on a consolidated
basis in conformity with GAAP.
"Projections" means those financial projections dated June 14,
2001, covering the period from the Fiscal Quarter ended June 30, 2001 through
December 31, 2006, inclusive, delivered to the Lenders by the Borrower.
"Property Loss Event" means any loss of or damage to, or
condemnation of, property of the Borrower or any of its Subsidiaries that
results in the receipt by such Person of proceeds of insurance or condemnation
award in excess of $1,000,000 or any taking of property of the Borrower or any
of its Subsidiaries that results in the receipt by such Person of a compensation
payment in respect thereof in excess of $1,000,000.
"Ratable Portion" or "ratably" means, with respect to any
Lender, (a) with respect to the Revolving Credit Facility, the percentage
obtained by dividing (i) the Revolving Credit Commitment of such Lender by (ii)
the aggregate Revolving Credit Commitments of all Lenders (or, at any time after
the Revolving Credit Termination Date, the percentage obtained by dividing the
aggregate outstanding principal balance of the Revolving Credit Outstandings
owing to such Lender by the aggregate outstanding principal balance of the
Revolving Credit Outstandings owing to all Lenders), (b) with respect to the
Term A Loan Facility, the percentage obtained by dividing (i) the Term A Loan
Commitment of such Lender by (ii) the aggregate Term A Loan Commitments of all
Lenders (or, at any time after the Closing Date, the percentage obtained by
dividing the principal amount of such Lender's Term A Loans and such Lender's
Term A Loan Commitment (if any) by the aggregate Term A Loans and Term A Loan
Commitments (if any) of all Lenders), (c) with respect to the Term B Loan
Facility, the percentage obtained by dividing (i) the Term B Loan Commitment of
such Lender by (ii) the aggregate Term B Loan Commitments of all Lenders (or, at
any time after the Closing Date, the percentage obtained by dividing the
principal amount of such Lender's Term B Loans by the aggregate Term B Loans of
all Lenders) and (d) with respect to all Loans, the percentage obtained by
dividing the aggregate outstanding amount of all Loans owing to such Lender by
the aggregate amount of all Loans owing to all Lenders.
"Receivables" means amounts due to the Borrower from the sale
of advertising time and/or amounts due to the Borrower from the sale or transfer
of Program Rights.
"Register" has the meaning specified in Section 11.2(c).
24
"Reimbursement Date" has the meaning specified in Section
2.3(h).
"Reimbursement Obligations" means all matured reimbursement or
repayment obligations of the Borrower to any Issuer with respect to amounts
drawn under Letters of Credit.
"Reinvestment Deferred Amount" means, with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by the Borrower or
any of its Subsidiaries in connection therewith which are not initially applied
to prepay the Loans pursuant to Section 2.8 as a result of the delivery of a
Reinvestment Notice.
"Reinvestment Event" means any Asset Sale referred to in
Section 2.8(a)(ii)(A) or Property Loss Event referred to in Section
2.8(a)(ii)(B), in respect of which the Borrower has delivered a Reinvestment
Notice.
"Reinvestment Notice" means a written notice executed by a
Responsible Officer of the Borrower stating that no Default or Event of Default
has occurred and is continuing and that the Borrower (directly or indirectly
through one of its Subsidiaries) intends and expects to use all or a specified
portion of the Net Cash Proceeds of an Asset Sale or Property Loss Event to
acquire replacement assets useful in its, or a Subsidiary Guarantor's, Core
Business or effect repairs in the case of a Property Loss Event.
"Reinvestment Prepayment Amount" means, with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amount expended or required to be expended pursuant to a Contractual Obligation
entered into prior to the relevant Reinvestment Prepayment Date to acquire
replacement assets useful in the Borrower's business.
"Reinvestment Prepayment Date" means, with respect to any
Reinvestment Event, the earlier of (i) the date occurring 180 days after such
Reinvestment Event and (ii) the date five Business Days after the date on which
the Borrower shall have notified the Administrative Agent of the Borrower's
determination not to acquire replacement assets useful in the Borrower's or a
Subsidiary's business or effect repairs in the case of a Property Loss Event (or
failure to diligently pursue such repairs) with all or any portion of the
relevant Reinvestment Deferred Amount.
"Release" means any release, spill, emission, leaking,
pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal,
leaching, or migration into the indoor or outdoor environment (including,
without limitation, the abandonment or disposal of any barrels, containers or
other closed receptacles containing any Hazardous Materials), or into or out of
any Facility, including the movement of any Hazardous Material through the air,
soil, surface water, groundwater or property.
"Requirement of Law" means, with respect to any Person, the
common law and all federal, state, local and foreign laws, rules and
regulations, orders, judgments, decrees and other legal requirements or
determinations of any Governmental Authority or arbitrator, applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject.
"Requisite Lenders" means, collectively, Lenders having more
than fifty percent (50%) of the sum of (a) the aggregate outstanding amount of
the Revolving Credit Commitments or, after the Revolving Credit Termination
Date, the aggregate Revolving Credit Outstandings, (b) the aggregate outstanding
amount of the Term A Loan Commitments and, after the Closing
25
Date, the principal amount of all Term A Loans and Term A Loan Commitments (if
any) then outstanding and (c) the aggregate outstanding amount of the Term B
Loan Commitments and, after the Closing Date, the principal amount of all Term B
Loans then outstanding. A Non-Funding Lender shall not be included in the
calculation of "Requisite Lenders."
"Requisite Revolving Credit Lenders" shall mean Revolving
Credit Lenders having more than fifty percent (50%) of the aggregate outstanding
amount of the Revolving Credit Commitments or, after the Revolving Credit
Termination Date, fifty percent (50%) of the aggregate Revolving Credit
Outstandings. A Non-Funding Lender shall not be included in the calculation of
"Requisite Revolving Credit Lenders."
"Requisite Term A Loan Lenders" means Term A Loan Lenders
having more than fifty percent (50%) of the aggregate outstanding amount of the
Term A Loan Commitments or, after the Closing Date, fifty percent (50%) of the
principal amount of all Term A Loans and Term A Loan Commitments (if any) then
outstanding.
"Requisite Term B Loan Lenders" means Term B Loan Lenders
having more than fifty percent (50%) of the aggregate outstanding amount of the
Term B Loan Commitments or, after the Closing Date, fifty percent (50%) of the
principal amount of all Term B Loans then outstanding.
"Responsible Officer" means, with respect to any Person, any
of the principal executive officers of such Person, but in any event, with
respect to financial matters, the chief financial officer, any treasurer or
controller of such Person.
"Restricted License Subsidiary" means ▇▇▇▇▇▇ Communications
License Company, LLC.
"Restricted Payment" means (a) any dividend or other
distribution, direct or indirect, on account of any Stock or Stock Equivalents
of the Borrower or any of its Subsidiaries now or hereafter outstanding, except
a dividend payable solely in Stock or Stock Equivalents or a dividend or
distribution payable solely to the Borrower and/or one or more Subsidiary
Guarantors, (b) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any Stock or
Stock Equivalents of the Borrower or any of its Subsidiaries now or hereafter
outstanding other than one payable solely to the Borrower and/or one or more
Subsidiary Guarantors, and (c) any payment or prepayment of principal, premium
(if any), interest, fees (including fees to obtain any waiver or consent in
connection with any Security) or other charges on, or redemption, purchase,
retirement, defeasance, sinking fund or similar payment with respect to, any
Indebtedness of the Borrower or any of its Subsidiaries or any other Loan Party,
other than any scheduled redemptions, retirement, purchases or other payments,
in each case to the extent required to be made by the terms of such Indebtedness
after giving effect to any applicable subordination provisions.
"Revolving Credit Borrowing" means Revolving Loans made on the
same day by the Revolving Credit Lenders ratably according to their respective
Revolving Credit Commitments.
"Revolving Credit Commitment" means, with respect to each
Revolving Credit Lender, the commitment of such Lender to make Revolving Loans
and acquire interests in other Revolving Credit Outstandings in the aggregate
principal amount outstanding not to exceed the amount specified for such Lender
in the Register as its "Revolving Credit Commitment," as
26
amended to reflect each Assignment and Acceptance executed by such Lender and as
such amount may be reduced pursuant to this Agreement. The aggregate Revolving
Credit Commitment as of the date of this Agreement is $25,000,000.
"Revolving Credit Facility" means the Revolving Credit
Commitments and the provisions herein related to the Revolving Loans and Letters
of Credit.
"Revolving Credit Lender" means each Lender having a Revolving
Credit Commitment.
"Revolving Credit Note" means a promissory note of the
Borrower payable to the order of any Revolving Credit Lender in a principal
amount equal to the amount of such Lender's Revolving Credit Commitment
evidencing the aggregate Indebtedness of the Borrower which is outstanding to
such Lender resulting from the Revolving Loans from time to time owing to such
Lender.
"Revolving Credit Outstandings" means, at any particular time,
the sum of (a) the principal amount of the Revolving Loans outstanding at such
time, (b) the Dollar Equivalents of the Reimbursement Obligations at such time,
and (c) the Dollar Equivalents of the Letter of Credit Undrawn Amounts at such
time.
"Revolving Credit Termination Date" shall mean the earliest of
(a) the Scheduled Termination Date, (b) the date of termination of the Revolving
Credit Commitments pursuant to Section 2.4 and (c) the date on which the
Obligations become due and payable pursuant to Section 9.2.
"Revolving Loan" has the meaning specified in Section 2.1(a).
"Scheduled Termination Date" means June 30, 2006.
"Secured Obligations" means, in the case of the Borrower, the
Obligations, and, in the case of any other Loan Party, the obligations of such
Loan Party under the Guaranty and the other Loan Documents to which it is a
party.
"Secured Parties" means the Lenders, the Issuers, the
Administrative Agent and any other holder of any of the Obligations.
"Security" means any Stock, Stock Equivalent, voting trust
certificate, bond, debenture, note or other evidence of Indebtedness, whether
secured, unsecured, convertible or subordinated, or any certificate of interest,
share or participation in, or any temporary or interim certificate for the
purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing, but shall not include any evidence of the Obligations.
"Senior Debt" means the aggregate principal amount of Total
Debt of the Borrower less the aggregate principal amount of Subordinated
Indebtedness included in Total Debt.
"Senior Debt Leverage Ratio" means, with respect to any
period, the ratio of (a) consolidated Senior Debt of the Borrower and its
Subsidiaries as of the last day of such period to (b) EBITDA for such period.
27
"Solvent" means, with respect to any Person, that as of the
date of determination, both (a) (i) the then fair saleable value of the property
of such Person is (x) greater than the total amount of liabilities (including
Guaranty Obligations net of the estimated value of any subrogation or
contribution rights relating thereto) of such Person and (y) greater than the
amount that will be required to pay the probable liabilities of such Person's
then existing debts as they become absolute and matured considering all
financing alternatives, sharing and allocation arrangements and potential asset
sales reasonably available to such Person; (ii) such Person's capital is not
unreasonably small in relation to its business or any contemplated or undertaken
transaction; and (iii) such Person does not intend to incur, or believe or
reasonably should believe that it will incur, debts beyond its ability to pay
such debts as they become due and (b) such Person is solvent within the meaning
given that term and similar terms under applicable laws relating to fraudulent
transfers.
"Spectrum License" means any FCC License pursuant to or in
connection with (a) the FCC's upper 700 MHz (746-764 MHz and 776-794 MHz) band
auction or (b) the FCC's lower 700 MHz (698-746 MHz) band auction, provided
that, in each case, the expected use of any such FCC License shall not include
the transmission of a television signal.
"Spectrum License Sale" means an Asset Sale in respect of any
Spectrum License.
"Standby Letter of Credit" means any Letter of Credit that is
not a Documentary Letter of Credit.
"Station" means any Owned Television Station and any LMA
Television Station.
"Station Appraisal" means an appraisal (in form and substance
reasonably acceptable to the Administrative Agent) of the fair market value of
an Owned Television Station (if sold individually) conducted by an independent
third party appraiser reasonably acceptable to the Administrative Agent, as
updated from time to time pursuant to Section 6.4.
"Station EBITDA" means, with respect to any Station for any
period, (i) Station revenues (excluding any allocation of network revenues)
minus (ii) Station operating expenses (excluding depreciation, amortization and
any allocation of corporate overhead or Programming Amortization Expense).
"Station Value" shall be the aggregate value of all Owned
Television Stations (adjusted to reflect any relevant Asset Sale) as shown in
the most recent Station Appraisal for such Stations (including any Stations
acquired after the Closing Date, provided that the Borrower has submitted a
Station Appraisal in respect of such Owned Television Station to the
Administrative Agent, but excluding stations the sale of which are Pre-Approved
Station Sales.
"Stock" means shares of capital stock (whether denominated as
common stock or preferred stock), beneficial, partnership or membership
interests, participations or other equivalents (regardless of how designated) of
or in a corporation, partnership, limited liability company or equivalent
entity, whether voting or non-voting.
"Stock Equivalents" means all Securities convertible into or
exchangeable for Stock and all warrants, options or other rights to purchase or
subscribe for any Stock, whether or not presently convertible, exchangeable or
exercisable.
28
"Subordinated Debt" means the Indebtedness represented by (a)
the New Senior Subordinated Notes, (b) following exchange for, or conversion of
any Preferred Stock into, Indebtedness, all such Indebtedness and (c) any other
Indebtedness of the Borrower or any of its Subsidiaries that is subordinated to
the Obligations of the Borrower under the Loan Documents or the obligations of
any Subsidiary Guarantor under its Guaranty.
"Subordinated Debt Documents" means the New Senior
Subordinated Debt Documents and any other indentures or other agreements or
instruments evidencing or governing the terms of the Subordinated Debt.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, limited liability company or other business entity of
which an aggregate of 50% or more of the outstanding Voting Stock is, at the
time, directly or indirectly, owned or controlled by such Person and/or one or
more Subsidiaries of such Person; provided, however, that, for the purposes of
this Agreement, each Unrestricted Subsidiary shall be deemed not to be a
Subsidiary of the Borrower except where the term "Subsidiary" is used in the
following provisions of this Agreement: (i) the definition of "Unrestricted
Subsidiary" in this Section 1.1, (ii) Sections 4.1, 4.3, 4.5, 4.8, 4.9, 4.13,
4.17, 4.18, 4.19; (iii) Article VI; (iv) Sections 7.2, 7.5, 7.7, 7.8, 7.11; and
(v) Sections 9.1 (e) through (h).
"Subsidiary Guarantor" means each Subsidiary of the Borrower
party to the Guaranty.
"Syndication Agent" has the meaning specified at the beginning
of this Agreement.
"Tax Affiliate" means, with respect to any Person, (a) any
Subsidiary of such Person, and (b) any Affiliate of such Person with which such
Person files or is eligible to file consolidated, combined or unitary tax
returns.
"Tax Return" has the meaning specified in Section 4.9.
"Taxes" has the meaning specified in Section 2.15(a).
"Term A Loan" has the meaning specified in Section 2.1(b).
"Term A Loan Borrowing" means Term A Loans made on the same
day by the Term A Loan Lenders ratably according to their respective Term A Loan
Commitments.
"Term A Loan Commitment" means, with respect to each Term A
Loan Lender, the commitment of such Lender to make Term A Loans to the Borrower
in the aggregate principal amount outstanding not to exceed the amount specified
for such Lender in the Register as its "Term A Loan Commitment," as amended to
reflect each Assignment and Acceptance executed by such Lender and as such
amount may be reduced pursuant to this Agreement. The aggregate Term A Loan
Commitment as of the Closing Date was $50,000,000. Each Term A Lender's Term A
Loan Commitment shall be reduced by the amount of Term A Loans made by such
Lenders.
"Term A Loan Commitment Termination Date" shall mean the
earliest of (a) the third anniversary of the Closing Date, (b) the date of
termination of the Term A Loan
29
Commitments pursuant to Section 2.4 and (c) the date on which the Obligations
become due and payable pursuant to Section 9.2.
"Term A Loan Facility" means the Term A Loan Commitments and
the provisions herein related to the Term A Loans.
"Term A Loan Lender" means each Lender having a Term A Loan
Commitment.
"Term A Loan Maturity Date" means December 31, 2005.
"Term A Loan Note" means a promissory note of the Borrower
payable to the order of any Term A Loan Lender in a principal amount equal to
the amount of such Lender's Term A Loan Commitment evidencing the Indebtedness
of the Borrower which is outstanding to such Lender resulting from the Term A
Loan owing from time to time to such Lender.
"Term B Loan" has the meaning specified in Section 2.1(c).
"Term B Loan Borrowing" means Term B Loans made on the same
day by the Term B Loan Lenders ratably according to their respective Term B Loan
Commitments.
"Term B Loan Commitment" means, with respect to each Term B
Loan Lender, the commitment of such Lender to make Term B Loans to the Borrower
in the aggregate principal amount outstanding not to exceed the amount specified
for such Lender in the Register as its "Term B Loan Commitment," as amended to
reflect each Assignment and Acceptance executed by such Lender and as such
amount may be reduced pursuant to this Agreement. The aggregate Term B Loan
Commitment as of the Closing Date was $285,000,000. The Term B Loan Commitment
shall be reduced to zero after giving effect to the making of the Term B Loans
on the Closing Date.
"Term B Loan Facility" means the Term B Loan Commitments and
the provisions herein related to the Term B Loans.
"Term B Loan Lender" means each Lender having a Term B Loan
Commitment.
"Term B Loan Maturity Date" means June 30, 2006.
"Term B Loan Note" means a promissory note of the Borrower
payable to the order of any Term B Loan Lender in a principal amount equal to
the amount of such Lender's Term B Loan Commitment evidencing the Indebtedness
of the Borrower which is outstanding to such Lender resulting from the Term B
Loan owing from time to time to such Lender.
"13-1/4% Cumulative Junior Exchangeable Preferred Stock" means
the junior exchangeable preferred stock of the Borrower designated the 13-1/4%
Cumulative Junior Exchangeable Preferred Stock, issued by the Borrower pursuant
to, and with such rights, restrictions, privileges and preferences as set forth
in, a Certificate of Designation dated July 30, 1998.
"Title IV Plan" means a pension plan, other than a
Multiemployer Plan, which is covered by Title IV of ERISA to which the Borrower,
any of its Subsidiaries or any ERISA Affiliate has any obligation or liability
(contingent or otherwise).
30
"Total Debt" of any Person means the aggregate amount of all
Indebtedness of such Person other than indebtedness in respect of zero coupon
Subordinated Debt (or other Subordinated Debt providing for no cash interest
payments prior to the Final Maturity Date), the proceeds of which are used to
refinance, or which arises from an amendment (providing for no cash interest
payments on such debt prior to the Final Maturity Date) to the terms of, the
Borrower's 12-1/2% Cumulative Exchangeable Preferred Stock in accordance with
the terms of this Agreement.
"12% Junior Preferred Stock" means the junior cumulative
compounding redeemable preferred stock of the Borrower issued pursuant to a
Certificate of Designation dated December 22, 1994.
"12-1/2% Cumulative Exchangeable Preferred Stock" means the
exchangeable preferred stock of the Borrower designated the 12-1/2% Cumulative
Exchangeable Preferred Stock, issued by the Borrower pursuant to, and with such
rights, restrictions, privileges and preferences as set forth in a Certificate
of Designation dated September 30, 1996.
"UBOC Credit Facility" means the Borrower's credit facility
pursuant to the Second Amended and Restated Credit Agreement dated as of April
28, 1998, among the Borrower, the lenders party thereto and UBOC, as agent.
"Unfunded Pension Liability" means, with respect to the
Borrower at any time, the sum of (a) the amount, if any, by which the present
value of all accrued benefits under each Title IV Plan (other than any Title IV
Plan subject to Section 4063 of ERISA) exceeds the fair market value of all
assets of such Title IV Plan allocable to such benefits in accordance with Title
IV of ERISA, as determined as of the most recent valuation date for such Title
IV Plan using the actuarial assumptions in effect under such Title IV Plan, and
(b) the aggregate amount of withdrawal liability that could be assessed under
Section 4063 with respect to each Title IV Plan subject to such Section 8.3(e),
separately calculated for each such Title IV Plan as of its most recent
valuation date and (c) for a period of five years following a transaction
reasonably likely to be covered by Section 4069 of ERISA, the liabilities
(whether or not accrued) that could be avoided by the Borrower, any of its
Subsidiaries or any ERISA Affiliate as a result of such transaction.
"Unrestricted Subsidiary" means any corporation, partnership
or other entity which, but for the operation of this definition, would be a
Subsidiary of the Borrower, (a) identified as an Unrestricted Subsidiary on
Schedule 4.3 or (b) (i) created, invested in or acquired by the Borrower or any
Subsidiary of the Borrower after April 28, 1998, other than pursuant to a
Permitted Acquisition and (ii) designated by a resolution of the board of
directors of the Borrower as an Unrestricted Subsidiary and such designation and
the basis for such designation are provided in writing to the Administrative
Agent; provided, however, that (x) if such Subsidiary is a partnership, such
Subsidiary may be an Unrestricted Subsidiary only if neither the Borrower nor a
Subsidiary of the Borrower is a general partner of such Subsidiary and (y) no
Subsidiary Guarantor shall be designated an Unrestricted Subsidiary.
"Unused Commitment Fee" has the meaning specified in Section
2.11(a).
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States (including any agency or instrumentality thereof) for the payment
of which the full faith and credit of the United States is pledged and which are
not callable or redeemable at the issuer's option.
31
"Voting Stock" means Stock of any Person having ordinary power
to vote in the election of members of the board of directors, managers, trustees
or other controlling Persons, of such Person (irrespective of whether, at the
time, Stock of any other class or classes of such entity shall have or might
have voting power by reason of the happening of any contingency).
"Withdrawal Liability" means, with respect to the Borrower at
any time, the aggregate liability incurred (whether or not assessed) with
respect to all Multiemployer Plans pursuant to Section 4201 of ERISA or for
increases in contributions required to be made pursuant to Section 4243 of
ERISA.
SECTION 1.2. COMPUTATION OF TIME PERIODS. In this Agreement,
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding" and the word "through" means "to and including."
SECTION 1.3. ACCOUNTING TERMS AND PRINCIPLES.
(a) Except as set forth below, all accounting terms not
specifically defined herein shall be construed in conformity with GAAP and all
accounting determinations required to be made pursuant hereto shall, unless
expressly otherwise provided herein, be made in conformity with GAAP.
(b) If any change in the accounting principles used in the
preparation of the most recent Financial Statements referred to in Section 6.1
is hereafter required or permitted by the rules, regulations, pronouncements and
opinions of the Financial Accounting Standards Board or the American Institute
of Certified Public Accountants (or any successors thereto) and such change is
adopted by the Borrower with the agreement of its independent public accountants
and results in a change in any of the calculations required by Article V or
Article VIII had such accounting change not occurred, the parties hereto agree
to enter into negotiations in order to amend such provisions so as to equitably
reflect such change with the desired result that the criteria for evaluating
compliance with such covenants by the Borrower shall be the same after such
change as if such change had not been made; provided, however, that no change in
GAAP that would affect a calculation that measures compliance with any covenant
contained in Article V or Article VIII shall be given effect until such
provisions are amended to reflect such changes in GAAP.
SECTION 1.4. CERTAIN TERMS.
(a) The words "herein," "hereof" and "hereunder" and similar
words refer to this Agreement as a whole, and not to any particular Article,
Section, subsection or clause in, this Agreement.
(b) References in this Agreement to an Exhibit, Schedule,
Article, Section, subsection or clause refer to the appropriate Exhibit or
Schedule to, or Article, Section, subsection or clause in this Agreement.
(c) Each agreement, instrument and other document defined in
this Article I shall include all appendices, exhibits and schedules thereto. If
the prior written consent of the Requisite Lenders is required hereunder for an
amendment, restatement, supplement or other modification to any such agreement,
instrument or other document and such consent is obtained
32
(or if such consent is not required), references in this Agreement to such
agreement, instrument or other document shall be to such agreement as so
amended, restated, supplemented or modified.
(d) References in this Agreement to any statute shall be to
such statute as amended or modified and in effect at the time any such reference
is operative.
(e) The term "including" when used in any Loan Document means
"including without limitation" except when used in the computation of time
periods.
(f) The terms "Lender", "Issuer" and "Administrative Agent"
include their respective successors.
(g) Upon the appointment of any successor Administrative Agent
pursuant to Section 10.7, references to Citicorp in Section 10.1 and to Citibank
in the definition of Base Rate, shall be deemed to refer to the financial
institution then acting as the Administrative Agent or one of its Affiliates if
it so designates.
ARTICLE II
THE FACILITIES
SECTION 2.1. THE COMMITMENTS.
(a) Revolving Credit Commitments. On the terms and subject to
the conditions contained in this Agreement, each Revolving Credit Lender
severally agrees to make loans (each a "Revolving Loan") to the Borrower from
time to time on any Business Day during the period from the date hereof until
the Revolving Credit Termination Date in an aggregate amount not to exceed at
any time outstanding for all such loans by such Lender such Lender's Revolving
Credit Commitment; provided, however, that at no time shall any Lender be
obligated to make a Revolving Loan in excess of such Lender's Ratable Portion of
the Available Credit. Within the limits of each Lender's Revolving Credit
Commitment, amounts of Revolving Loans repaid may be reborrowed under this
Section 2.1(a). Revolving Loans outstanding as of the Effective Date shall
constitute Revolving Loans under this Agreement.
(b) Term A Loan Commitments. On the terms and subject to the
conditions contained in this Agreement, each Term A Loan Lender severally agrees
to make loans (each a "Term A Loan") to the Borrower from time to time on any
Business Day during the period from the date hereof until the Term A Loan
Commitment Termination Date in an aggregate amount not to exceed at any time
outstanding for all such loans by such Lender such Lender's Term A Loan
Commitment; provided, however, that at no time shall any Lender be obligated to
make a Term A Loan in excess of such Lender's Ratable Portion of the Term A Loan
Commitments outstanding at such time. Amounts of Term A Loans repaid and prepaid
may not be reborrowed. Term A Loans outstanding as of the Effective Date shall
constitute Term A Loans under this Agreement.
(c) Term B Loan Commitments. On the terms and subject to the
conditions contained in this Agreement, each Term B Loan Lender severally agrees
to make a loan (each a "Term B Loan") to the Borrower on the Closing Date, in an
amount not to exceed such Lender's Term B Loan Commitment. Amounts of Term B
Loans repaid and prepaid may not be reborrowed. Term B Loans outstanding as of
the Effective Date shall constitute Term B Loans under this Agreement.
33
SECTION 2.2. BORROWING PROCEDURES.
(a) Each Revolving Credit Borrowing and each Term A Loan
Borrowing shall be made on notice given by the Borrower to the Administrative
Agent not later than 11:00 A.M. (New York City time) (i) one Business Day, in
the case of a Borrowing of Base Rate Loans and (ii) three Business Days, in the
case of a Borrowing of Eurodollar Rate Loans, prior to the date of the proposed
Borrowing. Each such notice shall be in substantially the form of Exhibit C (a
"Notice of Borrowing"), specifying (A) whether such Borrowing is a Revolving
Credit Borrowing or a Term A Loan Borrowing, (B) the date of such proposed
Borrowing, (C) the aggregate amount of such proposed Borrowing, (D) whether any
portion of the proposed Borrowing will be of Base Rate Loans or Eurodollar Rate
Loans and (E) the initial Interest Period or Periods for any such Eurodollar
Rate Loans. The Revolving Loans or, as the case may be, Term A Loans shall be
made as Base Rate Loans unless (subject to Section 2.13) the Notice of Borrowing
specifies that all or a portion thereof shall be Eurodollar Rate Loans. Each
Revolving Credit Borrowing and Term A Loan Borrowing shall be in an aggregate
amount of not less than $1,000,000 or an integral multiple of $1,000,000 in
excess thereof. The Borrower may not request more than four Borrowings per month
under the Term A Loan Facility pursuant to this Section 2.2.
(b) The Term B Loan Borrowing shall be made upon receipt of a
Notice of Borrowing given by the Borrower to the Administrative Agent not later
than 11:00 A.M. (New York City time) one Business Day prior to the Closing Date.
The Notice of Borrowing shall specify (i) the Closing Date and (ii) the
aggregate amount of such proposed Term B Loan Borrowing. The Term B Loans shall
be made initially as Base Rate Loans.
(c) The Administrative Agent shall give to each Lender prompt
notice of the Administrative Agent's receipt of a Notice of Borrowing and, if
Eurodollar Rate Loans are properly requested in such Notice of Borrowing, the
applicable interest rate determined pursuant to Section 2.14(a). Each Lender
shall, before 11:00 A.M. (New York City time) on the date of the proposed
Borrowing, make available to the Administrative Agent at its address referred to
in Section 11.8, in immediately available funds, such Lender's Ratable Portion
of such proposed Borrowing. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Sections
3.1 and 3.2, the Administrative Agent will make such funds available to the
Borrower.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any proposed Borrowing that such Lender will
not make available to the Administrative Agent such Lender's Ratable Portion of
such Borrowing, the Administrative Agent may assume that such Lender has made
such Ratable Portion available to the Administrative Agent on the date of such
Borrowing in accordance with this Section 2.2 and the Administrative Agent may,
in reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such Ratable Portion available to the Administrative Agent, such Lender and
the Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to the Loans comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate for the
first Business Day and thereafter at the interest rate applicable at the time to
the Loans comprising such Borrowing. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Loan as part of such Borrowing for purposes of this
Agreement. If the Borrower shall repay to the Administrative Agent such
corresponding amount,
34
such payment shall not relieve such Lender of any obligation it may have
hereunder to the Borrower.
