EXHIBIT 10.22(a)
[CONFORMED COPY]
$500,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of November 15, 1996,
among
Young Broadcasting Inc.,
The Banks Listed Herein,
Bankers Trust Company,
as Administrative Agent and Issuing Bank,
Canadian Imperial Bank of Commerce,
as Documentation Agent,
and
▇▇▇▇▇▇ Guaranty Trust Company of New York,
as Syndication Agent
Co-Arrangers:
Bankers Trust Company
Canadian Imperial Bank of Commerce
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Managing Agent:
First Union National Bank of North Carolina
Co-Agents:
Bank of America National Trust and Savings Association
Bank of Tokyo - Mitsubishi Trust Company
Fleet Bank, ▇.▇.
▇▇▇▇▇▇ Financial, Inc.
Internationale Nederlanden (U.S.) Capital Corporation
The First National Bank of Boston
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms...................................... 2
1.02. Computation of Time Periods................................ 37
1.03. Accounting Terms........................................... 37
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01. The Advances............................................... 38
(a) The Term Loan Advances................................ 38
(b) The Revolving Facility Advances....................... 38
(c) The Swingline Advances................................ 39
(d) Refunding of Swingline Advances....................... 39
2.02. Method of Borrowing........................................ 41
2.03. Notes...................................................... 43
2.04. Maturity of Term Loan Advances............................. 44
2.05. Interest Rates............................................. 44
2.06. Fees....................................................... 48
(a) Commitment Fees....................................... 48
(b) Participation Fees.................................... 48
(c) Administrative Fees................................... 48
(d) Letter of Credit Fees................................. 48
2.07. Optional Termination or Reduction of Commitments........... 49
2.08. Mandatory Termination or Reduction of Commitments.......... 50
2.09. Prepayments................................................ 52
(a) Optional Prepayments.................................. 52
(b) Mandatory Prepayments................................. 52
(c) Notice of Prepayments................................. 55
2.10. Letters of Credit.......................................... 55
2.11. General Provisions as to Payments.......................... 59
2.12. Funding Losses............................................. 60
2.13. Computation of Interest and Fees........................... 61
2.14. Taxes...................................................... 61
2.15. Voluntary and Mandatory Conversion of Advances............. 63
2.16. Basis for Determining Interest Rate Inadequate or Unfair... 65
2.17. Illegality................................................. 65
2.18. Increased Cost and Reduced Return.......................... 66
2.19. Base Rate Advances Substituted for Affected Fixed Rate
Advances................................................... 68
2.20. Use of Proceeds............................................ 68
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ARTICLE III
CONDITIONS PRECEDENT
3.01. Conditions Precedent to Closing Date......................... 69
3.02. Conditions Precedent to Each Borrowing....................... 76
3.03. Conditions Precedent to Borrowings in Connection with
Permitted Acquisitions....................................... 78
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrower............... 83
(a) Due Incorporation, Etc.................................. 83
(b) Due Authorization and Execution, Etc.................... 84
(c) Government Consents..................................... 85
(d) Legal, Valid and Binding Nature......................... 85
(e) Capitalization and Subsidiaries......................... 85
(f) Financial Statement; No Material Adverse Change......... 86
(g) Solvency................................................ 87
(h) Absence of Litigation; Litigation Description........... 87
(i) Ownership of Properties; Absence of Liens and
Encumbrances............................................ 88
(j) No Burdensome Agreements................................ 88
(k) Payment of Taxes........................................ 89
(l) Accuracy of Information Given to Lenders................ 89
(m) ERISA................................................... 90
(n) List of Debt............................................ 90
(o) Not a Purpose Credit.................................... 91
(p) Prohibited Securities Transactions...................... 91
(q) Investment Company Act.................................. 91
(r) Casualties.............................................. 91
(s) Executive Compensation Agreements....................... 91
(t) Collateral, Etc......................................... 91
(u) Consents................................................ 92
(v) Security Agreements..................................... 93
(w) Mortgages............................................... 93
(x) Status Under Communications Act......................... 93
(y) Compliance with Environmental Requirements; No
Hazardous Materials..................................... 93
(z) Compliance with Laws.................................... 95
(aa) Representations in Related Documents are True and
Correct................................................. 95
(bb) Obligations are Senior Debt and Designated Senior Debt.. 96
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ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants....................................... 96
(a) Compliance with Laws, Etc.............................. 96
(b) Conduct of Business; Preservation of Corporate
Existence.............................................. 97
(c) Visitation Rights...................................... 97
(d) Keeping of Books....................................... 97
(e) Maintenance of Insurance............................... 97
(f) Payment of Taxes, Etc.................................. 98
(g) Maintenance of Properties, Etc......................... 99
(h) Maintenance of FCC Licenses, Affiliation Agreements,
Etc.................................................... 99
(i) Arm's-Length Transactions.............................. 99
(j) Solvency............................................... 100
(k) Plan Contribution...................................... 100
(l) Pro Forma Debt Service Coverage........................ 100
(m) Interest Charge........................................ 100
(n) Senior Debt to Operating Cash Flow Ratio............... 101
(o) Debt to Operating Cash Flow Ratio...................... 101
(p) Accuracy of Information Given to Lenders............... 101
(q) Management............................................. 102
(r) Further Assurances..................................... 102
(s) Management of Partnerships............................. 103
(t) Hazardous Materials; Remediation....................... 103
(u) FCC Filings............................................ 103
5.02. Negative Covenants.......................................... 103
(a) Liens, Etc............................................. 104
(b) Debt................................................... 104
(c) Mergers................................................ 105
(d) Sales, Etc., of Assets................................. 105
(e) Maintenance of Ownership of Subsidiaries; Issuance of
Stock and Partnership Interests, Etc................... 105
(f) Investments in Other Persons and Asset Purchases....... 106
(g) Restricted Payments.................................... 107
(h) Prepayment of Debt..................................... 107
(i) Change in Business; Cease Broadcasting................. 109
(j) Change of Accounts..................................... 109
(k) Amendment of Charter or By-Laws........................ 109
(l) Termination of Licenses................................ 109
(m) Amendment, etc. of Related Documents................... 109
(n) Trade Debt............................................. 110
(o) Employee Benefit Costs and Liabilities................. 110
(p) Plan Amendments........................................ 110
(q) Limited Partners....................................... 110
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(r) Limitation on Payment Restrictions Affecting
Subsidiaries.......................................... 111
(s) Interest Rate Protection.............................. 111
5.03. Reporting Requirements..................................... 111
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default.......................................... 117
6.02. Cash Cover................................................. 122
ARTICLE VII
THE AGENTS
7.01. Appointment and Authorization.............................. 123
7.02. Agents and Affiliates...................................... 123
7.03. Actions by Agents.......................................... 123
7.04. Consultation with Experts.................................. 124
7.05. Liability of Agents........................................ 124
7.06. Indemnification............................................ 124
7.07. Credit Decision............................................ 124
7.08. Successor Agent............................................ 125
7.09. Managing Agent and Co-Agents............................... 125
7.10. Notice of Default; Collateral Documents.................... 125
ARTICLE VIII
MISCELLANEOUS
8.01. Amendments, Etc............................................ 126
8.02. Notices, Etc............................................... 129
8.03. No Waiver; Remedies........................................ 130
8.04. Costs and Expenses; Indemnities............................ 130
8.05. Right of Set-off........................................... 131
8.06. BINDING EFFECT; GOVERNING LAW.............................. 133
8.07. Successors and Assigns..................................... 133
8.08. Headings................................................... 136
8.09. Execution in Counterparts; Integration..................... 136
8.10. Severability of Provisions................................. 137
8.11. WAIVER OF JURY TRIAL....................................... 137
8.12. Submission to Jurisdiction; consent to Service of Process.. 137
8.13. Consent to Amend........................................... 137
8.14. Survival................................................... 138
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Appendix - Commitments
SCHEDULES
Schedule 1.01-1 - Collateral Documents
Schedule 1.01-2 - Programming Cost Savings
Schedule 4.01(a) - Subsidiaries of the Borrower
Schedule 4.01(e) - Agreements Relating to Capital Stock
Schedule 4.01(f) - Pro Forma Financial Statements
Schedule 4.01(h) - Disclosed Litigation
Schedule 4.01(i) - Existing Liens
Schedule 4.01(m) - Plans and Multiemployer Plans
Schedule 4.01(n) - Existing Debt
Schedule 4.01(s) - Executive Compensation Agreements
Schedule 4.01(t) - Descriptions and Locations of Real
Property and Leasehold Interests
Schedule 4.01(u) - Government and Third Party Consents
Schedule 4.01(y) - Environmental Matters
v
EXHIBITS
Exhibit A-1 - Form of Term Loan Note
Exhibit A-2 - Form of Revolving Facility Note
Exhibit A-3 - Form of Swingline Note
Exhibit B - Form of Borrower Security Agreement
Exhibit C - Form of Guarantor Security Agreement
Exhibit D - Form of Global Security Agreement Amendment
Exhibit E-1 - Form of Borrower Pledge Agreement
Exhibit E-2 - Form of Amendment No. 1 to Borrower Pledge Agreement
Exhibit F - Form of Guarantor Pledge Amendment
Exhibit G - Form of Global Pledge Agreement Amendment
Exhibit H - Form of Guaranty Agreement
Exhibit I - Form of Guaranty Agreement Amendment
Exhibit J - Form of Mortgage
Exhibit K - Form of Mortgage Amendment
Exhibit L - Form of Closing Date Assignment and Assumption
Agreement
Exhibit M - Form of Assignment and Assumption Agreement
Exhibit N - Form of Borrower's Solvency Certificate
Exhibit O - Form of Guarantor's Solvency Certificate
Exhibit P - Form of Opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
Exhibit Q - Form of Local Counsel Opinion
Exhibit R - Form of Opinion of Special FCC Counsel
Exhibit S - Form of Opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
Exhibit T - Form of Compliance Certificate
vi
Exhibit U - Form of Notice of Issuance
Exhibit V - Form of Multiple Amendment
vii
AMENDED AND RESTATED CREDIT AGREEMENT dated as of November __, 1996
among YOUNG BROADCASTING INC., a Delaware corporation (the "Borrower"), the
--------
banks and other financial institutions (the "Banks") listed on the signature
-----
pages hereof, BANKERS TRUST COMPANY ("BTCo"), as Administrative Agent for the
----
Lenders and the Issuing Bank hereunder, CANADIAN IMPERIAL BANK OF COMMERCE
("CIBC"), as Documentation Agent for the Lenders hereunder, and ▇▇▇▇▇▇ GUARANTY
------
TRUST COMPANY OF NEW YORK ("▇▇▇▇▇▇ Guaranty"), as Syndication Agent for the
---------------
Lenders hereunder.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower and certain financial institutions are parties
to a $200,000,000 Credit Agreement dated as of November 14, 1994, as amended (as
so amended and in effect on the date of this Amended Agreement immediately
before the effectiveness of this Amended Agreement, the "Existing Credit
---------------
Agreement"); and
---------
WHEREAS, the Old Lenders (as defined herein) and the Banks have agreed
that immediately prior to (and subject to the condition subsequent of) the
occurrence of the Closing Time (as defined herein), the Old Lenders will assign
all of their rights and obligations under the Existing Credit Agreement to the
Banks pursuant to the Closing Date Assignment and Assumption Agreement (as
defined herein), upon the terms and subject to the conditions set forth therein;
and
WHEREAS, the Borrower has entered into an Acquisition Agreement dated
as of May 10, 1996 (the "Acquisition Agreement") with KCAL Broadcasting, Inc., a
---------------------
California corporation, KCAL-TV, Inc., a California corporation, and Disney
Enterprises, Inc., a California corporation, pursuant to which the Borrower has
agreed to acquire (the "Acquisition") certain assets associated with television
-----------
broadcast station KCAL-TV in Los Angeles, California ("KCAL-TV"); and
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WHEREAS, the parties hereto therefore wish to amend the Existing
Credit Agreement by, among other things, increasing the amount of credit
available thereunder and amending certain of the other provisions thereof, and,
in that connection, wish to amend and restate the Existing Credit Agreement in
its entirety; and
WHEREAS, in order to set forth in one document,
for the convenience of the parties, the text of the Existing Credit Agreement as
amended by the amendments to be made upon the effectiveness hereof, the parties
wish to amend and restate the Existing Credit Agreement in its entirety as set
forth below;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
---------------------
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acquisition" has the meaning specified in the preamble to this
-----------
Agreement.
"Acquisition Agreement" has the meaning specified in the preamble to
---------------------
this Agreement.
"Acquisition Documents" means the Acquisition Agreement, including the
---------------------
exhibits and schedules thereto, and all agreements, documents and instruments
executed and delivered pursuant thereto or in connection therewith.
"Adjusted CD Rate Advance" means an Advance which bears interest as
------------------------
provided in Section 2.05(b).
"Administrative Agent" means BTCo in its capacity as Administrative
--------------------
Agent for the Lenders hereunder, and its successors in such capacity.
"Administrative Questionnaire" means (i) with respect to each Lender
----------------------------
listed on the signature pages hereof, the administrative questionnaire in the
form submitted to such Lender by the Administrative Agent and submitted to the
Administrative Agent (with a copy to the Borrower) duly completed by such Lender
on or before the Closing Date and (ii) with respect to each other Lender, the
Assignment and Assumption Agreement for such Lender as an Assignee.
"Advance" means (i) a Term Loan Advance or a Revolving Facility
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Advance, each of which may be an Adjusted CD Rate Advance, a Base Rate Advance
or a Eurodollar Rate Advance (each of which shall be a "Type" of Advance), or
----
(ii) a Swingline Advance, each of which shall be a Base Rate
2
Advance.
"Affiliate" means, with respect to any Person, any other Person
---------
directly or indirectly controlling, controlled by or under common control with
such Person. The term "control" means the possession, directly or indirectly,
of the power, whether or not exercised, to direct or cause the direction of the
management or policies of any Person, whether through ownership of voting
securities, by contract or otherwise.
"Agents" means the Administrative Agent, the Documentation Agent and
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the Syndication Agent, or any combination of the foregoing as the context may
require, and "Agent" means any one of the foregoing.
"Agreement" means the Existing Credit Agreement, as amended by this
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Amended Agreement and as amended or otherwise modified from time to time.
"Amended Agreement" means this Amended and Restated Credit Agreement.
-----------------
"Amendment Documents" means this Amended Agreement, the Global
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Security Agreement Amendment, the Global Pledge Agreement Amendment, the
Guaranty Agreement Amendment, the Mortgage Amendments, the Guarantor Security
Agreements between each of YB of Los Angeles and Fidelity, respectively, and the
Administrative Agent, the Guarantor Pledge Agreement between YB of Los Angeles
and the Administrative Agent, and the KCAL Mortgage.
"Applicable Lending Office" means, with respect to each Lender, such
-------------------------
Lender's Domestic Lending Office in the case of a Base Rate Advance, such
Lender's CD Lending Office in the case of an Adjusted CD Rate Advance, and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance.
"Asset Operating Cash Flow" means, with respect to each Asset Sale,
-------------------------
the portion of Operating Cash Flow for the twelve months immediately preceding
such Asset Sale that is attributable to the asset, property or business being
disposed of pursuant to such Asset Sale.
"Asset Purchase" means an acquisition by the Borrower or any of its
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Subsidiaries of (i) all or substantially all of the assets of any Person (other
than the Borrower or any of its Subsidiaries) or (ii) property and assets of any
Person (other than the Borrower or any of its Subsidiaries), in each case
comprising a television
3
station or a business incidental thereto.
"Asset Sale" means any sale, lease, assignment, transfer or other
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disposition by the Borrower or any of its Subsidiaries of any asset, property or
business (including, without limitation, receivables and leasehold interests)
whether now owned or hereafter acquired, but excluding dispositions of inventory
in the ordinary course of business.
"Assignee" has the meaning specified in Section 8.07(c).
--------
"Assignment and Assumption Agreement" means (i) an Assignment and
-----------------------------------
Assumption Agreement entered into by a Lender and an Assignee, and accepted by
the Administrative Agent and consented to by the Borrower (if required), in
substantially the form of Exhibit M, and (ii) the Closing Date Assignment and
Assumption Agreement.
"Banks" has the meaning specified in the preamble to this Agreement.
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"Base Rate" means, for any day, a rate per annum equal to the higher
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of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"Base Rate Advance" means an Advance which bears interest as provided
-----------------
in Section 2.05(a).
"Base Rate Margin" means, for any day, the percentage set forth below
----------------
opposite the applicable range for the Debt to Operating Cash Flow Ratio as
specified in the most recent Notice of Debt to Operating Cash Flow Ratio
received by the Administrative Agent on or before such day:
Debt to Operating Cash Flow Ratio
-----------------------------------
Greater than But Base Rate
or equal to less than Margin
------------------- -------------- ----------
6.5 N/A 1.625%
6.0 6.5 1.50%
5.5 6.0 1.25%
5.0 5.5 1.00%
4.0 5.0 0.50%
0.0 4.0 0.25%
provided, however, that during any period in which an Event of Default shall
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have occurred and be continuing, the Base Rate Margin shall be the Base Rate
Margin indicated in the above table plus 2% per annum.
4
"Borrower Pledge Agreement" means the Borrower Pledge Agreement dated
-------------------------
as of November 14, 1994 between the Borrower and the Administrative Agent,
substantially in the form of Exhibit E-1, as amended by Amendment No. 1 thereto,
substantially in the form of Exhibit E-2, as further amended by the Multiple
Amendment and as further amended on the Closing Date by the Global Pledge
Agreement Amendment, and each other pledge agreement entered into by the
Borrower pursuant thereto or hereto, in each case as the same may be amended or
otherwise modified from time to time.
"Borrower Security Agreement" means the Borrower Security Agreement
---------------------------
dated as of November 14, 1994 between the Borrower and the Administrative Agent,
substantially in the form of Exhibit B, as amended by the Multiple Amendment and
as amended on the Closing Date by the Global Security Agreement Amendment, and
each other security agreement entered into by the Borrower pursuant thereto or
hereto, in each case as the same may be amended or otherwise modified from time
to time.
"Borrowing" means a Term Loan Borrowing or a Revolving Facility
---------
Borrowing.
"BTCo" has the meaning specified in the preamble to this Agreement.
----
"Capital Expenditures" means, for any period, the aggregate of all
--------------------
expenditures by the Borrower and its Subsidiaries for property, plant and
equipment (including renewals, improvements, replacements and capitalized
repairs) during such period, and all Capital Leases entered into during such
period, which would be reflected as additions to property, plant or equipment
(other than as a result of a Permitted Acquisition) on a consolidated balance
sheet of the Borrower and its Subsidiaries prepared in accordance with generally
accepted accounting principles.
"Capital Lease" means any lease which is or should be, in accordance
-------------
with generally accepted accounting principles, recorded as a capital lease.
"Capital Lease Obligations" means, with respect to any lease of
-------------------------
property which in accordance with generally accepted accounting principles
should be capitalized on the lessee's balance sheet or for which the amount of
the assets and liabilities thereunder, if so capitalized, should be disclosed in
a note to such balance sheet, the amount of the liability which should be so
capitalized or disclosed.
5
"CD Lending Office" means, with respect to any Lender, the office of
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such Lender specified as its "CD Lending Office" opposite its name in its
Administrative Questionnaire (or, if no such office is specified, its Domestic
Lending Office) or such other office of such Lender as such Lender may from time
to time specify to the Borrower and the Administrative Agent.
"CD Rate Margin" means, for any day during any Interest Period, the
--------------
percentage set forth below opposite the applicable range for the Debt to
Operating Cash Flow Ratio as specified in the most recent Notice of Debt to
Operating Cash Flow Ratio received by the Administrative Agent on or before such
day:
Debt to Operating Cash Flow Ratio
-----------------------------------
Greater than But CD Rate
or equal to less than Margin
------------------- -------------- --------
6.5 N/A 2.750%
6.0 6.5 2.625%
5.5 6.0 2.375%
5.0 5.5 2.125%
4.0 5.0 1.625%
0.0 4.0 1.375%
provided, however, that during any period in which an Event of Default shall
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have occurred and be continuing, the CD Rate Margin shall be the CD Rate Margin
indicated in the above table plus 2% per annum.
"CD Reference Banks" means BTCo, CIBC and ▇▇▇▇▇▇ Guaranty.
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"CERCLA" means the Comprehensive Environmental Response, Compensation
------
and Liability Act of 1980 (42 U.S.C. Sections 9601 et seq.), as amended from
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time to time, and regulations promulgated thereunder.
"CIBC" has the meaning specified in the preamble to this Agreement.
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"Closing Date" means the date on which the conditions set forth in
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Section 3.01 shall have been satisfied or waived in accordance with Section
8.01; provided that such date shall be no later than December 31, 1996.
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"Closing Date Assignment and Assumption Agreement" means the
------------------------------------------------
Assignment and Assumption Agreement, dated as of the date of this Amended
Agreement, the assignments under which will become effective on the Closing Date
immediately
6
before the Closing Time, among the Old Lenders, as Assignors, the Banks, as
Assignees, the Borrower and the Administrative Agent, substantially in the form
of Exhibit L.
"Closing Date Transactions" means, collectively, the effectiveness of
-------------------------
this Amended Agreement and the other Amendment Documents, the Closing Date
Assignment and Assumption Agreement and the Acquisition.
"Closing Time" means the time on the Closing Date at which the
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amendment and restatement of the Existing Credit Agreement to be effected by
this Amended Agreement shall become effective, in accordance with the provisions
of Section 3.01.
"Co-Arrangers" means BTCo, CIBC and ▇.▇. ▇▇▇▇▇▇ Securities Inc.
------------
"Code" means the Internal Revenue Code of 1986, as the same may be
----
amended from time to time.
"Collateral" means, collectively, the "Collateral" as defined in the
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Security Agreements, the "Collateral" as defined in the Pledge Agreements, the
"Trust Property" and "Mortgaged Property" described in the Mortgages and all
other property and assets of the Borrower or any Guarantor to which any
Collateral Document relates.
"Collateral Documents" means the Security Agreements, the Pledge
--------------------
Agreements and the Mortgages, including without limitation the agreements,
documents and instruments listed on Schedule 1.01-1.
"Communications Act" means the Communications Act of 1934, as amended
------------------
from time to time, and the regulations promulgated thereunder.
"Consolidated" refers to the consolidation of accounts of the Borrower
------------
and its Subsidiaries in accordance with generally accepted accounting
principles, including principles of consolidation.
"Convert", "Conversion" and "Converted" each refers to a conversion of
------- ---------- ---------
Advances of one Type into Advances of another Type pursuant to Section 2.15 or
2.17.
"CTSI" means Community Television Service, Inc., a South Dakota
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corporation.