(e) The failure of any Lender to make the Loan or any payment
required by it on the date specified (a "Non-Funding Lender"), including any
payment in respect of its participation in Letter of Credit Obligations, shall
not relieve any other Lender of its obligations to make such Loan or payment on
such date but no such other Lender shall be responsible for the failure of any
Non-Funding Lender to make a Loan or payment required under this Agreement.
SECTION 2.3. LETTERS OF CREDIT.
(a) On the terms and subject to the conditions contained in
this Agreement, each Issuer agrees to Issue at the request of the Borrower and
for the account of the Borrower one or more Letters of Credit from time to time
on any Business Day during the period commencing on the Effective Date and
ending on the earlier of the Revolving Credit Termination Date and 30 days prior
to the Scheduled Termination Date; provided, however, that no Issuer shall be
under any obligation to Issue any Letter of Credit upon the occurrence of any of
the following:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall purport by its terms to enjoin or
restrain such Issuer from Issuing such Letter of Credit or any
Requirement of Law applicable to such Issuer or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over such Issuer shall
prohibit, or request that such Issuer refrain from, the Issuance of
letters of credit generally or such Letter of Credit in particular or
shall impose upon such Issuer with respect to such Letter of Credit any
restriction or reserve or capital requirement (for which such Issuer is
not otherwise compensated) not in effect on the date of this Agreement
or result in any unreimbursed loss, cost or expense that was not
applicable, in effect or known to such Issuer as of the date of this
Agreement and that such Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) such Issuer shall have received any written
notice of the type described in clause (d) below;
(iii) after giving effect to the Issuance of such
Letter of Credit, the aggregate Revolving Credit Outstandings would
exceed the aggregate of the Revolving Credit Commitments in effect at
such time;
(iv) after giving effect to the Issuance of such
Letter of Credit, the sum of (i) the Dollar Equivalents of the Letter
of Credit Undrawn Amounts at such time and (ii) the Dollar Equivalents
of the Reimbursement Obligations at such time exceeds such Issuer's
Letter of Credit Sublimit;
(v) any fees due in connection with a requested
Issuance have not been paid;
(vi) such Letter of Credit is requested to be Issued
in a form that is not acceptable to such Issuer; or
(vii) such Letter of Credit is requested to be
denominated in any currency other than Dollars or an Alternative
Currency acceptable to the Issuer in its sole and absolute discretion
and the Issuer receives written notice from the Administrative
35
Agent at or before 11:00 a.m. (New York time) on the date of the
proposed Issuance of such Letter of Credit that, immediately after
giving effect to the Issuance of such Letter of Credit, all Letter of
Credit Obligations at such time in respect of each Letter of Credit
denominated in currencies other than Dollars would exceed $1,000,000.
None of the Revolving Credit Lenders (other than the Issuers in their capacity
as such) shall have any obligation to Issue any Letter of Credit.
(b) In no event shall the expiration date of any Letter of
Credit (i) be more than one year after the date of issuance thereof or (ii) be
less than seven days prior to the Scheduled Termination Date; provided, however,
that any Letter of Credit may provide for the renewal thereof for additional
periods that, when renewed, would not exceed one year (which shall in no event
extend beyond the expiry date referred to in clause (ii) above).
(c) In connection with the Issuance of each Letter of Credit,
the Borrower shall give the relevant Issuer and the Administrative Agent at
least two Business Days' prior written notice, in substantially the form of
Exhibit H (Form of Letter of Credit Request) (or in such other written or
electronic form as is acceptable to the Issuer), of the requested Issuance of
such Letter of Credit (a "Letter of Credit Request"). Such notice shall be
irrevocable and shall specify the Issuer of such Letter of Credit, the currency
of issuance and face amount of the Letter of Credit requested (the Dollar
Equivalent of which shall not be less than $100,000), the date of Issuance of
such requested Letter of Credit, the date on which such Letter of Credit is to
expire (which date shall be a Business Day) and the Person for whose benefit the
requested Letter of Credit is to be issued. Such notice, to be effective, must
be received by the relevant Issuer and the Administrative Agent not later than
11:00 a.m. (New York time) on the second Business Day prior to the requested
date of Issuance of such Letter of Credit.
(d) Subject to the satisfaction of the conditions set forth in
this Section 2.3, the relevant Issuer shall, on the requested date, Issue a
Letter of Credit on behalf of the Borrower in accordance with such Issuer's
usual and customary business practices. No Issuer shall Issue any Letter of
Credit in the period commencing on the first Business Day after it receives
written notice from any Lender that one or more of the conditions precedent
contained in Section 3.2 shall not on such date be satisfied or duly waived and
ending when such conditions are satisfied or duly waived. The relevant Issuer
shall not otherwise be required to determine that, or take notice whether, the
conditions precedent set forth in Section 3.2 have been satisfied in connection
with the Issuance of any Letter of Credit.
(e) If requested by the relevant Issuer, prior to the issuance
of each Letter of Credit by such Issuer, and as a condition of such Issuance and
of the participation of each Revolving Credit Lender in the Letter of Credit
Obligations arising with respect thereto, the Borrower shall have delivered to
such Issuer a letter of credit reimbursement agreement, in such form as the
Issuer may employ in its ordinary course of business for its own account (a
"Letter of Credit Reimbursement Agreement"), signed by the Borrower, and such
other documents or items as may be required pursuant to the terms thereof. In
the event of any conflict between the terms of any Letter of Credit
Reimbursement Agreement and this Agreement, the terms of this Agreement shall
govern.
(f) Each Issuer shall comply with the following:
(i) give the Administrative Agent written
notice (or telephonic notice confirmed promptly thereafter in writing),
which writing may be a telecopy or
36
electronic mail, of the Issuance of a Letter of Credit by it, of all
drawings under a Letter of Credit issued by it and the payment (or the
failure to pay when due) by the Borrower of any Reimbursement
Obligation when due (which notice the Administrative Agent shall
promptly transmit by telecopy, electronic mail or similar transmission
to each Revolving Credit Lender);
(ii) upon the request of any Revolving
Credit Lender, furnish to such Revolving Credit Lender copies of any
Letter of Credit Reimbursement Agreement to which such Issuer is a
party and such other documentation as may reasonably be requested by
such Revolving Credit Lender; and
(iii) no later than 10 Business Days
following the last day of each calendar month, provide to the
Administrative Agent (and the Administrative Agent shall provide a copy
to each Revolving Credit Lender requesting the same) and the Borrower
separate schedules for Documentary and Standby Letters of Credit issued
by it, in form and substance reasonably satisfactory to the
Administrative Agent, setting forth the aggregate Letter of Credit
Obligations outstanding at the end of each month and any information
requested by the Borrower or the Administrative Agent relating thereto.
(g) Immediately upon the issuance by an Issuer of a Letter of
Credit in accordance with the terms and conditions of this Agreement, such
Issuer shall be deemed to have sold and transferred to each Revolving Credit
Lender, and each Revolving Credit Lender shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuer, without
recourse or warranty, an undivided interest and participation, equal to such
Revolving Credit Lender's Ratable Portion of the Revolving Credit Commitments,
in such Letter of Credit and the obligations of the Borrower with respect
thereto (including all Letter of Credit Obligations with respect thereto) and
any security therefor and guaranty pertaining thereto.
(h) The Borrower agrees to pay to the Issuer of any Letter of
Credit the amount of all Reimbursement Obligations owing to such Issuer under
any Letter of Credit issued for its account no later than the date that is the
next succeeding Business Day after the Borrower receives written notice from
such Issuer that payment has been made under such Letter of Credit (the
"Reimbursement Date"), irrespective of any claim, set-off, defense or other
right that the Borrower may have at any time against such Issuer or any other
Person, together with interest thereon from the date on which such Reimbursement
Obligation arose to the date such Reimbursement Obligation is repaid in full,
computed at the rate of interest applicable during such period to Revolving
Loans that are Base Rate Loans. In the event that any Issuer makes any payment
under any Letter of Credit and the Borrower shall not have repaid such amount to
such Issuer pursuant to this clause (h) or any such payment by the Borrower is
rescinded or set aside for any reason, such Issuer shall promptly notify the
Administrative Agent, which shall promptly notify each Revolving Credit Lender
of such failure, and each Revolving Credit Lender shall promptly and
unconditionally pay to the Administrative Agent for the account of such Issuer
the amount of such Revolving Credit Lender's Ratable Portion of such payment in
Dollars (or the Dollar Equivalent thereof if such payment was made in any
Alternative Currency) and in immediately available funds (such date of payment
being the "Participation Date"). If the Administrative Agent so notifies such
Revolving Credit Lender prior to 11:00 a.m. (New York time) on any Business Day,
such Revolving Credit Lender shall make available to the Administrative Agent
for the account of such Issuer its Ratable Portion of the amount of such payment
on such Business Day in immediately available funds. Upon such payment by a
Revolving Credit Lender, such Revolving Credit Lender shall, except during the
continuance of a Default or Event of Default under Section 9.1(f) and
notwithstanding whether or not the
37
conditions precedent set forth in Section 3.2 shall have been satisfied (which
conditions precedent the Revolving Credit Lenders hereby irrevocably waive), be
deemed to have made a Revolving Loan to the Borrower in the principal amount of
such payment and the Borrower's Reimbursement Obligation shall be deemed to be
repaid to the extent of such payment. Any amount owed by the Borrower pursuant
to this clause (h) and not repaid by the applicable Participation Date shall be
payable on demand, together with interest thereon from such Participation Date
to the date such amount is repaid in full, computed at the rate of interest
applicable during such period to past due Revolving Loans that are Base Rate
Loans. Whenever any Issuer receives from the Borrower a payment of a
Reimbursement Obligation as to which the Administrative Agent has received for
the account of such Issuer any payment from a Revolving Credit Lender pursuant
to this clause (h), such Issuer shall pay to the Administrative Agent and the
Administrative Agent shall promptly pay to each Revolving Credit Lender, in
immediately available funds, an amount equal to such Revolving Credit Lender's
Ratable Portion of the amount of such payment adjusted, if necessary, to reflect
the respective amounts the Revolving Credit Lenders have paid in respect of such
Reimbursement Obligation.
(i) If and to the extent such Revolving Credit Lender shall
not have so made its Ratable Portion of the amount of the payment required by
clause (h) above available to the Administrative Agent for the account of such
Issuer, such Revolving Credit Lender agrees to pay to the Administrative Agent
for the account of such Issuer forthwith on demand any such unpaid amount
together with interest thereon, for the first Business Day after payment was
first due at the Federal Funds Rate and, thereafter until such amount is repaid
to the Administrative Agent for the account of such Issuer, at the rate per
annum applicable to Base Rate Loans under the Facility.
(j) The Borrower's obligation to pay each Reimbursement
Obligation and the obligations of the Revolving Credit Lenders to make payments
to the Administrative Agent for the account of the Issuers with respect to
Letters of Credit shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement, under any and
all circumstances whatsoever, including the occurrence of any Default or Event
of Default, and irrespective of any of the following:
(i) any lack of validity or enforceability of any
Letter of Credit or any Loan Document, or any term or provision
therein;
(ii) any amendment or waiver of or any consent to
departure from all or any of the provisions of any Letter of Credit or
any Loan Document;
(iii) the existence of any claim, set off, defense or
other right that the Borrower, any other party guaranteeing, or
otherwise obligated with, the Borrower, any Subsidiary or other
Affiliate thereof or any other Person may at any time have against the
beneficiary under any Letter of Credit, any Issuer, the Administrative
Agent or any Lender or any other Person, whether in connection with
this Agreement, any other Loan Document or any other related or
unrelated agreement or transaction;
(iv) any draft or other document properly presented
under a Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(v) payment by the Issuer under a Letter of Credit
against presentation of a draft or other document that does not comply
with the terms of such
38
Letter of Credit; provided, however, that this provision shall not
affect any rights the Borrower may otherwise have against the Issuer of
such Letter of Credit; and
(vi) any other act or omission to act or delay of any
kind of the Issuer, the Lenders, the Administrative Agent or any other
Person or any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, other than any such act, omission to
act or delay of any kind constituting gross negligence or willful
misconduct, that might, but for the provisions of this Section 2.3,
constitute a legal or equitable discharge of the Borrower's obligations
hereunder.
Any action taken or omitted to be taken by the relevant Issuer under or in
connection with any Letter of Credit, if taken or omitted in the absence of
gross negligence or willful misconduct, shall not put such Issuer under any
resulting liability to the Borrower or any Lender. In determining whether drafts
and other documents presented under a Letter of Credit comply with the terms
thereof, the Issuer may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any
notice or information to the contrary and, in making any payment under any
Letter of Credit, the Issuer may rely exclusively on the documents presented to
it under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary thereunder equals the
amount of such draft and whether or not any document presented pursuant to such
Letter of Credit proves to be insufficient in any respect, if such document on
its face appears to be in order, and whether or not any other statement or any
other document presented pursuant to such Letter of Credit proves to be forged
or invalid or any statement therein proves to be inaccurate or untrue in any
respect whatsoever and any noncompliance in any immaterial respect of the
documents presented under such Letter of Credit with the terms thereof shall, in
each case, be deemed not to constitute willful misconduct or gross negligence of
the Issuer.
SECTION 2.4. REDUCTION AND TERMINATION OF THE REVOLVING CREDIT
COMMITMENTS AND TERM A LOAN COMMITMENTS.
(a) The Borrower may, upon at least three Business Days' prior
notice to the Administrative Agent, terminate in whole or reduce in part ratably
the unused portions of (i) the respective Revolving Credit Commitments of the
Revolving Credit Lenders or (ii) the respective Term a Loan Commitments of the
Term A Lenders; provided, however, that each partial reduction shall be in the
aggregate amount of not less than $3,000,000 or an integral multiple of
$1,000,000 in excess thereof.
(b) The Revolving Credit Commitments shall be reduced on each
date on which a prepayment of Revolving Loans is made pursuant to Section 2.8(a)
or would be required to be made had the outstanding Revolving Loans equaled the
Revolving Credit Commitments then in effect, in the amount of such prepayment
(or deemed prepayment) (and the Revolving Credit Commitment of each Lender shall
be reduced by its applicable Ratable Portion of such amount).
(c) The Term A Loan Commitments shall be reduced on each date
on which a prepayment of the Term A Loans would be required to be made pursuant
to Section 2.8(a) had the Term A Loan Facility been fully drawn, in the amount
of such deemed prepayment which is in excess of the Term A Loan then outstanding
(and the Term A Loan Commitment of each Term A Lender shall be reduced by its
applicable Ratable Portion of such amount).
39
(d) If, on the second anniversary of the Closing Date, the
aggregate Term A Loan Commitments of the Term A Lenders shall exceed
$15,000,000, then on such second anniversary, the aggregate Term A Loan
Commitments shall be permanently reduced to $15,000,000 (and the Term A Loan
Commitment of each Term A Lender shall be reduced to its Ratable Portion of such
reduced amount). On the third anniversary of the Closing Date, any remaining
Term Loan A Commitments will be reduced to zero.
SECTION 2.5. REPAYMENT OF LOANS.
(a) The Borrower promises to repay the entire unpaid principal
amount of the Revolving Loans on the Scheduled Termination Date.
(b) The Borrower promises to repay the Term A Loans at the
dates and in the amounts set forth below:
DATE AMOUNT OF TERM A LOANS
--------------------------- -----------------------------------------------------------------
September 30, 2003 0.25% of Term A Loans then outstanding
--------------------------- -----------------------------------------------------------------
December 31, 2003 0.25% of Term A Loans then outstanding
--------------------------- -----------------------------------------------------------------
March 31, 2004 0.25% of Term A Loans then outstanding
--------------------------- -----------------------------------------------------------------
June 30, 2004 0.25% of Term A Loans then outstanding
--------------------------- -----------------------------------------------------------------
September 30, 2004 0.25% of Term A Loans outstanding on June 30, 2004
--------------------------- -----------------------------------------------------------------
December 31, 2004 0.25% of Term A Loans outstanding on June 30, 2004
--------------------------- -----------------------------------------------------------------
March 31, 2005 0.25% of Term A Loans outstanding on June 30, 2004
--------------------------- -----------------------------------------------------------------
June 30, 2005 0.25% of Term A Loans outstanding on June 30, 2004
--------------------------- -----------------------------------------------------------------
September 30, 2005 49.5% of Term A Loans outstanding on June 30, 2004
--------------------------- -----------------------------------------------------------------
December 31, 2005 49.5% of Term A Loans outstanding on June 30, 2004;
--------------------------- -----------------------------------------------------------------
provided, however, that the Borrower shall repay the entire unpaid principal
amount of the Term A Loans on the Term A Loan Maturity Date.
(c) The Borrower promises to repay the Term B Loans at the
dates and in the amounts set forth below:
DATE AMOUNT OF TERM B LOANS
--------------------------- -----------------------------------------------------------------
September 30, 2001 $712,500
--------------------------- -----------------------------------------------------------------
December 31, 2001 $712,500
--------------------------- -----------------------------------------------------------------
March 31, 2002 $712,500
--------------------------- -----------------------------------------------------------------
June 30, 2002 $712,500
--------------------------- -----------------------------------------------------------------
September 30, 2002 $712,500
--------------------------- -----------------------------------------------------------------
December 31, 2002 $712,500
--------------------------- -----------------------------------------------------------------
March 31, 2003 $712,500
--------------------------- -----------------------------------------------------------------
June 30, 2003 $712,500
--------------------------- -----------------------------------------------------------------
September 30, 2003 $712,500
--------------------------- -----------------------------------------------------------------
December 31, 2003 $712,500
--------------------------- -----------------------------------------------------------------
March 31, 2004 $712,500
--------------------------- -----------------------------------------------------------------
June 30, 2004 $712,500
--------------------------- -----------------------------------------------------------------
September 30, 2004 $712,500
--------------------------- -----------------------------------------------------------------
40
--------------------------- -----------------------------------------------------------------
December 31, 2004 $712,500
--------------------------- -----------------------------------------------------------------
March 31, 2005 $712,500
--------------------------- -----------------------------------------------------------------
June 30, 2005 $712,500
--------------------------- -----------------------------------------------------------------
September 30, 2005 $712,500
--------------------------- -----------------------------------------------------------------
December 31, 2005 $712,500
--------------------------- -----------------------------------------------------------------
March 31, 2006 $136,087,500
--------------------------- -----------------------------------------------------------------
June 30, 2006 $136,087,500;
--------------------------- -----------------------------------------------------------------
provided, however, that the Borrower shall repay the entire unpaid principal
amount of the Term B Loans on the Term B Loan Maturity Date. All repayments in
respect of the Term B Loan shall be applied first to repay the Loan Sub-Portion
in full and thereafter to repay the remaining Term B Loans.
SECTION 2.6. EVIDENCE OF DEBT.
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing Indebtedness of the Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(b) The Administrative Agent shall maintain accounts in
accordance with its usual practice in which it will record (i) the amount of
each Loan made and, if a Eurodollar Rate Loan, the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable by the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder from the Borrower and each Lender's share
thereof, if applicable.
(c) The entries made in the accounts maintained pursuant to
clauses (a) and (b) of this Section 2.6 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided, however, that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligations of the Borrower to repay the Loans in
accordance with their terms.
(d) Notwithstanding any other provision of the Agreement, in
the event that any Lender requests that the Borrower execute and deliver a
promissory note or notes payable to such Lender in order to evidence the
Indebtedness owing to such Lender by the Borrower hereunder, the Borrower will
promptly execute and deliver a Note or Notes to such Lender evidencing any
Revolving Loans, Term A Loans and Term B Loans, as the case may be, of such
Lender, substantially in the forms of Exhibit ▇-▇, ▇-▇ or B-3, respectively.
SECTION 2.7. OPTIONAL PREPAYMENTS.
(a) Revolving Loans. The Borrower may, upon at least three
Business Days' prior notice to the Administrative Agent, stating the proposed
date and aggregate principal amount of the prepayment, prepay the outstanding
principal amount of the Revolving Loans in whole or in part; provided, however,
that if any prepayment of any Eurodollar Rate Loan is made by the Borrower other
than on the last day of an Interest Period for such Loan, the Borrower shall
also pay any amounts owing pursuant to Section 2.13(e); provided, further, that
each partial prepayment shall be in an aggregate principal amount not less than
$2,000,000 or integral
41
multiples of $1,000,000 in excess thereof. Upon the giving of such notice of
prepayment, the principal amount of Revolving Loans specified to be prepaid
shall become due and payable on the date specified for such prepayment.
(b) Term A Loans and Term B Loans. The Borrower may, upon at
least three Business Days' prior notice to the Administrative Agent stating the
proposed date and aggregate principal amount of the prepayment, prepay the
outstanding principal amount of (x) the Loan Sub-Portion and, following
repayment of the Loan Sub-Portion in full, (y) the remaining Term B Loans and,
thereafter, (z) the Term A Loans, in each case together with accrued interest to
the date of such prepayment on the principal amount prepaid; provided, however,
that if any prepayment of any Eurodollar Rate Loan is made by the Borrower other
than on the last day of an Interest Period for such Loan, the Borrower shall
also pay any amounts owing pursuant to Section 2.13(e); provided, further, that
each partial prepayment shall be in an aggregate amount not less than $2,000,000
or integral multiples of $1,000,000 in excess thereof and that any such partial
prepayment shall be applied to reduce ratably each remaining installments of
such outstanding principal amount of the applicable Loans. Upon the giving of
such notice of prepayment, the principal amount of the applicable Loans
specified to be prepaid shall become due and payable on the date specified for
such prepayment.
(c) The Borrower shall have no right to prepay the principal
amount of any Loan other than as provided in this Section 2.7.
SECTION 2.8. MANDATORY PREPAYMENTS.
(a) Upon receipt by the Borrower or any of its Subsidiaries of
Net Cash Proceeds arising (i) from Spectrum License Sales, the Borrower shall,
within one Business Day prepay the Loans in amounts equal to 100% of the first
$75,000,000 of such aggregate Net Cash Proceeds and 50% of such aggregate Net
Cash Proceeds in excess of $75,000,000; (ii) from (A) any other Asset Sale
(other than (x) a Pre-Approved Transaction and (y) the first $50,000,000 of
aggregate Net Cash Proceeds from all Asset Sales (other than Spectrum License
Sales and Pre-Approved Transactions); provided, that the Leverage Ratio for the
twelve-month period ending on the last day of the most recent Fiscal Quarter
prior to such Asset Sale for which a Compliance Certificate has been delivered
(determined after giving effect to the application of such proceeds and
excluding Station EBITDA for any Station subject to such Asset Sale from the
calculation of EBITDA for such period) is not greater than the Leverage Ratio
for such period), (B) any Property Loss Event or (C) Debt Issuance, the Borrower
shall within one Business Day prepay the Loans in an amount equal to 100% of
such Net Cash Proceeds, and (iii) from an Equity Issuance (other than (w)
issuance by the Borrower of Common Stock or New Preferred Stock but only to the
extent the Net Cash Proceeds of such issuance are used to redeem Preferred Stock
pursuant to Section 8.5(b), (x) issuance by the Borrower of its Stock pursuant
to employee option plans, (y) Common Stock issued pursuant to the exercise of
warrants issued in connection with the issuance of the 9-3/4% Preferred Stock
and (z) the first $50,000,000 of aggregate Net Cash Proceeds of other Equity
Issuances), the Borrower shall immediately prepay the Loans in an amount equal
to 100% (or, if, at any time following delivery of a Compliance Certificate for
the Fiscal Quarter ended March 31, 2005, the Leverage Ratio for the twelve-month
period ending on the last day of the Fiscal Quarter most recently ended is less
than 5.5 to 1 (determined on a pro forma basis after giving effect to the
application of such proceeds), then 50%) of such Net Cash Proceeds; provided,
however, that in the case of any Net Cash Proceeds arising from a Reinvestment
Event, the Borrower shall prepay the Loans in an amount equal to the
Reinvestment Prepayment Amount applicable to such Reinvestment Event, if any, on
the Reinvestment Prepayment Date with respect to such Reinvestment Event and,
pending
42
application of such proceeds as specified in the Reinvestment Notice,
shall pay the same to the Administrative Agent to be held in a Cash Collateral
Account. Any such mandatory prepayment shall be applied in accordance with
Section 2.8(c) below; provided further, however, that no Reinvestment Event
shall be permitted to occur in respect of any Net Cash Proceeds which are
otherwise required (pursuant to the terms of any Subordinated Debt Document or
Preferred Stock Document) to be applied in prepayment of the Loans, or where the
failure to apply such Net Cash Proceeds in prepayment of the Loans would result
in an obligation to redeem or repurchase any Subordinated Debt or Preferred
Stock.
(b) The Borrower shall prepay the Loans within 90 days of the
last day of each Fiscal Year, in an amount equal to 50% of Excess Cash Flow for
such Fiscal Year. Any such mandatory prepayment shall be applied in accordance
with Section 2.8(c) below.
(c) Any prepayments made by the Borrower required to be
applied in accordance with this Section 2.8(c) shall be applied as follows:
first, to prepay the outstanding principal balance of the Loan Sub-Portion until
the Loan Sub-Portion has been prepaid in full; second, to prepay the remaining
principal balance of the Term B Loans outstanding (after such prepayment of the
Loan Sub-Portion), until such Term B Loans shall have been prepaid in full;
third, to prepay the principal balance of the Term A Loans outstanding, until
such Term A Loans shall have been prepaid in full; fourth, to repay the
outstanding principal balance of the Revolving Loans until such Revolving Loans
shall have been paid in full; and then, to provide cash collateral for any
Letter of Credit Obligations in the manner set forth in Section 9.3 until all
such Letter of Credit Obligations have been fully cash collateralized in the
manner set forth therein. All prepayments of the Term B Loans and Term A Loans
made pursuant to this Section 2.8 shall be applied to reduce ratably each
remaining installment of such outstanding principal amounts of such Loans. All
repayments of Revolving Loans required to be made pursuant to this Section 2.8
shall result in a permanent reduction of the Revolving Credit Commitments to the
extent provided in Section 2.4(b).
(d) If at any time, the aggregate principal amount of
Revolving Credit Outstandings exceeds the aggregate Revolving Credit Commitments
at such time, the Borrower shall forthwith prepay the Revolving Loans then
outstanding in an amount equal to such excess. If any such excess remains after
repayment in full of the aggregate outstanding Revolving Loans, the Borrower
shall provide cash collateral for the Letter of Credit Obligations in the manner
set forth in Section 9.3 in an amount equal to 105% of such excess.
(e) If for a period of five consecutive Business Days or
longer either (i) (unless the Leverage Ratio for the twelve-month period ending
on the last day of the most recently ended Fiscal Quarter, as shown in a
Compliance Certificate in respect thereof, is less than 5.0 to 1)) the sum of
the aggregate principal outstanding amount of the Term A Loans and Term B Loans
and the Term A Loan Commitments and the Revolving Credit Commitments then in
effect exceeds 33% of the aggregate Station Value at such time; or (ii) the
principal outstanding amount of the Loan Sub-Portion exceeds 33% of the portion
of Station Value which is solely attributable to the value of FCC Licenses held
by the Restricted License Subsidiary, then the Borrower shall immediately prepay
the Loans to the extent necessary to comply with each such ratio. Any such
mandatory prepayment shall be applied in accordance with Section 2.8(c) above.
SECTION 2.9. INTEREST.
(a) Rate of Interest. All Loans and the outstanding amount of
all other Obligations shall bear interest, in the case of Loans, on the unpaid
principal amount thereof from
43
the date such Loans are made and, in the case of such other Obligations, from
the date such other Obligations are due and payable until, in all cases, paid in
full, except as otherwise provided in Section 2.9(c), as follows:
(i) if a Base Rate Loan or such other Obligation, at
a rate per annum equal to the sum of (A) the Base Rate as in effect
from time to time plus (B) the Applicable Margin; and
(ii) if a Eurodollar Rate Loan, at a rate per annum
equal to the sum of (A) the Eurodollar Rate determined for the
applicable Interest Period plus (B) the Applicable Margin in effect
from time to time during such Eurodollar Interest Period.
(b) Interest Payments. (i) Interest accrued on each Base Rate
Loan shall be payable in arrears (A) on the first day of each calendar month,
commencing on the first such day following the making of such Base Rate Loan,
(B) in the case of Base Rate Loans that are Term A Loans and Term B Loans, upon
the payment or prepayment thereof in full or in part, and (C) if not previously
paid in full, at maturity (whether by acceleration or otherwise) of such Base
Rate Loan; (ii) interest accrued on each Eurodollar Rate Loan shall be payable
in arrears (A) on the last day of each Interest Period applicable to such Loan
and if such Interest Period has a duration of more than three months, on each
day during such Interest Period which occurs every three months from the first
day of such Interest Period, (B) upon the payment or prepayment thereof in full
or in part, and (C) if not previously paid in full, at maturity (whether by
acceleration or otherwise) of such Eurodollar Rate Loan; and (iii) interest
accrued on the amount of all other Obligations shall be payable on demand from
and after the time such Obligation becomes due and payable (whether by
acceleration or otherwise).
(c) Default Interest. Notwithstanding the rates of interest
specified in Section 2.9(a) or elsewhere herein, effective immediately upon the
occurrence of an Event of Default, and for as long thereafter as such Event of
Default shall be continuing, the principal balance of all Loans and the amount
of all other Obligations shall bear interest at a rate which is two percent per
annum in excess of the rate of interest applicable to such Obligations from time
to time.
SECTION 2.10. CONVERSION/CONTINUATION OPTION.
(a) The Borrower may elect (i) at any time to convert Base
Rate Loans or any portion thereof to Eurodollar Rate Loans, or (ii) at the end
of any applicable Interest Period, to convert Eurodollar Rate Loans or any
portion thereof into Base Rate Loans or to continue such Eurodollar Rate Loans
or any portion thereof for an additional Interest Period; provided, however,
that the aggregate amount of the Eurodollar Loans for each Interest Period must
be in the amount of $2,000,000 or an integral multiple of $1,000,000 in excess
thereof. Each conversion or continuation shall be allocated among the Loans of
each Lender in accordance with its Ratable Portion. Each such election shall be
in substantially the form of Exhibit D hereto (a "Notice of Conversion or
Continuation") and shall be made by giving the Administrative Agent at least
three Business Days' prior written notice specifying (A) the amount and type of
Loans being converted or continued, (B) in the case of a conversion to or a
continuation of Eurodollar Rate Loans, the applicable Interest Period, and (C)
in the case of a conversion, the date of conversion (which date shall be a
Business Day and, if a conversion from Eurodollar Rate Loans, shall also be the
last day of the applicable Interest Period).
44
(b) The Administrative Agent shall promptly notify each Lender
of its receipt of a Notice of Conversion or Continuation and of the options
selected therein. Notwithstanding the foregoing, no conversion in whole or in
part of Base Rate Loans to Eurodollar Rate Loans, and no continuation in whole
or in part of Eurodollar Rate Loans upon the expiration of any applicable
Interest Period, shall be permitted at any time at which (i) a Default or an
Event of Default shall have occurred and be continuing or (ii) the continuation
of, or conversion into, would violate any of the provisions of Section 2.13. If,
within the time period required under the terms of this Section 2.10, the
Administrative Agent does not receive a Notice of Conversion or Continuation
from the Borrower containing a permitted election to continue any Eurodollar
Rate Loans for an additional Interest Period or to convert any such Loans, then,
upon the expiration of the applicable Interest Period, such Loans will be
automatically converted to Base Rate Loans. Each Notice of Conversion or
Continuation shall be irrevocable.
SECTION 2.11. FEES.
(a) Unused Commitment Fee. The Borrower agrees to pay (i) to
each Revolving Credit Lender a commitment fee on the daily average amount by
which the Revolving Credit Commitment of such Lender exceeds such Lender's
Ratable Portion of the Revolving Credit Outstandings, and (ii) to each Term A
Loan Lender a commitment fee on the average amount of the unused Term A Loan
Commitment of such Lender (in each case, an "Unused Commitment Fee") accruing
from the date hereof until, respectively, the Revolving Credit Termination Date
and the Term A Loan Commitment Termination Date, at the Applicable Unused
Commitment Fee Rate, payable in arrears (i) on the last day of each calendar
quarter, commencing on the first such day following the Closing Date and (ii) on
the Revolving Credit Termination Date or Term A Loan Commitment Termination Date
(as the case may be).
(b) Letter of Credit Fees. The Borrower agrees to pay the
following amounts with respect to Letters of Credit issued by any Issuer:
(i) to the Administrative Agent for the account of
each Issuer of a Letter of Credit, with respect to each Letter of
Credit issued by such Issuer, an issuance fee equal to 0.25% per annum
of the Dollar Equivalent of the daily average of the maximum undrawn
face amount of such Letter of Credit during the period of calculation,
payable in arrears (A) on the last day of each calendar quarter, with
the amount of such fee being computed based on a period commencing on
the first Business Day following the issuance of such Letter of Credit
or, if later, the first day of the applicable calendar quarter, and
ending on the last day of the applicable calendar quarter, and (B) on
the Revolving Credit Termination Date;
(ii) to the Administrative Agent for the ratable
benefit of the Revolving Credit Lenders, with respect to each Letter of
Credit, a fee accruing at a rate per annum equal to the Applicable
Margin for Revolving Loans that are Eurodollar Rate Loans on the Dollar
Equivalent of the daily average of the maximum undrawn face amount of
such Letter of Credit during the period of calculation, payable in
arrears (A) on the last day of each calendar quarter, with the amount
of such fee being computed based on a period commencing on the first
Business Day following the issuance of such Letter of Credit or, if
later, the first day of the applicable calendar quarter, and ending on
the last day of the applicable calendar quarter, and (B) on the
Revolving Credit Termination Date; provided, however, that during the
continuance of an Event of Default, such fee shall be increased by two
percent per annum and shall be payable on demand; and
45
(iii) to the Issuer of any Letter of Credit, with
respect to the issuance, amendment or transfer of each Letter of Credit
and each drawing made thereunder, documentary and processing charges in
accordance with such Issuer's standard schedule for such charges in
effect at the time of issuance, amendment, transfer or drawing, as the
case may be.
(c) Minimum Net Revenue Fee. The Borrower agrees to pay:
(i) in the event the Borrower's Net Revenue for the
four Fiscal Quarters ending on the last day of the Fiscal Quarter
ending June 30, 2003 is less than $270,000,000 but equal to or greater
than $250,000,000, concurrently with the delivery of the Borrower's
Compliance Certificate for such Fiscal Quarter pursuant to Section
6.1(d), to the Administrative Agent for the ratable benefit of the
Lenders, a fee equal to 0.125% of the sum of each such Lender's (A)
Commitment as of the date of delivery of such Compliance Certificate
and (B) Ratable Portion of the principal amount of Term A Loans and
Term B Loans outstanding on the date of delivery of such Compliance
Certificate; (ii) in the event the Borrower's Net Revenue for the four
Fiscal Quarters ending on the last day of the Fiscal Quarter ending
September 30, 2003 is less than $280,000,000 but equal to or greater
than $250,000,000, concurrently with the delivery of the Borrower's
Compliance Certificate for such Fiscal Quarter pursuant to Section
6.1(d), to the Administrative Agent for the ratable benefit of the
Lenders, a fee equal to 0.125% of the sum of each such Lender's (A)
Commitment as of the date of delivery of such Compliance Certificate
and (B) Ratable Portion of the principal amount of Term A Loans and
Term B Loans outstanding on the date of delivery of such Compliance
Certificate; and
(iii) in the event the Borrower's Net Revenue for the
four Fiscal Quarters ending on the last day of the Fiscal Quarter
ending December 31, 2003 is less than $290,000,000 but equal to or
greater than $250,000,000, concurrently with the delivery of the
Borrower's Compliance Certificate for such Fiscal Quarter pursuant to
Section 6.1(d), to the Administrative Agent for the ratable benefit of
the Lenders, a fee equal to 0.125% of the sum of each such Lender's (A)
Commitment as of the date of delivery of such Compliance Certificate
and (B) Ratable Portion of the principal amount of Term A Loans and
Term B Loans outstanding on the date of delivery of such Compliance
Certificate.
(d) Additional Fees. The Borrower has agreed to pay additional
fees, the amount and dates of payment of which are embodied in the Fee Letter,
to the other Persons which are party to the Fee Letter.
SECTION 2.12. PAYMENTS AND COMPUTATIONS.
(a) The Borrower shall make each payment hereunder (including
fees and expenses) not later than 11:00 A.M. (New York City time) on the day
when due, in Dollars, to the Administrative Agent at its address referred to in
Section 11.8 in immediately available funds without set-off or counterclaim. The
Administrative Agent will promptly thereafter cause to be distributed
immediately available funds relating to the payment of principal or interest or
fees to the Lenders, in accordance with the application of payments set forth in
clauses (e) and (f) of this Section 2.12, as applicable, for the account of
their respective Applicable Lending Offices; provided, however, that amounts
payable pursuant to Section 2.13(c), 2.13(e), 2.14 or 2.15 shall
46
be paid only to the affected Lender or Lenders. Payments received by the
Administrative Agent after 11:00 A.M. (New York City time) shall be deemed to be
received on the next Business Day.
(b) All computations of interest based on clause (a) of the
definition of Base Rate shall be made by the Administrative Agent on the basis
of a year of 365 or 366 days, as the case may be, and all other computations of
interest and of fees shall be made by the Administrative Agent on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest and fees are payable. Each determination by the Administrative Agent of
an interest rate hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(c) Whenever any payment hereunder shall be stated to be due
on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fees, as the case may be;
provided, however, that if such extension would cause payment of interest on or
principal of any Eurodollar Rate Loan to be made in the next calendar month,
such payment shall be made on the immediately preceding Business Day. All
repayments of any Loans shall be applied first to repay such Loans outstanding
as Base Rate Loans and then to repay such Loans outstanding as Eurodollar Rate
Loans with those Eurodollar Rate Loans which have earlier expiring Eurodollar
Interest Periods being repaid prior to those which have later expiring
Eurodollar Interest Periods.
(d) Unless the Administrative Agent shall have received notice
from the Borrower to the Lenders prior to the date on which any payment is due
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower 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 the Borrower shall not have made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon at the Federal Funds Rate, for the first Business Day, and,
thereafter, at the rate applicable to Base Rate Loans, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Administrative Agent.
(e) Subject to the provisions of clause (f) of this Section
2.12 (and except as otherwise provided in Section 2.8), all payments and any
other amounts received by the Administrative Agent from or for the benefit of
the Borrower shall be applied first, to pay principal of and interest on any
portion of the Loans which the Administrative Agent may have advanced pursuant
to the express provisions of this Agreement on behalf of any Lender, for which
the Administrative Agent has not then been reimbursed by such Lender or the
Borrower; second, to pay all other Obligations then due and payable; and third,
as the Borrower so designates. Payments in respect of Revolving Loans received
by the Administrative Agent shall be distributed to each Revolving Credit Lender
in accordance with such Lender's Ratable Portion of the Revolving Credit
Commitments; payments in respect of the Term A Loans and Term B Loans received
by the Administrative Agent shall be distributed to each Term A Loan Lender and
Term B Loan Lender in accordance with such Lender's Ratable Portion of such
Loans; and all payments of fees and all other payments in respect of any other
Obligation shall be allocated among such of the Lenders and Issuers as are
entitled thereto, and, if to the Lenders, in proportion to their respective
Ratable Portions.
47
(f) After the occurrence and during the continuance of an
Event of Default, the Borrower hereby irrevocably waives the right to direct the
application of any and all payments in respect of the Obligations and any
proceeds of Collateral, and agrees that the Administrative Agent may, and shall
upon either (A) the written direction of the Requisite Revolving Credit Lenders
and the Requisite Term A Loan Lenders and the Requisite Term B Loan Lenders or
(B) the acceleration of the Obligations pursuant to Section 9.2, apply all
payments in respect of any Obligations and all funds on deposit in the Cash
Collateral Accounts and all other proceeds of Collateral in the following order:
(i) first, to pay interest on and then principal of
any portion of the Revolving Loans which the Administrative Agent may
have advanced on behalf of any Lender for which the Administrative
Agent has not then been reimbursed by such Lender or the Borrower;
(ii) second, to pay Obligations in respect of any
expense reimbursement or indemnity then due to the Administrative
Agent;
(iii) third, to pay Obligations in respect of any
expense reimbursement or indemnity then due to the Lenders and the
Issuers;
(iv) fourth, to pay Obligations in respect of any
fees then due to the Administrative Agent, the Lenders and the Issuers;
(v) fifth, to pay interest then due and payable in
respect of the Loans and Reimbursement Obligations;
(vi) sixth, to pay or prepay principal amounts on
first the Loan Sub-Portion and then the other Loans and Reimbursement
Obligations and to provide cash collateral for outstanding Letter of
Credit Undrawn Amounts in the manner described in Section 9.3, ratably
to the aggregate principal amount of such other Loans, Reimbursement
Obligations and Letter of Credit Undrawn Amounts;
(vii) seventh, to pay Obligations owing with respect
to Hedging Contracts; and
(viii) eighth, to the ratable payment of all other
Obligations;
provided, however, that:
(A) if sufficient funds are not available to
fund all payments to be made in respect of any of the
Obligations described in any of the foregoing clauses first
through seventh, the available funds being applied with
respect to any such Obligation (unless otherwise specified in
such clause) shall be allocated to the payment of such
Obligations ratably, based on the proportion of the
Administrative Agent's and each Lender's or Issuer's interest
in the aggregate outstanding Obligations described in such
clauses; and
(B) The order of priority set forth in
clauses first through eighth of this Section 2.12(f) may at
any time and from time to time be changed by the agreement of
the Requisite Revolving Credit Lenders, the Requisite Term A
Loan Lenders and the Requisite Term B Loan Lenders without
necessity of
48
notice to or consent of or approval by the Borrower, any
Secured Party that is not a Lender or Issuer or any other
Person. The order of priority set forth in clauses first
through fourth of this Section 2.12(f) may be changed only
with the prior written consent of the Administrative Agent in
addition to the Requisite Revolving Credit Lenders, the
Requisite Term A Loan Lenders and the Requisite Term B Loan
Lenders.
(g) The Borrower hereby authorizes each Lender and each
Affiliate of each Lender, if and to the extent payment owed to such Lender by
the Borrower is not made when due hereunder, to charge from time to time against
any or all of the Borrower's accounts with such Lender or Affiliate any amount
so due.
SECTION 2.13. SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE
LOANS.
(a) Determination of Interest Rate. The Eurodollar Rate for
each Interest Period for Eurodollar Rate Loans shall be determined by the
Administrative Agent pursuant to the procedures set forth in the definition of
"Eurodollar Rate." The Administrative Agent's determination shall be presumed to
be correct, absent manifest error, and shall be binding on the Borrower.
(b) Interest Rate Unascertainable, Inadequate or Unfair. In
the event that: (i) the Administrative Agent determines that adequate and fair
means do not exist for ascertaining the applicable interest rates by reference
to which the Eurodollar Rate then being determined is to be fixed; or (ii) the
Requisite Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period will not adequately reflect the cost to the Lenders of
making or maintaining such Loans for such Interest Period, the Administrative
Agent shall forthwith so notify the Borrower and the Lenders, whereupon each
Eurodollar Loan will automatically, on the last day of the current Interest
Period for such Loan, convert into a Base Rate Loan and the obligations of the
Lenders to make Eurodollar Rate Loans or to convert Base Rate Loans into
Eurodollar Rate Loans shall be suspended until the Administrative Agent shall
notify the Borrower that the Requisite Lenders have determined that the
circumstances causing such suspension no longer exist.
(c) Increased Costs. If at any time any Lender shall determine
that the introduction of or any change in or in the interpretation of any law,
treaty or governmental rule, regulation or order (other than any change by way
of imposition or increase of reserve requirements included in determining the
Eurodollar Rate) or the compliance by such Lender with any guideline, request or
directive from any central bank or other Governmental Authority (whether or not
having the force of law), there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining any Eurodollar Rate Loans,
then the Borrower shall from time to time, upon demand by such Lender (with a
copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such increased cost. A certificate as to the amount of such
increased cost, submitted to the Borrower and the Administrative Agent by such
Lender, shall be conclusive and binding for all purposes, absent manifest error.
(d) Illegality. Notwithstanding any other provision of this
Agreement, if any Lender determines that the introduction of or any change in or
in the interpretation of any law, treaty or governmental rule, regulation or
order after the Closing Date shall make it unlawful, or any central bank or
other Governmental Authority shall assert that it is unlawful, for any Lender to
make Eurodollar Rate Loans or to continue to fund or maintain Eurodollar Rate
Loans, then, on
49
notice thereof and demand therefor by such Lender to the Borrower through the
Administrative Agent, (i) the obligation of such Lender to make or to continue
Eurodollar Rate Loans and to convert Base Rate Loans into Eurodollar Rate Loans
shall be suspended, and each such Lender shall make a Base Rate Loan as part of
any requested Borrowing of Eurodollar Rate Loans and (ii) if the affected
Eurodollar Rate Loans are then outstanding, the Borrower shall immediately
convert each such Loan into a Base Rate Loan. If at any time after a Lender
gives notice under this Section 2.13(d) such Lender determines that it may
lawfully make Eurodollar Rate Loans, such Lender shall promptly give notice of
that determination to the Borrower and the Administrative Agent, and the
Administrative Agent shall promptly transmit the notice to each other Lender.
The Borrower's right to request, and such Lender's obligation, if any, to make
Eurodollar Rate Loans shall thereupon be restored.
(e) Breakage Costs. In addition to all amounts required to be
paid by the Borrower pursuant to Section 2.9, the Borrower shall compensate each
Lender, upon demand, for all losses, expenses and liabilities (including any
loss or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund or maintain such
Lender's Eurodollar Rate Loans to the Borrower but excluding any loss of the
Applicable Margin on the relevant Loans) which that Lender may sustain (i) if
for any reason a proposed Borrowing, conversion into or continuation of
Eurodollar Rate Loans does not occur on a date specified therefor in a Notice of
Borrowing or a Notice of Conversion or Continuation given by a Borrower or in a
telephonic request by it for borrowing or conversion or continuation or a
successive Interest Period does not commence after notice therefor is given
pursuant to Section 2.10, (ii) if for any reason any Eurodollar Rate Loan is
prepaid (including mandatorily pursuant to Section 2.8) on a date which is not
the last day of the applicable Interest Period, (iii) as a consequence of a
required conversion of a Eurodollar Rate Loan to a Base Rate Loan as a result of
any of the events indicated in Section 2.13(d), or (iv) as a consequence of any
failure by a Borrower to repay Eurodollar Rate Loans when required by the terms
hereof. The Lender making demand for such compensation shall deliver to the
Borrower concurrently with such demand a written statement as to such losses,
expenses and liabilities, and this statement shall be conclusive as to the
amount of compensation due to that Lender, absent manifest error.
SECTION 2.14. CAPITAL ADEQUACY. If at any time any Lender
determines that (a) the adoption of or any change in or in the interpretation of
any law, treaty or governmental rule, regulation or order after the Closing Date
regarding capital adequacy, (b) compliance with any such law, treaty, rule,
regulation, or order, or (c) compliance with any guideline or request or
directive from any central bank or other Governmental Authority (whether or not
having the force of law) shall have the effect of reducing the rate of return on
such Lender's (or any corporation controlling such Lender's) capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change,
compliance or interpretation, then, upon demand from time to time by such Lender
(with a copy of such demand to the Administrative Agent), the Borrower shall pay
to the Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender for such reduction. A certificate as to such amounts submitted to the
Borrower and the Administrative Agent by such Lender shall be conclusive and
binding for all purposes absent manifest error.
SECTION 2.15. TAXES.
(a) Any and all payments by the Borrower under each Loan
Document shall be made free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding (i)
50
in the case of each Lender and the Administrative Agent (A) taxes measured by
its net income, and franchise taxes imposed on it, by the jurisdiction (or any
political subdivision thereof) under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized and (B) any United States
withholding taxes payable with respect to payments under the Loan Documents
under laws (including any statute, treaty or regulation) in effect on the
Closing Date (or, in the case of an Eligible Assignee, the date of the
Assignment and Acceptance) applicable to such Lender or the Administrative
Agent, as the case may be, but not excluding any United States withholding
payable as a result of any change in such laws occurring after the Closing Date
(or the date of such Assignment and Acceptance) and (ii) in the case of each
Lender, taxes measured by its net income, and franchise taxes imposed on it, by
the jurisdiction in which such Lender's Applicable Lending Office is located
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes"). If any Taxes shall be
required by law to be deducted from or in respect of any sum payable under any
Loan Document to any Lender or the Administrative Agent (i) the sum payable
shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.15) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxing authority or
other authority in accordance with applicable law, and (iv) the Borrower shall
deliver to the Administrative Agent evidence of such payment.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies of the United States or any political subdivision thereof or
any applicable foreign jurisdiction, and all liabilities with respect thereto,
which arise from any payment made under any Loan Document or from the execution,
delivery or registration of, or otherwise with respect to, any Loan Document
(collectively, "Other Taxes").
(c) The Borrower will indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.15) paid by such Lender or the Administrative Agent (as the case may
be) and any liability (including for penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made within 30 days
from the date such Lender or the Administrative Agent (as the case may be) makes
written demand therefor.
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes, the Borrower will furnish to the Administrative Agent, at its
address referred to in Section 11.8, the original or a certified copy of a
receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 2.15 shall survive the payment in full of the
Obligations.
(f) Prior to the Effective Date in the case of each Non-U.S.
Lender that is a Lender on or prior to such date, and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender in the case of
each other Non-U.S. Lender and from time to time thereafter if requested by the
Borrower or the Administrative Agent, each Non-U.S. Lender that is entitled at
such time to an exemption from United States withholding tax, or that is subject
to such tax at a reduced rate under an applicable tax treaty, shall provide the
Administrative Agent
51
and the Borrower with two completed copies of: (i) Form W-8ECI (claiming
exemption from withholding because the income is effectively connected with a
U.S. trade or business) (or any successor form); (ii) Form W-8BEN (claiming
exemption from, or a reduction of, withholding tax under an income tax treaty)
(or any successor form); (iii) in the case of a Non-U.S. Lender claiming
exemption under Sections 871(h) or 881(c) of the Code, a Form W-8BEN (claiming
exemption from withholding under the portfolio interest exemption)(or successor
form); or (iv) or other applicable form, certificate or document prescribed by
the IRS certifying as to such Non-U.S. Lender's entitlement to such exemption
from United States withholding tax or reduced rate with respect to all payments
to be made to such Non-U.S. Lender under the Loan Documents. Unless the Borrower
and the Administrative Agent have received forms or other documents satisfactory
to them indicating that payments under any Loan Document to or for a Non-U.S.
Lender are not subject to United States withholding tax or are subject to such
tax at a rate reduced by an applicable tax treaty, the Borrower or the
Administrative Agent shall withhold taxes from such payments at the applicable
statutory rate.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.15 shall use its reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Applicable Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
which would be payable or may thereafter accrue and would not, in the sole
determination of such Lender, be otherwise disadvantageous to such Lender.
SECTION 2.16. SUBSTITUTION OF LENDERS. In the event that (a)
(i) any Lender makes a claim under Section 2.13 (c) or Section 2.14, or (ii) it
becomes illegal for any Lender to continue to fund or make any Eurodollar Rate
Loan and such Lender notifies the Borrower pursuant to Section 2.13(d), or (iii)
the Borrower is required to make any payment pursuant to Section 2.15 that is
attributable to any Lender, or (iv) any Lender is a Non-Funding Lender, (b) in
the case of clause (a)(i) above, as a consequence of increased costs in respect
of which such claim is made, the effective rate of interest payable to such
Lender under this Agreement with respect to its Loans materially exceeds the
effective average annual rate of interest payable to the Requisite Lenders under
this Agreement and (c) Lenders holding at least 75% of the Commitments are not
subject to such increased costs or illegality, payment or proceedings (any such
Lender, an "Affected Lender"), the Borrower may substitute another financial
institution for such Affected Lender hereunder, upon reasonable prior written
notice (which written notice must be given within 90 days following the
occurrence of any of the events described in clauses (a)(i), (ii), (iii) or
(iv)) by the Borrower to the Administrative Agent and the Affected Lender that
the Borrower intends to make such substitution, which substitute financial
institution must be an Eligible Assignee and, if not a Lender, reasonably
acceptable to the Administrative Agent; provided, however, that if more than one
Lender claims increased costs, illegality or right to payment arising from the
same act or condition and such claims are received by the Borrower within 30
days of each other then the Borrower may substitute (with one or more substitute
Lenders) all, but not (except to the extent the Borrower has already substituted
one of such Affected Lenders before the Borrower's receipt of the other Affected
Lenders' claim) less than all, Lenders making such claims. In the event that the
written notice was properly issued under this Section 2.16, the Affected Lender
shall sell and the substitute financial institution or other entity shall
purchase, pursuant to an Assignment and Acceptance, all rights and claims of
such Affected Lender under the Loan Documents and the substitute financial
institution or other entity shall assume and the Affected Lender shall be
relieved of its Commitments and all other prior unperformed obligations of the
Affected Lender under the Loan Documents (other than in respect of any damages
(other than exemplary or punitive damages, to the extent permitted by applicable
law) in respect of any such unperformed obligations). Upon the effectiveness of
such sale, purchase and assumption
52
(which, in any event shall be conditioned upon the payment in full by the
Borrower to the Affected Lender in cash of all fees, unreimbursed costs and
expenses and indemnities accrued and unpaid through such effective date), the
substitute financial institution or other entity shall become a "Lender"
hereunder for all purposes of this Agreement having a Revolving Credit
Commitment and Term A Loan Commitment (if applicable) in the amount of such
Affected Lender's Revolving Credit Commitment and Term A Loan Commitment assumed
by it and such Revolving Credit Commitment and Term A Loan Commitment (if
applicable) of the Affected Lender shall be terminated, provided that all
indemnities under the Loan Documents shall continue in favor of such Affected
Lender.
ARTICLE III
CONDITIONS TO LOANS AND LETTERS OF CREDIT
SECTION 3.1. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE. This
Agreement shall be effective, and the Original Credit Agreement shall be amended
and restated as set forth herein, on the date (the "Effective Date") the
following conditions precedent have been satisfied (or waived by the Requisite
Lenders):
(a) Certain Documents. The Administrative Agent shall have
received on the Effective Date each of the following, each dated the Effective
Date unless otherwise indicated or agreed to by the Administrative Agent, in
form and substance satisfactory to the Administrative Agent:
(i) this Agreement, duly executed and delivered by
the Borrower, the Administrative Agent and the Issuers;
(ii) the Affirmation of Liens and Guaranty, duly
executed by the Borrower and each Subsidiary Guarantor;
(iii) an executed Acknowledgment and Consent from (A)
Lenders constituting the Requisite Lenders and (B) all Revolving Credit
Lenders;
(iv) a favorable opinion of Holland & Knight, counsel
to the Loan Parties, in substantially the form of Exhibit E, addressed
to the Administrative Agent and the Lenders and addressing such other
matters as any Lender through the Administrative Agent may reasonably
request;
(v) a certificate dated as of a recent date from the
Secretary of State of the state of incorporation of the Borrower
attesting to the good standing of the Borrower;
(vi) a certificate of the Secretary or an Assistant
Secretary of each Loan Party certifying (A) the names and true
signatures of each officer of such Loan Party who has been authorized
to execute and deliver any Loan Document or other document required
hereunder to be executed and delivered by or on behalf of such Loan
Party, (B) the resolutions of such Loan Party's board of directors (or
equivalent governing body) approving and authorizing the execution,
delivery and performance of this Agreement and the other Loan Documents
to which it is a party and (C) that there have been no changes in the
certificate of incorporation (or equivalent Constituent Document) and
the by-laws (or equivalent Constituent Document) of such Loan Party
53
from the certificate of incorporation (or equivalent Constituent
Document) and the by-laws (or equivalent Constituent Document)
delivered to the Administrative Agent on the Closing Date;
(vii) a certificate of a Responsible Officer to the
effect that (A) the representations and warranties set forth in Article
IV and in the other Loan Documents are true and correct on and as of
the Effective Date, except to the extent such representations and
warranties expressly relate to an earlier date, in which case such
representations and warranties shall have been true and correct as of
such earlier date, (B) no Default or Event of Default has occurred and
is continuing and (C) no litigation not listed on Schedule 4.8 shall
have been commenced against any Loan Party or any of its Subsidiaries
which, if adversely determined, could be reasonably expected to result
in a Material Adverse Change; and
(viii) such other certificates, documents, agreements
and information respecting any Loan Party as any Lender through the
Administrative Agent may reasonably request.
(b) Fee and Expenses Paid. There shall have been paid to the
Administrative Agent, for the account of the Administrative Agent and the
Lenders, as applicable, all fees due and payable on or before the Effective
Date, and all expenses due and payable on or before the Effective Date.
(c) Consents, Etc. Each of the Borrower and its Subsidiaries
shall have received all consents and authorizations required pursuant to any
material Contractual Obligation with any other Person and shall have obtained
all consents and authorizations of, and effected all notices to and filings
with, the FCC and any other Governmental Authority, in each case, as may be
necessary to allow each of the Borrower and its Subsidiaries lawfully (A) to
execute, deliver and perform, in all material respects, their respective
obligations hereunder, and under the Loan Documents to which each of them,
respectively, is, or shall be, a party and each other agreement or instrument to
be executed and delivered by each of them, respectively, pursuant thereto or in
connection therewith, and (B) to reaffirm the creation and perfection of the
Liens on the Collateral to be owned by each of them in the manner and for the
purpose contemplated by the Loan Documents.