"Debt" of any Person means at any date, without
----
7
duplication, (i) all obligations of such Person for borrowed money or to pay the
deferred purchase price of property or services (including, without limitation,
all obligations, contingent or otherwise, of such Person in connection with
letter of credit facilities, acceptance facilities or other similar facilities
and in connection with any agreement to purchase, redeem, exchange, convert or
otherwise acquire for value any capital stock of such Person, but excluding all
amounts payable with respect to Programming Liabilities), (ii) all obligations
of such Person evidenced by bonds, notes, debentures or other similar
instruments, (iii) all obligations created or arising under any conditional sale
or other title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (iv) all obligations of such Person under Capital Leases, (v) all
Debt of any other entity of the type referred to in clause (i), (ii), (iii) or
(iv) above secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any Lien upon or in property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Debt, (vi) all equity securities of such Person subject to repurchase or
redemption other than at the sole option of such Person, valued at the greater
of its voluntary or involuntary liquidation preference plus accrued and unpaid
dividends, (vii) all Guaranteed Debt of such Person, (viii) all liabilities
incurred by the Borrower or any ERISA Affiliate to the PBGC upon the termination
under Section 4041 or Section 4042 of ERISA of any Plan, (ix) all Withdrawal
Liabilities of such Person or any of its ERISA Affiliates, (x) all increases in
the amount of contributions required to be made by the Borrower and its ERISA
Affiliates in each fiscal year of the Borrower to Multiemployer Plans, due to
the reorganization or termination of any such Multiemployer Plan within the
meaning of Title IV of ERISA, over the average annual amount of such
contributions required to be made during the last 3 years preceding such
reorganization or termination and (xi) the aggregate amount of Derivatives
Obligations of such Person; provided that for the purposes of calculating Debt
--------
to determine the Debt to Operating Cash Flow Ratio and of calculating Senior
Debt to determine compliance with Section 5.01(n), Debt shall be reduced by the
aggregate amount of Temporary Cash Investments held by the Borrower or any
Guarantor (excluding Permitted Acquisition Deposits) on the date of
determination, to the extent that such amount exceeds the greater of (A)
$5,000,000 and (B) the product of (x) $400,000 and (y) the sum of (X) the number
of television
8
broadcast stations owned by the Subsidiaries of the Borrower as of such date and
(Y) the number one.
"Debt to Operating Cash Flow Ratio" means, as of any day, the ratio of
---------------------------------
(i) the aggregate unpaid Consolidated principal amount of all Debt of the
Borrower and its Subsidiaries on such day to (ii) Operating Cash Flow of the
Borrower and its Subsidiaries for the twelve consecutive calendar months then
most recently ended or ending on such day.
"Default" means any Event of Default or any event that would
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constitute an Event of Default but for the requirement that notice be given or
time elapse or both.
"Derivatives Obligations" of any Person means all obligations of such
-----------------------
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
"Disclosed Litigation" has the meaning specified in Section 4.01(h).
--------------------
"Documentation Agent" means CIBC in its capacity as Documentation
-------------------
Agent for the Lenders hereunder, and its successors in such capacity.
"Domestic Business Day" means any day except a Saturday, Sunday or
---------------------
other day on which commercial banks in New York City are authorized by law to
close.
"Domestic Lending Office" means, with respect to any Lender, the
-----------------------
office of such Lender specified as its "Domestic Lending Office" opposite its
name in the Administrative Questionnaire or such other office of such Lender as
such Lender may from time to time specify to the Borrower and the Administrative
Agent.
"Environmental Laws" means any and all applicable federal, state,
------------------
local and foreign statutes, laws, judicial decisions, regulations, ordinances,
rules, judgments, orders, decrees, codes, plans, injunctions, permits,
concessions, grants, franchises, licenses, agreements and governmental
restrictions, whether now or hereafter in
9
effect, relating to human health, the environment or to emissions, discharges or
releases of pollutants, contaminants, Hazardous Materials or wastes into the
environment, including ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, Hazardous
Materials or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time, and the regulations promulgated and rulings issued
thereunder. References to sections or parts of ERISA as in effect on the date
hereof include corresponding successor provisions after the date hereof.
"ERISA Affiliate" means any trade or business (whether or not
---------------
incorporated) which is a member of a group of which the Borrower is a member or
which is under common control with the Borrower within the meaning of Section
414 of the Code, and the regulations promulgated and rulings issued thereunder.
"Eurodollar Business Day" means any Domestic Business Day on which
-----------------------
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Eurodollar Lending Office" means, with respect to any Lender, the
-------------------------
office of such Lender specified as its "Eurodollar Lending Office" opposite its
name in its Administrative Questionnaire (or, if no such office is specified,
its Domestic Lending Office) or such other office of such Lender as such Lender
may from time to time specify to the Borrower and the Administrative Agent.
"Eurodollar Margin" means, for any day during any Interest Period, the
-----------------
percentage set forth below opposite the applicable range for the Debt to
Operating Cash Flow Ratio as specified in the most recent Notice of Debt to
Operating Cash Flow Ratio received by the Administrative Agent on or before such
day:
10
Debt to Operating Cash Flow Ratio
-----------------------------------
Greater than But Eurodollar
or equal to less than Margin
------------------- -------------- -----------
6.5 N/A 2.625%
6.0 6.5 2.50%
5.5 6.0 2.25%
5.0 5.5 2.00%
4.0 5.0 1.50%
0.0 4.0 1.25%
provided, however, that during any period in which an Event of Default shall
-------- -------
have occurred and be continuing, the Eurodollar Margin shall be the Eurodollar
Margin indicated in the above table plus 2% per annum.
"Eurodollar Rate Advance" means an Advance which bears interest as
-----------------------
provided in Section 2.05(c).
"Eurodollar Reference Banks" means the principal London offices of
--------------------------
BTCo, CIBC and ▇▇▇▇▇▇ Guaranty.
"Events of Default" has the meaning specified in Section 6.01.
-----------------
"Excess Cash Flow" means, for any Fiscal Year, the excess, if any of:
----------------
(a) the sum of (i) the Borrower's Operating Cash Flow for such Fiscal
Year, plus (ii) the cash proceeds received by the Borrower and its
----
Subsidiaries in respect of Asset Sales during such Fiscal Year, plus (iii)
----
any decrease in Net Working Investment between the beginning and end of
such Fiscal Year,
over
----
(b) the sum of (i) the amount of Total Interest Expense for such
Fiscal Year, plus (ii) the amount of Capital Expenditures for such Fiscal
----
Year, to the extent that such Capital Expenditures are not financed during
such Fiscal Year (and will not later be financed) with the proceeds of Debt
permitted by clause (C) or (D) of Section 5.02(b), plus (iii) any increase
----
in Net Working Investment between the beginning and end of such Fiscal
Year, plus (iv) the aggregate amount of Restricted Payments made in cash
----
during such Fiscal Year in accordance with Section 5.02(g)(iii), plus (v)
----
the aggregate amount of all scheduled principal payments on all Debt of the
Borrower or any of its Subsidiaries then required to be made and made
during such Fiscal Year (excluding any prepayments during any
11
Fiscal Year pursuant to Section 2.09(b) of this Agreement, other than
prepayments made pursuant to Section 2.09(b)(iii) in respect of Permitted
Asset Sales), plus (vi) all optional prepayments of the Term Loan Advances
----
during such Fiscal Year pursuant to Section 2.09(a),
all determined in accordance with generally accepted accounting principles;
provided that if the Acquisition or any Permitted Acquisition occurs during such
--------
Fiscal Year, the calculation of Excess Cash Flow for such Fiscal Year shall give
effect to the items set forth above (including Operating Cash Flow for this
purpose, notwithstanding the first proviso contained in the definition thereof)
to the extent that they are properly attributable to the acquired assets or
properties, related costs or expenses or the financing therefor only for periods
----
on and after the closing date for the Acquisition or Permitted Acquisition.
"Existing Credit Agreement" has the meaning specified in the preamble
-------------------------
to this Agreement.
"Existing Financing Statements" has the meaning specified in Section
-----------------------------
3.01(g)(6)(C).
"Existing Guarantors" means all of the Guarantors on the Closing Date
-------------------
other than YB of Los Angeles and Fidelity.
"Existing Notes" means the "A Notes", the "B Notes" and the "C Notes"
--------------
(each such term as defined in the Existing Credit Agreement), delivered by the
Borrower pursuant to the Existing Credit Agreement to the Old Lenders before the
Closing Date, substantially in the form of Exhibits ▇-▇, ▇-▇ ▇▇▇ ▇-▇,
respectively, to the Existing Credit Agreement.
"Existing Subordinated Debt" means the 1994 Subordinated Notes, the
--------------------------
1995 Subordinated Notes and the 1996 Subordinated Notes.
"FCC" means the Federal Communications Commission and any successor
---
thereto.
"FCC License" means any license, permit, certificate of compliance,
-----------
franchise, approval or authorization granted or issued by the FCC and owned or
held by the Borrower or any of its Subsidiaries in order to conduct the
broadcast operations of a television station.
12
"Federal Funds Rate" means, for any day, the rate per annum (rounded
------------------
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Domestic Business Day next
succeeding such day; provided that (i) if such day is not a Domestic Business
--------
Day, the Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Domestic Business Day and so published on the next
succeeding Domestic Business Day, and (ii) if no such rate is so published on
such next succeeding Domestic Business Day, the Federal Funds Rate for such day
shall be the average rate quoted to the Administrative Agent on such day on such
transactions as determined by the Administrative Agent.
"Fidelity" means Fidelity Television, Inc., a California corporation.
--------
"Film Expense" means, with respect to any accounting period, all
------------
amounts which become due and payable by the Borrower or any of its Subsidiaries
during such period in respect of Programming Liabilities of the Borrower or any
of its Subsidiaries, as determined in accordance with generally accepted
accounting principles.
"Fiscal Quarter" means a fiscal quarter of the Borrower consisting of
--------------
a calendar quarter ending on March 31, June 30, September 30 or December 31, as
the case may be.
"Fiscal Year" means a fiscal year of the Borrower consisting of a
-----------
calendar year ending on December 31.
"Fixed Rate Advances" means Adjusted CD Rate Advances or Eurodollar
-------------------
Rate Advances or any combination thereof.
"Fixed Rate Borrowing" means a borrowing consisting of Adjusted CD
--------------------
Rate Advances or Eurodollar Rate Advances made on the same day by the Lenders.
"Global Pledge Agreement Amendment" means Amendment No. 3 to Borrower
---------------------------------
Pledge Agreement and Amendment No. 2 to Guarantor Pledge Agreement dated as of
the date of this Amended Agreement among the Borrower, YB of Sioux Falls and the
Administrative Agent, substantially in the form of Exhibit G.
13
"Global Security Agreement Amendment" means Amendment No. 2 to
-----------------------------------
Borrower Security Agreement and Amendment No. 2 to Guarantor Security Agreements
dated as of the date of this Amended Agreement among the Borrower, each Existing
Guarantor and the Administrative Agent, substantially in the form of Exhibit D.
"Guaranteed Debt" of any Person means all Debt referred to in clause
---------------
(i), (ii), (iii) or (iv) of the definition of "Debt" in this section guaranteed
directly or indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (i) to pay or
purchase such Debt or to advance or supply funds for the payment or purchase of
such Debt, (ii) to purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of enabling the debtor to
make payment of such Debt or to assure the holder of such Debt against loss,
(iii) to supply funds to, or in any other manner invest in, the debtor
(including any agreement to pay for property or services irrespective of whether
such property is received or such services are rendered) or (iv) otherwise to
assure a creditor against loss.
"Guarantor" means each of the Subsidiaries of the Borrower listed on
---------
Schedule 4.01(a) and each of the Subsidiaries of the Borrower which shall become
a Guarantor in accordance with this Agreement (including Section 5.02(f)).
"Guarantor Pledge Agreements" means, collectively (i) the Guarantor
---------------------------
Pledge Agreement dated as of the date of this Amended Agreement between YB of
Los Angeles and the Administrative Agent, (ii) the Guarantor Pledge Agreement
dated as of May 31, 1996 between YB of Sioux Falls and the Administrative Agent,
as amended by the Multiple Amendment and as amended on the Closing Date by the
Global Pledge Agreement Amendment, in each case substantially in the form of
Exhibit F, and (iii) each other pledge agreement entered into by any Guarantor
pursuant thereto or hereto, in each case as the same may be amended or otherwise
modified from time to time.
"Guarantor Security Agreements" means, collectively (i) the Guarantor
-----------------------------
Security Agreements dated as of the date of this Amended Agreement between each
of YB of Los Angeles and Fidelity, respectively, and the Administrative Agent,
(ii) each of the Guarantor Security Agreements dated as of April 15, 1996
between each of YB of ▇▇▇▇▇▇▇▇▇, ▇▇ of Sioux Falls and YB of Rapid City,
respectively, and the Administrative Agent, each as amended
14
by the Multiple Amendment and as amended on the Closing Date by the Global
Security Agreement Amendment, and (iii) each of the Guarantor Security
Agreements dated as of November 14, 1994, between each of the Existing
Guarantors other than YB of ▇▇▇▇▇▇▇▇▇, ▇▇ of Sioux Falls and YB of Rapid City,
and the Administrative Agent, each as amended by the Multiple Amendment and as
amended on the Closing Date by the Global Security Agreement Amendment, in each
case substantially in the form of Exhibit C, and (iv) each other security
agreement entered into by any of the Guarantors pursuant thereto or hereto, in
each case as the same may be amended or otherwise modified from time to time.
"Guaranty Agreement" means the Amended and Restated Guaranty Agreement
------------------
dated as of April 15, 1996, among the Borrower, each of the Existing Guarantors
and the Administrative Agent, substantially in the form of Exhibit H, as amended
by the Multiple Amendment and as amended on the Closing Date by the Guaranty
Agreement Amendment, and as the same may be amended or otherwise modified from
time to time.
"Guaranty Agreement Amendment" means Amendment No. 2 to Amended and
----------------------------
Restated Guaranty Agreement dated as of the date of this Amended Agreement,
among the Borrower, each Guarantor and the Administrative Agent, substantially
in the form of Exhibit I.
"Hazardous Materials" means (i) any "hazardous substance" as defined
-------------------
in CERCLA; (ii) asbestos; (iii) polychlorinated biphenyls; (iv) petroleum, its
derivatives, by-products and other hydrocarbons; and (v) any other toxic,
radioactive, caustic or otherwise hazardous substance regulated under
Environmental Laws.
"Independent Public Accountants" means (i) Ernst & Young LLP, (ii)
------------------------------
another 'Big Six' independent public accounting firm or (iii) another
independent public accounting firm of nationally recognized standing reasonably
acceptable to the Majority Lenders.
"Insufficiency" means, with respect to any Plan, the amount, if any,
-------------
by which the present value of the accrued benefits under such Plan, as
determined using the actuarial assumptions then used for the purpose of
determining the contributions to be made to such Plan, exceeds the fair market
value of the assets of such Plan allocable to such benefits.
"Interest Period" means: (i) with respect to each Eurodollar Rate
---------------
Advance, the period commencing on the date
15
of such Borrowing and ending 1, 3, 6 or, if the Administrative Agent determines
that deposits in such maturity are available in the London interbank market for
such period, 12 months thereafter, as the Borrower may elect in the applicable
Notice of Borrowing; provided that:
--------
(a) any Interest Period which would otherwise end on a day which is
not a Eurodollar Business Day shall be extended to the next succeeding
Eurodollar Business Day unless such Eurodollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Eurodollar Business Day; and
(b) any Interest Period which begins on the last Eurodollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Eurodollar Business Day
of a calendar month; and
(c) if any Interest Period includes a date on which a payment of
principal of the Advances is required to be made under Section 2.04 but
does not end on such date, then (i) the principal amount (if any) of each
Eurodollar Rate Advance required to be repaid on such date shall have an
Interest Period ending on such date and (ii) the remainder (if any) of each
such Eurodollar Rate Advance shall have an Interest Period determined as
set forth above; and
(ii) with respect to each Adjusted CD Rate Advance, the period commencing on the
date of such Borrowing and ending 30, 90, 180 or, if the Administrative Agent
determines that certificates of deposit in such maturity are available in
accordance with the definition of CD Base Rate for such period, 360 days
thereafter, as the Borrower may elect in the applicable Notice of Borrowing;
provided that:
--------
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b)(i) below) which would otherwise end on a day which
is not a Eurodollar Business Day shall be extended to the next succeeding
Eurodollar Business Day; and
(b) if any Interest Period includes a date on which a payment of
principal of the Advances is required to be made under Section 2.04 but
does not end on such date, then (i) the principal amount (if any) of each
Adjusted CD Rate Advance required to be repaid on such date shall have an
Interest Period ending on such
16
date and (ii) the remainder (if any) of each such Adjusted CD Rate Advance
shall have an Interest Period determined as set forth above.
"Interest Rate Protection Agreement" means any interest rate cap
----------------------------------
agreement, interest rate swap agreement and any other interest rate protection
agreement between the Borrower and any Person that is a Lender or any Affiliate
of any Lender on conditions acceptable to the Agents and in accordance with
Section 5.02(s), as such agreement may be amended from time to time with the
consent of the Agents.
"Issuing Bank" means BTCo, as the issuer of a Letter of Credit.
------------
"KCAL Financing Statements" has the meaning specified in Section
-------------------------
3.01(g)(6)(B).
"KCAL Mortgage" means the Deed of Trust, Assignment of Leases and
-------------
Rents, Security Agreement and Fixture Filing effective as of the Closing Date
from YB of Los Angeles, as trustor, to Chicago Title Insurance Company, as
trustee, for the benefit of the Administrative Agent, as beneficiary, covering
the Real Property located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
"KCAL-TV" has the meaning specified in the preamble to this Agreement.
-------
"KLFY Partnership" means KLFY, L.P., a Delaware limited partnership of
----------------
which YB of Louisiana is the sole general partner and of which LAT is the sole
limited partner and which is governed by the KLFY Partnership Agreement.
"KLFY Partnership Agreement" means the Agreement of Limited
--------------------------
Partnership of KLFY, L.P. dated as of December 29, 1989 by and among YB of
Louisiana and LAT, as the same may be amended from time to time.
"LAT" means LAT, Inc., a Delaware corporation and wholly owned
---
subsidiary of the Borrower.
"Leaseholds" means all of the right, title and interest of the
----------
Borrower or any of its Subsidiaries in, to and under any leases, licenses or
other agreements granting to the Borrower or any of its Subsidiaries, directly
or indirectly, rights to enter, occupy or use any land, improvements and
fixtures, including, without limitation, the "Ground Leases" as described in
certain of the Mortgages.
17
"Lender Share" means, with respect to any Lender, an amount equal to
------------
the sum of such Lender's Term Loan Commitment and Revolving Facility Commitment
or, if the Revolving Facility Commitment shall have been terminated, the
aggregate outstanding amount of such Lender's Term Loan Advances, Revolving
Facility Advances and Letter of Credit Obligations.
"Lenders" means the Banks listed on the signature pages hereof and
-------
each Assignee that shall become a party hereto pursuant to Section 8.07,
including without limitation the Swingline Lender.
"Letter of Credit Obligations" means, for any Lender and at any time,
----------------------------
the sum of (x) the amounts then owing to such Lender (including in its capacity
as the Issuing Bank) under Section 2.10 to reimburse it in respect of amounts
drawn under Letters of Credit and (y) such Lender's ratable participation in the
aggregate amount then available for drawing under all Letters of Credit,
calculated in accordance with Section 2.10.
"Letters of Credit" has the meaning specified in Section 2.10.
-----------------
"Lien" means, with respect to any asset, any mortgage, deed of trust,
----
pledge, lien, charge, security interest or encumbrance of any kind, or any other
type of preferential arrangement that has the practical effect of creating a
security interest in respect of such asset. For the purposes of this Agreement,
the Borrower or any Subsidiary shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or
lessor under a conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loan Documents" means this Agreement, the Notes, the Guaranty
--------------
Agreement, the Collateral Documents, any Interest Rate Protection Agreements and
all agreements, documents and instruments executed and delivered in connection
with any Letters of Credit, in each case as the same may hereafter be amended or
otherwise modified from time to time, including without limitation the Amendment
Documents.
"Loan Party" means the Borrower and each Guarantor.
----------
"Major Casualty Proceeds" means (i) the aggregate insurance proceeds
-----------------------
received in connection with one or more
18
related events by the Borrower or any of its Subsidiaries under any insurance
policy maintained to cover losses with respect to tangible real or personal
property or improve ments or losses from business interruption or (ii) any award
or other compensation with respect to any condemnation of property (or any
transfer or disposition of property in lieu of condemnation) received by the
Borrower or any of its Subsidiaries, if the amount of such aggregate insurance
proceeds or award or other compensation exceeds $1,000,000.
"Majority Lenders" means Lenders having at least 51% of the aggregate
----------------
amount of the Lender Shares for all Lenders.
"Material Financial Obligations" means a principal or face amount of
------------------------------
Debt and/or payment obligations in respect of Derivatives Obligations of the
Borrower and/or one or more of its Subsidiaries, arising in one or more related
or unrelated transactions, exceeding in the aggregate $1,000,000.
"▇▇▇▇▇▇ Guaranty" has the meaning specified in the preamble to this
---------------
Agreement.
"Mortgage Amendment" means, with respect to each Mortgage executed
------------------
pursuant to the Existing Credit Agreement, an amendment thereto dated as of the
Closing Date substantially in the form of Exhibit K.
"Mortgages" means the KCAL Mortgage, the other mortgages and deeds of
---------
trust listed on Schedule 1.01-1, in each case as amended on the Closing Date by
the relevant Mortgage Amendment, and any other mortgages, deeds of trust or
similar instruments in substantially the form of Exhibit J executed from time to
time pursuant hereto, as the same may be amended or otherwise modified from time
to time.
"Multiemployer Plan" means a "multiemployer plan" as defined in
------------------
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make contributions,
including for these purposes any Person that ceased to be an ERISA Affiliate
during such five year period.
"Multiple Amendment" means Amendment No. 5 to the Existing Credit
------------------
Agreement, Amendment No. 1 to Borrower Security Agreement, Amendment No. 2 to
Borrower Pledge Agreement, Amendment No. 1 to Guarantor Security Agreements,
Amendment No. 1 to Guarantor Pledge Agreement and Amendment
19
No. 1 to Amended and Restated Guaranty Agreement dated as of the date of this
Amended Agreement, substantially in the form of Exhibit V.
"Multiple Employer Plan" means an employee benefit plan, other than a
----------------------
Multiemployer Plan, subject to Title IV of ERISA to which the Borrower or any
ERISA Affiliate, and at least one employer other than the Borrower or an ERISA
Affiliate, are making or accruing an obligation to make contributions or, in the
event that any such plan has been terminated, to which the Borrower or any ERISA
Affiliate made or accrued an obligation to make contributions during any of the
five plan years preceding the date of termination of such plan, including for
these purposes any Person that ceased to be an ERISA Affiliate during such five
year period.
"Net Income" means, for any accounting period, net income (or net
----------
deficit, as the case may be), as determined in accordance with generally
accepted accounting principles.
"Net Proceeds" means, with respect to any issuance by the Borrower of
------------
any equity securities or Permitted Subordinated Debt or any Permitted Asset Sale
by any Loan Party, an amount equal to the net cash proceeds received by the
Borrower or such Loan Party with respect to such equity securities or Permitted
Subordinated Debt or pursuant to such Permitted Asset Sale, as the case may be,
less (without duplication) any expenses relating thereto reasonably incurred by
the Borrower or such Loan Party in connection therewith.