SECTION 3.2. CONDITIONS PRECEDENT TO EACH LOAN AND LETTER OF
CREDIT. The obligation of each Lender on any date (including the Effective Date)
to make any Loan and of each Issuer on any date (including the Effective Date)
to Issue any Letter of Credit is subject to the satisfaction of all of the
following conditions precedent:
(a) Request for Borrowing or Issuance of Letter of Credit.
With respect to any Loan, the Administrative Agent shall have received a duly
executed Notice of Borrowing and, with respect to any Letter of Credit, the
Administrative Agent and the Issuer shall have received a duly executed Letter
of Credit Request.
(b) Representations and Warranties; No Defaults. The following
statements shall be true on the date of such Loan or Issuance, both before and
after giving effect thereto and, in the case of such Loan, to the application of
the proceeds therefrom:
(i) The representations and warranties set forth in
Article IV and in the other Loan Documents shall be true and correct on
and as of the Effective Date and
54
shall be true and correct in all material respects on and as of any
such date after the Effective Date with the same effect as though made
on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all
material respects as of such earlier date;
(ii) No Default or Event of Default has occurred and
is continuing;
(iii) Such Borrowing (x) is permitted pursuant to the
terms of the Preferred Stock Documents and the Subordinated Debt
Documents and (y) (if made under the Term A Loan Facility) when
aggregated with the amount of all Term A Loans outstanding plus the
outstanding amount of all Capital Lease Obligations and purchase money
Indebtedness of the Borrower and its Subsidiaries shall not exceed five
per cent. of the consolidated total assets of the Borrower and its
Subsidiaries at such time.
(c) No Legal Impediments. The making of the Loans or the
Issuance of such Letters of Credit on such date does not violate any Requirement
of Law or conflict with the provisions of any of the Subordinated Debt Documents
or the Preferred Stock Documents on the date of or immediately following such
Loan or Issuance of such Letter of Credit and is not enjoined, temporarily,
preliminarily or permanently.
Each submission by the Borrower to the Administrative Agent of a Notice of
Borrowing and the acceptance by the Borrower of the proceeds of each Loan
requested therein, and each submission by the Borrower to an Issuer of a Letter
of Credit Request, and the Issuance of each Letter of Credit requested therein,
shall be deemed to constitute a representation and warranty by the Borrower as
to the matters specified in Section 3.2(b) on the date of the making of such
Loan or the Issuance of such Letter of Credit.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Lenders, the Issuers and the Administrative
Agent to enter into this Agreement, the Borrower represents and warrants to the
Lenders, the Issuers and the Administrative Agent that, on and as of the
Effective Date, after giving effect to the making of the Loans and other
financial accommodations on the Effective Date and on and as of each date as
required by Section 3.2(b)(i):
SECTION 4.1. CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of
the Borrower and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation; (b) is
duly qualified as a foreign entity and in good standing under the laws of each
jurisdiction where such qualification is necessary, except where the failure to
be so qualified or in good standing could not be reasonably expected to result
in a Material Adverse Change; (c) has all requisite power and authority and the
legal right to own, pledge, mortgage and operate its properties, to lease the
property it operates under lease and to conduct its business as now or currently
proposed to be conducted; (d) is in compliance with its Constituent Documents;
(e) is in compliance with all applicable Requirements of Law except where the
failure to be in compliance could not in the aggregate be reasonably expected to
result in a Material Adverse Change; and (f) has all necessary licenses,
permits, consents or approvals from or by, has made all necessary filings with,
and has given all necessary notices to, each Governmental Authority having
jurisdiction, to the extent required for such ownership, operation
55
and conduct, except for licenses, permits, consents, approvals or filings which
can be obtained or made by the taking of ministerial action to secure the grant
or transfer thereof or the failure to obtain or make could not in the aggregate
be reasonably expected to result in a Material Adverse Change.
SECTION 4.2. CORPORATE POWER; AUTHORIZATION; ENFORCEABLE
OBLIGATIONS.
(a) The execution, delivery and performance by each Loan Party
of the Loan Documents to which it is a party and the consummation of the
transactions contemplated thereby:
(i) are within such Loan Party's corporate, limited
liability company, partnership or other powers;
(ii) have been duly authorized by all necessary
corporate or partnership action, including the consent of shareholders
where required;
(iii) do not and will not (A) violate any Loan
Party's or any of its Subsidiaries' respective Constituent Documents,
(B) violate any other Requirement of Law applicable to any Loan Party
(including Regulations T, U and X of the Federal Reserve Board), or any
order or decree of any Governmental Authority or arbitrator applicable
to any Loan Party, (C) conflict with or result in the breach of, or
constitute a default under, or result in or permit the termination or
acceleration of, any provision of any Contractual Obligation of any
Loan Party or any of its Subsidiaries other than any other conflict,
breach of default of any Contractual Obligation (other than under any
Material Agreement) which violations, in the aggregate, could not be
reasonably expected to result in a Material Adverse Change, or (D)
result in the creation or imposition of any Lien upon any of the
property of any Loan Party or any of its Subsidiaries, other than those
in favor of the Secured Parties pursuant to the Collateral Documents;
and
(iv) do not require the consent of, authorization by,
approval of, notice to, or filing or registration with, the FCC or any
other Governmental Authority or any other Person, other than those
listed on Schedule 4.2 and which have been or will be, prior to the
Effective Date, obtained or made, copies of which have been or will be
delivered to the Administrative Agent pursuant to Section 3.1, and each
of which on the Effective Date will be in full force and effect and,
with respect to the Collateral, filings required to perfect the Liens
created by the Collateral Documents.
(b) This Agreement has been, and each of the other Loan
Documents will have been upon delivery thereof pursuant to the terms of this
Agreement, duly executed and delivered by each Loan Party party thereto. This
Agreement is, and the other Loan Documents will be, when delivered hereunder,
the legal, valid and binding obligation of each Loan Party party thereto,
enforceable against such Loan Party in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally.
SECTION 4.3. OWNERSHIP OF SUBSIDIARIES.
Set forth on Schedule 4.3 hereto is a complete and accurate
list showing, as of the Effective Date, all Subsidiaries of the Borrower and, as
to each such Subsidiary, the jurisdiction of its incorporation, the number of
shares of each class of Stock authorized (if applicable), the
56
number outstanding on the Effective Date and the number and percentage of the
outstanding shares of each such class owned (directly or indirectly) by the
Borrower and identifying each Subsidiary Guarantor, each Unrestricted Subsidiary
and each Dissolution Subsidiary. No Stock of any Subsidiary of the Borrower is
subject to any outstanding option, warrant, right of conversion or purchase or
any similar right. All of the outstanding Stock of each Subsidiary of the
Borrower owned (directly or indirectly) by the Borrower has been validly issued,
is fully paid and non-assessable and is owned by the Borrower or a Subsidiary of
the Borrower, free and clear of all Liens (other than the Lien in favor of the
Secured Parties created pursuant to the Pledge and Security Agreement). Neither
the Borrower nor any such Subsidiary is a party to, or has knowledge of, any
agreement restricting the transfer or hypothecation of any Stock of any such
Subsidiary, other than the Loan Documents and certain restrictions on asset
sales and liens contained in the Material Agreements. The Borrower does not own
or hold, directly or indirectly, any Stock of any Person other than such
Subsidiaries and Investments permitted by Section 8.3.
SECTION 4.4. FCC MATTERS.
(a) The Borrower and each of its Subsidiaries has all
requisite power and authority and necessary FCC Licenses required under the
Communications Act to own and operate its properties and to carry on its
businesses as now conducted and as proposed to be conducted.
(b) Set forth in Schedule 4.4 is a complete list, as of the
Effective Date, of all FCC Licenses (other than auxiliary service licenses and
receive only earth stations which are not material to the Core Business of the
Borrower and its Subsidiaries) held by the Borrower and its Subsidiaries, and
the expiration date thereof.
(c) Neither the Borrower nor any of its Subsidiaries, other
than the License Subsidiaries, directly owns or holds any FCC License.
(d) Each Material FCC License which is required for the
operation of the business of the Borrower or any of its Subsidiaries is validly
issued to a License Subsidiary and in full force and effect, and constitutes in
all material respects, all of the authorization from any Governmental Authority
necessary for the operation of such Person's business in the same manner as it
is presently conducted and as proposed to be conducted.
(e) The Loan Parties have taken all material actions and
performed all of their material obligations that are necessary to maintain each
Material FCC License without adverse modification or impairment and no event has
occurred which (i) results in, or after notice or lapse of time or both would
result in, revocation, suspension, materially adverse modification, non-renewal,
impairment of value or termination of or any order of forfeiture with respect
to, any Material FCC License or (ii) materially and adversely affects or in the
future may (so far as the Borrower can now reasonably foresee) materially
adversely affect any of the rights of the Borrower or any Subsidiary thereof
with respect to any Material FCC License.
(f) Neither the Borrower nor any of its Subsidiaries is a
party to or has knowledge of any investigation, notice of apparent liability,
violation, forfeiture or other order or complaint issued by or before any court
or regulatory body, including the FCC, or of any other proceedings (other than
proceedings relating to the radio or television industries generally) which
could in any manner threaten or adversely affect the validity or continued
effectiveness of the Material FCC Licenses.
57
(g) Neither the Borrower nor any of its Subsidiaries has any
reason to believe (other than in connection with there being no legal assurance
thereof) that any Material FCC License will not be renewed in the ordinary
course.
(h) None of the FCC Licenses held by a License Subsidiary
requires that any present stockholder (other than ▇▇▇▇▇▇), director, officer or
employee of the Borrower or any Subsidiary thereof remain a stockholder or
employee of such Person, or that any transfer of control of such Person must be
approved by any Governmental Authority other than as required by the FCC.
(i) The Loan Parties have duly filed in a timely manner all
material filings which are required to be filed by the Loan Parties under the
Communications Act and are in all material respects in substantial compliance
with the Communications Act, including, without limitation, the rules and
regulations of the FCC relating to the broadcast of television signals or the
operation of the Stations.
(j) The most recent Ownership Report filed by the Borrower is
true, correct and complete in all material respects, and there has been no
change in control of the ownership of the Loan Parties or the FCC Licenses of
the Loan Parties since the most recently filed Ownership Report for any of the
Loan Parties other than as disclosed in writing to the Administrative Agent and
the Lenders.
SECTION 4.5. FINANCIAL STATEMENTS.
(a) The consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 2000 and the related consolidated statements of
income, retained earnings and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, certified by Pricewaterhouse Coopers LLP, and
the consolidated balance sheets of the Borrower and its Subsidiaries as at March
31, 2001, and the related consolidated statements of income, retained earnings
and cash flows of the Borrower and its Subsidiaries for the three months then
ended, copies of which have been furnished to each Lender, fairly present,
subject, in the case of said balance sheets as at March 31, 2001 and said
statements of income, retained earnings and cash flows for the three months then
ended, to the absence of footnote disclosure and normal recurring year-end audit
adjustments, the consolidated financial condition of the Borrower and its
Subsidiaries as at such dates and the consolidated results of the operations of
the Borrower and its Subsidiaries for the period ended on such dates, all in
conformity with GAAP.
(b) Neither the Borrower nor any of its Subsidiaries has any
material obligation, contingent liability or liability for taxes, long-term
leases or unusual forward or long-term commitment which is not reflected in the
Financial Statements referred to in clause (a) above or in the notes thereto or
permitted by this Agreement.
(c) The Projections have been prepared by the Borrower in
light of the past operations of its business, and reflect projections for the
period beginning on June 30, 2001 and ending on December 31, 2006, on a quarter
by quarter basis though December 31, 2003, and on a year by year basis
throughout the entire period. The Projections, and the projected financial
information most recently provided by the Borrower under Section 6.1(e), are
based upon estimates and assumptions stated therein, all of which the Borrower
believes to be reasonable and fair in light of conditions and facts then known
to the Borrower when such Projections, or such projected financial information,
were made and reflect, as of the date made, the Borrower's good
58
faith and reasonable estimates of the future financial performance of the
Borrower and its Subsidiaries and of the other information projected therein for
the periods set forth therein.
SECTION 4.6. MATERIAL ADVERSE CHANGE. Since December 31, 2000,
there has been no Material Adverse Change and there have been no events or
developments that in the aggregate could be reasonably expected to result in a
Material Adverse Change.
SECTION 4.7. SOLVENCY. Both before and after giving effect to
(a) the Loans and Letter of Credit Obligations made or extended on the Closing
Date or such other date as Loans and Letter of Credit Obligations requested
hereunder are made or extended, (b) the disbursement of the proceeds of such
Loans pursuant to the instructions of the Borrower, (c) the issuance of the New
Senior Subordinated Notes and the consummation of the other financing
transactions contemplated hereby, (d) the repayment of Indebtedness contemplated
hereunder on the Closing Date and (e) the payment and accrual of all transaction
costs in connection with the foregoing, each Loan Party is Solvent.
SECTION 4.8. LITIGATION. Except as set forth on Schedule 4.8,
there are no pending or, to the knowledge of the Borrower, threatened actions,
investigations or proceedings affecting the Borrower, or any of its Subsidiaries
before any court, Governmental Authority or arbitrator other than those that in
the aggregate could not, if adversely determined, be reasonably expected to
result in a Material Adverse Change. The performance of any action by any Loan
Party required or contemplated by any of the Loan Documents is not restrained or
enjoined by any court, Governmental Authority or arbitrator (either temporarily,
preliminarily or permanently).
SECTION 4.9. TAXES. All federal, state, local and foreign
income and franchise and other material tax returns, reports and statements
(collectively, the "Tax Returns") required to be filed by the Borrower or any of
its Tax Affiliates have been filed with the appropriate Governmental Authorities
in all jurisdictions in which such Tax Returns are required to be filed, all
such Tax Returns are true and correct in all material respects, and all taxes,
charges and other impositions reflected therein or otherwise due and payable
have been paid prior to the date on which any fine, penalty, interest, late
charge or loss may be added thereto for non-payment thereof except where
contested in good faith and by appropriate proceedings if adequate reserves
therefor have been established on the books of the Borrower or such Tax
Affiliate in conformity with GAAP.
SECTION 4.10. FULL DISCLOSURE. No representation or warranty
of any Loan Party contained in any Loan Document or the Information Memorandum,
or any other document, certificate or written statement furnished to the Lenders
by or on behalf of any Loan Party for use in connection with the transactions
contemplated by this Agreement (including any Permitted Acquisition), contains
any untrue statement of a material fact or omits to state a material fact (known
to the Borrower in the case of any document not furnished by it) necessary in
order to make the statements contained herein or therein not misleading in light
of the circumstances in which the same were made. There is no fact known (or
which should upon the reasonable exercise of diligence be known) to the Borrower
(other than matters of a general economic nature or relating to the broadcasting
industry or television industry generally) that has resulted or could reasonably
be expected to result in a Material Adverse Change and that has not been
disclosed herein or in such other documents, certificates and statements
furnished to the Lenders for use in connection with the transactions
contemplated hereby.
59
SECTION 4.11. MARGIN REGULATIONS. 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 U of the Federal Reserve Board),
and no proceeds of any Borrowing will be used to purchase or carry any margin
stock or to extend credit to others for the purpose of purchasing or carrying
any margin stock.
SECTION 4.12. NO BURDENSOME RESTRICTIONS; NO DEFAULTS.
(a) Neither the Borrower nor any of its Subsidiaries (i) is a
party to any Contractual Obligation the compliance with which could be
reasonably expected to result in a Material Adverse Change or the performance of
which by any thereof, either unconditionally or upon the happening of an event,
would result in the creation of a Lien (other than a Lien permitted under
Section 8.2) on the property or assets of any thereof or (ii) is subject to any
restriction in its Constituent Documents which could be reasonably expected to
result in a Material Adverse Change.
(b) Neither the Borrower nor any of its Subsidiaries is in
default under or with respect to any Contractual Obligation owed by it and, to
the knowledge of the Borrower, no other party is in default under or with
respect to any Contractual Obligation owed to any Loan Party or to any
Subsidiary of a Loan Party, other than, in either case, those defaults which in
the aggregate could not reasonably be expected to result in a Material Adverse
Change.
(c) No Default or Event of Default has occurred and is
continuing.
(d) To the best knowledge of the Borrower, there is no
Requirement of Law applicable to any Loan Party the compliance with which by
such Loan Party could be reasonably expected to result in a Material Adverse
Change.
SECTION 4.13. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT. Neither the Borrower nor any of its Subsidiaries is (a) an
"investment company" or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended or (b) a "holding company," or an
"affiliate" or a "holding company" or a "subsidiary company" of a "holding
company," as each such term is defined and used in the Public Utility Holding
Act of 1935, as amended.
SECTION 4.14. USE OF PROCEEDS. The proceeds of the Loans and
the Letters of Credit are being and shall be used (together with the net
proceeds of the New Senior Subordinated Notes) by the Borrower solely as
follows: (a) in respect of the Revolving Credit Facility, to fund Capital
Expenditures and for general corporate purposes; (b) in respect of the Term B
Loan Facility, (w) to repay in full all loans outstanding under, and all other
amounts due in respect of, (i) the UBOC Credit Facility and (ii) the GE Capital
Facility, (x) to redeem in full the 12% Junior Preferred Stock, (y) to redeem
the 11-5/8% Senior Subordinated Notes and to pay the call premium thereon and
(z) to pay all transaction costs and expenses incurred in respect of the
transactions contemplated hereby; and (c) in respect of the Term A Loan
Facility, solely to finance Capital Expenditures on or after the Closing Date.
SECTION 4.15. SURVIVING DEBT. Following the application of the
proceeds of the Loans and the New Senior Subordinated Notes as described in
Section 4.14 above, neither the Borrower nor any of its Subsidiaries shall have
outstanding any Indebtedness other than as permitted by Section 8.1.
60
SECTION 4.16. INSURANCE. All policies of insurance of any kind
or nature of the Borrower or any of its Subsidiaries, including policies of
life, fire, theft, product liability, public liability, property damage, other
casualty, employee fidelity, workers' compensation and employee health and
welfare insurance, are in full force and effect and are of a nature and provide
such coverage as is sufficient and as is customarily carried by businesses of
the size and character of such Person. Schedule 4.16 sets forth a complete list
of all policies of insurance in effect for the Borrower and its Subsidiaries as
of the Effective Date.
SECTION 4.17. LABOR MATTERS. There are no strikes, work
stoppages, slowdowns or lockouts pending or threatened against or involving the
Borrower or any of their respective Subsidiaries, other than those which in the
aggregate could not be reasonably expected to result in a Material Adverse
Change.
SECTION 4.18. ERISA.
(a) Schedule 4.18 separately identifies as of the Effective
Date all Title IV Plans, all Multiemployer Plans and all of the employee benefit
plans within the meaning of Section 3(3) of ERISA to which the Borrower or any
of its Subsidiaries has any obligation or liability, contingent or otherwise.
(b) Each employee benefit plan of the Borrower or any of its
Subsidiaries which is intended to qualify under Section 401 of the Code does so
qualify, and any trust created thereunder is exempt from tax under the
provisions of Section 501 of the Code, except where such failures in the
aggregate could not be reasonably expected to result in a Material Adverse
Change.
(c) Each Title IV Plan is in compliance in all material
respects with applicable provisions of ERISA, the Code and other Requirements of
Law except for non-compliances that in the aggregate could not be reasonably
expected to result in a Material Adverse Change.
(d) There has been no, nor is there reasonably expected to
occur, any ERISA Event which could reasonably be expected to result in a
Material Adverse Change.
(e) Except to the extent set forth on Schedule 4.18, none of
the Borrower, any of the Borrower's Subsidiaries or any ERISA Affiliate would
have any Withdrawal Liability as a result of a complete withdrawal as of the
date hereof from any Multiemployer Plan.
SECTION 4.19. ENVIRONMENTAL MATTERS.
(a) The operations of the Borrower and its Subsidiaries
comply, and for the period within any applicable statute of limitations have
complied, in all material respects with all Environmental Laws;
(b) The Borrower and each of its Subsidiaries have obtained
all Permits under Environmental Laws necessary to their respective operations,
and all such Permits are in good standing, and the Borrower and each of its
Subsidiaries are in compliance with all material terms and conditions of such
Permits;
(c) Neither the Borrower nor any of its Subsidiaries has
received (i) any material notice or claim to the effect that it is or may be
liable to any Person as a result of the Release or threatened Release of any
Hazardous Materials or (ii) any letter or request for information under
61
Section 104 of the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. ss. 9604) or comparable state laws, and to the best of
the Borrower's knowledge, none of the operations of the Borrower or any of its
Subsidiaries is the subject of any federal or state investigation evaluating
whether any further investigation or remedial action is needed to respond to a
Release or threatened Release of any Hazardous Material at any property which is
owned, leased or operated by the Borrower or its Subsidiaries;
(d) None of the operations of the Borrower or any of its
Subsidiaries is subject to any judicial, administrative, or arbitral proceeding
alleging the violation of or liability under any Environmental Laws which if
adversely determined could reasonably be expected to result in a Material
Adverse Change;
(e) The Borrower and each of its Subsidiaries and all of the
property which is owned, leased or operated by them and their operations are not
subject to any outstanding written order or agreement with any governmental
authority or private party relating to (i) any Environmental Laws or (ii) any
Environmental Claims that in each case could reasonably be expected to result in
a Material Adverse Change;
(f) To the best knowledge of the Borrower, neither the
Borrower nor any of its Subsidiaries has any contingent liability in connection
with any Release of any Hazardous Materials by the Borrower or any Subsidiaries
of the Borrower that could reasonably be expected to result in a Material
Adverse Change;
(g) Neither the Borrower nor any of its Subsidiaries or, to
the best of the Borrower's knowledge, any predecessor of the Borrower or any
Subsidiaries of the Borrower has filed any notice under any Environmental Law
indicating past or present treatment or disposal of Hazardous Materials at any
property which is owned, leased or operated by them, and none of the Borrower's
or any of its Subsidiary's operations involves the generation, transportation,
treatment, storage or disposal of hazardous waste, as defined under 40 C.F.R.
Parts 260-270 or any state equivalent in material violation of any such law;
(h) To the best knowledge of each Loan Party, no Hazardous
Material exists on, under or about any property which is owned, leased or
operated by them in a manner that could give rise to an Environmental Claim that
could reasonably be expected to result in a Material Adverse Change, and neither
the Borrower nor any Subsidiary of the Borrower has filed any notice or report
of a Release of any Hazardous Materials that could reasonably be expected to
give rise to an Environmental Claim that could reasonably be expected to result
in a Material Adverse Change;
(i) To the best knowledge of each Loan Party, neither the
Borrower nor any Subsidiary of the Borrower (or any of their predecessors) has
disposed of any Hazardous Materials in a manner that could reasonably be
expected to result in a Material Adverse Change;
(j) No underground storage tanks or surface impoundments are
on or at any property which is owned, leased or operated by the Borrower or its
Subsidiaries, other than those that could not reasonably be expected to give
rise to an Environmental Claim resulting in a Material Adverse Change;
(k) No Lien in favor of any Person for (i) any material
liability under Environmental Laws, or (ii) damages arising from or costs
incurred by such Person in response to
62
a Release has been filed or has been attached to any property owned, leased or
operated by the Borrower or its Subsidiaries; and
(l) There is no radio frequency radiation, electromagnetic
field or similar condition of or about any property owned, leased or operated by
the Borrower or its Subsidiaries that could reasonably be expected to result in
a Material Adverse Change.
SECTION 4.20. INTELLECTUAL PROPERTY. The Borrower and its
Subsidiaries own or license or otherwise have the right to use all licenses,
permits, patents, patent applications, trademarks, trademark applications,
service marks, trade names, copyrights, copyright applications, franchises,
authorizations and other intellectual property rights that are necessary for the
operations of their respective businesses, without infringement upon or conflict
with the rights of any other Person with respect thereto, including all trade
names associated with any private label brands of the Borrower or any of its
Subsidiaries. To the Borrower's knowledge, no slogan or other advertising
device, product, process, method, substance, part or component, or other
material now employed, or now contemplated to be employed, by the Borrower or
any of its Subsidiaries infringes upon or conflicts with any rights owned by any
other Person, and no claim or litigation regarding any of the foregoing is
pending or threatened, except where such claim or litigation could not
reasonably be expected to result in a Material Adverse Change.
SECTION 4.21. TITLE.
(a) Each of the Borrower and its Subsidiaries has good and
marketable title to, or valid leasehold interests in, all real property and good
title to all personal property purported to be owned by it, including those
reflected on the most recent Financial Statements delivered by the Borrower, and
none of such properties and assets is subject to any Lien, except Liens
permitted under Section 8.2 and other than those which, in the aggregate, could
not be reasonably expected to result in a Material Adverse Change. The Borrower
and its Subsidiaries have received all deeds, assignments, waivers, consents,
non-disturbance and recognition or similar agreements, bills of sale and other
documents, and have duly effected all recordings, filings and other actions
necessary to establish, protect and perfect the Borrower's and its Subsidiaries'
right, title and interest in and to all such property.
(b) All Permits required to have been issued or appropriate to
enable all real property owned or leased by the Borrower or any of its
Subsidiaries to be lawfully occupied and used for all of the purposes for which
they are currently occupied and used have been lawfully issued and are in full
force and effect, other than those which in the aggregate could not be
reasonably expected to result in a Material Adverse Change.
(c) None of the Borrower or any of its Subsidiaries has
received any notice, or has any knowledge, of any pending, threatened or
contemplated condemnation proceeding affecting any real property owned or leased
by the Borrower or any of its Subsidiaries or any part thereof, except those
which, in the aggregate, could not be reasonably expected to result in a
Material Adverse Change.
SECTION 4.22. NEW SENIOR SUBORDINATED DEBT DOCUMENTS; RANKING
OF OBLIGATIONS.
(a) The execution, delivery and performance by each Loan Party
of the New Senior Subordinated Debt Documents to which it is a party and the
consummation of the transactions contemplated thereby by such Loan Party:
63
(i) are within such Loan Party's respective
corporate, limited liability company, partnership or other powers;
(ii) have been duly authorized by all necessary
corporate or other action, including the consent of stockholders where
required;
(iii) do not and will not (A) violate any Loan
Party's or any of its Subsidiaries' respective Constituent Documents,
(B) violate any other Requirement of Law applicable to any Loan Party,
or any order or decree of any Governmental Authority or arbitrator, (C)
conflict with or result in the breach of, or constitute a default
under, or result in or permit the termination or acceleration of, any
Contractual Obligation of any Loan Party or any of its Subsidiaries,
except for those that in the aggregate could not be reasonably expected
to result in a Material Adverse Change or (D) result in the creation or
imposition of any Lien upon any of the property of any Loan Party or
any of its Subsidiaries; and
(iv) do not require the consent of, authorization by,
approval of, notice to, or filing or registration with, any
Governmental Authority or any other Person, other than those which will
have been obtained at the Closing Date, each of which will be in full
force and effect on the Closing Date.
(b) Each of the New Senior Subordinated Debt Documents has
been duly executed and delivered by each Loan Party party thereto and is the
legal, valid and binding obligation of each Loan Party party thereto,
enforceable against such Loan Party in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally.
(c) None of the New Senior Subordinated Debt Documents has
been amended or modified in any respect and no provision therein has been
waived, except in each case to the extent permitted by Section 8.10, and each of
the representations and warranties therein are true and correct in all material
respects and no default or event which with the giving of notice or lapse of
time or both would be a default has occurred thereunder.
(d) All Obligations rank senior in priority of payment to all
Subordinated Debt in accordance with the respective provisions of each of the
Subordinated Debt Documents and the Preferred Stock Documents.
SECTION 4.23. MATERIAL AGREEMENTS. (a) Each Material Agreement
(other than the New Senior Subordinated Debt Documents) has been duly executed
and delivered by the Loan Party that is party thereto, is in full force and
effect, is the legal, valid and binding obligation of such Loan Party,
enforceable against such Loan Party in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally.
(b) Since April 30, 2001, none of the Material Agreements
(other than the New Senior Subordinated Debt Documents) has been amended or
modified in any material respect and no provision therein has been waived since
April 30, 2001.
(c) Each of the representations and warranties made in the
Material Agreements is true and correct in all material respects and no default
or event which with the giving of notice or lapse of time or both would be a
default has occurred thereunder.
64
ARTICLE V
FINANCIAL COVENANTS
As long as any of the Obligations or the Commitments remain
outstanding, unless the Requisite Lenders otherwise consent in writing, the
Borrower agrees with the Lenders and the Administrative Agent that:
SECTION 5.1. MINIMUM NET REVENUE. The Borrower will have, as
of the last day of each Fiscal Quarter set forth below, Net Revenue for the four
Fiscal Quarters ending on such day of not less than the following:
FISCAL QUARTER ENDING MINIMUM NET REVENUE
--------------------------------------- --------------------------------
June 30, 2001 $230,000,000
--------------------------------------- --------------------------------
September 30, 2001 $230,000,000
--------------------------------------- --------------------------------
December 31, 2001 $230,000,000
--------------------------------------- --------------------------------
March 31, 2002 $240,000,000
--------------------------------------- --------------------------------
June 30, 2002 $240,000,000
--------------------------------------- --------------------------------
September 30, 2002 $245,000,000
--------------------------------------- --------------------------------
December 31, 2002 $250,000,000
--------------------------------------- --------------------------------
March 31, 2003 $260,000,000
--------------------------------------- --------------------------------
June 30, 2003 $270,000,000
--------------------------------------- --------------------------------
September 30, 2003 $280,000,000
--------------------------------------- --------------------------------
December 31, 2003 $290,000,000
--------------------------------------- --------------------------------
March 31, 2004 $300,000,000
--------------------------------------- --------------------------------
June 30, 2004 $310,000,000
--------------------------------------- --------------------------------
September 30, 2004 $320,000,000
--------------------------------------- --------------------------------
December 31, 2004 $330,000,000;
--------------------------------------- --------------------------------
provided that in the case of the four Fiscal Quarters ending on the last day of
each of the Fiscal Quarters ending June 30, 2003, September 30, 2003 and
December 31, 2003, the minimum Net Revenue set forth above with respect to each
such Fiscal Quarter shall be deemed to be $250,000,000 as long as the Borrower
is in compliance with Section 2.11(c)(i), (ii) and (iii), respectively.
65
SECTION 5.2. MINIMUM EBITDA. The Borrower will have, as of the
last day of each Fiscal Quarter set forth below, EBITDA for the four Fiscal
Quarters ending on such day of not less than the following:
FISCAL QUARTER ENDING MINIMUM EBITDA
--------------------------------------- --------------------------------
June 30, 2001 $3,000,000
--------------------------------------- --------------------------------
September 30, 2001 $12,000,000
--------------------------------------- --------------------------------
December 31, 2001 $15,000,000
--------------------------------------- --------------------------------
March 31, 2002 $18,000,000
--------------------------------------- --------------------------------
June 30, 2002 $19,000,000
--------------------------------------- --------------------------------
September 30, 2002 $11,000,000
--------------------------------------- --------------------------------
December 31, 2002 $14,000,000
--------------------------------------- --------------------------------
March 31, 2003 $20,000,000
--------------------------------------- --------------------------------
June 30, 2003 $34,000,000
--------------------------------------- --------------------------------
September 30, 2003 $45,000,000
--------------------------------------- --------------------------------
December 31, 2003 $50,000,000
--------------------------------------- --------------------------------
March 31, 2004 $56,000,000
--------------------------------------- --------------------------------
June 30, 2004 $62,000,000
--------------------------------------- --------------------------------
September 30, 2004 $68,000,000
--------------------------------------- --------------------------------
December 31, 2004 $75,000,000
--------------------------------------- --------------------------------
SECTION 5.3. MAXIMUM SENIOR DEBT LEVERAGE RATIO. The Borrower
will maintain a Senior Debt Leverage Ratio, as determined as of the last day of
each Fiscal Quarter set forth below, for the twelve months ending on such day of
not more than the maximum ratio set forth below opposite such Fiscal Quarter:
FISCAL QUARTER ENDING MAXIMUM SENIOR DEBT
LEVERAGE RATIO
--------------------------------------- --------------------------------
March 31, 2005 2.25 to 1
--------------------------------------- --------------------------------
June 30, 2005 2.25 to 1
--------------------------------------- --------------------------------
September 30, 2005 2.00 to 1
--------------------------------------- --------------------------------
December 31, 2005 2.00 to 1
--------------------------------------- --------------------------------
March 31, 2006 2.00 to 1
--------------------------------------- --------------------------------
June 30, 2006 2.00 to 1
--------------------------------------- --------------------------------
66
SECTION 5.4. MAXIMUM LEVERAGE RATIO. The Borrower will
maintain a Leverage Ratio, as determined as of the last day of each Fiscal
Quarter set forth below, for the twelve months ending on such day of not more
than the maximum ratio set forth below opposite such Fiscal Quarter:
FISCAL QUARTER ENDING MAXIMUM LEVERAGE RATIO
--------------------------------------- --------------------------------
March 31, 2005 3.50 to 1
--------------------------------------- --------------------------------
June 30, 2005 3.50 to 1
--------------------------------------- --------------------------------
September 30, 2005 3.00 to 1
--------------------------------------- --------------------------------
December 31, 2005 3.00 to 1
--------------------------------------- --------------------------------
March 31, 2006 3.00 to 1
--------------------------------------- --------------------------------
June 30, 2006 3.00 to 1
--------------------------------------- --------------------------------
SECTION 5.5. MINIMUM INTEREST COVERAGE RATIO. The Borrower
will maintain an Interest Coverage Ratio, as determined as of the last day of
each Fiscal Quarter set forth below, for the twelve months ending on such day,
of at least the minimum ratio set forth below opposite such Fiscal Quarter:
FISCAL QUARTER ENDING MINIMUM INTEREST COVERAGE RATIO
--------------------------------------- --------------------------------
March 31, 2005 3.50 to 1
--------------------------------------- --------------------------------
June 30, 2005 3.50 to 1
--------------------------------------- --------------------------------
September 30, 2005 3.50 to 1
--------------------------------------- --------------------------------
December 31, 2005 3.50 to 1
--------------------------------------- --------------------------------
March 31, 2006 3.50 to 1
--------------------------------------- --------------------------------
June 30, 2006 3.50 to 1
--------------------------------------- --------------------------------
SECTION 5.6. MINIMUM FIXED CHARGE COVERAGE RATIO. The Borrower
will maintain a Fixed Charge Coverage Ratio, as determined as of the last day of
each Fiscal Quarter set forth below, for the twelve months ending on such day,
of at least the minimum ratio set forth below opposite such Fiscal Quarter:
FISCAL QUARTER ENDING MINIMUM FIXED CHARGE
COVERAGE RATIO
--------------------------------------- --------------------------------
March 31, 2005 1.70 to 1
--------------------------------------- --------------------------------
June 30, 2005 1.70 to 1
--------------------------------------- --------------------------------
September 30, 2005 1.70 to 1
--------------------------------------- --------------------------------
December 31, 2005 1.70 to 1
--------------------------------------- --------------------------------
March 31, 2006 1.70 to 1
--------------------------------------- --------------------------------
June 30, 2006 1.70 to 1
--------------------------------------- --------------------------------
67
SECTION 5.7. CAPITAL EXPENDITURES. The Borrower will not
permit Capital Expenditures to be made or incurred during each of the Fiscal
Years set forth below in excess of the maximum amount set forth below for such
Fiscal Year:
MAXIMUM CAPITAL
FISCAL YEAR EXPENDITURES
--------------------------------------- ------------------------------
2001 $90,000,000
--------------------------------------- ------------------------------
2002 $45,000,000
--------------------------------------- ------------------------------
2003 $25,000,000
--------------------------------------- ------------------------------
2004 $25,000,000
--------------------------------------- ------------------------------
2005 $10,000,000
--------------------------------------- ------------------------------
2006 $10,000,000;
--------------------------------------- ------------------------------
provided, however, that to the extent that actual Capital Expenditures for any
Fiscal Year shall be less than the maximum amount set forth above for such
Fiscal Year (giving effect to any carryover permitted by this proviso), the
difference between said stated maximum amount and such actual Capital
Expenditures shall, in addition, be available for Capital Expenditures in the
next succeeding Fiscal Year and shall increase the scheduled maximum amount of
Capital Expenditures for the next succeeding Fiscal Year by the amount of such
difference.
SECTION 5.8. Maximum Programming Rights Payments. The Borrower
will not permit Programming Rights Payments to be made or incurred during each
of the Fiscal Years set forth below to be in excess of the maximum amount set
forth below for such Fiscal Year:
MAXIMUM PROGRAMMING RIGHTS
FISCAL YEAR PAYMENTS
--------------------------------------- ------------------------------
2002 $135,000,000
--------------------------------------- ------------------------------
2003 $125,000,000
--------------------------------------- ------------------------------
2004 $125,000,000
--------------------------------------- ------------------------------
2005 $125,000,000
--------------------------------------- ------------------------------
2006 $125,000,000;
--------------------------------------- ------------------------------
provided, however, that to the extent the Borrower or any of its Subsidiaries
makes any Investment permitted by Section 8.3(e) in any such Fiscal Year, the
maximum Programming Rights Payments permitted for such Fiscal Year shall be
reduced by the amount of such Investment; provided, further, however, that to
the extent that actual Programming Rights Payments for any Fiscal Year shall be
less than the maximum amount set forth above for such Fiscal Year (giving effect
to any carryover permitted by this proviso and any reduction pursuant to the
previous proviso), the difference between said stated maximum amount and such
actual Programming Rights Payments shall, in addition, be available for
Programming Rights Payments in the next succeeding Fiscal Year and shall
increase the scheduled maximum amount of Programming Rights Payments for the
next succeeding Fiscal Year by the amount of such difference.
68
ARTICLE VI
REPORTING COVENANTS
As long as any of the Obligations or the Commitments remain
outstanding, unless the Requisite Lenders otherwise consent in writing, the
Borrower agrees with the Lenders and the Administrative Agent that:
SECTION 6.1. FINANCIAL STATEMENTS. The Borrower shall furnish
to the Administrative Agent (with sufficient copies for each of the Lenders) the
following:
(a) Monthly Reports. Within 30 days after the end of each
fiscal month in each Fiscal Year, financial information regarding the Borrower
and its Subsidiaries consisting of consolidated unaudited balance sheets as of
the close of such month and the related statements of income for such month and
that portion of the current Fiscal Year ending as of the close of such month,
setting forth in comparative form the figures for the corresponding period in
the prior year and the figures contained in the budget for the current Fiscal
Year.
(b) Quarterly Reports. Within 45 days after the end of each
Fiscal Quarter of each Fiscal Year, a consolidated balance sheet of the Borrower
and its consolidated Subsidiaries as at the end of such period, and the related
unaudited consolidated statements of income and of cash flows, as contained in
the Form 10-Q for such fiscal quarter provided by the Borrower to the Securities
and Exchange Commission (or any successor or analogous Governmental Authority),
and if such Form 10-Q is no longer required to be so provided by the Borrower,
then the Borrower shall provide the Lenders with comparable financial
statements, certified by a Responsible Officer of the Borrower that they fairly
present the financial condition and results of operations of the Borrower and
its Subsidiaries, as appropriate, as at the end of such periods and for such
periods, subject to changes resulting from audit and normal year-end
adjustments.
(c) Annual Reports. Within 90 days after the end of each
Fiscal Year, financial information regarding the Borrower and its Subsidiaries
consisting of consolidated balance sheets of the Borrower and its Subsidiaries
as of the end of such year and related statements of income and cash flows of
the Borrower and its Subsidiaries for such Fiscal Year, all prepared in
conformity with GAAP and certified, in the case of such consolidated financial
statements, without qualification as to the scope of the audit by
Pricewaterhouse Coopers LLP or other nationally recognized independent public
accountants reasonably acceptable to the Administrative Agent, together with the
report of such accounting firm stating that (i) such financial statements fairly
present the consolidated financial position of the Borrower and its Subsidiaries
as at the dates indicated and the results of their operations and cash flow for
the periods indicated in conformity with GAAP applied on a basis consistent with
prior years (except for changes with which such independent certified public
accountants shall concur and which shall have been disclosed in the notes to the
financial statements), and (ii) the examination by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards, and accompanied by a
certificate stating that in the course of the regular audit of the business of
the Borrower and its Subsidiaries such accounting firm has obtained no knowledge
that a Default or Event of Default has occurred and is continuing, or, if in the
opinion of such accounting firm, a Default or Event of Default has occurred and
is continuing, a statement as to the nature thereof.
(d) Compliance Certificate. Together with each delivery of any
financial statement pursuant to clauses (b) and (c) of this Section 6.1, a
certificate of a Responsible Officer
69
of the Borrower (each, a "Compliance Certificate") (i) (x) showing (from and
including the Fiscal Quarter ended March 31, 2004) in reasonable detail the
calculations used in determining the Leverage Ratio (for purposes of determining
the Applicable Margin) and (y) demonstrating compliance with each of the
financial covenants contained in Article V which is tested on a quarterly basis
and (ii) stating that (based on a review in reasonable detail of the condition
of, and transactions affecting, the Borrower and its Subsidiaries during the
period following delivery of then most recent previous Compliance Certificate)
to such Responsible Officer's knowledge, no Default or Event of Default has
occurred and is continuing or, if a Default or an Event of Default has occurred
and is continuing, stating the nature thereof and the action which the Borrower
proposes to take with respect thereto.
(e) Annual Budget. Not later than 30 days after the end of
each Fiscal Year, a budget and financial forecast (and from time to time updates
thereto, if any) for the Borrower and its Subsidiaries (approved by the board of
directors of the Borrower) including, (a) a forecasted operating cash flows
statement of the Borrower and its Subsidiaries for the next succeeding Fiscal
Year, (b) forecasted operating cash flows statement of the Borrower and its
Subsidiaries for each Fiscal Quarter of the next succeeding Fiscal Year and (c)
such other information and projections as the Administrative Agent may
reasonably request, in each case, in a format satisfactory to the Administrative
Agent.
(f) Management Letters, Etc. Within ten Business Days after
receipt thereof by any Loan Party, copies of each management letter, exception
report or similar letter or report received by such Loan Party from its
independent certified public accountants;
(g) Intercompany Loan Balances. Together with each delivery of
any financial statement pursuant to clause (b) of this Section 6.1, a summary of
the outstanding balance of all intercompany Indebtedness as of the last day of
the Fiscal Quarter covered by such financial statement, certified by a
Responsible Officer.
SECTION 6.2. DEFAULT NOTICES. As soon as practicable, and in
any event within two Business Days after a Responsible Officer of any Loan Party
has actual knowledge of the existence of any Default or Event of Default, the
Borrower shall give the Administrative Agent notice specifying the nature of
such Default or Event of Default, including the anticipated effect thereof,
which notice, if given by telephone, shall be promptly confirmed in writing on
the next Business Day.
SECTION 6.3. LITIGATION. Promptly after the commencement
thereof, the Borrower shall give the Administrative Agent written notice of the
commencement of all actions, suits and proceedings before any domestic or
foreign Governmental Authority or arbitrator, affecting the Borrower or any of
its Subsidiaries, which in the reasonable judgment of the Borrower, expose the
Borrower or such Subsidiary to liability in an amount aggregating $5,000,000 or
more or which, if adversely determined, could be reasonably expected to result
in a Material Adverse Change.
SECTION 6.4. STATION APPRAISALS. The Borrower shall deliver to
the Administrative Agent a Station Appraisal (i) annually, beginning on June 28,
2003 and thereafter by no later than 12 months after the date when the previous
Station Appraisal was provided to the Administrative Agent and (ii) promptly
following any request therefor by the Requisite Lenders or (in the case of
clause (b)) the Administrative Agent; provided, that such request pursuant to
clause (ii) for an additional Station Appraisal may be made (a) if a Default or
Event of Default has occurred which is continuing, at any time while so
continuing and (b) once following the
70
consummation of Asset Sales in respect of Stations having an aggregate Fair
Market Value in excess of $250,000,000 and once following further Asset Sales
for each successive multiple of such amount.
SECTION 6.5. ASSET SALES. Prior to any Asset Sale (other than
pursuant to Section 8.4(a) or (b)) anticipated to generate in excess of
$10,000,000 (or its Dollar Equivalent) in Net Cash Proceeds, the Borrower shall
send the Administrative Agent a notice (a) describing such Asset Sale or the
nature and material terms and conditions of such transaction, (b) stating the
estimated Net Cash Proceeds anticipated to be received by the Borrower or any of
its Subsidiaries and (c) demonstrating that such Asset Sale will be in
compliance with the proviso to Section 8.4.
SECTION 6.6. SEC FILINGS; PRESS RELEASES. Promptly after the
sending or filing thereof (but only to the extent not otherwise made available
to the investment community through the Securities and Exchange Commission's
▇▇▇▇▇ system), the Borrower shall send the Administrative Agent copies of (a)
all reports which the Borrower sends to its security holders generally and (b)
all reports and registration statements which the Borrower or any of its
Subsidiaries files with the Securities and Exchange Commission or any national
securities exchange.
SECTION 6.7. INSURANCE. As soon as is practicable and in any
event within 180 days after the end of each Fiscal Year, the Borrower will
furnish the Administrative Agent (in sufficient copies for each of the Lenders)
with (a) a report in form and substance reasonably satisfactory to the
Administrative Agent outlining all material insurance coverage maintained as of
the date of such report by the Borrower and its Subsidiaries and the duration of
such coverage and (b) an insurance broker's statement that all premiums then due
and payable with respect to such coverage have been paid.
SECTION 6.8. ERISA MATTERS. The Borrower shall furnish the
Administrative Agent (with sufficient copies for each of the Lenders):
(a) promptly and in any event within 30 days after the
Borrower, any of its Subsidiaries or any ERISA Affiliate knows or has reason to
know that any ERISA Event has occurred, a written statement regarding or written
notice of such ERISA Event;
(b) promptly and in any event within 10 days after the
Borrower, any of its Subsidiaries or any ERISA Affiliate knows or has reason to
know that a request for a minimum funding waiver under Section 412 of the Code
has been filed with respect to any Title IV Plan or Multiemployer Plan, a
written statement of a Responsible Officer of the Borrower describing such ERISA
Event or waiver request and the action, if any, which the Borrower, its
Subsidiaries and ERISA Affiliates propose to take with respect thereto and a
copy of any notice filed with the PBGC or the IRS pertaining thereto;
(c) simultaneously with the date that the Borrower, any of its
Subsidiaries or any ERISA Affiliate files a notice of intent to terminate any
Title IV Plan, if such termination would require material additional
contributions in order to be considered a standard termination within the
meaning of Section 4041(b) of ERISA, a copy of each notice.
SECTION 6.9. OTHER INFORMATION. The Borrower will provide the
Administrative Agent with such other information respecting the Borrower or any
of its Subsidiaries as any Lender through the Administrative Agent may from time
to time reasonably request.
71
ARTICLE VII
AFFIRMATIVE COVENANTS
As long as the Obligations or the Commitments remain
outstanding, unless the Requisite Lenders otherwise consent in writing, the
Borrower agrees with the Lenders and the Administrative Agent that:
SECTION 7.1. PRESERVATION OF CORPORATE EXISTENCE, ETC. The
Borrower shall, and shall cause each of its Subsidiaries to, preserve and
maintain its corporate existence, rights (charter and statutory) and (to the
extent material to its business) franchises, except as permitted by Sections 8.4
and 8.7. and as indicated on Schedule 4.3.
SECTION 7.2. COMPLIANCE WITH LAWS, ETC. The Borrower shall,
and shall cause each of its Subsidiaries to, comply with all applicable
Requirements of Law including, the Communications Act, provisions of FCC
Licenses, Broadcast Permits and other Permits and Contractual Obligations except
where the failure so to comply would not in the aggregate be reasonably expected
to result in a Material Adverse Change.
SECTION 7.3. CONDUCT OF BUSINESS. The Borrower shall, and
shall cause each of its Subsidiaries to, (a) conduct its business in a manner
consistent with past practice and (b) use its reasonable efforts, in the
ordinary course and consistent with past practice, to preserve its business and
the goodwill and business of the customers, advertisers, suppliers and others
having business relations with the Borrower or any of its Subsidiaries, except
in each case where the failure to comply with the covenants in each of clauses
(a) and (b) above would not be reasonably expected to result in a Material
Adverse Change.
SECTION 7.4. FCC LICENSES. The Borrower shall, and shall cause
each of its Subsidiaries to, keep in full force and effect each Material FCC
License of such person.
(a) The Borrower shall provide a copy of any (or, in the event
of any notice based on knowledge of the Borrower or any Subsidiary thereof, a
brief description of such default and the basis of such knowledge) notice from
the FCC of any violation with respect to any Material FCC License (which
violation could reasonably be expected to result in the cancellation,
termination or non-renewal thereof) received by it or any of its Subsidiaries
(or with respect to which the Borrower or any of its Subsidiaries may have any
knowledge).
(b) The Borrower shall establish and maintain wholly-owned
License Subsidiaries for the purpose of holding the FCC Licenses related to the
Stations owned by them on and after the Closing Date and shall cause the License
Subsidiaries not (i) to own any material assets other than the FCC Licenses or
(ii) to have any material liabilities except pursuant to the Subsidiary
Guarantee or the guarantees with respect to the New Senior Subordinated Notes
and intercompany Indebtedness owed to the Borrower. At all times on and after
the date hereof in the case of any FCC License acquired subsequent to the date
hereof with respect to which it is not practicable to cause such FCC License to
be acquired directly by a License Subsidiary, as soon as practicable following
the date of acquisition and at all times thereafter), the Borrower shall, and
shall cause its Subsidiaries to, cause each new FCC License issued by the FCC to
be issued to, and held by, a License Subsidiary.
SECTION 7.5. PAYMENT OF TAXES, ETC. The Borrower shall, and
shall cause each of its Subsidiaries to, pay and discharge before the same shall
become delinquent, all lawful
72
governmental claims, taxes, assessments, charges and levies the nonpayment of
which results in, or could be reasonably expected to result in, a Material
Adverse Change, except where contested in good faith, by proper proceedings and
adequate reserves therefor have been established on the books of the Borrower or
the appropriate Subsidiary in conformity with GAAP.
SECTION 7.6. MAINTENANCE OF INSURANCE. The Borrower shall (i)
maintain, and cause to be maintained for each of its Subsidiaries insurance with
responsible and reputable insurance companies or associations in such amounts
and covering such risks as is usually carried by businesses of the size and
character of the Borrower or such Subsidiary and, in any event, all insurance
required by any Collateral Documents and (ii) cause all insurance maintained
with respect to the properties of the Borrower and its Subsidiaries to name the
Administrative Agent on behalf of the Secured Parties as additional insured or
loss payee, as appropriate, and to provide that no cancellation, material
addition in amount or material change in coverage shall be effective until after
30 days' written notice thereof to the Administrative Agent.
SECTION 7.7. ACCESS. The Borrower shall from time to time,
permit the Administrative Agent and the Lenders, or any agents or
representatives thereof, within two Business Days after written notification of
the same (except that during the continuance of an Event of Default, no such
notice shall be required), at such reasonable times during reasonable business
hours, to (a) examine and make copies of and abstracts from the records and
books of account of the Borrower and each of its Subsidiaries, (b) visit the
properties of the Borrower and each of its Subsidiaries, (c) discuss the
affairs, finances and accounts of the Borrower and each of its Subsidiaries with
any of their respective officers or directors, and (d) communicate directly with
the Borrower's independent certified public accountants. The Borrower shall
authorize its independent certified public accountants to disclose to the
Administrative Agent or any Lender any and all financial statements and other
information of any kind, as the Administrative Agent or any Lender (through the
Administrative Agent) reasonably requests from the Borrower and which such
accountants may have with respect to the business, financial condition, results
of operations or other affairs of the Borrower or any of its Subsidiaries.
SECTION 7.8. KEEPING OF BOOKS. The Borrower shall, and shall
cause each of its Subsidiaries to keep, proper books of record and account, in
which full and correct entries shall be made in conformity with GAAP of all
financial transactions and the assets and business of the Borrower and each such
Subsidiary.
SECTION 7.9. MAINTENANCE OF PROPERTIES, ETC. The Borrower
shall, and shall cause each of its Subsidiaries to, maintain and preserve, (a)
all of its properties which are necessary in the conduct of its business in good
working order and condition, (b) all rights, permits, licenses, approvals and
privileges (including all Broadcast Permits and other Permits) which are used or
useful or necessary in the conduct of its business, and (c) all registered
patents, trademarks, trade names, copyrights and service marks with respect to
its business; except, in each case, where the failure to so maintain and
preserve could not in the aggregate be reasonably expected to result in a
Material Adverse Change.
SECTION 7.10. APPLICATION OF PROCEEDS. The Borrower shall use
the entire amount of the proceeds of the Loans as provided in Section 4.14.
SECTION 7.11. ENVIRONMENTAL. The Borrower shall, and shall
cause each of its Subsidiaries to:
73
(a) comply, and undertake all reasonable efforts to ensure
that all tenants under any lease or occupancy agreement affecting any portion of
the properties owned, leased or operated by it and all other Persons on or
occupying such property comply, in all material respects with all Environmental
Laws; provided, that upon learning of any material noncompliance with
Environmental Laws by the Borrower or any of its Subsidiaries, the Borrower
shall promptly undertake all reasonable efforts to remedy such non-compliance;
(b) permit the Administrative Agent, from time to time (upon
the Administrative Agent's determination in its reasonable discretion that any
of the following is advisable, but without obligation upon the Administrative
Agent), upon notice to the Borrower and as often as may reasonably be requested,
to retain, at the Borrower's expense, an independent professional consultant to
review any report relating to Hazardous Materials prepared by or for the
Borrower and to conduct its own investigation of any of the properties owned,
leased or operated by the Borrower or any of its Subsidiaries. The Borrower may
receive copies of any reports prepared by independent experts, but the
Administrative Agent and the Lenders shall have no duty to disclose or discuss
any information produced by such reviews or investigations with the Borrower or
any of its Subsidiaries;
(c) promptly advise the Administrative Agent in writing and in
reasonable detail of (i) any Release of any Hazardous Material (of which the
Borrower is aware) required to be reported to any federal, state or local
governmental or regulatory agency under any applicable Environmental Laws, (ii)
any and all written communications with respect to Environmental Claims or any
Release of Hazardous Material required to be reported to any federal, state or
local governmental or regulatory agency, (iii) any remedial action taken by the
Borrower or any other Person in response to (x) any Hazardous Material on, under
or about any property owned, leased or operated by the Borrower or its
Subsidiaries, the existence of which could reasonably be expected to result in
an Environmental Claim resulting in a Material Adverse Change or (y) any
Environmental Claim that could reasonably be expected to result in a Material
Adverse Change, (iv) the Borrower's discovery of any occurrence or condition on
any real property adjoining or in the vicinity of any property owned, leased or
operated by the Borrower or its Subsidiaries that could cause such property or
any part thereof to be classified as a " border-zone property" or to be
otherwise subject to any restrictions on the ownership, occupancy,
transferability or use thereof under any Environmental Laws that could
reasonably be expected to result in a Material Adverse Change, and (v) any
request for information from any governmental agency that indicates such agency
is investigating whether the Borrower or any of its Subsidiaries may be
potentially responsible for a Release of Hazardous Materials;
(d) promptly notify the Lenders of any proposed acquisition or
disposition of stock, assets, or property by the Borrower or its Subsidiaries,
that could reasonably be expected to expose the Borrower or any of its
Subsidiaries to, or result in, Environmental Claims that could result in a
Material Adverse Change and of any proposed action to be taken by the Borrower
or any of its Subsidiaries to commence or cease manufacturing, industrial or
other operations that could reasonably be expected to subject the Borrower or
any of its Subsidiaries to additional laws, rules or regulations, including,
without limitation, laws, rules and regulations requiring additional
environmental Permits;
(e) at their own expense, provide copies of such documents or
information as the Administrative Agent may reasonably request in relation to
any matters disclosed pursuant to this subsection; and
74
(f) promptly take any and all necessary remedial action
required by all applicable Environmental Laws and perform such remedial action
in compliance with all applicable Environmental Laws and orders and directives
of all federal, state and local governmental authorities except when and only to
the extent that the Borrower's or such Subsidiary's liability for the presence,
storage, use, disposal, transportation or discharge of any Hazardous Material is
not reasonably likely to give rise to a Material Adverse Change.
SECTION 7.12. ADDITIONAL COLLATERAL AND GUARANTIES. To the
extent not delivered to the Administrative Agent on or before the Closing Date,
the Borrower agrees promptly to (i) execute and deliver to the Administrative
Agent such amendments to the Collateral Documents as the Administrative Agent
deems necessary or advisable in order to grant to the Collateral Agent, for the
benefit of the Secured Parties, a perfected first priority security interest in
the Stock and Stock Equivalents and other debt Securities of any Subsidiary
which are owned by the Borrower or any of its Subsidiaries and requested to be
pledged by the Administrative Agent; provided, however, that in no event shall
the Borrower or any of its Subsidiaries be required to pledge in excess of 65%
of the outstanding Voting Stock of any Subsidiary that is not a Domestic
Subsidiary, (ii) deliver to the Collateral Agent the certificates (if any)
representing such Stock and Stock Equivalents and other debt Securities,
together with (A) in the case of such certificated Stock and Stock Equivalents,
undated stock powers endorsed in blank, and (B) in the case of such certificated
debt Securities, endorsed in blank, in each case executed and delivered by a
Responsible Officer of the Borrower or such Subsidiary, as the case may be,
(iii) in the case of any such Subsidiary that is a Domestic Subsidiary cause
such new Subsidiary (A) to become a party to the Guaranty and the applicable
Collateral Documents and (B) to take such actions necessary or advisable to
grant to the Collateral Agent for the benefit of the Secured Parties a perfected
security interest in the Collateral described in the Collateral Documents with
respect to such new Subsidiary, including the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Collateral
Documents or by law or as may be reasonably requested by the Administrative
Agent and (iv) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Agent.