"Net Working Investment" means at any date (x) the Consolidated
----------------------
current assets of the Borrower and its Subsidiaries (excluding cash, short-term
investments and Television Film Exhibition Rights) minus (y) the Consolidated
-----
current liabilities of the Borrower and its Subsidiaries (excluding Programming
Liabilities and principal of and interest on Debt), all determined as of such
date. Net Working Investment at any date may be a positive or negative number.
Net Working Investment increases when it becomes more positive or less negative
and decreases when it becomes less positive or more negative.
"1994 Subordinated Note Documents" means the 1994 Subordinated Notes
--------------------------------
and the Indenture dated as of November 14, 1994, as supplemented, among the
Borrower, as issuer, each of the Subsidiaries of the Borrower named therein as
the Initial Guarantors, as guarantors thereunder, and State Street Bank and
Trust Company, as successor trustee.
20
"1994 Subordinated Notes" means the Borrower's 11-3/4% Senior
-----------------------
Subordinated Notes due 2004.
"1995 Subordinated Note Documents" means the 1995 Subordinated Notes
--------------------------------
and the Indenture dated as of June 1, 1995, as supplemented, among the Borrower,
as issuer, each of the Subsidiaries of the Borrower named therein as the Initial
Guarantors, as guarantors thereunder, and State Street Bank and Trust Company,
as successor trustee.
"1995 Subordinated Notes" means the Borrower's 10-1/8% Senior
-----------------------
Subordinated Notes due 2005.
"1996 Subordinated Note Documents" means the 1996 Subordinated Notes
--------------------------------
and the Indenture dated as of January 1, 1996, as supplemented, among the
Borrower, as issuer, each of the Subsidiaries of the Borrower named therein as
the Initial Guarantors, as guarantors thereunder, and State Street Bank and
Trust Company, as trustee.
"1996 Subordinated Notes" means the Borrower's 9% Senior Subordinated
-----------------------
Notes due 2006.
"Non-Cash Charges" means, for any accounting period, charges properly
----------------
attributable to such period for depreciation, amortization and other non-cash
items as determined in accordance with generally accepted accounting principles;
provided that Non-Cash Charges shall include amortization of transaction fees
--------
and expenses incurred in connection with the Closing Date Transactions and non-
cash compensation provided to employees of the Borrower or any of its
Subsidiaries.
"Nonpermitted Swingline Advance" means an advance made by the
------------------------------
Swingline Lender to the Borrower that purports to be a Swingline Advance but
which advance (i) does not comply with the limitations contained in the proviso
to the first sentence of Section 2.01(c), or (ii) was made during a period
described in Section 2.01(d)(v). For purposes of determining compliance with
the limitations contained in the proviso to the first sentence of Section
2.01(c), the Swingline Lender may rely on information received by it from the
Administrative Agent; provided that the Administrative Agent shall have no
--------
obligation (except upon a request made by the Swingline Lender) to inform the
Swingline Lender with respect to such limitations.
"Notes" means the Term Loan Notes, the Revolving Facility Notes and
-----
the Swingline Note.
"Notice of Borrowing" has the meaning specified in
-------------------
21
Section 2.02.
"Notice of Debt to Operating Cash Flow Ratio" means (i) until the
-------------------------------------------
Borrower delivers a Notice of Debt to Operating Cash Flow Ratio pursuant to
Section 5.03(a), the certificate delivered by the Borrower pursuant to Section
3.01(g)(22) and (ii) thereafter, a Notice of Debt to Operating Cash Flow Ratio
delivered pursuant to Section 5.03(a).
"Notice of Issuance" has the meaning specified in Section 2.10.
------------------
"Notice of Swingline Refunding" has the meaning specified in Section
-----------------------------
2.01(d)(i).
"Obligations" means all obligations described in any Loan Document.
-----------
"Old Lenders" means the Lenders under the Existing Credit Agreement as
-----------
in effect immediately before the effectiveness of the Closing Date Assignment
and Assumption Agreement.
"Operating Cash Flow" means, for any accounting period, the amount
-------------------
calculated as follows:
Consolidated Net Income for such period,
plus to the extent deducted in determining such Consolidated Net Income,
----
Consolidated Non-Cash Charges and any other extraordinary non-cash
losses (including any losses from the sale of assets) for such period,
plus Consolidated interest expense, net of interest income, for such
----
period (after giving effect to all costs of, and savings realized by,
each interest rate cap or other interest rate protection agreement
which the Borrower may enter into with respect to interest payable on
any Debt or any portion thereof),
plus Consolidated income tax expense for such period,
----
plus if such accounting period includes any one or more of the first
----
twelve consecutive calendar months following the Closing Date, the
amount identified as "Total Cost Savings" opposite the latest such
month on Schedule 1.01-2 (each, a "Total Cost Savings Add-Back"),
---------------------------
22
minus all cash payments in respect of income taxes by the Borrower or any of
-----
its Subsidiaries during such period,
minus to the extent included in Consolidated Net Income for such period, any
-----
extraordinary non-cash gains (including gains from the sale of assets)
for such period,
minus Consolidated cash payments of Film Expense made during such period,
-----
all determined in accordance with generally accepted accounting principles;
provided that if the Acquisition or any Permitted Acquisition occurs during such
--------
accounting period, the calculation of Operating Cash Flow for such accounting
period shall give effect, on a Pro Forma Basis, to the items set forth above for
periods during such accounting period but prior to the closing date for the
Acquisition or the Permitted Acquisition, to the extent such items are properly
attributable to the acquired assets or properties, related costs or expenses or
the financing therefor; and provided further that in calculating Operating Cash
-------- -------
Flow on a Pro Forma Basis for any period which includes a period prior to the
Closing Date, the following Television Film Exhibition Rights shall be deemed
not to be attributable to the assets and properties acquired in the Acquisition
---
or related costs or expenses: (i) the Television Film Exhibition Rights of YB of
Los Angeles relating to Empty Nest, ▇▇▇▇▇▇ ▇▇▇▇▇ and Perfect Strangers (because
---------- ------------ -----------------
the liability related to such Television Film Exhibition Rights shall be
retained by KCAL Broadcasting, Inc. and not assumed by the Borrower or any of
its Subsidiaries in the Acquisition) and (ii) the Television Film Exhibition
Rights relating to ▇▇▇▇▇▇/Alana and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (because these television
------------ -------------
shows have been cancelled prior to the Closing Date).
"Parent" means, with respect to any Lender, any Person controlling
------
such Lender.
"Participant" has the meaning specified in Section 8.07(b).
-----------
"Payment Date" means the last day of each March, June, September and
------------
December (or, if such day is not a Domestic Business Day, the next succeeding
Domestic Business Day), commencing with the first such date occurring after the
Closing Date.
23
"PBGC" means the Pension Benefit Guaranty Corporation.
----
"Permitted Acquisition" means an acquisition by any one or more
---------------------
wholly-owned Subsidiaries of the Borrower of any one or more television stations
or of any one or more businesses incidental to the ownership and operation of
television stations, or an acquisition by the Borrower or any one or more
wholly-owned Subsidiaries of the Borrower of all of the capital stock of a
corporation owning one or more television stations or one or more businesses
incidental to the ownership and operation of such television stations; provided
--------
that:
(a) at least thirty (30) days prior to the closing date for such
acquisition, the Borrower shall have delivered to each of the Lenders (i) a
compliance certificate, substantially in the form of Exhibit T, certifying
the Borrower's compliance with the provisions of this Agreement set forth
in Exhibit T, as of the most recent date for compliance prior to the date
of such certificate, after giving effect on a Pro Forma Basis to such
acquisition, and (ii) a report of the chief financial officer of the
Borrower, in a form and providing sufficient detail and justification for
the information provided therein, including assumptions, as shall be found
to be reasonable by each of the Agents in its sole good faith discretion,
after completion of reasonable due diligence, establishing that:
(x) after giving effect to such acquisition and the financing
therefor, the Borrower shall be in compliance at the end of each
fiscal year until the Termination Date with the covenants contained in
Sections 5.01(l), 5.01(m), 5.01(n), 5.01(o), 5.02(a), 5.02(b),
5.02(d), 5.02(f), 5.02(g) and 5.02(h); and
(y) after giving effect to such acquisition and the financing
therefor, the Debt to Operating Cash Flow Ratio, calculated after
giving effect to any pro forma cost savings, shall be less than 6.0;
(b) at the time of such acquisition, no Default is then continuing or
would result therefrom; and
(c) at the time of such acquisition, the stock of any new Subsidiaries
of the Borrower acquired or
24
created in connection therewith or resulting therefrom shall be pledged to
the Administrative Agent for its benefit and the benefit of the Lenders,
each of such new Subsidiaries shall become a Guarantor hereunder and each
of such new Subsidiaries shall grant liens and security interests in all of
its assets to the Administrative Agent for its benefit and the benefit of
the Secured Parties;
provided further that, for the avoidance of doubt, the parties hereto agree that
-------- -------
the Acquisition is a Permitted Acquisition.
"Permitted Acquisition Deposit" means a deposit made by the Borrower
-----------------------------
or any of its Subsidiaries pursuant to any purchase agreement to which it is or
is to be a party in connection with an acquisition that it proposes to make as a
Permitted Acquisition; provided that at the time of the making of such deposit,
--------
no Default is then continuing or would result therefrom.
"Permitted Acquisition Mortgage" has the meaning specified in Section
------------------------------
3.03(e)(5).
"Permitted Asset Sale" means any Asset Sale by the Borrower or any of
--------------------
its Subsidiaries (a) where the Net Proceeds of such Asset Sale, when added to
the Net Proceeds of any related Asset Sales, are less than $500,000, unless such
Asset Sale is the disposition of property and assets comprising a television
station or a business incidental thereto; (b) which is the sale of television
station WTVO in Rockford, Illinois; or (c) where the Net Proceeds of such Asset
Sale are greater than or equal to $500,000 or such Asset Sale is the disposition
of property and assets comprising a television station or a business incidental
thereto, if (x) before and after giving effect thereto no Default shall have
occurred and be continuing; (y) except in the case of a Qualifying FCC-Mandated
Sale, the aggregate total amount of the Asset Operating Cash Flow with respect
to all such Asset Sales since the Closing Date (excluding any Qualifying FCC-
Mandated Sale) (A) with respect to any such Asset Sale occurring after the first
anniversary of the Closing Date, constitutes less than fifteen percent (15%) of
the greatest amount of Operating Cash Flow for any consecutive twelve-month
period commencing after the Closing Date or (B) with respect to any such Asset
Sale occurring within twelve months of the Closing Date, constitutes less than
fifteen percent (15%) of Operating Cash Flow for the most recent twelve months
ended prior to such Asset Sale, calculated after giving effect, on a Pro Forma
Basis, to the latest such Asset Sale, all other Permitted Asset Sales and
25
all Permitted Acquisitions occurring on or after the Closing Date; and (z) at
least thirty (30) days prior to the date of each such Asset Sale, the Borrower
shall have delivered to each of the Lenders (i) a compliance certificate,
substantially in the form of Exhibit T, certifying the Borrower's compliance
with the provisions of this Agreement set forth in Exhibit T, as of the most
recent date for compliance prior to the date of such certificate, after giving
effect on a Pro Forma Basis to such Asset Sale, and (ii) a report of the chief
financial officer of the Borrower, in a form and providing sufficient detail and
justification for the information provided therein, including assumptions, as
shall be found to be reasonable by each of the Agents in its sole good faith
discretion, after completion of reasonable due diligence, establishing that
after giving effect to such Asset Sale, the Borrower shall be in compliance at
the end of each fiscal year until the Termination Date with the covenants
contained in Sections 5.01(l), 5.01(m), 5.01(n), 5.01(o), 5.02(a), 5.02(b),
5.02(d), 5.02(f), 5.02(g) and 5.02(h).
"Permitted Liens" means:
---------------
(i) Liens for taxes, assessments or governmental charges or claims
the payment of which is not at the time required by Section 5.01(f);
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics and materialmen incurred in the ordinary course of
business for sums not yet due or being contested in good faith and by
appropriate proceedings promptly initiated and diligently conducted, if a
reserve or other appropriate provision, if any, as shall be required by
generally accepted accounting principles shall have been made therefor;
(iii) Liens, other than Liens created by Section 4068 of ERISA,
incurred or deposits made in the ordinary course of business in connection
with workmen's compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders, statutory
obligations, surety, customs and appeal bonds, bids, leases, performance
and return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(iv) Liens, in an aggregate amount existing from time to time not to
exceed $2,000,000, which Liens (A) arise in the ordinary course of
business, (B) do
26
not secure Debt or Derivatives Obligations and (C) do not in the aggregate
materially detract from the value of its assets or materially impair the
use thereof in the operation of its business;
(v) leases or subleases granted to others in the ordinary course of
business or existing on property at the time acquired and not interfering
with the ordinary conduct of the business of the Borrower or any of its
Subsidiaries;
(vi) Permitted Encumbrances, as defined in each Mortgage, with
respect to the Real Property covered thereby;
(vii) purchase money Liens upon or in any property acquired or held
by the Borrower or any of its Subsidiaries in the ordinary course of
business to secure the purchase price of such property or to secure Debt
incurred solely for the purpose of financing the acquisition of such
property, or Liens existing on such property at the time of its
acquisition, or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount; provided that (A) the aggregate
--------
amount of Liens described in this clause (vii) that are outstanding or
existing at any time shall not exceed $10,000,000 and (B) no such Lien
shall extend to or cover any property other than the property being
acquired, and no such extension, renewal or replacement shall extend to or
cover any property not theretofore subject to the Lien being extended,
renewed or replaced; provided that Liens on property acquired or held by
--------
the Borrower or any of its Subsidiaries to secure the purchase price of any
Asset Purchase or Permitted Acquisition or to secure Debt incurred for the
purpose of financing any Asset Purchase or Permitted Acquisition are
understood not to be Liens described of a type in this clause (vii);
(viii) Liens existing on the Closing Date and set forth in Schedule
4.01(i);
(ix) Liens created by the Collateral Documents;
(x) one or more attachments or judgment Liens not exceeding
$1,000,000 in the aggregate unless the judgment such Lien secures shall
not, within 30 days after the entry thereof, have been discharged or
execution thereof stayed pending appeal, or shall not have been discharged
within 30 days after the expiration of any such stay; and
27
(xi) Liens created after the Closing Date upon any Real Property
owned by the Borrower or any of its Subsidiaries; provided that (A) such
--------
Liens shall be junior and subordinate to the Liens created by or pursuant
to the Loan Documents, (B) the aggregate amount of the obligations secured
by such Liens shall not at any time exceed $5,000,000 and (C) each of such
Liens and such Liens in the aggregate must not interfere with the ordinary
conduct of business of the Borrower or any of its Subsidiaries;
provided, however, that no Lien in favor of the PBGC shall, in any event, be a
-------- -------
"Permitted Lien"; and provided further that no Lien shall constitute a Permitted
-------- -------
Lien on and after the commencement in respect thereof of any enforcement,
collection, execution, levy or foreclosure proceeding where such Lien secures
any obligation in an amount equal to or exceeding $50,000.
"Permitted Subordinated Debt" means Debt other than Existing
---------------------------
Subordinated Debt for which the Borrower is directly and primarily liable, but
which may be guaranteed by any one or more Guarantors (provided that any
--------
obligations of any Guarantor in respect thereof are subordinate to such
Guarantor's obligations under the Guaranty Agreement to the same extent and on
similar terms as such Guarantor's obligations in respect of the Existing
Subordinated Debt), and which (v) is subordinated in right of payment to the
prior payment in full in cash of all of the obligations of the Borrower and the
Guarantors to pay principal of and interest on the Notes, all Letter of Credit
Obligations and all fees and other amounts payable hereunder or under any other
Loan Document, pursuant to subordination provisions that are no less favorable
to the Lenders than the subordination provisions for any Existing Subordinated
Debt; (w) contains no mandatory redemption provisions which would require any
redemption in circumstances in which the mandatory redemption provisions for any
Existing Subordinated Debt would not require redemption of any Existing
Subordinated Debt; (x) contains financial covenants and events of default that
are no more onerous to the Borrower and its Subsidiaries than the financial
covenants and events of default for any Existing Subordinated Debt; (y) has a
maturity date no earlier than January 15, 2006; and (z) is not secured by any
Lien; provided that at least fifteen (15) days prior to the incurrence of such
--------
Debt, the Borrower shall have delivered to each of the Lenders (i) a compliance
certificate, substantially in the form of Exhibit T, certifying the Borrower's
compliance with the provisions of this Agreement set forth in Exhibit T, as of
the most
28
recent date for compliance prior to the date of such certificate, after giving
effect on a Pro Forma Basis to the incurrence of such Debt, and (ii) a report of
the chief financial officer of the Borrower, in a form and providing sufficient
detail and justification for the information provided therein, including
assumptions, as shall be found to be reasonable by each of the Agents in its
sole good faith discretion, after completion of reasonable due diligence,
establishing that after giving effect to the incurrence of such Debt, the
Borrower shall be in compliance at the end of each fiscal year until the
Termination Date with the covenants contained in Sections 5.01(l), 5.01(m),
5.01(n), 5.01(o), 5.02(a), 5.02(b), 5.02(d), 5.02(f), 5.02(g) and 5.02(h).
"Permitted Subordinated Debt Repurchase" means a prepayment,
--------------------------------------
redemption, defeasance or purchase of any Existing Subordinated Debt or
Permitted Subordinated Debt to the extent permitted by clause (iv) of Section
5.02(h).
"Person" means an individual, partnership, corporation (including a
------
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.
"Plan" means an employee benefit plan, other than a Multiemployer
----
Plan, (i) which is maintained for employees of the Borrower or any ERISA
Affiliate and subject to Title IV of ERISA or (ii) which could subject the
Borrower or any ERISA Affiliate to liability under Section 4069 of ERISA in the
event that such plan has been or was to be terminated.
"Pledge Agreements" means the Borrower Pledge Agreement and the
-----------------
Guarantor Pledge Agreements.
"Pledged Instruments" means the Pledged Instruments as defined in the
-------------------
Pledge Agreements and all Instruments as defined in the Security Agreements.
"Pledged Stock" has the meaning specified in the Pledge Agreements.
-------------
"Prime Rate" means the rate of interest publicly announced by BTCo in
----------
New York City from time to time as its Prime Rate.
"Pro Forma Basis" means, at any time, a pro forma basis as agreed
---------------
among the Borrower and the Agents at such time.
29
"Pro Forma Debt Service" means, at any date, the sum of (i) Total
----------------------
Interest Expense for the four consecutive Fiscal Quarters then most recently
ended plus (ii) the aggregate amount of all scheduled principal payments
(including mandatory principal repayments required by Section 2.04, mandatory
principal repayments required by Section 2.08(d)(ii) and mandatory principal
payments (to the extent reasonably foreseeable) required by Section 2.09(b)(ii))
on all Debt of the Borrower or any of its Subsidiaries, including the portion of
any payments under Capital Leases that is allocable to principal, for the four
consecutive Fiscal Quarters immediately following the Fiscal Quarter during
which such date occurs.
"Programming Liabilities" means, as to any Person, all obligations of
-----------------------
such Person under contracts for the acquisition of broadcast rights to
television programs and films, as determined in accordance with generally
accepted accounting principles.
"Quad Cities Joint Venture" means PCI/RIBCO, the joint venture formed
-------------------------
pursuant to the Joint Venture Agreement dated as of September 30, 1981, between
YB of ▇▇▇▇▇▇▇▇▇, as successor to ▇▇▇▇▇▇ Communications Incorporated, and Coronet
Communications Company, as successor to Rock Island Broadcasting Co.
"Qualifying FCC-Mandated Sale" means an Asset Sale by the Borrower or
----------------------------
any of its Subsidiaries (a) which is the disposition of property and assets
comprising a television station or a business incidental thereto, (b) which is
required by the FCC as a condition to or otherwise in connection with a
Permitted Acquisition and (c) where Operating Cash Flow on a Pro Forma Basis for
the twelve-month period immediately after the consummation of both such Asset
Sale and the related Permitted Acquisition is (A) with respect to any such Asset
Sale occurring after the first anniversary of the Closing Date, at least ninety-
five percent (95%) of the greatest amount of Operating Cash Flow for any
consecutive twelve-month period commencing after the Closing Date (but prior to
the earlier of such FCC-Mandated Sale and such related Permitted Acquisition) or
(B) with respect to any such Asset Sale occurring within twelve months of the
Closing Date, at least ninety-five percent (95%) of Operating Cash Flow for the
most recent twelve months ended prior to such Asset Sale, calculated after
giving effect, on a Pro Forma Basis, to the latest such Asset Sale, all other
Permitted Asset Sales and all Permitted Acquisitions occurring on or after the
Closing Date.
30
"Real Property" means all of the Borrower's and its Subsidiaries'
-------------
right, title and interest (including Leaseholds) in and to land, improvements
and fixtures, including, without limitation, the "Property" described in each of
the Mortgages.
"Reference Banks" means the CD Reference Banks or the Eurodollar
---------------
Reference Banks, as the context may require, and "Reference Bank" means any one
of such Reference Banks.
"Refinancing Permitted Subordinated Debt" means Permitted Subordinated
---------------------------------------
Debt incurred by the Borrower, the Net Proceeds of which shall be used at the
time of issuance thereof solely for the prepayment, redemption, defeasance or
purchase of any Existing Subordinated Debt or Permitted Subordinated Debt to the
extent permitted by clause (iv) of Section 5.02(h).
"Register" has the meaning specified in Section 8.07(e).
--------
"Regulation G" means Regulation G of the Board of Governors of the
------------
Federal Reserve System, as in effect from time to time.
"Regulation U" means Regulation U of the Board of Governors of the
------------
Federal Reserve System, as in effect from time to time.
"Related Documents" means the Acquisition Documents and the
-----------------
Subordinated Debt Documents and, in each case, all amendments thereto.
"Restricted Payment" means, (i) any dividend or other distribution on
------------------
any shares of the Borrower's capital stock (except dividends payable solely in
shares of its capital stock of the same class) or (ii) any payment on account of
the purchase, redemption, retirement, defeasance, acquisition, return or
distribution with respect to (a) any shares of the Borrower's capital stock or
(b) any option, warrant or other right to acquire shares of the Borrower's
capital stock.
"Revolving Facility Advance" has the meaning specified in Section
--------------------------
2.01(b).
"Revolving Facility Borrowing" means a borrowing consisting of
----------------------------
Revolving Facility Advances made or Converted on the same day by the Lenders.
"Revolving Facility Commitment" means, with
-----------------------------
31
respect to each Lender, the amount set forth opposite such Lender's name on the
Appendix hereto under the caption "Revolving Facility Commitment", in each case
as such amount may be reduced or terminated pursuant to Section 2.07, 2.08,
2.09(b) or 6.01; provided that if at any time a Lender shall have entered into
--------
one or more Assignment and Assumption Agreements, such Lender's Revolving
Facility Commitment thereafter shall be the amount set forth for such Lender as
its Revolving Facility Commitment in the Register maintained by the
Administrative Agent pursuant to Section 8.07(e), as such amount may be reduced
or terminated pursuant to Section 2.07, 2.08, 2.09(b) or 6.01.
"Revolving Facility Commitment Reduction Date" means the last day of
--------------------------------------------
each March, June, September and December (or, if such day is not a Domestic
Business Day, the next succeeding Domestic Business Day), commencing with the
first such date occurring in 1999.
"Revolving Facility Note" means the promissory note issued by the
-----------------------
Borrower payable to the order of a Lender, in substantially the form of Exhibit
A-2, evidencing the indebtedness of the Borrower to such Lender in respect of
the Revolving Facility Advances made by such Lender.
"Revolving Facility Percentage" means, with respect to each Lender at
-----------------------------
any time, the percentage that its Revolving Facility Commitment represents of
the aggregate amount of the Revolving Facility Commitments of all Lenders at
such time.
"Revolving Facility Termination Date" means the earlier of the last
-----------------------------------
Domestic Business Day in September, 2003 and the date of termination in whole of
the Revolving Facility Commitments pursuant to Section 2.07 or 6.01.
"Secured Parties" means the Secured Parties as defined in the
---------------
Collateral Documents.
"Security Agreements" means the Borrower Security Agreement and the
-------------------
Guarantor Security Agreements.
"Senior Debt" means, as of any date, the aggregate unpaid principal
-----------
amount on such date of all Debt of the Borrower and its Subsidiaries other than
the Existing Subordinated Debt and Permitted Subordinated Debt.
"Solvency Certificate" has the meaning specified in Section
--------------------
3.01(g)(12).
"Solvent" means, with respect to any Person on a
-------
32
particular date, that on such date (i) the fair value of the property of such
Person is greater than the total amount of its liabilities (including, without
limitation, liabilities on all claims, whether or not reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured) of such Person, (ii) the
present fair salable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such Person on its
existing debts as they become absolute and matured, (iii) such Person is able to
realize upon its assets and pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the normal course of
business, (iv) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature and (v) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person's property would constitute unreasonably small capital after giving
due consideration to the prevailing practice in each respective industry in
which such person is engaged.
"Subordinated Debt Documents" means the 1994 Subordinated Note
---------------------------
Documents, the 1995 Subordinated Note Documents, the 1996 Subordinated Note
Documents and any notes, indentures and other documents governing any other
Permitted Subordinated Debt, and, in each case, all amendments thereto.
"Subsidiary" of any Person means (i) any corporation of which more
----------
than 50% of the outstanding capital stock having ordinary voting power to elect
a majority of the Board of Directors of such corporation (irrespective of
whether or not at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such Person, by such
Person and one or more other Subsidiaries, or by one or more other Subsidiaries
and (ii) any partnership, joint venture or similar entity of which the Borrower
or any Subsidiary is, directly or indirectly, a general partner or of which the
Borrower or any Subsidiary has the right, directly or indirectly, by law,
contract or otherwise, to control or to manage the business and affairs,
including without limitation the KLFY Partnership, the WKRN Partnership and the
WATE Partnership; provided that no Tower Affiliate shall be deemed to be a
--------
Subsidiary of the Borrower or of any of its Subsidiaries.
"Swingline Advance" has the meaning specified in
-----------------
33
Section 2.01(c).
"Swingline Commitment" means the commitment of the Swingline Lender to
--------------------
make Swingline Advances to the Borrower hereunder, in an aggregate amount not to
exceed $10,000,000, as such amount may be reduced or terminated pursuant to
Section 2.07, 2.08, 2.09(b) or 6.01.
"Swingline Lender" means First Union National Bank of North Carolina
----------------
in its capacity as Swingline Lender hereunder, and its successors in such
capacity.
"Swingline Note" means the promissory note issued by the Borrower
--------------
payable to the order of the Swingline Lender, in substantially the form of
Exhibit A-3, evidencing the indebtedness of the Borrower to the Swingline Lender
in respect of the Swingline Advances made by the Swingline Lender.
"Syndication Agent" means ▇▇▇▇▇▇ Guaranty in its capacity as
-----------------
Syndication Agent for the Lenders hereunder, and its successors in such
capacity.
"Television Film Exhibition Rights" means the asset on the Borrower's
---------------------------------
Consolidated balance sheet which, in accordance with generally accepted
accounting principles, should represent contract rights of the Borrower and its
Consolidated Subsidiaries relating to television film exhibition.
"Temporary Cash Investments" means (i) commercial paper of any
--------------------------
corporation incorporated under the laws of the United States of America or any
State thereof rated at least P-1 or its equivalent by ▇▇▇▇▇'▇ Investors Service,
Inc. or A-1 or its equivalent by Standard and Poor's Corporation and maturing
within 270 days, (ii) direct obligations of, or obligations the principal of or
any interest on which are unconditionally guaranteed by, the United States of
America, in each case maturing within one year from the date of acquisition
thereof by the Borrower or any Subsidiary (as the case may be) and (iii) any
time deposit with, including certificates of deposit issued by, a commercial
bank of recognized standing operating in the United States of America having
combined capital and surplus of at least $50,000,000.
"Term Loan Advance" has the meaning specified in Section 2.01(a).
-----------------
"Term Loan Borrowing" means a borrowing consisting of Term Loan
-------------------
Advances made or Converted on the same day by
34
the Lenders.
"Term Loan Commitment" means, with respect to each Lender, the amount
--------------------
set forth opposite such Lender's name on the Appendix hereto under the caption
"Term Loan Commitment", as such amount may be reduced or terminated pursuant to
Section 2.07, 2.08, 2.09(b) or 6.01; provided that if at any time a Lender shall
--------
have entered into one or more Assignment and Assumption Agreements, such
Lender's Term Loan Commitment thereafter shall be the amount set forth for such
Lender as its Term Loan Commitment in the Register maintained by the
Administrative Agent pursuant to Section 8.07(e), as such amount may be reduced
or terminated pursuant to Section 2.07, 2.08, 2.09(b) or 6.01.
"Term Loan Note" means the promissory note issued by the Borrower
--------------
payable to the order of a Lender, in substantially the form of Exhibit A-1,
evidencing the indebtedness of the Borrower to such Lender in respect of the
Term Loan Advances made by such Lender.
"Term Loan Termination Date" means the earlier of the last Domestic
--------------------------
Business Day in September, 2003 and the date of termination in whole of the Term
Loan Commitments pursuant to Section 2.07 or 6.01.
"Termination Date" means the latest to occur of the Term Loan
----------------
Termination Date, the Revolving Facility Termination Date and the date when all
Term Loan Advances, Revolving Facility Advances and Letter of Credit Obligations
shall have terminated or been repaid in full.
"Termination Event" means (i) a "reportable event", as such term is
-----------------
described in Section 4043 of ERISA (other than a "reportable event" as to which
the 30-day notice requirement has been waived by the PBGC), or an event
described in Section 4068(f) of ERISA, or (ii) the withdrawal of the Borrower or
any ERISA Affiliate from a Multiple Employer Plan during a plan year in which it
was a "substantial employer", as such term is defined in Section 4001(a)(2) of
ERISA, or the incurrence of liability by the Borrower or any ERISA Affiliate
under Section 4064 of ERISA upon the termination of a Multiple Employer Plan, or
(iii) providing notice of intent to terminate a Plan pursuant to Section
4041(a)(2) of ERISA or the treatment of a Plan amendment as a termination under
Section 4041 of ERISA, or (iv) the institution of proceedings to terminate a
Plan by the PBGC under Section 4042 or ERISA, or (v) any other event or
condition which might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan.
35
"Total Interest Expense" means, for any accounting period, the
----------------------
Consolidated amount of all interest charges, whether expensed or capitalized,
including the portion of any obligation under Capital Leases allocable to
interest expense in accordance with generally accepted accounting principles
(after giving effect to all costs of, and savings realized by, each interest
rate swap or cap agreement which the Borrower may enter into with respect to
interest payable on any Debt or any portion thereof) and all premiums and other
amounts that are amortized (other than interest charges and principal), in each
case with respect to any Debt of the Borrower or any of its Subsidiaries during
such period.
"Tower Affiliate" means (i) the Quad Cities Joint Venture, (ii) CTSI
---------------
and (iii) any other Person (A) of which the Borrower or any Guarantor shall
acquire an ownership interest as a result of a Permitted Acquisition and (B) of
which the sole activity is the ownership and operation of a transmission tower
or towers.
"Trade Debt" means, for any accounting period, accounts payable
----------
accrued during such period for the deferred purchase price of property or
services (but excluding Film Expense) to the extent such payables and
obligations are not overdue by more than 6 months.
"Type" has the meaning specified in the definition of the term
----
"Advance" contained in this Article I.
"Voting Stock" of any Person means stock of any class or classes (or
------------
equivalent interests), if the holders of the stock of such class or classes (or
equivalent interests) are ordinarily, in the absence of contingencies, entitled
to vote for the election of a majority of the directors (or persons performing
similar functions) of such Person, even though the right so to vote has been
suspended by the happening of such a contingency.
"WATE Partnership" means WATE, L.P., a Delaware limited partnership of
----------------
which YB of Knoxville is the sole general partner and of which YBK is the sole
limited partner and which is governed by the WATE Partnership Agreement.
"WATE Partnership Agreement" means the Agreement of Limited
--------------------------
Partnership of WATE, L.P. dated as of November 10, 1994 between YB of Knoxville
and YBK, as the same may be amended from time to time.
"Withdrawal Liability" shall have the meaning
--------------------
36
given such term under Part I of Subtitle E of Title IV of ERISA.
"WKRN Partnership" means WKRN, L.P., a Delaware limited partnership of
----------------
which YB of Nashville is the sole general partner and of which YBT is the sole
limited partner and which is governed by the WKRN Partnership Agreement.
"WKRN Partnership Agreement" means the Agreement of Limited
--------------------------
Partnership of WKRN, L.P. dated as of December 29, 1989 by and among YB of
Nashville and YBT, as the same may be amended from time to time.
"YB of ▇▇▇▇▇▇▇▇▇" means Young Broadcasting of ▇▇▇▇▇▇▇▇▇, Inc., a
---------------
Delaware corporation.
"YB of Knoxville" means Young Broadcasting of Knoxville, Inc., a
---------------
Delaware corporation.
"YB of Los Angeles" means Young Broadcasting of Los Angeles, Inc., a
-----------------
Delaware corporation.
"YB of Louisiana" means Young Broadcasting of Louisiana, Inc., a
---------------
Delaware corporation.
"YB of Nashville" means Young Broadcasting of Nashville, Inc., a
---------------
Delaware corporation.
"YB of Rapid City" means Young Broadcasting of Rapid City, Inc., a
----------------
Delaware corporation.
"YB of Sioux Falls" means Young Broadcasting of Sioux Falls, Inc., a
-----------------
Delaware corporation.
"YBK" means YBK, Inc., a Delaware corporation and wholly owned
---
subsidiary of the Borrower.
"YBT" means YBT, Inc., a Delaware corporation and wholly owned
---
subsidiary of the Borrower.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
---------------------------
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. Unless otherwise specified herein,
----------------
all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to
be delivered hereunder shall be prepared in accordance with
37
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent (except for changes concurred in by the Independent Public
Accountants) with the most recent audited consolidated financial statements of
the Borrower and its Consolidated Subsidiaries delivered to the Lenders;
provided that, if there is a change in generally accepted accounting principles
--------
at any time and the Borrower notifies the Administrative Agent that the Borrower
wishes to amend any covenant in Article V (or the definition of any term used
therein) to eliminate the effect of such change on the operation of such
covenant (or if the Administrative Agent notifies the Borrower that the Majority
Lenders wish to amend Article I or V for such purpose), then the Borrower's
compliance with such covenant shall be determined on the basis of generally
accepted accounting principles in effect immediately before the relevant change
in generally accepted accounting principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to the
Borrower and the Majority Lenders.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances.
------------
2.01(a) The Term Loan Advances. (i) Each Lender severally agrees,
----------------------
on the terms and conditions set forth herein, to make a single advance to the
Borrower on the Closing Date (each such advance, a "Term Loan Advance") pursuant
-----------------
to this Section 2.01(a) in an amount equal to the amount of such Lender's Term
Loan Commitment. Each Term Loan Advance made on the Closing Date shall be a
Base Rate Advance and shall remain a Base Rate Advance until Converted to a
Fixed Rate Advance pursuant to Section 2.15.
(ii) Each Term Loan Borrowing shall be in an aggregate amount not
less than $10,000,000 or an integral multiple of $100,000 in excess thereof and
shall consist of Term Loan Advances of the same Type made or Converted on the
same day by the Lenders ratably according to their respective Term Loan
Commitments.
(iii) The Term Loan Advances are not revolving in nature and any
amounts of any Term Loan Advances that are repaid pursuant to Section 2.04 or
prepaid pursuant to Section 2.09 may not be reborrowed.
2.01(b) The Revolving Facility Advances. Each
-------------------------------
38
Lender severally agrees, on the terms and conditions set forth herein, to make
one or more advances (each such advance, a "Revolving Facility Advance") to the
--------------------------
Borrower from time to time during the period from the Closing Date until the
Revolving Facility Termination Date pursuant to this Section 2.01(b); provided
--------
that immediately after each Revolving Facility Advance, the sum of the aggregate
outstanding principal amount of all Revolving Facility Advances for such Lender,
all Letter of Credit Obligations for such Lender and such Lender's Revolving
Facility Percentage of the aggregate outstanding principal amount of all
Swingline Advances (excluding any portion of the Swingline Advances to be repaid
with the proceeds of such Revolving Facility Advance) does not exceed at any
time such Lender's Revolving Facility Commitment. Each Revolving Facility
Borrowing shall be in an aggregate amount not less than $1,000,000 or an
integral multiple of $100,000 in excess thereof and shall consist of Revolving
Facility Advances of the same Type made or Converted on the same day by the
Lenders ratably according to their respective Revolving Facility Commitments.
Within the foregoing limits, the Borrower may borrow under this Section 2.01(b),
and repay or, to the extent permitted by Section 2.09, prepay Revolving Facility
Advances and reborrow under this Section 2.01(b) at any time until the Revolving
Facility Termination Date.
2.01(c) The Swingline Advances. The Swingline Lender agrees, on the
----------------------
terms and conditions set forth herein, to make one or more advances (each such
advance, a "Swingline Advance") to the Borrower from time to time during the
-----------------
period from the Closing Date until the Revolving Facility Termination Date
pursuant to this Section 2.01(c); provided that, immediately after each
--------
Swingline Advance, (i) the aggregate principal amount of all Swingline Advances
shall not exceed the Swingline Commitment and (ii) the sum of the aggregate
principal amount of all Swingline Advances plus the aggregate principal amount
of all Revolving Facility Advances and all Letter of Credit Obligations shall
not at any time exceed the aggregate amount of the Revolving Facility
Commitments. Each Swingline Advance shall be a Base Rate Advance and shall be
in an aggregate amount not less than $50,000 or an integral multiple thereof.
Within the foregoing limits, the Borrower may borrow under this Section 2.01(c),
and repay or, to the extent permitted by Section 2.09, prepay Swingline Advances
and reborrow under this Section 2.01(c) at any time until the earlier of the
Revolving Facility Termination Date and the date when the Swingline Commitment
shall have been reduced to zero or terminated pursuant to Section 2.07, 2.08,
2.09(b) or 6.01.
39
2.01(d) Refunding of Swingline Advances.
-------------------------------
(i) The Borrower shall pay to the Swingline Lender, on demand, the
amount of any outstanding Swingline Advances.
(ii) At any time and from time to time the Swingline Lender may, by
written notice to the Administrative Agent, which the Administrative Agent shall
promptly forward to each Lender with a Revolving Facility Commitment, require
each Lender with a Revolving Facility Commitment to pay to the Swingline Lender
an amount equal to such Lender's Revolving Facility Percentage of the aggregate
unpaid principal amount of the Swingline Advances (excluding any Nonpermitted
Swingline Advances) then outstanding. Any such notice (a "Notice of Swingline
-------------------
Refunding") shall specify the date on which such payments are to be made, which
---------
date shall be the next Domestic Business Day after such Notice of Swingline
Refunding is delivered to the Administrative Agent, the aggregate unpaid
principal amount of such Swingline Advances and payment instructions for such
payments.
(iii) Not later than 3:00 p.m. (New York City time) on the date
specified in the Notice of Swingline Refunding, each Lender with a Revolving
Facility Commitment shall pay such Lender's Revolving Facility Percentage of the
aggregate unpaid principal amount of the Swingline Advances (excluding any
Nonpermitted Swingline Advances) then outstanding to the Swingline Lender in
accordance with the payment instructions set forth in the Notice of Swingline
Refunding, in Federal or other funds immediately available in Charlotte, North
Carolina. The amount so paid by each Lender with a Revolving Facility
Commitment shall constitute a Revolving Facility Advance to the Borrower which
shall be a Base Rate Advance; provided that, if the Lenders with Revolving
--------
Facility Commitments are prevented from making such Revolving Facility Advances
to the Borrower by the provisions of the United States Bankruptcy Code or
otherwise, the amount so paid by each such Lender shall constitute a purchase by
it of an assignment in the unpaid principal amount of the Swingline Advances
(and interest accruing thereon after the date of such payment), and the
Swingline Lender and each Lender with a Revolving Facility Commitment shall
promptly execute and deliver to the Administrative Agent an Assignment and
Assumption Agreement to evidence such assignment.
(iv) Each Lender with a Revolving Facility Commitment acknowledges
and agrees that its obligations to
40
refund Swingline Advances in accordance with the terms of this Section 2.01(d)
are absolute and unconditional and shall not be affected by any circumstance
whatsoever, including, without limitation, (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender or any other Person may
have against the Swingline Lender or the Borrower, (ii) the occurrence or
continuance of a Default or an Event of Default or the termination of the
Revolving Facility Commitments, (iii) any adverse change in the condition
(financial or otherwise) of the Borrower or any other Person, (iv) any breach of
this Agreement by the Borrower or any other Lender (other than the Swingline
Lender, in such capacity) or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing; provided that no
--------
Lender shall be obligated to make any payment to the Swingline Lender under this
Section 2.01(d) with respect to any portion of any Nonpermitted Swingline
Advance.
(v) If at any time the Swingline Lender is given written notice by
the Administrative Agent or the Borrower that any condition set forth in Section
3.02 is not then satisfied, the Lenders shall not have any obligations pursuant
to this Section 2.01(d) to refund (or purchase any assignment in) any Swingline
Advances made by the Swingline Lender during the period after it has received
such written notice until the time when it receives written notice from the
Administrative Agent that such condition has been satisfied.
SECTION 2.02. Method of Borrowing. 2.02(a) The Borrower shall give
-------------------
the Administrative Agent notice (a "Notice of Borrowing") of (i) each Borrowing
-------------------
to be made on the Closing Date no later than the Domestic Business Day prior to
the Closing Date, (ii) each Revolving Facility Borrowing thereafter (other than
Revolving Facility Borrowings made to refund Swingline Advances pursuant to
Section 2.01(d)(iii)) not later than 10:00 A.M. (New York City time) on the
third Eurodollar Business Day before each Eurodollar Rate Advance, the third
Domestic Business Day before each Adjusted CD Rate Advance and the Domestic
Business Day before each Base Rate Advance and (iii) each Swingline Advance not
later than 11:00 A.M. (New York City time) on the date of each Swingline
Advance, specifying:
(i) the date of such Borrowing or Swingline Advance, which shall be a
Domestic Business Day in the case of an Adjusted CD Rate Advance or a Base
Rate Advance or a Eurodollar Business Day in the case of a Eurodollar Rate
Advance,
41
(ii) the aggregate amount of such Borrowing or Swingline Advance,
(iii) the Type of Advances comprising such Borrowing or that the
advance will be a Swingline Advance, and
(iv) in the case of a Fixed Rate Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
The Borrower shall deliver a copy of each Notice of Borrowing for a Swingline
Advance to the Swingline Lender not later than 11:00 A.M. (New York City time)
on the date of such Swingline Advance.
2.02(b) Upon receipt of a Notice of Borrowing, the Administrative
Agent shall promptly notify each Lender of the contents thereof and of such
Lender's share of such Borrowing and such Notice of Borrowing shall not
thereafter be revocable by the Borrower.
2.02(c) Not later than Noon (New York City time) on the date of each
Revolving Facility Borrowing, each Lender with a Revolving Facility Commitment
shall make available its share of such Borrowing, in Federal or other funds
immediately available in New York City, to the Administrative Agent at its
address specified in or pursuant to Section 8.02. Unless the Administrative
Agent determines that any applicable condition specified in Article III has not
been satisfied, the Administrative Agent will make the funds so received from
the Lenders available to the Borrower at the Administrative Agent's aforesaid
address.
2.02(d) Not later than Noon (New York City time) on the date of each
Swingline Advance, the Swingline Lender will make available the amount of such
Swingline Advance, in Federal or other funds immediately available in Charlotte,
to the Borrower at the Swingline Lender's address specified in or pursuant to
Section 8.02.
2.02(e) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (c) of this Section 2.02 and the Administrative Agent may, in
reliance upon such assumption, make available to the
42
Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such share available to the Administrative Agent,
such Lender and the Borrower severally agree to repay to the Administrative
Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Administrative Agent, at
(i) in the case of the Borrower, a rate per annum equal to the higher of the
Federal Funds Rate and the interest rate applicable thereto pursuant to Section
2.05 and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender
shall repay to the Administrative Agent such corresponding amount, such amount
so repaid shall constitute such Lender's Advance included in such Borrowing for
purposes of this Agreement. Nothing herein shall affect any rights that the
Borrower may have against such defaulting Lender.
2.02(f) The failure of any Lender to make the Advance to be made by
it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Notes. 2.03(a) On the Closing Date, each "A Note" (as
-----
defined in the Existing Credit Agreement) issued pursuant to the Existing Credit
Agreement shall be amended and restated by a Term Loan Note substantially in the
form of Exhibit A-1, each "B Note" (as defined in the Existing Credit Agreement)
issued pursuant to the Existing Credit Agreement shall be of no further force
and effect and each "C Note" (as defined in the Existing Credit Agreement)
issued pursuant to the Existing Credit Agreement shall be amended and restated
by a Revolving Facility Note substantially in the form of Exhibit A-2. From and
after the Closing Date, the Term Loan Advances, Revolving Facility Advances and
Swingline Advances of each Lender shall be evidenced, respectively, by a Term
Loan Note, Revolving Facility Note and Swingline Note payable to the order of
such Lender for the account of its Applicable Lending Office in an amount equal
to the aggregate unpaid principal amount of such Lender's Term Loan Advances and
Revolving Facility Advances and Swingline Advances, respectively.
2.03(b) Upon receipt of each Lender's Notes from the Borrower
pursuant to Section 3.01, the Documentation Agent shall mail such Notes to such
Lender. Each Lender shall record the date, amount and maturity of each Advance
43
made by it and the date and amount of each payment of principal made by the
Borrower with respect thereto, and prior to any transfer of its Note shall
endorse on the schedule forming a part thereof appropriate notations to evidence
the foregoing information with respect to each such Advance then outstanding;
provided that the failure of any Lender to make any such recordation or
--------
endorsement, or any error in such recordation or endorsement, shall not affect
the obligations of the Borrower hereunder or under the Notes. Each Lender is
hereby irrevocably authorized by the Borrower so to endorse its Note and to
attach to and make a part of its Note a continuation of any such schedule as and
when required.