SECTION 7.13. INTEREST RATE CONTRACTS. The Borrower shall
enter into and maintain Interest Rate Contract or Contracts, on terms and with
counterparties satisfactory to the Administrative Agent, to provide protection
against interest rates on Indebtedness bearing floating interest rates until the
Loans have been repaid in full with respect to a notional amount of at least 50%
of the Term A Loans and Term B Loans (provided, however, that such notional
amount shall, as of any date of determination, be reduced by the aggregate
amount of Eurodollar Rate Loans that have an Interest Period of 9 months or
longer).
SECTION 7.14. UNRESTRICTED SUBSIDIARIES. The Borrower shall:
(a) cause the management, business and affairs of each
Unrestricted Subsidiary to be conducted in such a manner so that such
Unrestricted Subsidiary will be perceived as a legal entity separate and
distinct from the Borrower and its Subsidiaries; and
(b) enter in a tax sharing agreement on terms and conditions
customary and reasonably satisfactory to the Administrative Agent if the
Administrative Agent shall reasonably determine that such an agreement is
necessary to provide for the fair and reasonable allocation of federal, state
and local tax liabilities and benefits between and among (i) the Borrower and
its Subsidiaries and (ii) any Unrestricted Subsidiaries.
75
SECTION 7.15. DISSOLUTION SUBSIDIARIES. The Borrower shall (a)
ensure that no Dissolution Subsidiary shall at any time have any assets or
(except pursuant to the Loan Documents) liabilities and (b) use its best efforts
to effect the dissolution of each Dissolution Subsidiary on or before September
30, 2001.
ARTICLE VIII
NEGATIVE COVENANTS
As long as any of the Obligations or the Commitments remain
outstanding, without the written consent of the Requisite Lenders, the Borrower
agrees with the Lenders and the Administrative Agent that:
SECTION 8.1. INDEBTEDNESS. The Borrower will not, and will not
permit any of its Subsidiaries to, directly or indirectly create, incur, assume
or otherwise become or remain directly or indirectly liable with respect to any
Indebtedness except:
(a) the Obligations;
(b) the New Senior Subordinated Notes and other Indebtedness
existing on the Closing Date which is disclosed on Schedule 8.1;
(c) Guaranty Obligations incurred by the Borrower or any
Subsidiary Guarantor in respect of Indebtedness of the Borrower or any
Subsidiary Guarantor otherwise permitted by this Section 8.1;
(d) Capital Lease Obligations and purchase money Indebtedness
incurred (or assumed, pursuant to any Permitted Acquisition) by the Borrower or
a Subsidiary of the Borrower (other than a License Subsidiary) to finance the
acquisition of fixed assets in an aggregate outstanding principal amount not to
exceed at any time (i) in respect of the sale and leaseback transactions in
respect of broadcasting towers permitted by Section 8.6 (to the extent such
transactions are structured as Capital Lease Obligations), $40,000,000 in
aggregate and (ii) in respect of all other transactions, $10,000,000 in
aggregate; provided, however, that (x) the aggregate principal amount
outstanding pursuant to clauses (i) and (ii) shall not at any time exceed
$40,000,000 and (y) the Capital Expenditure related to any such transaction is
otherwise permitted by Section 5.7;
(e) Subordinated Debt incurred by the exchange or conversion
of any existing exchangeable or convertible Preferred Stock into Indebtedness;
provided, however, that no such exchange or conversion shall be permitted (A)
unless (x) such Indebtedness shall be refinanced pursuant to clause (f) below
substantially concurrently therewith or (either prior to or at the time of such
exchange or conversion) the terms of such Indebtedness shall be amended to
provide that (i) no cash interest payments shall be made in respect of such
Subordinated Debt prior to the Final Maturity Date (although the non-cash
interest rate in respect thereof may be increased by up to two per cent. per
annum) and (ii) (to the extent deemed necessary by the Administrative Agent) no
payment on any guaranty in respect of such Subordinated Debt given by the
Restricted License Subsidiary shall be made prior to the repayment in full of
the Loan Sub-Portion and (y) the exchange or conversion is otherwise made in
accordance with the terms of the relevant Preferred Stock Documents and (B) if a
Default or Event of Default has occurred which is continuing or would result
therefrom;
76
(f) Subordinated Debt which refinances the Preferred Stock or
the Subordinated Debt referred to in Section 8.1(e) which provides that (i) no
cash interest payments shall be made in respect of such Subordinated Debt prior
to the Final Maturity Date and (ii) (to the extent deemed necessary by the
Administrative Agent) no payment on any guaranty in respect thereof by the
Restricted License Subsidiary shall be made prior to the repayment in full of
the Loan Sub-Portion and which shall otherwise be on terms (including in respect
of principal amount, amortization, maturity and subordination) which are no less
favorable to the Borrower and the Lenders than the terms of the Preferred Stock
or related Subordinated Debt being refinanced; provided, however, that no such
Subordinated Debt shall be permitted to be incurred, issued or assumed if a
Default or Event of Default has occurred which is continuing or would result
therefrom;
(g) renewals, extensions, refinancings and refundings of
Indebtedness permitted by clause (d) of this Section 8.1 and any existing
Capital Lease Obligations and purchase money Indebtedness set forth on Schedule
8.1; provided, however, that any such renewal extension, refinancing or
refunding is in an aggregate principal amount not greater than the principal
amount of, and is on terms no less favorable to the Borrower or such Subsidiary,
including as to weighted average maturity, than the Indebtedness being renewed,
extended, refinanced or refunded;
(h) Indebtedness (evidenced by a Pledged Note reasonably
satisfactory to the Administrative Agent which has been delivered to the
Administrative Agent) arising from intercompany loans (i) from the Borrower to
any Subsidiary Guarantor or from any Subsidiary Guarantor to the Borrower or any
other Subsidiary Guarantor and (ii) from the Borrower or any Subsidiary
Guarantor (other than a License Subsidiary) to any Subsidiary of the Borrower
that is not a Subsidiary Guarantor or a License Subsidiary; provided, however,
that the Investment in the intercompany loan to or from such Subsidiary is
permitted under Section 8.3 and provided further that no License Subsidiary
shall owe any intercompany Indebtedness except to the Borrower;
(i) Indebtedness arising under any performance or surety bond
entered into in the ordinary course of business (other than of a License
Subsidiary);
(j) Obligations (other than of a License Subsidiary) under
Interest Rate Contracts required by Section 7.13;
(k) obligations (other than of a License Subsidiary) pursuant
to a Pre-Approved Securitization Transaction permitted pursuant to Section
8.4(f); and
(l) any other Indebtedness not exceeding $2,000,000 in
aggregate.
SECTION 8.2. LIENS, ETC. The Borrower will not, and will not
permit any of its Subsidiaries to, create or suffer to exist, any Lien upon or
with respect to any of its properties or assets, whether now owned or hereafter
acquired, or assign, or permit any of its Subsidiaries to assign, any right to
receive income, except for:
(a) Liens created pursuant to the Loan Documents;
(b) Liens existing on the Closing Date and disclosed on
Schedule 8.2;
(c) Customary Permitted Liens of the Borrower and its
Subsidiaries;
77
(d) purchase money Liens granted by the Borrower or any
Subsidiary of the Borrower (including the interest of a lessor under a Capital
Lease and Liens to which any property is subject at the time of the Borrower's
or such Subsidiary's acquisition thereof) securing Indebtedness permitted under
Section 8.1(d) and limited in each case to the property purchased with the
proceeds of such purchase money Indebtedness or subject to such Capital Lease;
(e) any Lien securing the renewal, extension, refinancing or
refunding of any Indebtedness secured by any Lien permitted by clauses (b) or
(d) of this Section 8.2 without any change in the assets subject to such Lien;
and
(f) Liens in favor of lessors securing operating leases.
SECTION 8.3. INVESTMENTS. The Borrower will not, and will not
permit any of its Subsidiaries to, directly or indirectly make or maintain any
Investment except:
(a) Investments existing on the Closing Date and disclosed on
Schedule 8.3;
(b) Investments in Cash Equivalents held in a Control Account
(as defined in the Pledge and Security Agreement) with respect to which the
Administrative Agent for the benefit of the Secured Parties has a first priority
perfected Lien;
(c) Investments in accounts, contract rights and chattel paper
(each as defined in the Uniform Commercial Code), notes receivable and similar
items arising or acquired in the ordinary course of business consistent with the
past practice of the Borrower and its Subsidiaries;
(d) Investments constituting Permitted Acquisitions;
(e) Investments in Joint Ventures, Unrestricted Subsidiaries
and other Persons; provided, that (i) the aggregate amount of such Investments
made in cash and the Fair Market Value of all such non-cash assets so invested
shall not exceed $20,000,000, (ii) no Default or Event of Default has occurred
which is continuing or would result from such Investment, (iii) (x) until
delivery of a Compliance Certificate for the Fiscal Quarter ended March 31,
2005, after giving effect to such Investment, the Borrower shall have Liquidity
of at least $65,000,000 and (y) after delivery of a Compliance Certificate for
the Fiscal Quarter ended March 31, 2005, the Borrower shall be in compliance
with the financial covenants set forth in Sections 5.3 through 5.8 on an
historical pro forma basis for the period of four Fiscal Quarters ending
immediately prior to such Investment (assuming such Investment occurred on the
first day of the applicable period) and (iv) such Investments are made for the
principal purpose of obtaining Program Rights or reducing the Borrower's
Programming Obligations, other broadcast operating expenses or Leverage Ratio;
(f) Investments received in settlement of amounts due to the
Borrower or any Subsidiary of the Borrower effected in the ordinary course of
business;
(g) Investments by (i) the Borrower in any Subsidiary
Guarantor, or by any Subsidiary Guarantor in the Borrower or any other
Subsidiary Guarantor, (ii) the Borrower or any Subsidiary Guarantor in
connection with a Permitted Acquisition, and (iii) a Subsidiary that is not a
Subsidiary Guarantor in the Borrower or any other Subsidiary;
78
(h) loans or advances to employees of the Borrower or any of
its Subsidiaries in the ordinary course of business, which loans and advances
shall not exceed the outstanding principal amount of $1,000,000 in respect of
any one employee, and $5,000,000 in the aggregate, at any time;
(i) Investments (which are pledged to the Administrative
Agent) received pursuant to an Asset Sale which is permitted pursuant to Section
8.4;
(j) any Investment made which is an Asset Swap, to the extent
permitted by Section 8.4(j); and
(k) any other Investments not exceeding $1,000,000 in the
aggregate.
SECTION 8.4. SALE OF ASSETS. The Borrower will not, and will
not permit any of its Subsidiaries to, sell, convey, transfer, lease,
securitize, exchange or otherwise dispose of, any of its assets or any interest
therein (including the sale or factoring at maturity or collection of any
accounts) to any Person, or permit or suffer any other Person to acquire any
interest in any of its assets (any such disposition being an "Asset Sale"),
except:
(a) the sale or disposition of inventory or equipment in the
ordinary course of business (including pursuant to the implementation of joint
sales agreements);
(b) the sale or disposition of equipment which have become
obsolete or are replaced in the ordinary course of business;
(c) the lease or sublease of real property not constituting a
sale and leaseback (other than a sale and leaseback permitted by Section 8.6);
(d) assignments and licenses of intellectual property of the
Borrower and its Subsidiaries in the ordinary course of business;
(e) any Asset Sale to the Borrower or any Subsidiary Guarantor
(except any Asset Sale made by the Restricted License Subsidiary);
(f) as long as no Default or Event of Default is continuing or
would result therefrom, any Pre-Approved Securitization Transaction for Fair
Market Value;
(g) as long as no Default or Event of Default is continuing or
would result therefrom, any Pre-Approved Station Sale for Fair Market Value;
provided, that the aggregate consideration payable to the Borrower or its
Subsidiaries in respect of such Asset Sale is not less than 75% in cash;
(h) as long as no Default or Event of Default is continuing or
would result therefrom, any Spectrum License Sale for Fair Market Value, payable
at least as to 75% in cash upon such sale, provided, that the Net Cash Proceeds
of such Asset Sale are applied to the prepayment of the Obligations to the
extent required by Section 2.8;
(i) as long as no Default or Event of Default is continuing or
would result therefrom, any other Asset Sale for Fair Market Value, payable as
to 75% in cash upon such sale; provided, however, that with respect to any such
sale pursuant to this clause (i) all Net Cash
79
Proceeds of such Asset Sale are applied to the prepayment of the Obligations to
the extent required by Section 2.8; and
(j) as long as no Default or Event of Default is continuing or
would result therefrom, any Asset Swap, provided, that (i) the Borrower shall
have given the Administrative Agent prior notice thereof, (ii) the consideration
received by the Borrower or any of its Subsidiaries therefor shall be at least
equal to the Fair Market Value of the assets transferred by it pursuant to such
Asset Swap, (iii) if and to the extent that the Borrower or any of its
Subsidiaries receives consideration for the assets transferred by it pursuant to
such Asset Swap that is in addition to the Equivalent Assets received in
exchange therefor, such Asset Swap shall be permitted only if the provisions of
Sections 2.8(a) and 8.4(i) shall be complied with in connection therewith and
(iv) no Asset Swap shall be permitted in any Fiscal Year if, after giving effect
thereto, the Station Value attributable to all assets transferred by the
Borrower and its Subsidiaries pursuant to Asset Swaps during such Fiscal Year
shall be equal to or greater than 10% of the aggregate Station Value as of the
first day of such Fiscal Year (or, in respect of the Fiscal Year ending December
31, 2001, as of the Closing Date);
provided, however, that (notwithstanding the foregoing) prior to the repayment
in full of the Loan Sub-Portion, the Restricted License Subsidiary shall not
make an Asset Sale of any FCC License if the principal outstanding amount of the
Loan Sub-Portion exceeds or would (as a result thereof) exceed 33% of the
portion of Station Value which is solely attributable to the value of all FCC
Licenses held by the Restricted License Subsidiary.
SECTION 8.5. RESTRICTED PAYMENTS. The Borrower will not, and
will not permit any of its Subsidiaries to, directly or indirectly, declare,
order, pay, make or set apart any sum for any Restricted Payment except:
(a) the redemption of the New Senior Subordinated Notes or any
Preferred Stock from the Net Cash Proceeds arising from Spectrum License Sales
to the extent not required to be applied in mandatory prepayment of the
Obligations pursuant to Section 2.8 (a)(i);
(b) the redemption of any Preferred Stock from the Net Cash
Proceeds arising from an Equity Issuance of Common Stock or New Preferred Stock
or the issuance of Common Stock or New Preferred Stock in exchange for Preferred
Stock; and
(c) any Restricted Payment made as a result of any refinancing
of Indebtedness or any exchange or conversion of Preferred Stock into
Indebtedness permitted pursuant to clauses (e), (f) or (g) of Section 8.1;
provided, however, that the Restricted Payments described in clauses (a), (b)
and (c) above shall not be permitted if either (A) an Event of Default or
Default shall have occurred and be continuing at the date of declaration or
payment thereof or would result therefrom or (B) such Restricted Payment is
prohibited under the terms of any Indebtedness (other than the Obligations) of
the Borrower or any of its Subsidiaries; and provided, further, that,
notwithstanding any other provision of this Agreement, the Borrower will not,
and will not permit any of its Subsidiaries to, directly or indirectly, permit
any Unrestricted Subsidiary to make any Restricted Payment of the types
described in clause (b) or clause (c) of the definition of "Restricted Payment"
in Section 1.1.
SECTION 8.6. OPERATING LEASES; SALE/LEASEBACKS. The Borrower
will not, and will not permit any of its Subsidiaries to, enter into any sale
and leaseback transaction other
80
than with respect to broadcasting towers with an aggregate Fair Market Value not
in excess of $40,000,000.
SECTION 8.7. RESTRICTION ON FUNDAMENTAL CHANGES; PERMITTED
ACQUISITIONS. Except in connection with a Permitted Acquisition or an Investment
pursuant to Section 8.3(e), the Borrower will not, and will not permit any of
its Subsidiaries to (a) merge with any Person, (b) consolidate with any Person,
(c) acquire all or substantially all of the Stock or Stock Equivalents of any
Person, (d) acquire all or substantially all of the assets of any Person or all
or substantially all of the assets constituting the business of a division,
branch or other unit operation of any Person, (e) enter into any joint venture
or partnership with any Person or (f) acquire or create any Subsidiary unless,
after giving effect thereto, the Borrower is in compliance with Section 7.12;
provided, however, that, so long as no Default or Event of Default is
outstanding or would result therefrom, (i) the Borrower shall be permitted to
merge with any Subsidiary Guarantor if the Borrower is the surviving Person,
(ii) a Subsidiary Guarantor (other than any License Subsidiary) shall be
permitted to merge with another Subsidiary Guarantor (other than any License
Subsidiary), and (iii) any Dissolution Subsidiary shall be permitted to be
dissolved as contemplated by Section 4.24.
SECTION 8.8. CHANGE IN NATURE OF BUSINESS.
(a) The Borrower will not, and will not permit any of its
Subsidiaries to, engage in any business other than a Core Business, any business
which they are engaged in at the Closing Date and any other business which they
acquire as a result of an Investment permitted by Sections 8.3.
(b) The Borrower shall not permit any License Subsidiary to
engage in any business other than the holding, ownership and maintenance of FCC
Licenses and the performance of its obligations under any of the Loan Documents
to which it is a party and shall not permit any Subsidiary, other than a License
Subsidiary, to own a Material FCC License.
SECTION 8.9. TRANSACTIONS WITH AFFILIATES. The Borrower will
not, and will not permit any of its Subsidiaries to, except as otherwise
expressly permitted herein, do any of the following: (a) make any Investment in
an Affiliate of the Borrower (or any officer or director of the Borrower or any
of its Affiliates) which is not a Subsidiary of the Borrower; (b) transfer,
sell, lease, assign or otherwise dispose of any asset to any Affiliate of the
Borrower (or any officer or director of the Borrower or any of its Affiliates)
which is not a Subsidiary of the Borrower; (c) merge into or consolidate with or
purchase or acquire assets from any Affiliate of the Borrower (or any officer or
director of the Borrower or any of its Affiliates) which is not a Subsidiary of
the Borrower; (d) repay any Indebtedness to any Affiliate of the Borrower (or
any officer or director of the Borrower or any of its Affiliates) which is not a
Subsidiary of the Borrower; or (e) enter into any other transaction directly or
indirectly with or for the benefit of , any Affiliate of the Borrower (or any
officer or director of the Borrower or any of its Affiliates) which is not a
Subsidiary Guarantor (including guaranties and assumptions of obligations of any
such Affiliate), except for (i) transactions on terms that are (when taken as a
whole) no less favorable to the Borrower or such Subsidiary Guarantor than those
that might reasonably be expected to be obtained at such time in a comparable
arm's length transaction with a Person not an Affiliate (or any officer or
director of the Borrower or any of its Affiliates) and (ii) salaries and other
employee compensation to officers or directors of the Borrower or any of its
Subsidiaries.
SECTION 8.10. RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS; NO NEW
NEGATIVE PLEDGE. Other than pursuant to the Loan Documents, any agreements
governing any purchase
81
money Indebtedness or Capital Lease Obligations permitted by clause (b) or (d)
of Section 8.1 (in which latter case, any prohibition or limitation shall only
be effective against the assets financed thereby) and any executed agreement
with respect to an Asset Sale permitted under Section 8.4, the Borrower will
not, and will not permit any of its Subsidiaries to, (a) agree to enter into or
suffer to exist or become effective any consensual encumbrance or restriction of
any kind on the ability of such Subsidiary to pay dividends or make any other
distribution or transfer of funds or assets or make loans or advances to or
other Investments in, or pay any Indebtedness owed to, the Borrower or any other
Subsidiary of the Borrower or (b) enter into or suffer to exist or become
effective any agreement which prohibits or limits the ability of the Borrower or
any Subsidiary to create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired, to
secure the Obligations, including any agreement which requires other
Indebtedness or Contractual Obligation to be equally and ratably secured with
the Obligations.
SECTION 8.11. DISPOSAL OF SUBSIDIARY STOCK. The Borrower shall
not, and shall not permit any of its Subsidiaries to, except as permitted by
Sections 8.4 and 8.7:
(a) directly or indirectly issue, sell, assign, pledge or
otherwise encumber or dispose of any Stock of any of its Subsidiaries, except to
qualify directors if required by applicable law; or
(b) permit any of its Subsidiaries directly or indirectly to
sell, assign, pledge or otherwise encumber or dispose of any Stock of any of its
Subsidiaries, except to the Borrower, a Subsidiary of the Borrower, or to
qualify directors if required by applicable law.
SECTION 8.12. MODIFICATION OF CONSTITUENT DOCUMENTS. The
Borrower will not, and will not permit any of its Subsidiaries to, change its
capital structure (including the terms of its outstanding Stock) or otherwise
amend its Constituent Documents, except for changes and amendments which (i) are
made in connection with the issuance of New Preferred Stock or Common Stock
pursuant to Section 8.5(b) or (ii) individually or in the aggregate, do not
materially adversely affect the rights and privileges of the Borrower or any of
its Subsidiaries, or the interests of the Administrative Agent and the Lenders
under the Loan Documents or in the Collateral.
SECTION 8.13. MATERIAL AGREEMENTS. The Borrower will not, and
will not permit any of its Subsidiaries to, (a) alter, rescind, terminate,
amend, supplement, waive or otherwise modify any provision of any Material
Agreement (except for modifications which do not materially and adversely affect
the rights and privileges of the Borrower or any of its Subsidiaries under such
Material Agreement, or the interests of the Secured Parties under the Loan
Documents or in the Collateral) or (b) permit any breach or default to exist
under any Material Agreement or take or fail to take any action thereunder, if
to do so could be reasonably expected to result in a Material Adverse Change;
provided, however, that "Material Agreements" for the purposes of this Section
8.13 shall not include Subordinated Debt Documents and Preferred Stock
Documents.
SECTION 8.14. MODIFICATION OF SUBORDINATED DEBT DOCUMENTS AND
PREFERRED STOCK DOCUMENTS.
(a) Except as provided in Section 8.1(e) or in connection with
the redemption or exchange of Preferred Stock pursuant to Section 8.5(b), the
Borrower will not, and will not permit any of its Subsidiaries to, change or
amend the terms of any Subordinated Debt Document or
82
Preferred Stock Document (or any indenture or agreement in connection therewith)
if the effect of such amendment is to: (i) increase the interest rate or
dividend on such Subordinated Debt or Preferred Stock; (ii) change the dates
upon which payments of principal or interest, or the dates of redemption or
payment of dividends are due on such Subordinated Debt or Preferred Stock other
than to extend such dates; (iii) change any default or event of default therein
other than to delete or make less restrictive any default provision therein, or
add any covenant with respect thereto; (iv) change the redemption or prepayment
provisions of such Subordinated Debt or Preferred Stock other than to extend the
dates therefor or to reduce the premiums payable in connection therewith or to
change the notice requirements therein; or (v) change or amend any other term if
such change or amendment would materially increase the obligations of the
Borrower or such Subsidiary (as the case may be) or confer additional rights to
the holder of such Subordinated Debt or Preferred Stock in a manner materially
adverse to the Borrower, any of its Subsidiaries, the Administrative Agent or
any Lender.
(b) The Borrower shall not designate any Indebtedness (other
than the Indebtedness under the Loan Documents and under Hedging Contracts with
any Lender) as "Designated Senior Debt" pursuant to any of the Preferred Stock
Documents or the Subordinated Debt Documents
SECTION 8.15. ACCOUNTING CHANGES; FISCAL YEAR. The Borrower
will not, and will not permit any of its Subsidiaries to, change its (a)
accounting treatment and reporting practices or tax reporting treatment, except
as required by GAAP or any Requirement of Law and disclosed to the Lenders and
the Administrative Agent or (b) Fiscal Year.
SECTION 8.16. MARGIN REGULATIONS. The Borrower will not, and
will not permit any of its Subsidiaries to, use all or any portion of the
proceeds of any credit extended hereunder to purchase or carry margin stock
(within the meaning of Regulation U of the Federal Reserve Board).
SECTION 8.17. CANCELLATION OF INDEBTEDNESS OWED TO IT. The
Borrower will not, and will not permit any of its Subsidiaries to, cancel any
claim or Indebtedness owed to it except in the ordinary course of business
consistent with past practice.
SECTION 8.18. NO SPECULATIVE TRANSACTIONS. The Borrower will
not, and will not permit any of its Subsidiaries to, engage in any transaction
involving Hedging Contracts except as required by Section 7.13 or for the sole
purpose of hedging in the normal course of business and consistent with industry
practices.
SECTION 8.19. COMPLIANCE WITH ERISA. The Borrower will not,
and will not permit any of its Subsidiaries to, or cause or permit any ERISA
Affiliate to, cause or permit to occur (a) an event which could result in the
imposition of a Lien under Section 412 of the IRC or Section 302 or 4068 of
ERISA or (b) an ERISA Event that could be reasonably expected to result in a
Material Adverse Change.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1. EVENTS OF DEFAULT. Each of the following events
shall be an Event of Default:
83
(a) the Borrower shall fail to pay any principal of any Loan
when the same becomes due and payable; or
(b) the Borrower shall fail to pay any Reimbursement
Obligation, any interest on any Loan, any fee under any of the Loan Documents or
any other Obligation (other than one referred to in clause (a) above) and such
non-payment continues for a period of two Business Days after the due date
therefor; or
(c) any representation or warranty made or deemed made by any
Loan Party in any Loan Document or by any Loan Party (or any of its officers) in
connection with any Loan Document shall prove to have been incorrect in any
material respect when made or deemed made; or
(d) any Loan Party shall fail to perform or observe (i) any
term, covenant or agreement contained in Article V, Sections 6.2, 7.1, 7.10 or
7.12 or Article VIII, or (ii) any other term, covenant or agreement contained in
this Agreement or in any other Loan Document if such failure under this clause
(ii) shall remain unremedied for 30 days (or, in respect of Sections 6.1 or 7.7,
for 5 Business Days) after the earlier of the date on which (A) a Responsible
Officer of the Borrower becomes aware of such failure or (B) written notice
thereof shall have been received by the Borrower from the Administrative Agent
or any Lender; or
(e) (i) the Borrower or any of its Subsidiaries shall fail to
make any payment on any Indebtedness (other than the Obligations) of the
Borrower or any such Subsidiary (or any Guaranty Obligation in respect of
Indebtedness of any other Person) having a principal amount of $5,000,000 or
more, when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise); or (ii) any other event
shall occur or condition shall exist under any agreement or instrument relating
to any such Indebtedness, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Indebtedness;
or (iii) any such Indebtedness shall become or be declared to be due and
payable, or required to be prepaid or repurchased (other than by a regularly
scheduled required prepayment), prior to the stated maturity thereof; or (iv)
the Borrower or any of its Subsidiaries shall breach any material provision of
any Material Agreement which (in the case of this clause (iv)) could reasonably
be expected to result in a Material Adverse Change; 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 custodian,
receiver, trustee or other similar official for it or for any substantial part
of its property and, in the case of any such proceedings instituted against the
Borrower or any of its Subsidiaries (but not instituted by it), either such
proceedings shall remain undismissed or unstayed for a period of 60 days or any
of the actions sought in such proceedings shall occur; or the Borrower or any of
its Subsidiaries shall take any corporate action to authorize any of the actions
set forth above in this subsection (f); or
(g) one or more judgments or orders (or other similar process)
involving, in any single case or in the aggregate, an amount in excess of
$5,000,000 in the case of a money judgment, shall be rendered against one or
more of the Borrower and its Subsidiaries and, to the
84
extent not covered by insurance, shall remain unpaid and either (i) enforcement
proceedings shall have been commenced by any creditor 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
(h) any order, judgment or decree shall be entered against any
Loan Party or any of their respective Subsidiaries decreeing a dissolution or
split-up of any Loan Party or any of their respective Subsidiaries, and such
order shall remain undischarged or unstayed for a period in excess of 30 days;
or
(i) an ERISA Event shall occur and the amount of all
liabilities and deficiencies resulting therefrom, whether or not assessed,
exceeds $5,000,000 in the aggregate; or
(j) any provision of any Collateral Document or any Guaranty
after delivery thereof pursuant to this Agreement or any other Loan Document
shall for any reason cease to be valid and binding, or enforceable against, on
any Loan Party party thereto, or any Loan Party shall so state in writing; or
(k) any Collateral Document shall for any reason cease to
create a valid Lien on any of the Collateral purported to be covered thereby or,
except as permitted by the Loan Documents, such Lien shall cease to be a
perfected and first priority Lien or any Loan Party shall so state in writing;
or
(l) there shall occur any Change of Control; or
(m) there shall occur a Material Adverse Change, and such
Material Adverse Change is not remedied to the satisfaction of the
Administrative Agent within 30 days of its occurrence; or
(n) any Material FCC License shall be (i) canceled, terminated
or finally denied renewal for any reason; or (ii) renewed on terms which
materially adversely affect the economic or commercial value or usefulness
thereof; or
(o) the Borrower or any of its Subsidiaries shall fail to
comply in all material respects with the requirements of any FCC consent
obtained to consummate any acquisition.