SECTION 2.04. Maturity of Term Loan Advances. The Borrower shall
------------------------------
repay the principal amount of all outstanding Term Loan Advances in installments
on each Payment Date as set forth in the table below. The principal amount due
on each Payment Date for all outstanding Term Loan Advances shall be an
aggregate amount equal to the amount specified in the table below for such
Payment Date, which shall be applied ratably among the Lenders on the basis of
the aggregate amount of each Lender's outstanding Term Loan Advances:
44
Principal Amount
Due on
Payment Date Specified
Payment Date In Principal ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇ $ 5,625,000
June, 1998 5,625,000
September, 1998 5,625,000
December, 1998 5,625,000
▇▇▇▇▇, ▇▇▇▇ 8,750,000
June, 1999 8,750,000
September, 1999 8,750,000
December, 1999 8,750,000
March, 2000 10,625,000
June, 2000 10,625,000
September, 2000 10,625,000
December, 2000 10,625,000
March, 2001 14,375,000
June, 2001 14,375,000
September, 2001 14,375,000
December, 2001 14,375,000
March, 2002 16,250,000
June, 2002 16,250,000
September, 2002 16,250,000
December, 2002 16,250,000
March, 2003 19,375,000
June, 2003 19,375,000
September, 2003 38,750,000
SECTION 2.05. Interest Rates. 2.05(a) Each Base Rate Advance
--------------
(including each Swingline Advance) shall bear interest on the outstanding
principal amount thereof, for each day from the later of the Closing Date and
the date such Advance is made until it becomes due, at a rate per annum equal to
the sum of (i) the applicable Base Rate Margin plus (ii) the Base Rate for such
day. Except as provided in Section 3.01(c) or 2.05(f), such interest shall be
payable in arrears on each Payment Date and, with respect to the principal
amount of any Base Rate Advance converted to a Fixed Rate Advance, on the date
when such Base Rate Advance is so converted.
45
2.05(b) Each Adjusted CD Rate Advance shall bear interest on the
outstanding principal amount thereof, for each day from and after the Closing
Date during the Interest Period applicable thereto, at a rate per annum equal to
the sum of (i) the applicable CD Rate Margin plus (ii) the applicable Adjusted
CD Rate; provided that if any Adjusted CD Rate Advance or any portion thereof
--------
shall, as a result of clause (ii)(b)(i) of the definition of Interest Period,
have an Interest Period of less than 30 days, such portion shall
bear interest during such Interest Period at the rate applicable to Base Rate
Advances during such period. Except as otherwise provided in Section 3.01(c) or
2.05(f), such interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than 90 days, at intervals of 90
days after the first day thereof.
The "Adjusted CD Rate" applicable to any Interest Period means a rate
per annum determined pursuant to the following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
__________
* The amount in brackets being rounded upwards, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is the rate of
------------
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the next higher 1/100 of 1%) of the prevailing rates
per annum bid at 10:00 A.M. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period by two or more New York
certificate of deposit dealers of recognized standing for the purchase at face
value from each CD Reference Bank of its certificates of deposit in an amount
comparable to the unpaid principal amount of the Adjusted CD Rate Advance of
such CD Reference Bank to which such Interest Period applies and having a
maturity comparable to such Interest Period.
"Domestic Reserve Percentage" means for any day that percentage
---------------------------
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the
46
Federal Reserve System (or any successor) for determining the maximum reserve
requirement (including without limitation any basic, supplemental or emergency
reserves) for a member bank of the Federal Reserve System in New York City with
deposits exceeding five billion dollars in respect of new non-personal time
deposits in dollars in New York City having a maturity comparable to the related
Interest Period and in an amount of $100,000 or more. The Adjusted CD Rate shall
be adjusted automatically on and as of the effective date of any change in the
Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate in
---------------
effect on such day which is payable by a member of the Bank Insurance Fund
classified as adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. (S) 327.3(e) (or any successor provision) to the Federal Deposit
Insurance Corporation (or any successor) for such Corporation's (or such
successor's) insuring time deposits at offices of such institution in the United
States. The Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Assessment Rate.
2.05(c) Each Eurodollar Rate Advance shall bear interest on the
outstanding principal amount thereof, for each day from and after the Closing
Date during the Interest Period applicable thereto, at a rate per annum equal to
the sum of (i) the applicable Eurodollar Margin plus (ii) the applicable
Adjusted London Interbank Offered Rate. Except as otherwise provided in Section
3.01(c) or 2.05(f), such interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is longer than three months,
at intervals of three months after the first day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upwards, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
applicable London Interbank Offered Rate by (ii) 1.00 minus the Eurodollar
Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
each of the Eurodollar Reference Banks in the London interbank market at
approximately 11:00 A.M. (London time) two Eurodollar Business Days before the
first day of such
47
Interest Period in an amount approximately equal to the principal amount of the
Eurodollar Rate Advance of such Eurodollar Reference Bank to which such Interest
Period is to apply and for a period of time comparable to such Interest Period.
"Eurodollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurodollar Rate Advances is determined or any category of extensions of credit
or other assets which includes loans by a non-United States office of any Lender
to United States residents). The Adjusted London Interbank Offered Rate shall be
adjusted automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
2.05(d) The Administrative Agent shall determine each interest rate
applicable to the Advances hereunder. The Administrative Agent shall give
prompt notice to the Borrower and the Lenders by telex or cable of each rate of
interest so determined, and its determination thereof shall be conclusive in the
absence of manifest error.
2.05(e) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated hereby. If any Reference
Bank does not furnish a timely quotation, the Administrative Agent shall
determine the relevant interest rate on the basis of the quotation or quotations
furnished by the remaining Reference Bank or Banks or, if none of such
quotations is available on a timely basis, the provisions of Section 2.16 shall
apply.
2.05(f) Any overdue interest on any Advance shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the rate
of interest borne by such Advance for such day.
48
SECTION 2.06. Fees.
----
2.06(a) Commitment Fees. The Borrower shall pay to the
---------------
Administrative Agent, for the account of the Lenders ratably in proportion to
their respective Revolving Facility Commitments on each day, a commitment fee
for each day on the amount by which the aggregate amount of the Revolving
Facility Commitments exceeds the sum of the aggregate outstanding principal
amount of the Revolving Facility Advances and the aggregate amount of Letter of
Credit Obligations on such day, at the rate of (i) if the Debt to Operating Cash
Flow Ratio as specified in the most recent Notice of Debt to Operating Cash Flow
Ratio received by the Administrative Agent on or before such day is greater than
4.0, 3/8 of 1% per annum, (ii) otherwise, 1/4 of 1% per annum. Such commitment
fee shall accrue from the Closing Date to the Revolving Facility Termination
Date and shall be payable quarterly in arrears on each Payment Date.
2.06(b) Participation Fees. On the Closing Date, the Borrower shall
------------------
pay to the Administrative Agent, for the account of the Co-Arrangers and the
Lenders as previously agreed among them, participation fees in the amounts
previously agreed among the Borrower and the Co-Arrangers.
2.06(c) Administrative Fees. On the Closing Date and on each
-------------------
anniversary of the Closing Date and on the Termination Date, the Borrower shall
pay to the Administrative Agent for its own account annual administrative fees
in the amounts previously agreed between the Borrower and the Administrative
Agent; provided that if the Termination Date is not an anniversary of the
--------
Closing Date, the administrative fees payable on the Termination Date shall be a
proportionate amount of the annual administrative fees, based on the number of
days elapsed since the immediately preceding anniversary of the Closing Date.
2.06(d) Letter of Credit Fees. The Borrower shall pay to the
---------------------
Administrative Agent a letter of credit fee at a rate per annum equal to the
Letter of Credit Fee Rate in effect from time to time on the aggregate amount
available for drawing under any Letters of Credits issued from time to time,
such fee to be payable for the account of the Lenders with Revolving Facility
Commitments ratably in proportion to their participation therein. The "Letter
of Credit Fee Rate" in effect on any day, for any Letter of Credit, shall be the
rate set forth below opposite the applicable range for the Debt to Operating
49
Cash Flow Ratio as specified in the most recent Notice of Debt to Operating Cash
Flow Ratio received by the Administrative Agent prior to such day:
Debt to Operating Cash Flow Ratio
----------------------------------- Letter of
Greater than But Credit
or equal to less than Fee Rate
----------------------------------- ----------
6.5 N/A 2.625%
6.0 6.5 2.50%
5.5 6.0 2.25%
5.0 5.5 2.00%
4.0 5.0 1.50%
0.0 4.0 1.25%
provided, however, that during any period in which an Event of Default shall
-------- -------
have occurred and be continuing, the Letter of Credit Fee Rate shall be the
Letter of Credit Fee Rate indicated in the above table plus 2% per annum. Such
fee shall be payable in arrears on each Payment Date for so long as any Letter
of Credit is outstanding. The Borrower shall also pay to the Issuing Bank
fronting fees and issuance, payment, amendment and extension charges in the
amounts and at the times as agreed between the Borrower and the Issuing Bank.
SECTION 2.07. Optional Termination or Reduction of Commitments. The
------------------------------------------------
Borrower may, upon at least three Domestic Business Days' notice to the
Administrative Agent, (i) terminate the Term Loan Commitments at any time if no
Term Loan Advances are outstanding at such time, (ii) terminate the Revolving
Facility Commitments if no Revolving Facility Advances, Swingline Advances or
Letter of Credit Obligations are outstanding at such time, (iii) terminate the
Swingline Commitment at any time if no Swingline Advances are outstanding at
such time, (iv) ratably reduce from time to time, by an aggregate amount of
$500,000 or any larger multiple of $100,000, the aggregate amount of the
Revolving Facility Commitments in excess of the aggregate outstanding principal
amount of the Revolving Facility Advances, Swingline Advances and Letter of
Credit Obligations or (v) reduce from time to time, by an aggregate amount of
$50,000 or any integral multiple thereof, the amount of the Swingline Commitment
in excess of the aggregate outstanding principal amount of the Swingline
Advances. Each such reduction in the Revolving Facility Commitments shall
reduce, in inverse order, the amounts set forth under the heading "Revolving
Facility Commitment Reduction" in the schedule set forth in Section 2.08(d) (as
the amounts therein may have been reduced from time to time, in accordance with
this Agreement, prior thereto).
50
SECTION 2.08. Mandatory Termination or Reduction of Commitments.
-------------------------------------------------
2.08(a) The Term Loan Commitments shall terminate on the Term Loan
Termination Date, and any Term Loan Advances then outstanding (together with
accrued interest thereon) shall be due and payable on such date. The Revolving
Facility Commitments and the Swingline Commitment shall terminate on the
Revolving Facility Termination Date, and any Revolving Facility Advances and
Swingline Advances then outstanding (together with accrued interest thereon)
shall be due and payable on such date.
2.08(b) On any date on which the Term Loan Commitment of any Lender
shall be greater than the principal amount of the Term Loan Advances of such
Lender outstanding on such date (after giving effect to any repayment on such
date), the Term Loan Commitment of such Lender shall be automatically reduced to
an amount equal to such principal amount.
2.08(c) Each Lender's Term Loan Commitment shall be further reduced
by an amount equal to such Lender's ratable share of each repayment or
prepayment by the Borrower pursuant to the terms of this Agreement of all or a
portion of the principal amount of Term Loan Advances, such reduction to be
effective as of the date of such repayment or prepayment.
2.08(d) On each Revolving Facility Commitment Reduction Date, (i) the
Revolving Facility Commitments shall be reduced by an aggregate amount equal to
the amount set forth in the table below for such Revolving Facility Commitment
Reduction Date, in each case with such reduction being applied ratably among the
Lenders on the basis of their respective Revolving Facility Commitments at such
time (provided that the Swingline Commitment shall simultaneously be reduced to
--------
the extent that the aggregate amount of the Revolving Facility Commitments of
all Lenders is reduced to an amount that is less than the amount of the
Swingline Commitment), and (ii) the Borrower shall repay (or make a payment to
the Administrative Agent in accordance with the last sentence of this Section
2.08(d)) such amount of outstanding Revolving Facility Advances, Swingline
Advances and Letter of Credit Obligations as may be necessary so that after such
repayment (x) the aggregate unpaid principal amount of each Lender's outstanding
Revolving Facility Advances and Letter of Credit Obligations does not exceed the
amount of such Lender's Revolving Facility Commitment as then reduced, (y) the
aggregate unpaid principal amount of all outstanding Revolving Facility
Advances, Swingline
51
Advances and Letter of Credit Obligations does not exceed the aggregate amount
of the Revolving Facility Commitments of all Lenders as then reduced and (z) the
aggregate unpaid principal amount of all outstanding Swingline Advances does not
exceed the aggregate amount of the Swingline Commitments as then reduced. Each
such required repayment shall be made with respect to such outstanding Revolving
Facility Borrowings, Swingline Advances and/or Letter of Credit Obligations as
the Borrower may specify by notice to the Administrative Agent or, failing such
designation by the Borrower, as the Administrative Agent may specify by notice
to the Borrower and the Lenders.
52
Revolving Facility Commitment Reduction
on
Revolving Facility Commitment
---------------------------------------------
Reduction Date Specified
Revolving Facility
Commitment Reduction Revolving Facility
--------------------- --------------------
Date During Commitment Reduction
March, 1999 5,000,000
June, 1999 5,000,000
September, 1999 5,000,000
December, 1999 5,000,000
▇▇▇▇▇, ▇▇▇▇ 5,000,000
June, 2000 5,000,000
September, 2000 5,000,000
December, 2000 5,000,000
▇▇▇▇▇, ▇▇▇▇ 7,500,000
June, 2001 7,500,000
September, 2001 7,500,000
December, 2001 7,500,000
▇▇▇▇▇, ▇▇▇▇ 7,500,000
June, 2002 7,500,000
September, 2002 7,500,000
December, 2002 7,500,000
March, 2003 25,000,000
June, 2003 25,000,000
September, 2003 50,000,000
If the aggregate amount of the Revolving Facility Commitments shall be reduced
at any time pursuant to this Section 2.08(d) to an amount that is less than the
aggregate amount then available for drawing under all outstanding Letters of
Credit, the Borrower shall forthwith, without any notice or demand or any other
act by the Administrative Agent or any Lender, pay to the Administrative Agent
in immediately available funds an amount equal to the difference, and such funds
shall be held as collateral for the Lenders pursuant to arrangements
satisfactory to the Administrative Agent.
SECTION 2.09. Prepayments.
-----------
2.09(a) Optional Prepayments. The Borrower may, upon notice to the
--------------------
Administrative Agent in accordance with Section 2.09(c), prepay any Advance in
whole at any time, or from time to time in part, in amounts aggregating
$5,000,000 or any larger multiple of $500,000 in the case of Term Loan Advances,
in amounts aggregating $100,000 or any larger multiple thereof in the case of
Revolving Facility Advances and in amounts aggregating $50,000 or any larger
multiple thereof in the case of Swingline Advances by paying the
53
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment and all amounts then owing under Section 2.12 in respect of
such prepayment. Each such optional prepayment in respect of Term Loan Advances
shall be applied to reduce ratably all then remaining unpaid installments of
principal of the Term Loan Advances (based on the schedule set forth in Section
2.04, as the amounts therein may have been reduced from time to time, in
accordance with this Agreement, due to repayments and prepayments of principal
prior thereto), and shall be applied ratably between the Term Loan Advances of
the several Lenders, and each such prepayment in respect of Revolving Facility
Advances shall be applied to prepay ratably the Revolving Facility Advances of
the several Lenders.
2.09(b) Mandatory Prepayments. (i) If the Debt to Operating Cash
---------------------
Flow Ratio as of the last day of any Fiscal Year is equal to or greater than
4.5, then no later than the next April 30, the Borrower shall prepay an
outstanding principal amount of the Term Loan Advances equal to 75% of Excess
Cash Flow for such Fiscal Year. If the Debt to Operating Cash Flow Ratio as of
the last day of any Fiscal Year is less than 4.5 but greater than or equal to
3.0, then no later than the next April 30, the Borrower shall prepay an
outstanding principal amount of the Term Loan Advances equal to 50% of Excess
Cash Flow for such Fiscal Year. In each case, the Borrower shall pay the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment and all amounts then owing under Section 2.12 in respect of
such prepayment and such prepayment shall be applied to reduce ratably all then
remaining unpaid installments of principal of the Term Loan Advances (based on
the schedule set forth in Section 2.04, as the amounts therein may have been
reduced from time to time, in accordance with this Agreement, due to repayments
and prepayments of principal prior thereto). For purposes of this Section
2.09(b): (x) Excess Cash Flow for any Fiscal Year shall be determined on the
basis of the amount of Excess Cash Flow for such Fiscal Year set forth on the
certificate delivered to the Lenders pursuant to Section 5.03(r); and (y) Excess
Cash Flow shall be determined using an amount for Operating Cash Flow that is
calculated in accordance with the definition thereof but excluding any Total
Cost Savings Add-Back (as defined in the definition of Operating Cash Flow).
(ii) If, on the date the Borrower shall issue any equity securities
(including, without limitation, any common stock, preferred stock, rights to
subscribe for or to purchase, or any warrants or options to acquire any equity
54
security or any instrument convertible into any equity security), the Debt to
Operating Cash Flow Ratio on such day is greater than 4.50, then within five
Domestic Business Days after the date on which the Borrower shall issue such
equity securities, the Borrower shall repay or prepay an outstanding principal
amount of Advances equal to the Net Proceeds of such issuance of equity
securities to the extent necessary to reduce such Debt to Operating Cash Flow
Ratio to 4.50. In each case, the Borrower shall pay the principal amount to be
repaid or prepaid together with accrued interest thereon to the date of
prepayment and all amounts then owing under Section 2.12 in respect of such
prepayment and such prepayment shall be applied first to repay Revolving
Facility Advances and/or, in the Borrower's discretion, to prepay the remaining
unpaid installments of principal in inverse order of maturity of the Term Loan
Advances (based on the schedule set forth in Section 2.04, as the amounts
therein may have been reduced from time to time, in accordance with this
Agreement, due to repayments of principal prior thereto); provided that if such
--------
issuance of equity occurs after May 10, 1997, and the Borrower elects to apply
any such Net Proceeds to repay any amount of Revolving Facility Advances, the
Revolving Facility Commitments shall automatically be reduced by an amount equal
to fifty percent (50%) of the amount of such repayment of Revolving Facility
Advances, with such reduction being applied to reduce, in inverse order, the
amounts set forth under the heading "Revolving Facility Commitment Reduction" in
the schedule set forth in Section 2.08(d) (as the amounts therein may have been
reduced from time to time, in accordance with this Agreement, prior thereto),
and with such reduction being applied ratably among the Lenders on the basis of
their respective Revolving Facility Commitments at such time (provided that the
--------
Swingline Commitment shall simultaneously be reduced to the extent that the
aggregate amount of the Revolving Facility Commitments of all Lenders is reduced
to an amount that is less than the amount of the Swingline Commitment); and
provided further that if at any time the Borrower shall be required by this
-------- -------
Section 2.09(b)(ii) to repay Revolving Facility Advances by an amount that
exceeds the amount of Revolving Facility Advances then outstanding, the Borrower
shall forthwith, without any notice or demand or any other act by the
Administrative Agent or any Lender, pay to the Administrative Agent in
immediately available funds an amount equal to the lesser of such excess and the
aggregate amount then available for drawing under all outstanding Letters of
Credit, which amount shall be held as collateral for the benefit of the Lenders
pursuant to arrangements satisfactory to the Administrative Agent.
55
(iii) If, on the date the Borrower shall issue any Permitted
Subordinated Debt (other than any Refinancing Permitted Subordinated Debt) or
make any Permitted Asset Sale, the Debt to Operating Cash Flow Ratio (measured
on such date after giving effect to the issuance of such Permitted Subordinated
Debt or to the consummation of such Permitted Asset Sale and the receipt of the
Net Proceeds thereof, as the case may be) is greater than or equal to 4.50, then
within five Domestic Business Days after the date on which the Borrower shall
issue such Permitted Subordinated Debt or make such Permitted Asset Sale, as the
case may be, the Borrower shall prepay an outstanding principal amount of the
Term Loan Advances by the amount of the Net Proceeds of such issuance of
Permitted Subordinated Debt or of such Permitted Asset Sale, as the case may be,
or such lesser amount as may be necessary to reduce such Debt to Operating Cash
Flow Ratio to less than 4.50. In each case, the Borrower shall pay the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment and all amounts then owing under Section 2.12 in respect of
such prepayment and such prepayment shall be applied to prepay the remaining
unpaid installments of principal in inverse order of maturity (based on the
schedule set forth in Section 2.04, as the amounts therein may have been reduced
from time to time, in accordance with this Agreement, due to repayments of
principal prior thereto).
(iv) If on any date the Borrower or any of its Subsidiaries shall
have received any Major Casualty Proceeds, and the aggregate amount of such
Major Casualty Proceeds exceeds the aggregate amount of costs incurred by the
Borrower or such Subsidiary within one year after such date or to be incurred
thereafter for the purpose of repairing, reconstructing or replacing the
property in respect of which such Major Casualty Proceeds were received, then on
the first anniversary of such date (or, if such repairs, reconstruction or
replacement shall be continuing in due course, on such later date when such
repairs, reconstruction or replacement shall have been completed or
discontinued): (x) if no Event of Default shall have occurred and be
continuing, the Borrower shall apply an amount equal to 100% of such excess to
prepay ratably an outstanding principal amount of the Term Loan Advances, and
the Borrower shall pay accrued interest thereon to the date of such prepayment
and all amounts then owing under Section 2.12 in respect of such prepayment or
(y) if an Event of Default shall have occurred and be continuing, an amount
equal to 100% of such excess shall be applied to satisfy obligations owed by the
Borrower or such Subsidiary based on the order of priorities set forth in
Section 9 of the
56
Security Agreements. Any such amount applied to prepay the Term Loan Advances
shall be applied to prepay the remaining unpaid installments of principal in
inverse order of maturity (based on the schedule set forth in Section 2.04, as
the amounts therein may have been reduced from time to time, in accordance with
this Agreement, due to repayments and prepayments of principal prior thereto).
2.09(c) Notice of Prepayment. In the case of any optional or
--------------------
mandatory prepayment pursuant to this Section 2.09, the Borrower shall give the
Administrative Agent prior notice, of one Domestic Business Day in the case of
the prepayment of Base Rate Advances and of three Domestic Business Days in the
case of the prepayment of Eurodollar Rate Advances or Adjusted CD Rate Advances,
stating the proposed date and aggregate principal amount of such prepayment.
Upon receipt of a notice of prepayment pursuant to this Section 2.09, the
Administrative Agent shall promptly notify each Lender of the contents thereof
and of such Lender's ratable share of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.10. Letters of Credit.
-----------------
2.10(a) Subject to the terms and conditions hereof, the Issuing Bank
agrees to issue trade or standby letters of credit hereunder from time to time
before the 30th day before the Revolving Facility Termination Date upon the
request of the Borrower (the "Letters of Credit"); provided that, immediately
----------------- --------
after each Letter of Credit is issued, (i) the aggregate amount of the Letter of
Credit Obligations shall not exceed the lesser of $5,000,000 and the aggregate
amount of all Revolving Facility Commitments and (ii) the aggregate amount of
the Letter of Credit Obligations plus the aggregate outstanding amount of all
Revolving Facility Advances and Swingline Advances shall not exceed the
aggregate amount of the Revolving Facility Commitments of all Lenders. Upon the
date of issuance by the Issuing Bank of a Letter of Credit, the Issuing Bank
shall be deemed, without further action by any party hereto, to have sold to
each Lender with a Revolving Facility Commitment, and each Lender with a
Revolving Facility Commitment shall be deemed, without further action by any
party hereto, to have purchased from the Issuing Bank, a participation in such
Letter of Credit and the related Letter of Credit Obligations in proportion to
its Revolving Facility Percentage.
2.10(b) The Borrower shall give the Issuing Bank and the
Administrative Agent written notice, in substantially the form of Exhibit U, at
least two Domestic
57
Business Days, or such shorter period as may be agreed to by the Issuing Bank in
any particular instance, prior to the requested issuance of a Letter of Credit
specifying the date such Letter of Credit is to be issued, and describing the
terms of such Letter of Credit and the nature of the transactions to be
supported thereby (such notice, including any such notice given in connection
with the extension of a Letter of Credit, a "Notice of Issuance"). Upon receipt
------------------
of a Notice of Issuance, the Administrative Agent shall promptly notify each
Lender of the contents thereof. Promptly after issuing a Letter of Credit, the
Issuing Bank shall deliver to the Administrative Agent a copy of the Letter of
Credit, and the Administrative Agent shall promptly deliver a copy of the Letter
of Credit to each Lender with a Revolving Facility Commitment, and notify each
such Lender of its participation in such Letter of Credit. The issuance by the
Issuing Bank of each Letter of Credit shall, in addition to the conditions
precedent set forth in Article III, be subject to the conditions precedent that
such Letter of Credit shall be in such form and contain such terms as shall be
satisfactory to the Issuing Bank and that the Borrower shall have executed and
delivered such other instruments and agreements relating to such Letter of
Credit as the Issuing Bank shall have reasonably requested. The extension or
renewal of any Letter of Credit shall be deemed to be an issuance of such Letter
of Credit for all purposes of this Agreement. If any Letter of Credit contains
a provision pursuant to which it is deemed to be extended unless notice of
termination is given by the Issuing Bank, the Issuing Bank (i) shall not be
required to give such notice of termination unless the Borrower has timely
requested such termination and (ii) may timely give such notice of termination
unless it has theretofore timely received a Notice of Issuance and the other
conditions to issuance of a Letter of Credit have also theretofore been met with
respect to such extension. No Letter of Credit shall have a term of more than
one year; provided that a Letter of Credit may contain a provision pursuant to
--------
which it is deemed to be extended on an annual basis unless notice of
termination is given by the Issuing Bank; provided further that no Letter of
-------- -------
Credit shall have a term extending or be so extendible beyond the Revolving
Facility Termination Date.
2.10(c) Upon receipt from the beneficiary of any Letter of Credit of
any notice of a drawing under such Letter of Credit, the Issuing Bank shall
notify the Administrative Agent and the Borrower, and the Administrative Agent
shall promptly notify each Lender with a Revolving Facility Commitment, as to
the amount to be paid as a result of such demand or drawing and the payment
date. The Borrower shall be irrevocably and unconditionally
58
obligated forthwith to reimburse the Issuing Bank on such payment date for any
amounts paid by the Issuing Bank upon any drawing under any Letter of Credit
issued by it, without presentment, demand, protest or other formalities of any
kind. All such amounts paid by the Issuing Bank and remaining unpaid by the
Borrower shall bear interest, payable on demand, for each day until paid at a
rate per annum equal to the sum of 2% plus the rate that would be applicable to
a Revolving Facility Advance bearing interest at the Base Rate for such day. In
addition, each Lender with a Revolving Facility Commitment will pay to the
Administrative Agent, for the account of the Issuing Bank, immediately upon the
Issuing Bank's demand at any time during the period commencing after such
drawing until reimbursement therefor in full by the Borrower, an amount equal to
such Lender's ratable share of the amount of such drawing remaining unpaid by
the Borrower (in proportion to its participation therein), together with
interest on such amount for each day from the date of the Issuing Bank's demand
for such payment (or, if such demand is made after Noon (New York City time) on
such date, from the next succeeding Domestic Business Day) to and including the
date of payment by such Lender of such amount at a rate of interest per annum
equal to the rate that would be applicable to a Revolving Facility Advance
bearing interest at the Base Rate for such period. The Issuing Bank will pay to
the Administrative Agent for the account of each Lender with a Revolving
Facility Commitment ratably all amounts received from the Borrower for
application in payment of its reimbursement obligations in respect of any Letter
of Credit, but only to the extent such Lender has made payment to the Issuing
Bank in respect of such Letter of Credit pursuant hereto and the Administrative
Agent will promptly distribute such amounts to such Lender in accordance with
Section 2.11.
2.10(d) The obligations of the Borrower and each Lender with a
Revolving Facility Commitment under Section 2.10(c) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under all circumstances whatsoever, including
without limitation the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any
Letter of Credit or any document related hereto or thereto;
(ii) any amendment or waiver of or any consent to departure from all
or any of the provisions of this Agreement or any Letter of Credit or any
document
59
related hereto or thereto;
(iii) the use which may be made of the Letter of Credit by, or any
acts or omission of, a beneficiary of a Letter of Credit (or any Person for
whom the beneficiary may be acting);
(iv) the existence of any claim, set-off, defense or other rights
that the Borrower may have at any time against a beneficiary of a Letter of
Credit (or any Person for whom the beneficiary may be acting), the Lenders
(including the Issuing Bank) or any other Person, whether in connection
with this Agreement or any Letter of Credit or any document related hereto
or thereto or any unrelated transaction;
(v) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect whatsoever;
(vi) payment under a Letter of Credit against presentation to the
Issuing Bank of a draft or certificate that does not comply with the terms
of such Letter of Credit; provided that the Issuing Bank's determination
--------
that documents presented under such Letter of Credit comply with the terms
thereof shall not have constituted gross negligence or willful misconduct
of the Issuing Bank; or
(vii) any other act or omission to act or delay of any kind by any
Lender (including the Issuing Bank), the Administrative Agent or any other
Person or any other event or circumstance whatsoever that might, but for
the provisions of this subsection (vii), constitute a legal or equitable
discharge of the Borrower's or the Lender's obligations hereunder.
2.10(e) The Borrower hereby indemnifies and holds harmless each
Lender (including the Issuing Bank) and the Administrative Agent from and
against any and all claims, damages, losses, liabilities, costs or expenses
which such Lender or the Administrative Agent may incur, and none of the Lenders
(including the Issuing Bank) nor the Administrative Agent nor any of their
Affiliates or their respective officers or directors or employees or agents
shall be liable or responsible therefor, by reason of or in connection with the
execution and delivery or transfer of or payment or failure to pay under any
Letter of Credit, inclu ding without limitation any of the circumstances
enumerated
60
in subsection (d) above, as well as (i) any error, omission, interruption or
delay in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, (ii) any error in interpretation of technical terms, (iii)
any loss or delay in the transmission of any document required in order to make
a drawing under a Letter of Credit, (iv) any consequences arising from causes
beyond the control of the Issuing Bank, including without limitation any
government acts, or any other circumstances whatsoever in making or failing to
make payment under such Letter of Credit; provided that the Borrower shall not
--------
be required to indemnify the Issuing Bank for any claims, damages, losses,
liabilities, costs or expenses, and the Borrower shall have a claim for direct
(but not consequential) damage suffered by it, to the extent found by a court of
competent jurisdiction to have been caused by (x) the willful misconduct or
gross negligence of the Issuing Bank in determining whether a request presented
under any Letter of Credit issued by it complied with the terms of such Letter
of Credit or (y) the Issuing Bank's willful failure to pay under any Letter of
Credit issued by it after the presentation to it of a request strictly complying
with the terms and conditions of such Letter of Credit. Nothing in this
subsection (e) is intended to limit the obligations of the Borrower under any
other provision of this Agreement.
SECTION 2.11. General Provisions as to Payments.
---------------------------------
2.11(a) The Borrower shall make each payment of principal of, and
interest on, the Advances, of each Letter of Credit Obligation, and of all fees,
expenses and other amounts payable hereunder, not later than Noon (New York City
time) on the date when due, in Federal or other funds immediately available in
New York City, to the Administrative Agent at its address referred to in Section
8.02. Payments received by the Administrative Agent on such date but after such
time shall be deemed to have been received on the next Domestic Business Day.
The Administrative Agent will promptly distribute to each Lender its ratable
share of each such payment received by the Administrative Agent for the account
of the Lenders. Whenever any payment of principal of, or interest on, the Base
Rate Advances or Adjusted CD Rate Advances or of any Letter of Credit or other
fees shall be due on a day which is not a Domestic Business Day, the date for
payment thereof shall be extended to the next succeeding Domestic Business Day.
Whenever any payment of principal of, or interest on, the Eurodollar Rate
Advances shall be due on a day which is not a Eurodollar Business Day, the date
for payment thereof shall be extended to the next succeeding Eurodollar Business
Day unless such Eurodollar Business Day falls in another
61
calendar month, in which case the date for payment thereof shall be the next
preceding Eurodollar Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon shall be payable for
such extended time.
2.11(b) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent that the Borrower shall not have so made such payment, each Lender shall
repay to the Administrative Agent forthwith on demand such amount distributed to
such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.12. Funding Losses. If the Borrower makes any payment
--------------
(including any prepayment) of principal with respect to any Fixed Rate Advances
(pursuant to this Article II, Article VI or otherwise) on any day other than the
last day of the Interest Period applicable thereto, or if the Borrower fails to
borrow or Convert any Fixed Rate Advances after notice has been given to any
Lender in accordance with Section 2.02(b) or Section 2.15, as the case may be,
the Borrower shall reimburse each Lender within 15 days after demand for any
resulting loss or expense incurred by it (or by an existing or prospective
Participant in the related Advance), including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits from third parties, but
excluding loss of margin for the period after any such payment or failure to
borrow; provided that such Lender shall have delivered to the Borrower a
--------
certificate as to the amount of such loss or expense, which certificate shall be
conclusive in the absence of manifest error.
SECTION 2.13. Computation of Interest and Fees. Interest based on
--------------------------------
the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days
in a leap year) and paid for the actual number of days elapsed (including the
first day but excluding the last day). All other interest and commitment and
letter of credit fees hereunder shall be computed on the basis of a year of 360
days and paid for the actual number of days elapsed (including the first day but
62
excluding the last day).
SECTION 2.14. Taxes.
-----
2.14(a) For purposes of this Section 2.14, the following terms have
the following meanings:
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by the
Borrower pursuant to this Agreement or under any Note, and all liabilities with
respect thereto, excluding (i) in the case of each Lender and the Administrative
---------
Agent, taxes imposed on its net income, and franchise or similar taxes imposed
on its net income, by a jurisdiction under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized or in which its principal
executive office is located or, in the case of each Lender, in which its
Applicable Lending Office is located and (ii) in the case of each Lender, any
United States withholding tax imposed on such payments but only to the extent
that such Lender is subject to United States withholding tax at the time such
Lender first becomes a party to this Agreement.
"Other Taxes" means any present or future stamp or documentary taxes
and any other excise or property taxes, or similar charges or levies, which
arise from any payment made pursuant to this Agreement or under any Note or from
the execution or delivery of, or otherwise with respect to, this Agreement or
any Note.
2.14(b) Any and all payments by the Borrower to or for the account of
any Lender or the Administrative Agent hereunder or under any Note shall be made
without deduction for any Taxes or Other Taxes; provided that, if the Borrower
--------
shall be required by law to deduct any Taxes or Other Taxes from any such
payments, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.14) such Lender or the Administrative Agent
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv) the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 8.02, the original or a certified copy of a receipt evidencing
payment thereof.
2.14(c) The Borrower agrees to indemnify each
63
Lender and the Administrative Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed or asserted by
any jurisdiction on amounts payable under this Section 2.14) paid by such Lender
or the Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
This indemnification shall be paid within 15 days after such Lender or the
Administrative Agent (as the case may be) makes demand therefor.
2.14(d) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each Lender listed on the signature pages
hereof and on or prior to the date on which it becomes a Lender in the case of
each other Lender, and from time to time thereafter if requested in writing by
the Borrower (but only so long as such Lender remains lawfully able to do so),
shall provide the Borrower with Internal Revenue Service form 1001 or 4224, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to benefits under an income tax treaty
to which the United States is a party which exempts the Lender from United
States withholding tax or reduces the rate of withholding tax on payments of
interest for the account of such Lender or certifying that the income receivable
pursuant to this Agreement is effectively connected with the conduct of a trade
or business in the United States.
2.14(e) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form pursuant to Section 2.14(d)
(unless such failure is due to a change in treaty, law or regulation occurring
subsequent to the date on which such form originally was required to be
provided), such Lender shall not be entitled to indemnification under Section
2.14(b) or (c) with respect to Taxes imposed by the United States; provided that
--------
if a Lender, which is otherwise exempt from or subject to a reduced rate of
withholding tax, becomes subject to Taxes because of its failure to deliver a
form required hereunder, the Borrower shall take such steps as such Lender shall
reasonably request to assist such Lender to recover such Taxes.
2.14(f) If the Borrower is required to pay additional amounts to or
for the account of any Lender pursuant to this Section 2.14, then such Lender
will change the jurisdiction of its Applicable Lending Office if, in the
judgment of such Lender, such change (i) will eliminate or reduce any such
additional payment which may thereafter
64
accrue and (ii) is not otherwise disadvantageous to such Lender.
SECTION 2.15. Voluntary and Mandatory Conversion of Advances.
----------------------------------------------
2.15(a) On any Domestic Business Day after the third Domestic
Business Day following the Closing Date, the Borrower may, upon notice given to
the Administrative Agent not later than 11:00 A.M. (New York City time) on the
third Domestic Business Day prior to the date of the proposed Conversion and
subject to the provisions of Sections 2.15(b), (c) and (d), 2.16 and 2.17,
Convert all or a portion of each Lender's ratable share of Term Loan Advances or
Revolving Facility Advances, as the case may be, of one Type comprising the same
Borrowing into one or more Borrowings, each comprised of a ratable share of each
Lender's Term Loan Advances or Revolving Facility Advances, as the case may be,
of another Type; provided, however, that any Conversion of any Fixed Rate
-------- --------
Advances into Advances of another Type shall be made on, and only on, the last
day of an Interest Period for such Fixed Rate Advances; and provided further
-------- -------
that during the three months prior to any date when any principal prepayment or
repayment is payable, the Borrower may Convert a portion of all Term Loan
Advances or Revolving Facility Advances, as the case may be, comprising the same
Borrowing into Base Rate Advances such that the aggregate principal amount of
such Borrowing shall equal the principal prepayment or repayment payable on such
date. Each such notice of a Conversion shall, within the restrictions specified
above, specify (i) the date of such Conversion, (ii) the Advances to be
Converted, and (iii) if such Conversion is into Fixed Rate Advances, the
duration of the Interest Period for each such Advance.
2.15(b) If the Borrower shall fail to select the duration of any
Interest Period for any Adjusted CD Rate Advances or any Eurodollar Rate
Advances in accordance with the provisions contained in the definition of
"Interest Period" in Section 1.01, the Administrative Agent will forthwith so
notify the Borrower and the Lenders and such Advances will automatically, on the
last day of the then existing Interest Period therefor, Convert into Base Rate
Advances.
2.15(c) If the aggregate unpaid principal amount of Term Loan
Advances comprising any Borrowing or Borrowings shall be reduced, by payment or
prepayment or otherwise (including but not limited to a Conversion permitted by
the second proviso of Section 2.15(a)), to less than $10,000,000, such Term Loan
Advances shall, if they are
65
Fixed Rate Advances, automatically Convert into Base Rate Advances on the last
day of the Interest Period for such Fixed Rate Advances, and on and after such
date the right of the Borrower to Convert such Advances into Term Loan Advances
of a Type other than Base Rate Advances shall terminate; provided, however, that
-------- -------
if and so long as each such Term Loan Advance shall be of the same Type and have
the same Interest Period as any other Term Loan Advances comprising another
Borrowing and other Borrowings, and the aggregate unpaid principal amount of all
such Term Loan Advances shall equal or exceed $10,000,000, the Borrower shall
have the right to continue all such Term Loan Advances as, and to Convert all
such Term Loan Advances into, Term Loan Advances of such Type having such
Interest Period.
2.15(d) If the aggregate unpaid principal amount of Revolving
Facility Advances comprising any Borrowing or Borrowings shall be reduced, by
payment or prepayment or otherwise (including but not limited to a Conversion
permitted by the second proviso of Section 2.15(a)), to less than $500,000, such
Revolving Facility Advances shall, if they are Fixed Rate Advances,
automatically Convert into Base Rate Advances on the last day of the Interest
Period for such Fixed Rate Advances, and on and after such date the right of the
Borrower to Convert such Advances into Revolving Facility Advances of a Type
other than Base Rate Advances shall terminate; provided, however, that if and so
-------- -------
long as each such Revolving Facility Advance shall be of the same Type and have
the same Interest Period as any other Revolving Facility Advances comprising
another Borrowing and other Borrowings, and the aggregate unpaid principal
amount of all such Revolving Facility Advances shall equal or exceed $500,000,
the Borrower shall have the right to continue all such Revolving Facility
Advances as, and to Convert all such Revolving Facility Advances into, Revolving
Facility Advances of such Type having such Interest Period.
SECTION 2.16. Basis for Determining Interest Rate Inadequate or
-------------------------------------------------
Unfair. If on or prior to the first day of any Interest Period for any Fixed
------
Rate Borrowing:
(a) the Administrative Agent is advised by the Reference Banks that
deposits in dollars (in the applicable amounts) are not being offered to
the Reference Banks in the relevant market for such Interest Period, or
(b) any Lender advises the Administrative Agent that the Adjusted CD
Rate or the Adjusted London Interbank Offered Rate, as the case may be, as
determined by the Administrative Agent will not
66
adequately and fairly reflect the cost to such Lender of funding its
Adjusted CD Rate Advance or Eurodollar Rate Advance, as the case may be,
for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Lenders, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, the
obligations of the Lenders to make Adjusted CD Rate Advances or Eurodollar Rate
Advances, as the case may be, shall be suspended. Unless the Borrower notifies
the Administrative Agent at least two Domestic Business Days before the date of
any Fixed Rate Borrowing for which a Notice of Borrowing has previously been
given that it elects not to borrow on such date, such Borrowing shall instead be
a Base Rate Advance Borrowing.
SECTION 2.17. Illegality. If, on or after the date of this
----------
Agreement, the adoption of any applicable law, rule or regulation, or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Eurodollar Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency shall
make it unlawful or impossible for any Lender (or its Eurodollar Lending Office)
to make, maintain or fund its Eurodollar Advances and such Lender shall so
notify the Administrative Agent, the Administrative Agent shall forthwith give
notice thereof to the other Lenders and the Borrower, whereupon until such Bank
notifies the Borrower and the Administrative Agent that the circumstances giving
rise to such suspension no longer exist, the obligation of such Lender to make
Eurodollar Advances shall be suspended. Before giving any notice to the
Administrative Agent pursuant to this Section, such Lender shall designate a
different Eurodollar Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender. If such Lender shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Eurodollar
Advances to maturity and shall so specify in such notice, (i) the obligation of
such Lender to make Eurodollar Rate Advances and to Convert Advances into
Eurodollar Rate Advances shall terminate and (ii) the Borrower shall forthwith
prepay in full all Eurodollar Rate Advances of such Lender then outstanding,
together with accrued interest thereon, unless the Borrower, within five
Domestic Business Days of such
67
notice and demand, Converts all Eurodollar Rate Advances of all Lenders then
outstanding into Base Rate Advances in accordance with Section 2.15(a), except
that such Conversion may occur, notwithstanding Section 2.15(a), other than on
the last day of the respective Interest Periods for such Eurodollar Rate
Advances, if the Borrower has paid any amounts payable under Section 2.12.
SECTION 2.18. Increased Cost and Reduced Return.
---------------------------------
2.18(a) If on or after the date hereof, the adoption of any
applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall impose, modify or deem
applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System, but excluding
(i) with respect to any Adjusted CD Rate Advance any such requirement included
in an applicable Domestic Reserve Percentage and (ii) with respect to any
Eurodollar Rate Advance any such requirement included in an applicable
EuroDollar Reserve Percentage), special deposit, insurance assessment
(excluding, with respect to any Adjusted CD Rate Advance, any such requirement
reflected in an applicable Assessment Rate) or similar requirement against
assets of, deposits with or for the account of, or credit extended by, any
Lender (or its Applicable Lending Office) or shall impose on any Lender (or its
Applicable Lending Office) or on the United States market for certificates of
deposit or the London interbank market any other condition affecting its Fixed
Rate Advances, its Note or its obligation to make Fixed Rate Advances and the
result of any of the foregoing is to increase the cost to such Lender (or its
Applicable Lending Office) of making or maintaining any Fixed Rate Advance, or
of issuing or maintaining any Letter of Credit or its obligations with respect
thereto as the Issuing Bank or as a Lender participating therein, or to reduce
the amount of any sum received or receivable by such Lender (or its Applicable
Lending Office) under this Agreement or under its Note with respect thereto, by
an amount deemed by such Lender to be material, then, within 15 days after
demand by such Lender (with a copy to the Administrative Agent), the Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender on an after-tax basis for such increased cost or reduction.
68
2.18(b) If any Lender shall have determined that, after the date
hereof, the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Lender (or its Parent) as a consequence of such Lender's
obligations hereunder to a level below that which such Lender (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, within 15 days
after demand by such Lender (with a copy to the Administrative Agent), the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender (or its Parent) on an after-tax basis for such reduction.
2.18(c) Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Lender to compensation pursuant to this
Section and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Lender, be otherwise disadvantageous to
such Lender. A certificate of any Lender claiming compensation under this
Section and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. In determining
such amount, such Lender may use any reasonable averaging and attribution
methods.
SECTION 2.19. Base Rate Advances Substituted for Affected Fixed Rate
------------------------------------------------------
Advances. If (i) the obligation of any Lender to make Eurodollar Rate Advances
--------
had been suspended pursuant to Section 2.17 or (ii) any Lender has demanded
compensation under Section 2.14 or 2.18(a) and the Borrower shall, by at least
five Eurodollar Business Days' prior notice to such Lender through the
Administrative Agent, have elected that the provisions of this Section shall
apply to such Lender, then, unless and until such Lender notifies the Borrower
that the circumstances giving rise to such suspension or demand for compensation
no longer apply:
(a) all Advances which would otherwise be made by
69
such Lender as Adjusted CD Rate Advances or Eurodollar Rate Advances, as
the case may be, shall be made instead as Base Rate Advances (on which
interest and principal shall be payable contemporaneously with the related
Fixed Rate Advances of the other Lenders), and
(b) after each of its Adjusted CD Rate Advances or Eurodollar Rate
Advances, as the case may be, has been repaid, all payments of principal
which would otherwise be applied to repay such Fixed Rate Advances shall be
applied to repay its Base Rate Advances instead.
70
SECTION 2.20. Use of Proceeds. The Borrower will use the proceeds of
---------------
all Borrowings made on the Closing Date, including a Revolving Facility
Borrowing of up to $125,000,000, solely for the payment of amounts due in
respect of the Acquisition, including transaction fees and expenses in
connection therewith. The Borrower will use the proceeds of Revolving Facility
Borrowings and Swingline Advances after the Closing Date for working capital
needs, Capital Expenditures, and general corporate purposes of the Borrower and
the Guarantors; provided that (x) for this purpose, "general corporate purposes"
--------
includes Restricted Payments to the extent permitted by clause (iii) or (iv) of
Section 5.02(g) hereof, Permitted Acquisitions and Permitted Subordinated Debt
Repurchases and (y) the aggregate amount of Revolving Facility Borrowings,
including any Revolving Facility Borrowings used for the payment of amounts due
in respect of the Acquisition, that shall have been used for Restricted
Payments, Permitted Acquisitions, and Permitted Subordinated Debt Repurchases on
and after the Closing Date shall not, in the aggregate, exceed $185,000,000
outstanding at any time minus the aggregate amount of all reductions in the
-----
Revolving Facility Commitments pursuant to Section 2.07, 2.08 or 2.09 hereof.
None of the proceeds will be used, directly or indirectly, for the purpose,
whether immediate, incidental or ultimate, of buying or carrying any "margin
stock" within the meaning of Regulation G or Regulation U, other than proceeds
of Advances used to purchase shares of common stock of the Borrower to the
extent permitted by Section 5.02(g) hereof.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Conditions Precedent to Closing Date. Notwithstanding
------------------------------------
the execution and delivery of this Amended Agreement by all parties hereto, the
Existing Credit Agreement shall remain in full force and effect and shall not be
amended hereby unless and until the Closing Date occurs. The effectiveness of
the amendment and restatement of the Existing Credit Agreement to be effected by
this Amended Agreement, and the obligation of each Lender to make its Term Loan
Advance, any Revolving Facility Advance and any Swingline Advance, if any, on
the Closing Date shall occur at the Closing Time on the Closing Date and shall
be subject to the conditions precedent that:
3.01(a) The Documentation Agent shall have received certified copies
of the respective certificates of
71
incorporation and bylaws of the Borrower and its corporate Subsidiaries and the
respective certificates of limited partnership and agreements of limited
partnership for the partnership Subsidiaries;
3.01(b) The Borrower shall have demonstrated to the satisfaction of
the Documentation Agent in its sole good faith discretion that all conditions to
the closing of the Acquisition shall occur or have been waived on or before the
Closing Date (including payment of all amounts due under the Acquisition
Documents), and that all transactions contemplated by the Related Documents to
be consummated on the closing date of the Acquisition will take place prior to
or simultaneously with the transactions hereunder contemplated to take place on
the Closing Date, and the Majority Lenders shall be satisfied in their sole good
faith discretion with the terms and conditions of each of the Related Documents;
3.01(c) The Borrower shall have paid or caused to be paid, or the
Documentation Agent shall have received evidence satisfactory to it in its sole
good faith discretion that on the Closing Date the Borrower shall pay, or cause
to be paid, (i) all interest and commitment fees that are accrued but unpaid to
the Closing Date under the Existing Credit Agreement (whether or not then
payable under the terms thereof), (ii) all fees and expenses (if any) payable
under Section 8.04 of the Existing Credit Agreement, (iii) all accrued fees and
expenses of the Administrative Agent, the Documentation Agent, the Syndication
Agent, the Co-Arrangers and the Lenders, including without limitation the
participation fees payable under Section 2.06(b) and the administrative fees
payable under Section 2.06(c) and (iv) all fees and expenses of ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇, in connection with the preparation, execution and delivery of this
Amended Agreement, the other Loan Documents and the consummation of the
transactions contemplated hereby and thereby, in each case for which the
Borrower has received a statement on or before the Closing Date;
3.01(d) There shall not have been any material adverse change in the
business, condition (financial or otherwise), operations, properties or
prospects of the Borrower or any of its Subsidiaries since December 31, 1995;
3.01(e) Except for the Disclosed Litigation, there shall exist no
pending or threatened action, suit, investigation, litigation or proceeding in
any court or before any arbitrator or governmental instrumentality which, in the
reasonable opinion of the Lenders, could have a material adverse effect on the
condition (financial or
72
otherwise), operations, properties or prospects of the Borrower or any of its
Subsidiaries or which, in the reasonable opinion of the Majority Lenders, may
adversely affect the legality, validity or enforceability of this Agreement, any
other Loan Document or any Related Document, the ability of any Loan Party to
perform its obligations hereunder or thereunder, or the rights of any Lender
hereunder or thereunder or the ability of any Lender to exercise such rights;
3.01(f) All material governmental and third party consents and
approvals necessary or, in the opinion of the Majority Lenders, desirable or
appropriate in connection with the Closing Date Transactions shall have been
obtained (without the imposition of any conditions other than conditions that
have been satisfied or waived on or before the Closing Date) and shall be in
effect (it being understood that all Federal governmental consents and approvals
are material), and the Documentation Agent shall have received evidence
satisfactory to it that the station licenses issued by the FCC relating to the
television broadcasting operations of KCAL-TV shall have been validly assigned
to YB of Los Angeles, and are in full force and effect;
3.01(g) The Documentation Agent shall have received the following,
each effective on the Closing Date (unless otherwise indicated below), in form
and substance satisfactory to the Documentation Agent and in sufficient copies
for each Lender (except for the Notes, the certificates representing the Pledged
Stock, the stock powers delivered in connection with the Pledged Stock, and the
instruments representing the Pledged Instruments):
(1) A Notice of Borrowing as required by Section 2.02(a) in respect of
each Term Loan Borrowing, Revolving Facility Borrowing and Swingline
Advance to be borrowed on the Closing Date, dated the date of its delivery;
(2) Duly executed counterparts of each of the Closing Date Assignment
and Assumption Agreement and the Multiple Amendment, signed by each of the
parties thereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Documentation
Agent in form satisfactory to it of telegraphic, telex or other written
confirmation from such party of execution of a counterpart thereof by such
party), and evidence satisfactory to the Documentation Agent of receipt by
the Administrative Agent from each Lender of all
73
amounts payable by such Lender pursuant to Section 3 of the Closing Date
Assignment and Assumption Agreement;
(3) The Term Loan Notes, Revolving Facility Notes and Swingline Note
to the order of the respective Lenders;
(4) Duly executed counterparts of this Amended Agreement, signed by
each of the parties hereto (or, in the case of any Lender as to which an
executed counterpart shall not have been received, receipt by the
Documentation Agent in form satisfactory to it of telegraphic, telex or
other written confirmation from such Lender of execution of a counterpart
hereof by such Lender);
(5) Duly executed counterparts of the Guaranty Agreement Amendment
and the Global Security Agreement Amendment;
(6) Duly executed counterparts of the Global Pledge Agreement
Amendment, the Guarantor Pledge Agreement between YB of Los Angeles and the
Administrative Agent and the Guarantor Security Agreements between each of
YB of Los Angeles and Fidelity, respectively, and the Administrative Agent,
together with:
(A) certificates and instruments representing the Pledged Stock
and Pledged Instruments relating to YB of Los Angeles and Fidelity,
accompanied by duly executed instruments of transfer or assignment in
blank, in form and substance satisfactory to the Documentation Agent;
(B) financing statements signed by the Borrower, YB of Los
Angeles or Fidelity (the "KCAL Financing Statements"), with evidence
-------------------------
reasonably satisfactory to the Documentation Agent that such financing
statements will be duly filed under the Uniform Commercial Code
of all jurisdictions as may be necessary or, in the opinion of the
Documentation Agent, desirable or appropriate to perfect the security
interests created by the Security Agreements, the Pledge Agreements
and the KCAL Mortgage;
(C) evidence reasonably satisfactory to the Documentation Agent
that financing statements (the "Existing Financing Statements") have
-----------------------------
previously been duly filed under the Uniform Commercial Code
74
of all jurisdictions as may be necessary or, in the opinion of the
Documentation Agent, desirable or appropriate to perfect the security
interests created by the Security Agreements, the Pledge Agreements
and the Mortgages, as such agreements relate to the Borrower or any
Existing Guarantors; and
(D) evidence that all other actions necessary or, in the opinion
of the Documentation Agent, desirable or appropriate to perfect and
protect the security interests and liens created by, and to reflect
the fact that the Administrative Agent is the secured party under, the
Pledge Agreements and the Security Agreements have been taken;
(7) Duly executed counterparts of the KCAL Mortgage, the Mortgage
Amendments and:
(A) with respect to each Mortgage (other than the KCAL Mortgage)
a mortgage modification or similar endorsement to the policy of title
insurance issued under the Existing Credit Agreement with respect
thereto insuring the Lien of such Mortgage, as amended by the relevant
Mortgage Amendment, together with a date-down of such policy, in each
case issued by the title company insuring the Lien of such Mortgage
under the Existing Credit Agreement;
(B) with respect to the KCAL Mortgage, a policy of title
insurance dated the Closing Date (or irrevocable commitments to issue
such policy, with all conditions marked satisfied, dated and
recertified the Closing Date) insuring the perfection, enforceability
and first priority of the Lien created under such KCAL Mortgage as a
valid first mortgage Lien on the Real Property described therein in
form and substance and in an amount satisfactory to the Documentation
Agent (with all premiums, expenses and fees paid or caused to be paid
by the Borrower), each of which policy or policies shall (w) be issued
by a title company reasonably satisfactory to the Documentation Agent,
(x) include such reinsurance arrangements (with provisions for direct
access) as shall be reasonably acceptable to the Documentation Agent,
(y) have been supplemented by such endorsements, or, where such
endorsements are not available at commercially reasonable premium
75
costs, opinion letters of special counsel, architects or other
professionals, which counsel, architects or other professionals shall
be reasonably acceptable to the Documentation Agent, as shall be
requested by Documentation Agent (including, without limitation,
endorsements or opinion letters on matters relating to usury,
contiguity, revolving credit, doing business, last dollar and so-
called comprehensive coverage over covenants and restrictions) and (z)
contain only such exceptions to title as shall be reasonably
satisfactory to the Documentation Agent;
(C) with respect to the Real Property encumbered by the KCAL
Mortgage, an ALTA survey with respect to such Real Property, in form
and substance reasonably satisfactory to the Documentation Agent; and
(D) evidence satisfactory to the Documentation Agent that
arrangements shall have been made for the recording of the KCAL
Mortgage and each Mortgage Amendment;
(8) Certified copies of the resolutions of the Board of Directors of
the Borrower approving each Loan Document and each Related Document to
which it is or is to be a party and of the resolutions of the Board of
Directors of each Guarantor approving each Loan Document and each Related
Document to which it is or is to be a party;
(9) A certificate of the Secretary or an Assistant Secretary of the
Borrower and each Guarantor certifying the names and true signatures of the
officers of such Loan Party authorized to sign each Loan Document and
Related Document to which it is or is to be a party and the other documents
to be delivered by it hereunder;
(10) Copies of duly executed copies of each Related Document and each
other agreement, document and certificate prepared or delivered in
connection with any Related Document that the Documentation Agent or any
Lender through the Documentation Agent may request;
(11) Copies of all authorizations, consents and approvals of,
evidence of other actions by, notices to and filings with all governmental
authorities and regulatory bodies required for the due execution, delivery
and performance by each of the Borrower and
76
the Guarantors of the Loan Documents and the Related Documents;
(12) Certificates of the chief financial officer of the Borrower and
of each Guarantor, in substantially the form of Exhibit N or O, as the case
may be (each being a "Solvency Certificate");
--------------------
(13) Copies of the financial statements described in Section 4.01(f);
(14) Evidence of insurance for the business and properties of the
Borrower and its Subsidiaries, in form and substance satisfactory to the
Documentation Agent (and if requested by the Documentation Agent, naming
the Administrative Agent as insured and loss payee) with responsible and
reputable insurance companies or associations satisfactory to the Majority
Lenders in such amounts and covering such risks as are satisfactory to the
Majority Lenders;
(15) Copies of each agreement, note, instrument or other document
evidencing Debt listed on Schedule 4.01(n) having an unpaid principal
amount in excess of $100,000, together with copies of all consents of the
obligees of the Debt listed on Schedule 4.01(n) (regardless of principal
amount) necessary or, in the judgment of the Majority Lenders, desirable;
(16) A favorable opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇, P.C., counsel for the Borrower and each Guarantor, in substantially
the form of Exhibit P and as to such other matters as any Lender through
the Documentation Agent may reasonably request;
(17) Favorable opinions of Fahart, Story & ▇▇▇▇▇▇, P.C., special
Michigan counsel for the Borrower, ▇▇▇▇, Skemp, Hanson, ▇▇▇▇▇ & ▇▇▇▇▇,
special Wisconsin counsel for the Borrower, ▇▇▇▇▇▇, King & ▇▇▇▇▇▇▇, special
Louisiana counsel for the Borrower, Wildman, Harrold, ▇▇▇▇▇ & ▇▇▇▇▇,
special Illinois counsel for the Borrower, ▇▇▇▇▇▇▇▇ & ▇▇▇, PLC, special
Tennessee counsel for the Borrower, ▇▇▇▇▇▇ Parks & ▇▇▇▇▇▇▇ P.L.C., special
Virginia counsel for the Borrower, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special
Iowa counsel for the Borrower, Woods, Fuller, ▇▇▇▇▇▇ & ▇▇▇▇▇ P.C., special
South Dakota counsel for the Borrower, and ▇▇▇▇ & ▇▇▇▇▇, special California
counsel for the Borrower, in each case in substantially the form of Exhibit
Q-1 through Q-9, respectively, and a favorable opinion of special FCC
counsel for the Borrower, in
77
substantially the form of Exhibit R, and such other opinions as any Lender
through the Documentation Agent may reasonably request;
(18) An opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, in substantially the form
of Exhibit S;
(19) A letter, in form and substance satisfactory to the
Documentation Agent and the Lenders, from the Borrower to the Independent
Public Accountants, advising such accountants that the Agents and the
Lenders have been authorized to exercise all rights of the Borrower to
require such accountants to disclose any and all financial statements and
any other information of any kind that they may have with respect to the
Borrower and each of its Subsidiaries, directing such accountants to comply
with any request of any Agent or any Lender for such information and
advising such accountants that the Lenders will rely on such information in
making credit decisions with respect to the Borrower;
(20) An environmental report, in form and substance satisfactory to
the Majority Lenders, from Dames & ▇▇▇▇▇ with respect to the properties to
be owned, leased or operated by the Borrower or any of its Subsidiaries in
connection with KCAL-TV;
(21) The written consent of each party (other than the Borrower or
any of its Subsidiaries) to the Acquisition Agreement to the assignment by
the Borrower of its rights and claims under the Acquisition Documents to
the Administrative Agent under the Borrower Security Agreement;
(22) A certificate of the chief financial officer of the Borrower, in
substantially the form of Exhibit T, determining the Debt to Operating Cash
Flow Ratio as of September 30, 1996 and certifying the Borrower's
compliance as of September 30, 1996 with the provisions of this Agreement
set forth therein;
(23) A certificate of the chief financial officer of the Borrower to
the effect that both before and immediately after the making of the
Borrowings to be made on the Closing Date and the consummation of the
Acquisition, (i) no Default shall have occurred and be continuing and (ii)
the representations and warranties of the Borrower made in this Agreement
are true;
(24) A copy of (i) a written notice delivered by
78
the Borrower to State Street Bank and Trust Company, as trustee under each
of the indentures governing the 1994 Subordinated Notes, the 1995
Subordinated Notes and the 1996 Subordinated Notes, that all of the
obligations of the Borrower and the Guarantors under this Agreement, the
Guaranty Agreement and the other Loan Documents are "Designated Senior
Debt" under each such indenture and (ii) written confirmation by State
Street Bank and Trust Company of receipt of such notice;
(25) All Existing Notes, each of which shall be cancelled and
returned to the Borrower on the Closing Date; and
(26) Such other financial and non-financial information regarding the
Borrower or any of its Subsidiaries and such other approvals, opinions or
documents as any Lender through the Documentation Agent may reasonably
request.
SECTION 3.02. Conditions Precedent to Each Borrowing. The obligation
--------------------------------------
of each Lender to make an Advance on the occasion of each Borrowing (including
on the Closing Date), of the Issuing Bank to issue a Letter of Credit and of the
Swingline Lender to make a Swingline Advance shall be subject to the further
conditions precedent that on the date of such Borrowing, Letter of Credit
issuance or Swingline Advance, the following statements shall be true (and each
of the giving of the applicable Notice of Borrowing or Notice of Issuance and
the acceptance by the Borrower of the proceeds of such Borrowing or Swingline
Advance or the issuance of the Letter of Credit on behalf of the Borrower shall
constitute a representation and warranty by the Borrower that on the date of
such Borrowing or of such Letter of Credit issuance, such statements are true):
3.02(a) the Administrative Agent shall have received a Notice of Borrowing
with respect to such Borrowing or Swingline Advance (with a copy to the
Swingline Lender, in the case of a Swingline Advance) as required by
Section 2.02(a) or the Issuing Bank shall have received a Notice of
Issuance with respect to such Letter of Credit issuance as required by
Section 2.10;
3.02(b) immediately after such Borrowing or Letter of Credit issuance
or Swingline Advance, the aggregate outstanding principal amount of all
Revolving Facility Advances, Swingline Advances and Letter of Credit
Obligations will not exceed the aggregate amount of all Revolving Facility
Commitments, the aggregate
79
outstanding principal amount of all Term Loan Advances will not exceed the
aggregate amount of all Term Loan Commitments and the aggregate outstanding
principal amount of all Swingline Advances will not exceed the Swingline
Commitment;
3.02(c) the representations and warranties contained in this
Agreement, the Guaranty Agreement, each Security Agreement, each Pledge
Agreement and each Mortgage are correct on and as of the date of such
Borrowing, Swingline Advance or Letter of Credit issuance, before and after
giving effect to such Borrowing, Swingline Advance or Letter of Credit
issuance, and to the application of the proceeds therefrom, as though made
on and as of such date;
3.02(d) no event shall have occurred and be continuing, or would
result from such Borrowing or Letter of Credit issuance or Swingline
Advance, or from the application of the proceeds therefrom, which
constitutes a Default or an Event of Default;
3.02(e) if such Borrowing, Letter of Credit issuance or Swingline
Advance is to be secured, directly or indirectly, by any "margin stock"
(within the meaning of Regulation G or Regulation U), the Administrative
Agent shall have received (i) a duly executed Federal Reserve Form FR U-1
for each Lender that is a bank, for the Issuing Bank or for the Swingline
Lender, as the case may be, and (ii) a duly executed Federal Reserve Form
FR G-3 for each Lender that is not a bank, in each case signed and accepted
by a duly authorized representative of the applicable Lender, the Issuing
Bank or the Swingline Lender, as the case may be; and
3.02(f) the Administrative Agent, or the Issuing Bank in the case of a
Letter of Credit issuance, shall have received such other approvals,
opinions or documents as any Lender through the Administrative Agent may
reasonably request.
SECTION 3.03. Conditions Precedent to Borrowings in Connection with
-----------------------------------------------------
Permitted Acquisitions. The obligation of each Lender to make an Advance on or
----------------------
after the date of any Permitted Acquisition shall be subject to the conditions
precedent that:
3.03(a) The Borrower shall have demonstrated to the satisfaction of
the Agents that the acquisition constitutes a Permitted Acquisition;
80
3.03(b) The Borrower shall have demonstrated to the satisfaction of
the Agents in their sole good faith discretion that the closing of such
Permitted Acquisition shall occur on such date;
3.03(c) Except for the Disclosed Litigation, there shall exist no
pending or threatened action, suit, investigation, litigation or proceeding in
any court or before any arbitrator or governmental instrumentality which, in the
reasonable opinion of the Agents, could have a material adverse effect on the
condition (financial or otherwise), operations, properties or prospects of the
Borrower or any of its Subsidiaries, whether before or after giving effect to
such Permitted Acquisition, or which, in the reasonable opinion of the Agents,
may adversely affect the legality, validity or enforceability of this Agreement,
any other Loan Document or any Related Document, the ability of any Loan Party
to perform its obligations hereunder or thereunder, or the rights of any Lender
hereunder or thereunder or the ability of any Lender to exercise such rights;
3.03(d) All material governmental and third party consents and
approvals necessary or, in the opinion of the Agents, desirable or appropriate
in connection with the consummation of such Permitted Acquisition shall have
been obtained (without the imposition of any material adverse conditions) and
shall be in effect (it being understood that all Federal governmental consents
and approvals are material), and the Administrative Agent shall have received
evidence satisfactory to it that the station licenses issued by the FCC relating
to the television broadcasting operations of any television stations to be
acquired pursuant to such Permitted Acquisition shall have been validly assigned
to one or more Subsidiaries of the Borrower, and shall be in full force and
effect;
3.03(e) The Administrative Agent shall have received the following,
each dated the closing date for such Permitted Acquisition (unless otherwise
indicated below), in form and substance satisfactory to the Administrative Agent
and in sufficient copies for each Lender (except for the certificates
representing any Pledged Stock to be pledged to the Administrative Agent, the
stock powers delivered in connection with such Pledged Stock, and any
instruments representing Pledged Instruments to be pledged to the Administrative
Agent):
(1) A Notice of Borrowing as required by Section 2.02(a) in respect
of any Revolving Facility Borrowing
81
to be borrowed on the closing date for such Permitted Acquisition, dated
the date of its delivery;
(2) Duly executed counterparts of an agreement pursuant to which each
Subsidiary created or acquired in connection with such Permitted
Acquisition shall become obligated as a Guarantor under the Guaranty
Agreement;
(3) Certificates and instruments representing any Pledged Stock or
Pledged Instruments required to be delivered by the Borrower or any
Subsidiary on or before the closing date for such Permitted Acquisition,
including certificates representing all shares of capital stock of each
Subsidiary created or acquired in connection with such Permitted
Acquisition, accompanied by duly executed instruments of transfer or
assignment in blank, in form and substance satisfactory to the
Administrative Agent;
(4) Duly executed counterparts of a Guarantor Security Agreement,
and, if applicable, of a Guarantor Pledge Agreement with respect to each
Subsidiary created or acquired in connection with such Permitted
Acquisition, together with:
(A) financing statements signed by each Subsidiary created or
acquired in connection with such Permitted Acquisition, with evidence
reasonably satisfactory to the Administrative Agent that such
financing statements will be duly filed under the Uniform Commercial
Code of all jurisdictions as may be necessary or, in the opinion of
the Administrative Agent, desirable or appropriate to perfect the
security interests created by the Security Agreements and the
Mortgages, and
(B) evidence that all other actions necessary or, in the opinion
of the Administrative Agent, desirable or appropriate to perfect and
protect the security interests and liens created by, and to reflect
the fact that the Administrative Agent is the secured party under, the
Borrower Pledge Agreement, any applicable Guarantor Pledge Agreement
and the Security Agreements shall have been taken;
(5) Duly executed counterparts of Mortgages (each, a "Permitted
---------
Acquisition Mortgage") with respect to any Real Property to be acquired by
--------------------
the Borrower or
82
any of its Subsidiaries in connection with such Permitted Acquisition and,
with respect to each Permitted Acquisition Mortgage:
(A) a policy of title insurance dated the closing date for such
Permitted Acquisition (or irrevocable commitments to issue such
policy, with all conditions marked satisfied, dated and recertified
the closing date for such Permitted Acquisition) insuring the
perfection, enforceability and first priority of the Lien created
under such Permitted Acquisition Mortgage as a valid first mortgage
Lien on the Real Property described therein in form and substance and
in an amount satisfactory to the Documentation Agent (with all
premiums, expenses and fees paid or caused to be paid by the
Borrower), each of which policy or policies shall (w) be issued by a
title company reasonably satisfactory to the Documentation Agent, (x)
include such reinsurance arrangements (with provisions for direct
access) as shall be reasonably acceptable to the Documentation Agent,
(y) have been supplemented by such endorsements, or, where such
endorsements are not available at commercially reasonable premium
costs, opinion letters of special counsel, architects or other
professionals, which counsel, architects or other professionals shall
be reasonably acceptable to the Documentation Agent, as shall be
requested by Documentation Agent (including, without limitation,
endorsements or opinion letters on matters relating to usury,
contiguity, revolving credit, doing business, and so-called
comprehensive coverage over covenants and restrictions) and (z)
contain only such exceptions to title as shall be reasonably
satisfactory to the Documentation Agent;
(B) with respect to the Real Property encumbered by each
Permitted Acquisition Mortgage, an ALTA survey with respect to such
Real Property, in form and substance reasonably satisfactory to the
Documentation Agent; and
(C) evidence satisfactory to the Documentation Agent that
arrangements shall have been made for the recording of each Permitted
Acquisition Mortgage;
(6) Certified copies of the resolutions of the Board of Directors of
the Borrower and each Subsidiary
83
party hereto and thereto approving each agreement to which it is or is to
be a party in connection with such Permitted Acquisition;
(7) A certificate of the Secretary or an Assistant Secretary of the
Borrower and each Subsidiary certifying the names and true signatures of
the officers of the Borrower or such Subsidiary who shall be authorized to
sign each agreement to which it is or is to be a party in connection with
such Permitted Acquisition and the other documents to be delivered by it
hereunder or thereunder;
(8) Copies of all authorizations, consents and approvals of, evidence
of other actions by, notices to and filings with all governmental
authorities and regulatory bodies required for the due execution, delivery
and performance by the Borrower or any Subsidiary of each agreement to
which it is or is to be a party in connection with such Permitted
Acquisition and the other documents to be delivered by it thereunder;
(9) Certificates of the chief financial officer of the Borrower and
of each Subsidiary created or acquired in connection with such Permitted
Acquisition in substantially the form of Exhibit N or O, as the case may
be;
(10) Evidence of insurance for the business and properties of each
Subsidiary created or acquired in connection with such Permitted
Acquisition, in form and substance satisfactory to the Administrative Agent
(and if requested by the Administrative Agent, naming the Administrative
Agent as additional insured and loss payee) with responsible and reputable
insurance companies or associations satisfactory to the Co-Arrangers in
such amounts and covering such risks as are satisfactory to the Agents;
(11) A favorable opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇, P.C., counsel for the Borrower and each Guarantor, in substantially
the form of Exhibit P (but expressing opinions with respect to such
Permitted Acquisition in lieu of the Acquisition) and as to such other
matters as any Lender through the Administrative Agent may reasonably
request.
(12) Favorable opinions of local counsel for the Borrower with
respect to each jurisdiction where any Real Property to be acquired in
connection with such
84
Permitted Acquisition shall be located, in each case in substantially the
form of Exhibit Q (but expressing opinions with respect to such Permitted
Acquisition in lieu of the Acquisition), and a favorable opinion of special
FCC counsel for the Borrower, in substantially the form of Exhibit R (but
expressing opinions with respect to such Permitted Acquisition in lieu of
the Acquisition), and such other opinions as any Lender through the
Administrative Agent may reasonably request;
(13) An environmental report, in each case in form and substance
satisfactory to the Agents, with respect to properties to be acquired,
leased or operated by the Borrower or any of its Subsidiaries in connection
with such Permitted Acquisition;
(14) The written consent of each party (other than the Borrower or
any of its Subsidiaries) to any agreement to which it is or is to be a
party in connection with such Permitted Acquisition to the assignment by
the Borrower or any Guarantor of its rights and claims under such agreement
to the Administrative Agent under the Borrower Security Agreement or a
Guarantor Security Agreement;
(15) A certificate of the chief financial officer of the Borrower, in
substantially the form of Exhibit T, certifying the Borrower's compliance
as of the most recent date for compliance prior to the date of such
certificate, after giving effect on a Pro Forma Basis to such Permitted
Acquisition, with the provisions of this Agreement set forth therein; and
(16) Such other financial and non-financial information regarding the
Borrower or any of its Subsidiaries and such other approvals, opinions or
documents as any Lender through the Documentation Agent may reasonably
request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
----------------------------------------------
Borrower represents and warrants as follows:
4.01(a) Due Incorporation, Etc. Each of the Borrower and its
----------------------
Subsidiaries that is a corporation is a
85
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction indicated next to such corporation's name on Schedule
4.01(a) and has all requisite corporate powers and all FCC and all other
material governmental licenses, authorizations, consents and approvals required
to own or lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted and to execute and deliver, and to
perform all of its obligations under, the Loan Documents and Related Documents
to which it is or will be a party. Each of the Borrower and each of its
Subsidiaries that is a corporation is duly qualified or licensed to do business
as a foreign corporation in good standing in all jurisdictions in which it owns
or leases assets and property or in which the conduct of its business requires
it to so qualify or be licensed, except for such jurisdictions in which the
failure to so qualify or be licensed would not have a material adverse effect on
the business, condition (financial or otherwise), operations, properties or
prospects of the Borrower or such Subsidiary, as the case may be. Each of the
Borrower's Subsidiaries that is a partnership is a partnership duly organized,
validly existing and in good standing under the laws of the jurisdiction under
which it is organized and has all requisite power and authority to own or lease
and operate its properties and to carry on its business as now conducted and as
proposed to be conducted and to execute and deliver, and to perform all of its
obligations under, the Loan Documents and Related Documents to which it is or
will be a party. Each of the Borrower's Subsidiaries that is a partnership is
duly qualified or licensed to do business and has complied with all fictitious
name statutes and other similar laws in all jurisdictions in which it owns or
leases assets and property or in which the conduct of its business requires it
to so qualify or be licensed or comply, except for such jurisdictions in which
the failure to so qualify or be licensed or comply would not have a material
adverse effect on the business, condition (financial or otherwise), operations,
properties or prospects of such Subsidiary.
4.01(b) Due Authorization and Execution, Etc. The execution,
------------------------------------
delivery and performance by the Borrower and each of its Subsidiaries of each
Loan Document and each Related Document to which it is or will be a party and
the consummation of the Acquisition and the transactions contemplated by the
Loan Documents and the Related Documents are within the Borrower's and such
Subsidiary's corporate powers (or its partnership powers, in the case of each
Subsidiary that is a
86
partnership), have been duly authorized by all necessary corporate action (or
all necessary action of the partners, in the case of each Subsidiary that is a
partnership) and do not and will not (i) require any consent or approval of the
stockholders or partners of the Borrower or such Subsidiary except such consents
and approvals as shall have been duly obtained and shall be in full force and
effect, (ii) contravene the Borrower's or such Subsidiary's certificate of
incorporation or by-laws, in the case of each Subsidiary that is a corporation,
or the partnership agreement governing such Subsidiary, in the case of each
Subsidiary that is a partnership, (iii) violate any law, rule, regulation
(including, without limitation, Regulations G, U and X of the Board of Governors
of the Federal Reserve System), order, writ, judgment, injunction, decree,
determination or award or any contractual restriction binding on or affecting
the Borrower or such Subsidiary, or any of their respective properties, or (iv)
result in or require the creation or imposition of any mortgage, deed of trust,
pledge, lien, security interest or other charge or encumbrance of any nature
(other than pursuant to the Loan Documents) upon or with respect to any of the
properties now owned or hereafter acquired by the Borrower or any of its
Subsidiaries. Neither the Borrower nor any of its Subsidiaries is in default
under any such law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or restriction.
4.01(c) Government Consents. No authorization, consent, approval or
-------------------
other action by, and no notice to or filing with, any governmental,
administrative or judicial authority or regulatory body is currently, or is
reasonably expected to be, required for the due execution, delivery or
performance by the Borrower or any of its Subsidiaries of any Loan Document to
which it is or will be a party and the operation of the television broadcasting
business of the Borrower and its Subsidiaries other than the filing of the
Financing Statements and the recording of the Mortgages, all of which have been
made and are in full force and effect, and except for the filing of certain of
the Loan Documents with the FCC within 30 days of their execution pursuant to 47
C.F.R. Section 73.3613. No authorization, consent, approval or other action by,
and no notice to or filing with, any governmental, administrative or judicial
authority or regulatory body is currently, or is reasonably expected to be,
required for the consummation of the Acquisition, except such authorizations,
consents, approvals, other actions, notices or filings as shall have been duly
obtained, taken, given or made and shall be in full force and effect and shall
not have been appealed and shall no longer be subject to appeal, rehearing,
certiorari or other administrative review.
4.01(d) Legal, Valid and Binding Nature. This
-------------------------------
87
Agreement is, and each other Loan Document and each Related Document to which
the Borrower or any of its Subsidiaries is or will be a party will, when
delivered, be a legal, valid and binding obligation of the Borrower and such
Subsidiaries as are or will be parties thereto, enforceable against the Borrower
and such Subsidiaries in accordance with its respective terms, except (other
than in the case of Article X of the indentures governing the 1994 Subordinated
Notes, the 1995 Subordinated Notes and the 1996 Subordinated Notes and any
similar provisions of any indentures governing any other Permitted Subordinated
Debt) as such enforcement may be limited by the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and general principles of equity.
4.01(e) Capitalization and Subsidiaries. On the Closing Date, the
-------------------------------
authorized capital stock of the Borrower will consist of: 20,000,000 shares of
Class A Common Stock, par value $.001 per share; 20,000,000 shares of Class B
Common Stock, par value $.001 per share; and 20,000,000 shares of Class C Common
Stock, par value $.001 per share. Set forth on Schedule 4.01(a) is a complete
and accurate list of all of the Borrower's Subsidiaries as of the Closing Date,
showing as of such date (as to each such Subsidiary) the jurisdiction of its
incorporation, the number of shares of each class of capital stock authorized,
the number of shares of each class of capital stock outstanding on the date
hereof, the direct owner of the outstanding shares of each such class owned and
the jurisdictions in which such Subsidiary is qualified to do business as a
foreign corporation. All of the general and limited partnership interests of
each Subsidiary that is a partnership are owned, legally and beneficially, by
the Borrower or a wholly owned Subsidiary of the Borrower, in each case free and
clear of all liens, security interests and other charges or encumbrances other
than the liens and security interests under the Security Agreements. Except as
set forth in Schedule 4.01(e), there are no outstanding options, warrants,
rights of conversion or purchase, or similar rights to acquire capital stock or
partnership interests of the Borrower or any of its Subsidiaries or other
agreements of any character whatsoever relating to any shares of capital stock
or partnership interests of the Borrower or any such Subsidiaries; all of the
issued and outstanding capital stock of the Borrower and each of its
Subsidiaries that is a corporation has been duly authorized, validly issued and
is fully paid and non-assessable; all of the partnership interests of each
Subsidiary that is a partnership have been validly issued pursuant to the terms
of the applicable partnership agreement; all of the issued
88
and outstanding capital stock of each Subsidiary of the Borrower that is a
corporation is directly owned, legally and beneficially, by the Borrower, in
each case free and clear of all liens, security interests and other charges or
encumbrances other than the Liens created by the Pledge Agreements and Security
Agreements.
4.01(f) Financial Statements; No Material Adverse Change. The
------------------------------------------------
consolidated balance sheet of the Borrower and its Subsidiaries as at December
31, 1995 and the related consolidated statements of income and shareholders'
equity and statement of changes in cash flows of the Borrower and its
Subsidiaries for the fiscal year then ended, fairly present, respectively, the
consolidated financial condition of the Borrower and its Subsidiaries as at such
date and the consolidated results of operations of the Borrower and its
Subsidiaries for the period ended on such date, all in accordance with generally
accepted accounting principles. To the knowledge of the Borrower, the financial
statements of KCAL-TV for the fiscal years ended September 30, 1994 and 1995
which were delivered to the Lenders prior to the Closing Date fairly present the
results of operations and operating cash flow of KCAL-TV for the period ended on
such date, in accordance with generally accepted accounting principles. The pro
forma financial statements described on Schedule 4.01(f) fairly present the
information shown therein, have been properly compiled on the pro forma basis
described therein, and, in the opinion of the Borrower, the assumptions used in
the preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein. Copies of each of the financial statements described in this Section
4.01(f) have been furnished to each Lender. Since December 31, 1995 there has
been no material adverse change in the business, condition (financial or
otherwise), operations, properties or prospects of the Borrower or of any of its
Subsidiaries or of the Borrower and its Subsidiaries taken as a whole. To the
knowledge of the Borrower, after reasonable and customary due diligence, since
December 31, 1995, there has been no material adverse change in the respective
business, condition (financial or otherwise), operations, properties or
prospects of KCAL-TV. The effectiveness of the Closing Date Transactions shall
not be deemed to be such a change.
4.01(g) Solvency. Each of the Borrower and the Borrower and its
--------
Subsidiaries taken as a whole and each Guarantor individually and taken as a
whole with its Subsidiaries is and, after receipt and application of the
Advances in accordance with the terms of this Agreement, will be Solvent.
89
4.01(h) Absence of Litigation; Litigation Description.
---------------------------------------------
(i) No actions, suits, investigations, litigation or proceedings are
pending or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any of its Subsidiaries or the properties of the
Borrower or any such Subsidiary before any court, arbitrator or
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (A) which may materially adversely
affect the business, condition (financial or otherwise), operations,
properties or prospects of the Borrower or any such Subsidiary, except as
disclosed in Schedule 4.01(h) (the "Disclosed Litigation"), or (B) which
--------------------
purports to affect the legality, validity or enforceability of this
Agreement, any other Loan Document or any Related Document, the ability of
any Loan Party to perform its obligations hereunder or thereunder, or the
rights of any Lender hereunder or thereunder or the ability of any Lender
to exercise such rights.
(ii) Except for the Disclosed Litigation, no action, suit,
investigation, litigation or proceeding is pending or, to the knowledge of
the Borrower, threatened in any court or before any arbitrator or
governmental entity specified above in connection with the Acquisition or
the other Closing Date Transactions or in connection with the use of the
proceeds hereof or thereof.
(iii) On the Closing Date and at all times thereafter, there shall have
been no change since the date of this Amended Agreement in the status of
any of the actions, suits, investigations, litigation or proceedings
referred to in Schedule 4.01(h) that is materially adverse to the Borrower
or any of its Subsidiaries, the Acquisition, the other Closing Date
Transactions or the Loan Documents.
4.01(i) Ownership of Properties; Absence of Liens and Encumbrances.
----------------------------------------------------------
The Borrower and its Subsidiaries have good and marketable title to and are in
lawful possession of, or have valid leasehold interests in, or have the right to
use pursuant to valid and enforceable agreements or arrangements, all of their
respective properties and other assets (real or personal, tangible, intangible
or mixed), except where the failure to have or possess the same with respect to
such properties or other assets would not, in the
90
aggregate, have a material adverse effect on the business, condition (financial
or otherwise), operations, properties or prospects of the Borrower or any of its
Subsidiaries. Except as disclosed on Schedule 4.01(i), there are no material
Liens on any property or asset of the Borrower or any of its Subsidiaries except
for the security interests created under the Pledge Agreements, the Security
Agreements and the Mortgages, it being understood that, for purposes only of
this Section 4.01(i), any Lien having a value of $250,000 or more on property or
assets is material.
4.01(j) No Burdensome Agreements. Neither the Borrower nor any of
------------------------
its Subsidiaries is a party to any indenture, loan or credit agreement or any
lease or other agreement or instrument or subject to any charter or corporate
restriction or partnership agreement or other partnership restriction that would
have a material adverse effect (i) on the business, condition (financial or
otherwise), operations, properties or prospects of the Borrower or any of its
Subsidiaries, or (ii) on the ability of the Borrower or any of its Subsidiaries
to carry out its obligations under any of the Loan Documents or Related
Documents to which it is or will be a party; provided that it is agreed that the
--------
indentures governing the 1994 Subordinated Notes, the 1995 Subordinated Notes
and the 1996 Subordinated Notes and any other indentures in substantially the
same form as such indentures, do not have any such effect.
4.01(k) Payment of Taxes. The Borrower and each of its Subsidiaries
----------------
has filed or caused to be filed all Federal, state and franchise tax returns and
information and other similar filings, and all material other tax returns and
information and other similar filings, required to be filed, and paid all
amounts of taxes, including interest and penalties, which have become due
pursuant to such returns or pursuant to any assessments received by the Borrower
or any of its Subsidiaries, except to the extent of any taxes being contested by
or on behalf of the Borrower or such Subsidiary in good faith and by proper
proceedings and for which adequate provision for payment has been made and
adequate reserves are being maintained in accordance with generally accepted
accounting principles consistently applied by the Borrower or such Subsidiary,
as the case may be, and so long as the proceedings referred to above could not
subject any Agent or any Lender to any civil or criminal penalty or liability or
involve any risk of loss, sale or forfeiture of any material item of Collateral.
The Borrower has no knowledge of any actual or proposed additional tax
assessments against it or any of its Subsidiaries which, singly or in the
aggregate, could have a material adverse
91
effect on the Borrower or any of its Subsidiaries.
4.01(l) Accuracy of Information Given to Lenders. No information,
----------------------------------------
exhibit, report, document, certificate or written statement, including without
limitation this Agreement, furnished in writing to any Lender by or on behalf of
the Borrower in connection herewith contained any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
contained therein, in light of the circumstances under which such information,
exhibit, report or other written information was or is to be used, not
misleading, nor do such information, exhibits, reports, documents, certificates
and statements, taken as a whole, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
contained therein not misleading. There is no fact known to the Borrower or any
officer of the Borrower which the Borrower has not disclosed to the Lenders in
writing which in the reasonable judgment of the Borrower and its officers would
materially adversely affect the business, condition (financial or otherwise),
operations, properties or prospects of the Borrower or any of its Subsidiaries
or the ability of the Borrower or any of its Subsidiaries to perform its
respective obligations under any Loan Document or any document contemplated
hereby or thereby. The financial projections and forecasts of the Borrower
delivered by the Borrower to any of the Agents, the Co-Arrangers and the Lenders
were prepared on the basis of the assumptions stated therein and represented, at
the time of delivery, the Borrower's best estimate of its future financial
performance and such assumptions were fair in the light of business conditions
existing at the time of such delivery of such projections and forecasts; and any
such financial projections and forecasts, if prepared as of the date hereof,
would contain estimates of the Borrower's future financial performance which
would not materially adversely differ from the respective estimates contained in
the financial projections and forecasts delivered by the Borrower to any of the
Agents, the Co-Arrangers and the Lenders.
4.01(m) ERISA. Except as described in Schedule 4.01(m), no Plan or
-----
Multiemployer Plan exists as of the date of this Agreement. On and after the
Closing Date with respect to each Plan described in Schedule 4.01(m), and on and
after the first date on which any other Plan shall exist with respect to such
other Plan: (i) no Termination Event has occurred or is reasonably expected to
occur with respect to any Plan and (ii) no event requiring notice to the PBGC
under Section 302(f)(4)(A) of ERISA has occurred or is
92
reasonably expected to occur with respect to any Plan. On and after the Closing
Date with respect to each Multiemployer Plan described in Schedule 4.01(m), and
on and after the first date on which any other Multiemployer Plan shall exist
with respect to such other Multiemployer Plan: (i) neither the Borrower nor any
ERISA Affiliate of the Borrower has incurred, or is reasonably expected to
incur, any Withdrawal Liability to any Multiemployer Plan and (ii) neither the
Borrower nor any ERISA Affiliate of the Borrower has received any notification
that any Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA, and no Multiemployer Plan is reasonably
expected to be in reorganization or to be terminated within the meaning of Title
IV of ERISA.
4.01(n) List of Debt. Set forth on Schedule 4.01(n) is a complete
------------
and accurate list of all Debt of the Borrower and its Subsidiaries that will be
outstanding as of the Closing Date following the Borrowings hereunder and the
application of the proceeds thereof as contemplated hereby, other than (i) Debt
arising under the Loan Documents and the Related Documents and (ii) Debt having
a principal amount of less than $500,000.
4.01(o) Not a Purpose Credit. The Borrower is not engaged in the
--------------------
business of extending credit for the purpose of purchasing or carrying "margin
stock" (within the meaning of Regulation G or Regulation U), and no proceeds of
any Advance, other than proceeds of Advances used to purchase shares of common
stock of the Borrower to the extent permitted by Section 5.02(g) hereof, will be
used to purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock; none of the Pledged Stock
constitutes margin stock.
4.01(p) Prohibited Securities Transactions. No proceeds of any
----------------------------------
Advance will be used by the Borrower or any of its Subsidiaries to acquire any
security in any transaction that is subject to Section 12 of the Securities
Exchange Act of 1934, as amended, other than proceeds of Advances used to
purchase shares of common stock of the Borrower to the extent permitted by
clause (iv) of Section 5.02(g) hereof.
4.01(q) Investment Company Act. Neither the Borrower nor any of its
----------------------
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
4.01(r) Casualties. Neither the business nor the
----------
93
properties of the Borrower or any of its Subsidiaries are affected by any fire,
explosion, accident, strike, lockout or other labor dispute, drought, storm,
hail, earthquake, embargo, act of God or of the public enemy or other casualty,
materially adversely affecting the business, condition (financial or otherwise),
operations, properties or prospects of the Borrower or any such Subsidiary.
4.01(s) Executive Compensation Agreements. Set forth in Schedule
---------------------------------
4.01(s) is a complete and accurate list of all compensation arrangements in
effect as of the date of this Amended Agreement between the Borrower or any of
its Subsidiaries and the five most highly compensated executive officers of the
Borrower and its Subsidiaries.
4.01(t) Collateral, Etc.
---------------
(i) Schedule 4.01(t) contains a complete and accurate description and
list as of the Closing Date of the location, by state, county and street
address and operating division, of all of the Real Property of the Borrower
and its Subsidiaries, together with the lessors thereof, the status of any
consent from the lessor with respect to any such Leasehold obtained or
proposed to be obtained in connection with the Acquisition, any Loan
Document or any Related Document.
(ii) The Borrower or a Guarantor is the record and beneficial owner of
all of the presently existing Collateral covered by (A) the Security
Agreements, (B) the Pledge Agreements and (C) the Mortgages, in each case
free and clear of all mortgages, deeds of trust, pledges, liens, security
interests, options and other charges or encumbrances, except for those
created or permitted by this Agreement and the Collateral