SECTION 9.2. REMEDIES.
(a) During the continuance of any Event of Default, the
Administrative Agent (i) may, and shall at the request of the Requisite Lenders,
by notice to the Borrower declare that all or any portion of the Commitments be
terminated, whereupon the obligation of each Lender to make any Loan and each
Issuer to Issue any Letter of Credit shall immediately terminate, and/or (ii)
may and shall at the request of the Requisite Lenders, by notice to the
Borrower, declare the Loans, all interest thereon and all other amounts and
Obligations payable under this Agreement to be forthwith due and payable,
whereupon the Loans, all such interest and all such amounts and Obligations
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the Borrower; provided, however, that upon the occurrence of the Event of
Default specified in Section 9.1(f), (A) the Commitments of each Lender to make
Loans and the commitments of each Lender and Issuer to participate in or Issue
Letters of Credit shall each automatically be terminated and (B) the Loans, all
such interest and all such amounts and Obligations shall automatically become
85
and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by the Borrower. In addition
to the remedies set forth above, the Administrative Agent may exercise any
remedies provided for by the Collateral Documents in accordance with the terms
thereof or any other remedies provided by applicable law.
(b) On and following the exercise by the Administrative Agent
of rights under Section 9.2(a) or the operation of Sections 9.2(a)(A) or (B),
each Lender shall be deemed to purchase participations in each other Loan
outstanding from each other Lender, such that after giving effect to such
purchases, each Lender will hold a portion of each Loan (including the Loan
Sub-Portion) equal to its Ratable Portion of all Loans outstanding at such time
and shall receive such payments pursuant to Section 2.12 towards repayment of
its Loans in such amounts as if each Lender held a Ratable Portion of all Loans
outstanding at such time; provided, however, that each participation which is
deemed purchased pursuant to this Section 9.2(b) shall be in respect of the
principal of, and not interest on, each Loan so participated.
SECTION 9.3. ACTIONS IN RESPECT OF LETTERS OF CREDIT.
Upon the Revolving Credit Termination Date or as may be
required by Section 2.8(c) or (d), and at any time after the Revolving Credit
Termination Date when the funds in a Cash Collateral Account shall be less than
the Letter of Credit Obligations, the Borrower shall pay to the Administrative
Agent in immediately available funds at the Administrative Agent's office
referred to in Section 11.8, for deposit in a Cash Collateral Account, an amount
equal to 105% of the sum of all outstanding Letter of Credit Obligations. The
Administrative Agent may, from time to time after funds are deposited in any
Cash Collateral Account, apply funds then held in such Cash Collateral Account
to the payment of any amounts, in accordance with Section 2.12(f), as shall have
become or shall become due and payable by the Borrower to the Issuers or Lenders
in respect of the Letter of Credit Obligations. The Administrative Agent shall
promptly give written notice of any such application; provided, however, that
the failure to give such written notice shall not invalidate any such
application.
SECTION 9.4. RESCISSION. If at any time after termination of
the Revolving Credit Commitments and/or acceleration of the maturity of the
Loans, the Borrower shall pay all arrears of interest and all payments on
account of principal of the Loans and Reimbursement Obligations which shall have
become due otherwise than by acceleration (with interest on principal and, to
the extent permitted by law, on overdue interest, at the rates specified herein)
and all Events of Default and Defaults (other than non-payment of principal of
and accrued interest on the Loans due and payable solely by virtue of
acceleration) shall be remedied or waived pursuant to Section 11.1, then upon
the written consent of the Requisite Lenders and written notice to the Borrower,
the termination of the Revolving Credit Commitments and/or the acceleration and
their consequences may be rescinded and annulled; but such action shall not
affect any subsequent Event of Default or Default or impair any right or remedy
consequent thereon. The provisions of the preceding sentence are intended merely
to bind the Lenders and the Issuers to a decision which may be made at the
election of the Requisite Lenders; they are not intended to benefit the Borrower
and do not give the Borrower the right to require the Lenders to rescind or
annul any acceleration hereunder, even if the conditions set forth herein are
met.
86
ARTICLE X
THE ADMINISTRATIVE AGENT AND COLLATERAL AGENT
SECTION 10.1. AUTHORIZATION AND ACTION.
(a) Each Lender and each Issuer hereby appoints Citicorp as
the Administrative Agent hereunder and each Lender and each Issuer authorizes
the Administrative Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
delegated to the Administrative Agent under such agreements and to exercise such
powers as are reasonably incidental thereto. Without limitation of the
foregoing, each Lender and each Issuer hereby authorizes the Administrative
Agent to execute and deliver, and to perform its obligations under, each of the
Loan Documents to which the Administrative Agent is a party and to exercise all
rights, powers and remedies that the Administrative Agent may have under such
Loan Documents and that under the Collateral Documents the Administrative Agent
is acting as agent for the Lenders, Issuers and the other Secured Parties.
(b) As to any matters not expressly provided for by this
Agreement and the other Loan Documents (including enforcement or collection),
the Administrative Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Requisite Lenders, and such instructions shall be binding
upon all Lenders and each Issuer; provided, however, that the Administrative
Agent shall not be required to take any action which (i) the Administrative
Agent in good faith believes exposes it to liability individually unless the
Administrative Agent receives an indemnification satisfactory to it from the
Lenders and the Issuers with respect to such action or (ii) is contrary to this
Agreement or applicable law. The Administrative Agent agrees to give to each
Lender and each Issuer prompt notice of each notice given to it by any Loan
Party pursuant to the terms of this Agreement or the other Loan Documents.
(c) In performing its functions and duties hereunder and under
the other Loan Documents, the Administrative Agent is acting solely on behalf of
the Lenders and the Issuers and its duties are entirely administrative in
nature. The Administrative Agent does not assume and shall not be deemed to have
assumed any obligation other than as expressly set forth herein and in the other
Loan Documents or any other relationship as the agent, fiduciary or trustee of
or for any Lender, Issuer or holder of any other Obligation. The Administrative
Agent may perform any of its duties under any of the Loan Documents by or
through its agents or employees.
(d) Notwithstanding anything to the contrary contained in this
Agreement, each of the Syndication Agent and the Documentation Agent is a Lender
designated as "Syndication Agent" or "Documentation Agent" for title purposes
only and in such capacity shall have no obligations or duties whatsoever under
this Agreement or any other Loan Document to any Loan Party or any Lender and
shall have no rights separate from its rights as a Lender except as expressly
provided in this Agreement. The Arranger shall have no obligations or duties
whatsoever under this Agreement or any other Loan Document to any Loan Party.
SECTION 10.2. ADMINISTRATIVE AGENT'S RELIANCE, ETC. Neither
the Administrative Agent nor any of its Affiliates or any of the respective
directors, officers, agents or employees of the Administrative Agent or any such
Affiliate shall be liable for any action taken or omitted to be taken by it,
him, her or them under or in connection with this Agreement or the other Loan
Documents, except for its, his, her or their own gross negligence or willful
87
misconduct. Without limiting the foregoing, the Administrative Agent (a) may
treat the payee of any Note as its holder until such Note has been assigned in
accordance with Section 11.2; (b) may rely on the Register to the extent set
forth in Section 11.2(c); (c) may consult with legal counsel (including counsel
to the Borrower or any other Loan Party), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (d) makes no warranty or representation to any
Lender or Issuer and shall not be responsible to any Lender or Issuer for any
statements, warranties or representations made by or on behalf of the Borrower
or any of its Subsidiaries in or in connection with this Agreement or any of the
other Loan Documents; (e) shall not have any duty to ascertain or to inquire
either as to the performance or observance of any of the terms, covenants or
conditions of this Agreement or any of the other Loan Documents or the financial
condition of any Loan Party, or the existence or possible existence of any
Default or Event of Default; (f) shall not be responsible to any Lender or
Issuer for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the attachment, perfection or priority of any Lien
created or purported to be created under or in connection with, this Agreement
or any of the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto; and (g) shall incur no liability under or in respect
of this Agreement or any of the other Loan Documents by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopy)
or any telephone message believed by it in good faith to be genuine and signed
or sent by the proper party or parties.
SECTION 10.3. POSTING OF APPROVED ELECTRONIC COMMUNICATIONS.
(a) Each of the Lenders, the Issuers and the Borrower agree,
and the Borrower shall cause each Subsidiary Guarantor to agree, that the
Administrative Agent may, but shall not be obligated to, make the Approved
Electronic Communications available to the Lenders and Issuers by posting such
Approved Electronic Communications on "e-Disclosure", the Administrative Agent's
internet based electronic communication delivery system that is part of Fixed
Income Direct, Citigroup Global Fixed Income's primary web portal, or such
successor electronic platform chosen by the Administrative Agent, and approved
by the Borrower (subject to clause (b) below), to be its internet delivery
system (the "Approved Electronic Platform").
(b) Although the Approved Electronic Platform and its primary
web portal are secured with generally-applicable security procedures and
policies implemented or modified by the Administrative Agent from time to time
(including, as of the Effective Date, a dual firewall and a User ID/Password
Authorization System) and the Approved Electronic Platform is secured through a
single-user-per-deal authorization method whereby each user may access the
Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders,
the Issuers and the Borrower acknowledges and agrees, and the Borrower shall
cause each Subsidiary Guarantor to acknowledge and agree, that the distribution
of material through an electronic medium is not necessarily secure and that
there are confidentiality and other risks associated with such distribution. In
consideration for the convenience and other benefits afforded by such
distribution and for the other consideration provided hereunder, the receipt and
sufficiency of which is hereby acknowledged, each of the Lenders, the Issuers
and the Borrower hereby approves, and the Borrower shall cause each Subsidiary
Guarantor to approve, distribution of the Approved Electronic Communications
through the Approved Electronic Platform and understands and assumes, and the
Borrower shall cause each Subsidiary Guarantor to understand and assume, the
risks of such distribution. Notwithstanding the foregoing, the Borrower may, on
its own behalf and on behalf of each Subsidiary Guarantor, revoke its approval
of the Administrative Agent's use of the Approved Electronic Platform and the
Administrative Agent shall then promptly terminate all access to information
regarding the Borrower posted on such site; provided, that if
88
the Borrower revokes or withholds its approval of an Approved Electronic
Platform, the Borrower shall deliver all Approved Electronic Communications that
would otherwise have been posted on the Approved Electronic Platform to the
Lenders.
(c) The Approved Electronic Communications and the Approved
Electronic Platform are provided "as is" and "as available". None of the
Administrative Agent or any of its Affiliates or any of their respective
officers, directors, employees, agents, advisors or representatives (the "Agent
Affiliates") warrant the accuracy, adequacy or completeness of the Approved
Electronic Communications and the Approved Electronic Platform and each
expressly disclaims liability for errors or omissions in the Approved Electronic
Communications and the Approved Electronic Platform. No warranty of any kind,
express, implied or statutory (including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third
party rights or freedom from viruses or other code defects) is made by the Agent
Affiliates in connection with the Approved Electronic Communications and the
Approved Electronic Platform.
(d) Each of the Lenders, the Issuers and the Borrower agree,
and the Borrower shall cause each Subsidiary Guarantor to agree, that the
Administrative Agent may, but (except as may be required by applicable law)
shall not be obligated to, store the Approved Electronic Communications on the
Approved Electronic Platform in accordance with the Administrative Agent's
generally-applicable document retention procedures and policies.
SECTION 10.4. THE ADMINISTRATIVE AGENT INDIVIDUALLY. With
respect to its Ratable Portion, if any, the Administrative Agent in its
individual capacity as Lender, shall have and may exercise the same rights and
powers hereunder and is subject to the same obligations and liabilities as and
to the extent set forth herein for any other Lender. The terms "Lenders" or
"Requisite Lenders" or any similar terms shall, unless the context clearly
otherwise indicates, include the Administrative Agent in its individual capacity
as a Lender or as one of the Requisite Lenders. The Administrative Agent and its
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of banking, trust or other business with any Loan Party as if it were not
acting as the Administrative Agent.
SECTION 10.5. LENDER CREDIT DECISION. Each Lender and each
Issuer acknowledges that it shall, independently and without reliance upon the
Administrative Agent or any other Lender conduct its own independent
investigation of the financial condition and affairs of the Borrower and each
other Loan Party in connection with the making and continuance of the Loans and
the Issuance of the Letters of Credit. Each Lender and each Issuer also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and other
Loan Documents.
SECTION 10.6. INDEMNIFICATION. Each Lender agrees to indemnify
the Administrative Agent and each of its Affiliates, and each of their
respective directors, officers, employees, agents and advisors (to the extent
not reimbursed by the Borrower), from and against such Lender's aggregate
Ratable Portion of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses and disbursements
(including reasonable fees and disbursements of legal counsel) of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against, the
Administrative Agent or any of its Affiliates, directors, officers, employees,
agents and advisors in any way relating to or arising out of this Agreement or
the other Loan Documents or any action taken or omitted by the Administrative
Agent under this
89
Agreement or the other Loan Documents; provided, however, that no Lender shall
be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent's or such Affiliate's gross negligence or willful
misconduct. Without limiting the foregoing, each Lender agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including reasonable fees and disbursements of legal
counsel) incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of its rights or responsibilities under, this
Agreement or the other Loan Documents, to the extent that the Administrative
Agent is not reimbursed for such expenses by the Borrower or another Loan Party.
SECTION 10.7. SUCCESSOR ADMINISTRATIVE AGENT. The
Administrative Agent may resign at any time by giving written notice thereof to
the Lenders, the Issuers and the Borrower or may be removed at any time (with or
without cause) by written notice of the Requisite Lenders. Upon any such
resignation or notice of removal, the Requisite Lenders shall have the right to
appoint a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Requisite Lenders, and shall have accepted
such appointment, within 30 days after the retiring Administrative Agent's
giving of notice of resignation or receipt of notice of removal, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuers,
appoint a successor Administrative Agent, selected from among the Lenders. In
either case, such appointment shall be subject to the prior written approval of
the Borrower (which approval may not be unreasonably withheld and shall not be
required upon the occurrence and during the continuance of an Event of Default).
Upon the acceptance of any appointment as Administrative Agent by a successor
Administrative Agent, such successor Administrative Agent shall succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement and the other Loan
Documents. Prior to any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the retiring Administrative Agent shall take
such action as may be reasonably necessary to assign to the successor
Administrative Agent its rights as Administrative Agent under the Loan
Documents. After such resignation or removal, the retiring Administrative Agent
shall continue to have the benefit of this Article X as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this Agreement
and the other Loan Documents.
SECTION 10.8. CONCERNING THE COLLATERAL AND THE COLLATERAL
DOCUMENTS.
(a) Each Lender and each Issuer agrees that any action taken
by the Administrative Agent or the Requisite Lenders (or, where required by the
express terms of this Agreement, a greater proportion of the Lenders) in
accordance with the provisions of this Agreement or of the other Loan Documents,
and the exercise by the Administrative Agent or the Requisite Lenders (or, where
so required, such greater proportion) of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Lenders, Issuers and other Secured
Parties. Without limiting the generality of the foregoing, the Administrative
Agent shall have the sole and exclusive right and authority to (i) act as the
disbursing and collecting agent for the Lenders and the Issuers with respect to
all payments and collections arising in connection herewith and with the
Collateral Documents; (ii) execute and deliver each Collateral Document and
accept delivery of each such agreement delivered by the Borrower or any of its
Subsidiaries; (iii) act as collateral agent for the Lenders, the Issuers and the
other Secured Parties for purposes of the perfection of all security interests
and Liens created by such agreements and all other purposes stated therein;
90
provided, however, that the Administrative Agent hereby appoints, authorizes and
directs each Lender and Issuer to act as collateral sub-agent for the
Administrative Agent, the Lenders and the Issuers for purposes of the perfection
of all security interests and Liens with respect to the Borrower's and its
Subsidiaries' respective deposit accounts maintained with, and cash and Cash
Equivalents held by, such Lender or such Issuer; (iv) manage, supervise and
otherwise deal with the Collateral; (v) take such action as is necessary or
desirable to maintain the perfection and priority of the security interests and
Liens created or purported to be created by the Collateral Documents; and (vi)
except as may be otherwise specifically restricted by the terms hereof or of any
other Loan Document, exercise all remedies given to the Administrative Agent,
the Lenders, the Issuers and the other Secured Parties with respect to the
Collateral under the Loan Documents relating thereto, applicable law or
otherwise.
(b) Each of the Lenders hereby directs, in accordance with the
terms hereof, the Administrative Agent to release (or, in the case of clause
(ii) below, release or subordinate) any Lien held by the Administrative Agent
for the benefit of the Lenders:
(i) against all of the Collateral, upon termination
of the Commitments and payment and satisfaction in full of all Loans
and all other Obligations which have matured and which the
Administrative Agent has been notified in writing are then due and
payable;
(ii) against any assets that are subject to a Lien
permitted by Section 8.2(b), (d) or (e); and
(iii) against any part of the Collateral sold or
disposed of by a Loan Party if such sale or disposition is permitted by
this Agreement (or permitted pursuant to a waiver or consent of a
transaction otherwise prohibited by this Agreement) or, if not pursuant
to such sale or disposition, against any part of the Collateral, if
such release is consented to by the Requisite Lenders (or all the
Lenders, if required pursuant to Section 11.1(a)(viii)).
Each of the Lenders hereby directs the Administrative Agent to
execute and deliver or file such termination and partial release statements and
do such other things as are necessary to release Liens to be released pursuant
to this Section 10.8 promptly upon the effectiveness of any such release.
SECTION 10.9. COLLATERAL MATTERS RELATING TO RELATED
OBLIGATIONS. The benefit of the Loan Documents and of the provisions of this
Agreement relating to the Collateral shall extend to and be available in respect
of any Secured Obligation which arises under any Hedging Contract or which is
otherwise owed to Persons other than the Administrative Agent, the Lenders or
the Issuers (collectively, "Related Obligations") solely on the condition and
understanding, as among the Administrative Agent and all Secured Parties, that
(i) the Related Obligations shall be entitled to the benefit of the Loan
Documents and the Collateral to the extent expressly set forth in this Agreement
and the other Loan Documents and to such extent the Administrative Agent shall
hold, and have the right and power to act with respect to, the Guaranty and the
Collateral on behalf of and as agent for the holders of the Related Obligations,
but the Administrative Agent is otherwise acting solely as agent for the Lenders
and the Issuers and shall have no fiduciary duty, duty of loyalty, duty of care,
duty of disclosure or other obligation whatsoever to any holder of Related
Obligations; (ii) all matters, acts and omissions relating in any manner to the
Guaranty, the Collateral, or the omission, creation, perfection, priority,
abandonment or release of any Lien, shall be governed solely by the provisions
of this Agreement
91
and the other Loan Documents and no separate Lien, right, power or remedy shall
arise or exist in favor of any Secured Party under any separate instrument or
agreement or in respect of any Related Obligation; and (iii) each Secured Party
shall be bound by all actions taken or omitted, in accordance with the
provisions of this Agreement and the other Loan Documents, by the Administrative
Agent and the Requisite Lenders, each of whom shall be entitled to act at its
sole discretion and exclusively in its own interest given its own Commitments
and its own interest in the Loans, Letter of Credit Obligations and other
Obligations to it arising under this Agreement or the other Loan Documents,
without any duty or liability to any other Secured Party or as to any Related
Obligation and without regard to whether any Related Obligation remains
outstanding or is deprived of the benefit of the Collateral or becomes unsecured
or is otherwise affected or put in jeopardy thereby; and (iv) no holder of
Related Obligations and no other Secured Party (except the Administrative Agent,
the Lenders and the Issuers, to the extent set forth in this Agreement) shall
have any right to be notified of, or to direct, require or be heard with respect
to, any action taken or omitted in respect of the Collateral or under this
Agreement or the Loan Documents; and (v) no holder of any Related Obligation
shall exercise any right of setoff, banker's lien or similar right except as
expressly provided in Section 11.6.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. AMENDMENTS, WAIVERS, ETC.
(a) No amendment or waiver of any provision of this Agreement
or any other Loan Document nor consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Requisite Lenders, and then any such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by each Lender affected thereby, in addition to the
Requisite Lenders, do any of the following:
(i) waive any of the conditions specified in Section
3.1 or 3.2 except with respect to a condition based upon another
provision hereof, the waiver of which requires only the concurrence of
the Requisite Lenders or the Administrative Agent;
(ii) increase the Commitments of such Lender or
subject such Lender to any additional obligation;
(iii) extend the scheduled final maturity of any Loan
owing to such Lender, or waive, reduce or postpone any scheduled date
fixed for the payment or reduction of principal of any such Loan (it
being understood that Section 2.8 does not provide for scheduled dates
fixed for payment) or for the reduction of such Lender's Commitments;
(iv) reduce the principal amount of any Loan (other
than by the payment or prepayment thereof) owing to such Lender;
(v) reduce the rate of interest on any Loan owing to
such Lender or the basis of any fee payable to such Lender hereunder;
92
(vi) postpone any scheduled date fixed for payment of
such interest or fees to such Lender;
(vii) change the aggregate Ratable Portions of the
Lenders which shall be required for the Lenders or any of them to take
any action hereunder;
(viii) release all or substantially all of the
Collateral except as provided in Section 10.8(b) or release any
Subsidiary Guarantor from its obligations under the Guaranty except in
connection with sale or other disposition permitted by the Loan
Documents (or permitted pursuant to a waiver or consent of a
transaction otherwise prohibited by this Agreement); or
(ix) amend Section 10.8(b) or this Section 11.1 or
the definition of the terms "Requisite Lenders", "Requisite Revolving
Credit Lenders", "Requisite Term A Loan Lenders", "Requisite Term B
Loan Lenders" or "Ratable Portion"; and provided, further, (A) that any
modification of the application of payments to the Term A Loans or Term
B Loans pursuant to Section 2.8 shall require the consent of the
Requisite Term A Loan Lenders or the Requisite Term B Loan Lenders (as
the case may be) and any modification of the application of payments to
the Revolving Loans pursuant to Section 2.8 shall require the consent
of the Requisite Revolving Credit Lenders, and (B) that no amendment,
waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take
such action, affect the rights or duties of the Administrative Agent
under this Agreement or the other Loan Documents.
(b) The Administrative Agent may, but shall have no obligation
to, with the written concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of that Lender. Any waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given. No notice to or demand on the Borrower in any
case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances.
SECTION 11.2. ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender may sell, transfer, negotiate or assign to one
or more Eligible Assignees, or ▇▇▇▇▇ ▇ ▇▇▇▇ on (provided that upon foreclosure
or other exercise of remedies in respect of such Lien, the holder thereof shall
be subject to all the provisions of this Section 11.2), all or a portion of its
rights and obligations hereunder (including all of its rights and obligations
with respect to the Term A Loans, Term B Loans, the Revolving Loan and the
Letters of Credit); provided, however, that (i) (A) if any such assignment shall
be of the assigning Lender's Revolving Loans and Revolving Credit Commitment,
such assignment shall cover the same percentage of such Lender's Revolving Loans
and Revolving Credit Commitment, and (B) if any such assignment shall be of the
assigning Lender's Term A Loans and Term A Loan Commitment or Term B Loans and
Term B Loan Commitment, such assignment shall cover the same respective
percentage of such Lender's Term A Loans and Term A Loan Commitment or Term B
Loans and Term B Loan Commitment (as the case may be), (ii) the aggregate amount
being assigned pursuant to each such assignment (determined as of the date of
the Assignment and Acceptance with respect to such assignment) shall in no event
(if less than the Assignor's entire interest) be less than $2,500,000 or an
integral multiple of $500,000 in excess thereof, except, in either case, (A)
with the consent of the Borrower and the Administrative Agent or (B) if such
assignment is being made to a Lender or an Affiliate or Approved Fund of such
Lender,
93
and (iii) if such Eligible Assignee is not, prior to the date of such
assignment, a Lender or an Affiliate or Approved Fund of a Lender, such
assignment shall be subject to the prior consent of the Administrative Agent and
the Borrower (which consent shall not be unreasonably withheld or delayed);
provided, however, that, notwithstanding any other provision of this Section
11.2, the consent of the Borrower shall not be required for any assignment which
occurs when any Event of Default shall have occurred and be continuing. Any such
assignment need not be ratable as among the Facilities; provided, however,
notwithstanding anything herein to the contrary each assignment by a Lender of
each Loan, on and following the operation of Section 9.2(b), shall cover the
same respective percentage of such Lender's deemed participations in the Term B
Loan (including the Loan Sub-Portion), the Revolving Loans and the Term A Loans.
(b) The parties to each assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording, an Assignment and
Acceptance, together with any Note (if the assigning Lender's Loans are
evidenced by a Note) subject to such assignment. Upon such execution, delivery,
acceptance and recording and the receipt by the Administrative Agent from the
assignee of an assignment fee in the amount of $3,500 from and after the
effective date specified in such Assignment and Acceptance, (i) the assignee
thereunder shall become a party hereto and, to the extent that rights and
obligations under the Loan Documents have been assigned to such assignee
pursuant to such Assignment and Acceptance, have the rights and obligations of a
Lender, and if such Lender were an Issuer, of such Issuer hereunder and
thereunder, and (ii) the assignor thereunder shall, to the extent that rights
and obligations under this Agreement have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights (except those which survive the
payment in full of the Obligations) and be released from its obligations under
the Loan Documents, other than those relating to events or circumstances
occurring prior to such assignment (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under the Loan Documents, such Lender shall cease to be a party
hereto).
(c) The Administrative Agent shall maintain at its address
referred to in Section 11.8 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recording of the names and
addresses of the Lenders and the Commitments of and principal amount of the
Loans and Letter of Credit Obligations owing to each Lender from time to time
(the "Register"). The entries in the Register shall be conclusive and binding
for all purposes, absent manifest error, and the Loan Parties, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower, the Administrative
Agent or any Lender at any reasonable time and from time to time upon reasonable
prior notice and the Administrative Agent shall provide to the Borrower a copy
of the Register promptly following the Borrower's request from time to time.
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee, the Administrative Agent shall, if such
Assignment and Acceptance has been completed, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower shall, if requested by such
assignee, execute and deliver to the Administrative Agent, new Notes to the
order of such assignee in an amount equal to the Commitments and Term A Loans
and Term B Loans assumed by it pursuant to such Assignment and Acceptance and,
if the assigning Lender has surrendered any Note for exchange in connection with
the assignment and has retained Commitments or Term A Loans and Term B Loans
hereunder, new Notes to the order of the assigning Lender in an amount equal to
the Commitments and Term A Loans and Term B Loans retained by it hereunder. Such
new
94
Notes shall be dated the same date as the surrendered Notes and be in
substantially the form of Exhibit ▇-▇, ▇-▇ or B-3 hereto, as applicable.
(e) In addition to the other assignment rights provided in
this Section 11.2, each Lender may pledge or assign a security interest in any
of its rights under this Agreement (including rights to payments of principal or
interest on the Loans) to secure obligations to (i) any Federal Reserve Bank
pursuant to Regulation A of the Federal Reserve Board and (ii) in the case of
any Lender that is a Fund, any holders of obligations owed or Securities issued
by such Lender as security for such obligations or Securities, or any trustee
for, or any other representative of, such holders, and this Section shall not
apply to any such pledge or assignment of a security interest; provided,
however, that no such assignment shall release the assigning Lender from any of
its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
(f) Each Lender may sell participations to one or more Persons
in or to all or a portion of its rights and obligations under the Loan Documents
(including all its rights and obligations with respect to the Term A Loans, Term
B Loans, Revolving Loans and Letters of Credit). The terms of such participation
shall not, in any event, require the participant's consent to any amendments,
waivers or other modifications of any provision of any Loan Documents, the
consent to any departure by any Loan Party therefrom, or to the exercising or
refraining from exercising any powers or rights which such Lender may have under
or in respect of the Loan Documents (including the right to enforce the
obligations of the Loan Parties), except if any such amendment, waiver or other
modification or consent would (i) reduce the amount, or postpone any date fixed
for, any amount (whether of principal, interest or fees) payable to such
participant under the Loan Documents, to which such participant would otherwise
be entitled under such participation or (ii) result in the release of all or
substantially all of the Collateral other than in accordance with Section
10.8(b). In the event of the sale of any participation by any Lender, (A) such
Lender's obligations under the Loan Documents shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties for the performance
of such obligations, (C) such Lender shall remain the holder of such Obligations
for all purposes of this Agreement, and (D) the Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Each participant shall be entitled to the benefits of Sections
2.13(d), 2.14 and 2.15 as if it were a Lender; provided, however, that anything
herein to the contrary notwithstanding, the Borrower shall not, at any time, be
obligated to pay to any participant of any interest of any Lender, under Section
2.13(d), 2.14 or 2.15, any sum in excess of the sum which the Borrower would
have been obligated to pay to such Lender in respect of such interest had such
participation not been sold.
(g) Any Issuer may at any time assign its rights and
obligations hereunder to any other Lender by an instrument in form and substance
satisfactory to the Borrower, the Administrative Agent, such Issuer and such
Lender. If any Issuer ceases to be a Lender hereunder by virtue of any
assignment made pursuant to this Section 11.2, then, as of the effective date of
such cessation, such Issuer's obligations to Issue Letters of Credit pursuant to
Section 2.3 shall terminate and such Issuer shall be an Issuer hereunder only
with respect to outstanding Letters of Credit issued prior to such date.
SECTION 11.3. COSTS AND EXPENSES.
(a) The Borrower agrees upon demand to pay, or reimburse the
Administrative Agent for, all of the Administrative Agent's reasonable legal,
appraisal, valuation, filing,
95
document duplication and reproduction and investigation expenses and for all
other reasonable out-of-pocket costs and expenses of every type and nature
(including, without limitation, the reasonable fees, expenses and disbursements
of the Administrative Agent's counsel, local legal counsel, auditors,
accountants, appraisers, printers, insurance and environmental advisers, and
other consultants and agents) incurred by the Administrative Agent in connection
with (i) the Administrative Agent's audit and investigation of the Borrower and
its Subsidiaries in connection with the preparation, negotiation and execution
of the Loan Documents and the Administrative Agent's periodic audits of the
Borrower and its Subsidiaries, as the case may be; (ii) the preparation,
negotiation, execution and performance of this Agreement (including, without
limitation, the satisfaction or attempted satisfaction of any of the conditions
set forth in Article III), the Loan Documents and any proposal letter or
commitment letter issued in connection therewith and the making of the Loans
hereunder; (iii) the creation, perfection or protection of the Liens under the
Loan Documents (including, without limitation, any reasonable fees and expenses
for local counsel in various jurisdictions); (iv) the ongoing administration of
this Agreement and the Loans, including consultation with attorneys in
connection therewith and with respect to the Administrative Agent's rights and
responsibilities hereunder and under the other Loan Documents; (v) the
protection, collection or enforcement of any of the Obligations or the
enforcement of any of the Loan Documents; (vi) the commencement, defense or
intervention in any court proceeding relating in any way to the Obligations, any
Loan Party, any of the Borrower's Subsidiaries, this Agreement or any of the
other Loan Documents (other than in any such proceeding which is solely among
any of the Lenders or any of the Lenders and the Administrative Agent); (vii)
the response to, and preparation for, any subpoena or request for document
production with which the Administrative Agent is served or deposition or other
proceeding in which the Administrative Agent is called to testify, in each case,
relating in any way to the Obligations, any Loan Party, any of the Borrowers'
Subsidiaries, this Agreement or any of the other Loan Documents; and (viii) any
amendments, consents, waivers, assignments, restatements, or supplements to any
of the Loan Documents and the preparation, negotiation, and execution of the
same.
(b) The Borrower further agrees to pay or reimburse the
Administrative Agent and each of the Lenders and Issuers upon demand for all
out-of-pocket costs and expenses, including, without limitation, reasonable
attorneys' fees (including allocated costs of internal counsel and costs of
settlement), incurred by the Administrative Agent, such Lenders or such Issuers
(i) in enforcing any Loan Document or Obligation or any security therefor or
exercising or enforcing any other right or remedy available by reason of an
Event of Default; (ii) in connection with any refinancing or restructuring of
the credit arrangements provided hereunder in the nature of a "work-out" or in
any insolvency or bankruptcy proceeding; (iii) in commencing, defending or
intervening in any litigation or in filing a petition, complaint, answer, motion
or other pleadings in any legal proceeding relating to the Obligations, any Loan
Party, any of the Borrowers' Subsidiaries and related to or arising out of the
transactions contemplated hereby or by any of the other Loan Documents (other
than in any such proceeding which is solely among any of the Lenders or any of
the Lenders and the Administrative Agent); and (iv) in taking any other action
in or with respect to any suit or proceeding (bankruptcy or otherwise) described
in clauses (i) through (iii) above.
SECTION 11.4. INDEMNITIES.
(a) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, each Lender, each Issuer and each of their respective
Affiliates, and each of the directors, officers, employees, agents,
representative, attorneys, consultants and advisors of or to any of the
foregoing (including those retained in connection with the satisfaction or
attempted satisfaction of
96
any of the conditions set forth in Article III) (each such Person being an
"Indemnitee") from and against any and all claims, damages, liabilities,
obligations, losses, penalties, actions, judgments, suits, costs, disbursements
and expenses of any kind or nature (including fees and disbursements of counsel
to any such Indemnitee) which may be imposed on, incurred by or asserted against
any such Indemnitee in connection with or arising out of any investigation,
litigation or proceeding, whether or not any such Indemnitee is a party thereto,
whether direct, indirect, or consequential and whether based on any federal,
state or local law or other statutory regulation, securities or commercial law
or regulation, or under common law or in equity, or on contract, tort or
otherwise, in any manner relating to or arising out of this Agreement, any other
Loan Document, any Obligation, any Letter of Credit or any act, event or
transaction related or attendant to any thereof, or the use or intended use of
the proceeds of the Loans or Letters of Credit or in connection with any
investigation of any potential matter covered hereby (collectively, the
"Indemnified Matters"); provided, however, that the Borrower shall not have any
obligation under this Section 11.4 to an Indemnitee with respect to any
Indemnified Matter caused by or resulting from the gross negligence or willful
misconduct of that Indemnitee, as determined by a court of competent
jurisdiction in a final non-appealable judgment or order. Without limiting the
foregoing, Indemnified Matters include (i) all Environmental Liabilities and
Costs arising from or connected with the past, present or future operations of
the Borrower or any of its Subsidiaries involving any property subject to a
Collateral Document, or damage to real or personal property or natural resources
or harm or injury alleged to have resulted from any Release of Contaminants on,
upon or into such property or any contiguous real estate; (ii) any costs or
liabilities incurred in connection with any Remedial Action concerning the
Borrower or any of its Subsidiaries; (iii) any costs or liabilities incurred in
connection with any Environmental Lien; (iv) any costs or liabilities incurred
in connection with any other matter under any Environmental Law, including
CERCLA and applicable state property transfer laws, whether, with respect to any
of such matters, such Indemnitee is a mortgagee pursuant to any leasehold
mortgage, a mortgagee in possession, the successor in interest to the Borrower
or any of its Subsidiaries, or the owner, lessee or operator of any property of
the Borrower or any of its Subsidiaries by virtue of foreclosure, except, with
respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above,
to the extent incurred following (A) foreclosure by the Administrative Agent,
any Lender, or any Issuer, or the Administrative Agent, any Lender or any Issuer
having become the successor in interest to the Borrower or any of its
Subsidiaries, and (B) attributable solely to acts of the Administrative Agent,
such Lender, such Issuer or any agent on behalf of the Administrative Agent,
such Lender or such Issuer.
(b) The Borrower shall indemnify the Administrative Agent, the
Lenders and the Issuers for, and hold the Administrative Agent, the Lenders and
the Issuers harmless from and against, any and all claims for brokerage
commissions, fees and other compensation made against the Administrative Agent,
the Lenders and the Issuers for any broker, finder or consultant with respect to
any agreement, arrangement or understanding made by or on behalf of any Loan
Party or any of its Subsidiaries in connection with the transactions
contemplated by this Agreement.
(c) The Borrower agrees that any indemnification or other
protection provided to any Indemnitee pursuant to this Agreement (including
pursuant to this Section 11.4) or any other Loan Document shall (i) survive
payment in full of the Obligations and the termination of this Agreement and
(ii) inure to the benefit of any Person who was at any time an Indemnitee under
this Agreement or any other Loan Document.
SECTION 11.5. LIMITATION OF LIABILITY. The Borrower agrees
that no Indemnitee shall have any liability (whether direct or indirect, in
contract, tort or otherwise) to any Loan Party or any of their respective
Subsidiaries or any of their equity holders or creditors
97
for or in connection with the transactions contemplated hereby and in the other
Loan Documents, except to the extent such liability is found in a final judgment
by a court of competent jurisdiction to have resulted from such Indemnitee's
gross negligence or willful misconduct. In no event, however, shall any
Indemnified Party be liable on any theory of liability for any special,
indirect, consequential or punitive damages, and to the extent permitted by law,
the Borrower hereby waives, releases and agrees (for itself and on behalf of its
Subsidiaries) not to ▇▇▇ upon any such claim for any such damages, whether or
not accrued and whether or not known or suspected to exist in its favor.
SECTION 11.6. RIGHT OF SET-OFF. Upon the occurrence and during
the continuance of any Event of Default each Lender and each Affiliate of a
Lender is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender or its Affiliates to or for the
credit or the account of the Borrower against any and all of the Obligations now
or hereafter existing whether or not such Lender shall have made any demand
under this Agreement or any other Loan Document and although such Obligations
may be unmatured. Each Lender agrees promptly to notify the Borrower after any
such set-off and application made by such Lender or its Affiliates; provided,
however, that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender under this Section 11.6
are in addition to the other rights and remedies (including other rights of
set-off) which such Lender may have.
SECTION 11.7. SHARING OF PAYMENTS, ETC.
(a) If any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off or otherwise) of the
Loans owing to it, any interest thereon, fees in respect thereof or amounts due
pursuant to Section 11.3 (other than payments pursuant to Section 2.13, 2.14 or
2.15) in excess of its Ratable Portion of all payments of such Obligations
obtained by all the Lenders, such Lender (a "Purchasing Lender") shall forthwith
purchase from the other Lenders (each, a "Selling Lender") such participations
in their Loans or other Obligations as shall be necessary to cause such
Purchasing Lender to share the excess payment ratably with each of them.
(b) If all or any portion of any payment received by a
Purchasing Lender is thereafter recovered from such Purchasing Lender, such
purchase from each Selling Lender shall be rescinded and such Selling Lender
shall repay to the Purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such Selling Lender's ratable share
(according to the proportion of (i) the amount of such Selling Lender's required
repayment to (ii) the total amount so recovered from the Purchasing Lender) of
any interest or other amount paid or payable by the Purchasing Lender in respect
of the total amount so recovered.
(c) The Borrower agrees that any Purchasing Lender so
purchasing a participation from a Selling Lender pursuant to this Section 11.7
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 11.8. NOTICES, ETC. All notices, demands, requests and
other communications provided for in this Agreement shall be given in writing,
or by any telecommunication device capable of creating a written record, and
addressed to the party to be notified as follows:
98
(a) if to the Borrower:
▇▇▇▇▇▇ Communications Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Chief
Financial Officer, with a
copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Esq. General Counsel
Telecopy no: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to any Lender, at its Domestic Lending Office;
(c) if to the Administrative Agent:
Citicorp USA, Inc.
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇
Telecopy no: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Citicorp USA, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Judge
Telecopy no: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as shall be notified in writing (i) in the case of the
Borrower and the Administrative Agent, to the other parties and (ii) in the case
of all other parties, to the Borrower and the Administrative Agent. All such
notices and communications shall be effective upon personal delivery (if
delivered by hand, including any overnight courier service), when deposited in
the mails (if sent by mail), or when properly transmitted (if sent by a
telecommunications device); provided, however, that notices and communications
to the Administrative Agent pursuant to Article II or X shall not be effective
until received by the Administrative Agent.
(d) Notwithstanding clause (c) above (unless the
Administrative Agent requests that the provisions of clause (c) above be
followed or the Borrower revokes its approval of the Approved Electronic
Platform) and any other provision in this Agreement or any other Loan Document
providing for the delivery of any Approved Electronic Communication by any other
means, the Loan Parties shall deliver all Approved Electronic Communications to
the Administrative Agent by transmitting such Approved Electronic Communications
electronically (in a format acceptable to the Administrative Agent) to
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ or such other electronic mail address (or similar
means of electronic delivery) as the Administrative Agent may notify the
Borrower. Delivery of all such Approved Electronic Communications shall be
effective upon proper transmission by the Borrower. Nothing in this clause (d)
shall prejudice the right of the Administrative Agent or any Lender or Issuer to
deliver any Approved Electronic Communication to any Loan Party in any manner
prescribed in this Agreement.
SECTION 11.9. NO WAIVER; REMEDIES. No failure on the part of
any Lender, Issuer or the Administrative Agent to exercise, and no delay in
exercising, any right hereunder
99
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
SECTION 11.10. BINDING EFFECT. This Agreement shall become
effective when it shall have been executed by the Borrower and the
Administrative Agent and when the Administrative Agent shall have been notified
by each Lender and Issuer that such Lender or Issuer has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent and each Lender and Issuer and their respective successors
and assigns, except that the Borrower shall not have the right to assign its
rights hereunder or any interest herein without the prior written consent of the
Lenders.
SECTION 11.11. GOVERNING LAW. This Agreement and the rights
and obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
SECTION 11.12. SUBMISSION TO JURISDICTION; SERVICE OF PROCESS.
(a) Any legal action or proceeding with respect to this
Agreement or any other Loan Document may be brought in the courts of the State
of New York or of the United States of America for the Southern District of New
York, and, by execution and delivery of this Agreement, the Borrower hereby
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The parties hereto
hereby irrevocably waive any objection, including any objection to the laying of
venue or based on the grounds of forum non conveniens, which any of them may now
or hereafter have to the bringing of any such action or proceeding in such
respective jurisdictions.
(b) The Borrower hereby irrevocably consents to the service of
any and all legal process, summons, notices and documents in any suit, action or
proceeding brought in the United States of America arising out of or in
connection with this Agreement or any of the other Loan Documents by the mailing
(by registered or certified mail, postage prepaid) or delivering of a copy of
such process to the Borrower at its address specified in Section 11.8. The
Borrower agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
(c) Nothing contained in this Section 11.12 shall affect the
right of the Administrative Agent or any Lender to serve process in any other
manner permitted by law or commence legal proceedings or otherwise proceed
against the Borrower or any other Loan Party in any other jurisdiction.
(d) If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder in Dollars into another currency,
the parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase Dollars with such
other currency at the spot rate of exchange quoted by the Administrative Agent
at 11:00 a.m. (New York time) on the Business Day preceding that on which final
judgment is given, for the purchase of Dollars, for delivery two Business Days
thereafter.
SECTION 11.13. WAIVER OF JURY TRIAL. EACH OF THE
ADMINISTRATIVE AGENT, THE LENDERS, THE ISSUERS AND THE BORROWER IRREVOCABLY
WAIVES TRIAL BY
100
JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT.
SECTION 11.14. MARSHALING; PAYMENTS SET ASIDE. None of the
Administrative Agent, any Lender or any Issuer shall be under any obligation to
marshal any assets in favor of the Borrower or any other party or against or in
payment of any or all of the Obligations. To the extent that the Borrower makes
a payment or payments to the Administrative Agent, the Lenders or the Issuers or
any of such Persons receives payment from the proceeds of the Collateral or
exercise their rights of setoff, and such payment or payments or the proceeds of
such enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
a trustee, receiver or any other party, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens,
right and remedies therefor, shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or setoff had
not occurred.
SECTION 11.15. SECTION TITLES. The Section titles contained in
this Agreement are and shall be without substantive meaning or content of any
kind whatsoever and are not a part of the agreement between the parties hereto.
SECTION 11.16. EXECUTION IN COUNTERPARTS. This Agreement may
be executed in any number of counterparts and by different parties in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are attached to the same
document.
SECTION 11.17. ENTIRE AGREEMENT. This Agreement, together with
all of the other Loan Documents and all certificates and documents delivered
hereunder or thereunder, embodies the entire agreement of the parties and
supersedes all prior agreements and understandings relating to the subject
matter hereof. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all parties
shall be lodged with the Borrower and the Administrative Agent.
SECTION 11.18. CONFIDENTIALITY. Each Lender and the
Administrative Agent agree to keep information obtained by it pursuant hereto
and the other Loan Documents confidential in accordance with such Lender's or
the Administrative Agent's, as the case may be, customary practices and agrees
that it will only use such information in connection with the transactions
contemplated by this Agreement and not disclose any of such information other
than (a) to such Lender's or the Administrative Agent's, as the case may be,
employees, representatives and agents who are or are expected to be involved in
the evaluation of such information in connection with the transactions
contemplated by this Agreement and who are advised of the confidential nature of
such information, (b) to the extent such information presently is or hereafter
becomes available to such Lender or the Administrative Agent, as the case may
be, on a non-confidential basis from a source other than the Borrower, (c) to
the extent disclosure is required by law, regulation or judicial order or
requested or required by bank regulators or auditors, (d) to assignees,
participants or direct or indirect swap counterparties or potential assignees,
participants or direct or indirect swap counterparties and their respective
professional advisors who each agree to be bound by the provisions of this
Section 11.18, or (e) to the national association of insurance commissioners or
any similar organization or any nationally recognized rating agency (who each
agree to be bound by the provisions of this Section 11.18), to
101
the extent required by any of the foregoing with respect to a Lender's
investment portfolio in connection with ratings to be issued with respect to
such Lender. Notwithstanding anything herein to the contrary, the Borrower, the
Borrower's officers, directors, employees, accountants, attorneys and other
advisors, the Administrative Agent and the Lenders may disclose to any and all
persons, without limitation of any kind, the U.S. tax treatment and U.S. tax
structure of the Facilities and all materials of any kind (including opinions or
other tax analyses) that are provided to such person relating to such U.S. tax
treatment and U.S. tax structure.
SECTION 11.19. DESIGNATED SENIOR DEBT. The Borrower hereby
designates the Obligations as "Designated Senior Debt" as such term is defined
in, and for the purposes of, the Preferred Stock Documents and the Subordinated
Debt Documents.
SECTION 11.20. DOCUMENTS EVIDENCE THE SAME INDEBTEDNESS. Upon
the occurrence of the Effective Date, this Agreement amends and restates in its
entirety the Original Credit Agreement and the Original Credit Agreement shall
be of no further force and effect except as to evidence the incurrence by the
Borrower of the Obligations thereunder, as to evidence the representations and
warranties made by the Borrower prior to the Effective Date and as to evidence
any failure to comply with the covenants contained in such Original Credit
Agreement occurring prior to the Effective Date. The terms and conditions of
this Agreement and the Administrative Agent's, the Lenders' and the Issuers'
rights and remedies under this Agreement and the other Loan Documents shall
apply to all of the Obligations incurred under the Original Credit Agreement.
This Agreement does not constitute and shall not be construed to evidence a
novation of or a payment and readvance of the loan principal, interest and other
sums, if any, heretofore outstanding under the Original Credit Agreement, it
being the intention of the Borrower, the Administrative Agent, the Lenders and
the Issuers that this Agreement provide for the terms and conditions of, and
evidences, the same Indebtedness as was then outstanding under the Original
Credit Agreement. All references to the Original Credit Agreement in the Loan
Documents shall be deemed to refer to this Agreement. This Agreement and each of
the other Loan Documents shall be construed to the extent reasonable to be
consistent with the other, but to the extent that the terms and conditions of
this Agreement are actually inconsistent with the terms of any other Loan
Document, this Agreement shall govern. The indebtedness and obligations
evidenced by this Agreement and the Loan Documents shall be and shall continue
to be secured as set forth in the Original Credit Agreement, as amended and
restated by this Agreement, and all of the Loan Documents, and the Liens granted
to the Administrative Agent pursuant to the Loan Documents shall continue in
full force and effect during the term of this Agreement and any renewals
thereof.
[SIGNATURE PAGES FOLLOW]
102
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.
▇▇▇▇▇▇ COMMUNICATIONS CORPORATION,
as Borrower
BY:
-----------------------------------------
NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
TITLE: Senior Vice President, Chief
Financial Officer & Treasurer
CITICORP USA, INC.,
as Administrative Agent
BY:
-----------------------------------------
NAME:
TITLE:
CITIBANK, N.A.,
as Issuer
BY:
-----------------------------------------
NAME:
TITLE:
UNION BANK OF CALIFORNIA, N.A.,
as Issuer
BY:
-----------------------------------------
NAME:
TITLE:
[Signature Page to Amended and restated Credit Agreement]
TABLE OF CONTENTS
PAGE
----
Article I Definitions, Interpretation And Accounting Terms......................................1
Section 1.1. Defined Terms................................................................1
Section 1.2. Computation of Time Periods.................................................32
Section 1.3. Accounting Terms and Principles.............................................32
Section 1.4. Certain Terms...............................................................32
Article II The Facilities.......................................................................33
Section 2.1. The Commitments.............................................................33
Section 2.2. Borrowing Procedures........................................................34
Section 2.3. Letters of Credit...........................................................35
Section 2.4. Reduction and Termination of the Revolving Credit Commitments
and Term A Loan Commitments.................................................39
Section 2.5. Repayment of Loans..........................................................40
Section 2.6. Evidence of Debt............................................................41
Section 2.7. Optional Prepayments........................................................41
Section 2.8. Mandatory Prepayments.......................................................42
Section 2.9. Interest....................................................................43
Section 2.10. Conversion/Continuation Option..............................................44
Section 2.11. Fees........................................................................45
Section 2.12. Payments and Computations...................................................46
Section 2.13. Special Provisions Governing Eurodollar Rate Loans..........................49
Section 2.14. Capital Adequacy............................................................50
Section 2.15. Taxes.......................................................................50
Section 2.16. Substitution of Lenders.....................................................52
Article III Conditions To Loans and Letters of Credit............................................53
Section 3.1. Conditions Precedent to the Effective Date..................................53
Section 3.2. Conditions Precedent to Each Loan and Letter of Credit......................54
Article IV Representations and Warranties.......................................................55
Section 4.1. Corporate Existence; Compliance with Law....................................55
Section 4.2. Corporate Power; Authorization; Enforceable Obligations.....................56
Section 4.3. Ownership of Subsidiaries...................................................56
Section 4.4. FCC Matters.................................................................57
Section 4.5. Financial Statements........................................................58
i
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
Section 4.6. Material Adverse Change.....................................................59
Section 4.7. Solvency....................................................................59
Section 4.8. Litigation..................................................................59
Section 4.9. Taxes.......................................................................59
Section 4.10. Full Disclosure.............................................................59
Section 4.11. Margin Regulations..........................................................60
Section 4.12. No Burdensome Restrictions; No Defaults.....................................60
Section 4.13. Investment Company Act; Public Utility Holding Company Act..................60
Section 4.14. Use of Proceeds.............................................................60
Section 4.15. Surviving Debt..............................................................60
Section 4.16. Insurance...................................................................61
Section 4.17. Labor Matters...............................................................61
Section 4.18. ERISA.......................................................................61
Section 4.19. Environmental Matters.......................................................61
Section 4.20. Intellectual Property.......................................................63
Section 4.21. Title.......................................................................63
Section 4.22. New Senior Subordinated Debt Documents; Ranking of Obligations..............63
Section 4.23. Material Agreements.........................................................64
Article V Financial Covenants..................................................................65
Section 5.1. Minimum Net Revenue.........................................................65
Section 5.2. Minimum EBITDA..............................................................66
Section 5.3. Maximum Senior Debt Leverage Ratio..........................................66
Section 5.4. Maximum Leverage Ratio......................................................67
Section 5.5. Minimum Interest Coverage Ratio.............................................67
Section 5.6. Minimum Fixed Charge Coverage Ratio.........................................67
Section 5.7. Capital Expenditures........................................................68
Section 5.8. Maximum Programming Rights Payments.........................................68
Article VI Reporting Covenants..................................................................69
Section 6.1. Financial Statements........................................................69
Section 6.2. Default Notices.............................................................70
Section 6.3. Litigation..................................................................70
ii
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
Section 6.4. Station Appraisals..........................................................70
Section 6.5. Asset Sales.................................................................71
Section 6.6. SEC Filings; Press Releases.................................................71
Section 6.7. Insurance...................................................................71
Section 6.8. ERISA Matters...............................................................71
Section 6.9. Other Information...........................................................71
Article VII Affirmative Covenants................................................................72
Section 7.1. Preservation of Corporate Existence, Etc....................................72
Section 7.2. Compliance with Laws, Etc...................................................72
Section 7.3. Conduct of Business.........................................................72
Section 7.4. FCC Licenses................................................................72
Section 7.5. Payment of Taxes, Etc.......................................................72
Section 7.6. Maintenance of Insurance....................................................73
Section 7.7. Access......................................................................73
Section 7.8. Keeping of Books............................................................73
Section 7.9. Maintenance of Properties, Etc..............................................73
Section 7.10. Application of Proceeds.....................................................73
Section 7.11. Environmental...............................................................73
Section 7.12. Additional Collateral and Guaranties........................................75
Section 7.13. Interest Rate Contracts.....................................................75
Section 7.14. Unrestricted Subsidiaries...................................................75
Section 7.15. Dissolution Subsidiaries....................................................76
Article VIII Negative Covenants...................................................................76
Section 8.1. Indebtedness................................................................76
Section 8.2. Liens, Etc..................................................................77
Section 8.3. Investments.................................................................78
Section 8.4. Sale of Assets..............................................................79
Section 8.5. Restricted Payments.........................................................80
Section 8.6. Operating Leases; Sale/Leasebacks...........................................80
Section 8.7. Restriction on Fundamental Changes; Permitted Acquisitions..................81
Section 8.8. Change in Nature of Business................................................81
Section 8.9. Transactions with Affiliates................................................81
iii
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
Section 8.10. Restrictions on Subsidiary Distributions; No New Negative Pledge............81
Section 8.11. Disposal of Subsidiary Stock................................................82
Section 8.12. Modification of Constituent Documents.......................................82
Section 8.13. Material Agreements.........................................................82
Section 8.14. Modification of Subordinated Debt Documents and Preferred Stock Documents...82
Section 8.15. Accounting Changes; Fiscal Year.............................................83
Section 8.16. Margin Regulations..........................................................83
Section 8.17. Cancellation of Indebtedness Owed to It.....................................83
Section 8.18. No Speculative Transactions.................................................83
Section 8.19. Compliance with ERISA.......................................................83
Article IX Events of Default....................................................................83
Section 9.1. Events of Default...........................................................83
Section 9.2. Remedies....................................................................85
Section 9.3. Actions in Respect of Letters of Credit.....................................86
Section 9.4. Rescission..................................................................86
Article X The Administrative Agent and Collateral Agent........................................87
Section 10.1. Authorization and Action....................................................87
Section 10.2. Administrative Agent's Reliance, Etc........................................87
Section 10.3. Posting of Approved Electronic Communications...............................88
Section 10.4. The Administrative Agent Individually.......................................89
Section 10.5. Lender Credit Decision......................................................89
Section 10.6. Indemnification.............................................................89
Section 10.7. Successor Administrative Agent..............................................90
Section 10.8. Concerning the Collateral and the Collateral Documents......................90
Section 10.9. Collateral Matters Relating to Related Obligations..........................91
Article XI Miscellaneous........................................................................92
Section 11.1. Amendments, Waivers, Etc....................................................92
Section 11.2. Assignments and Participations..............................................93
Section 11.3. Costs and Expenses..........................................................95
Section 11.4. Indemnities.................................................................96
Section 11.5. Limitation of Liability.....................................................97
iv
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
Section 11.6. Right of Set-off............................................................98
Section 11.7. Sharing of Payments, Etc....................................................98
Section 11.8. Notices, Etc................................................................98
Section 11.9. No Waiver; Remedies.........................................................99
Section 11.10. Binding Effect.............................................................100
Section 11.11. Governing Law..............................................................100
Section 11.12. Submission to Jurisdiction; Service of Process.............................100
Section 11.13. Waiver of Jury Trial.......................................................100
Section 11.14. Marshaling; Payments Set Aside.............................................101
Section 11.15. Section Titles.............................................................101
Section 11.16. Execution in Counterparts..................................................101
Section 11.17. Entire Agreement...........................................................101
Section 11.18. Confidentiality............................................................101
Section 11.19. Designated Senior Debt.....................................................102
Section 11.20. Documents Evidence the Same Indebtedness...................................102
v
TABLE OF CONTENTS
(CONTINUED)
PAGE
----
SCHEDULES
Schedule I - Preferred Stock Documents
Schedule 4.2 - Consents
Schedule 4.3 - Ownership of Subsidiaries
Schedule 4.4 - FCC Licenses
Schedule 4.8 - Litigation
Schedule 4.16 - Insurance
Schedule 4.18 - ERISA
Schedule 8.1 - Existing Indebtedness
Schedule 8.2 - Existing Liens
Schedule 8.3 - Existing Investments
EXHIBITS
Exhibit A - Form of Assignment and Acceptance
Exhibit B-1 - Form of Revolving Credit Note
Exhibit B-2 - Form of Term A Note
Exhibit B-3 - Form of Term B Note
Exhibit C - Form of Notice of Borrowing
Exhibit D - Form of Notice of Conversion or Continuation
Exhibit E - Form of Opinion of Counsel for the Loan Parties
Exhibit F - Form of Affirmation of Liens and Guaranties
Exhibit G - Form of Acknowledgment and Consent
Exhibit H - Form of Letter of Credit Request
vi
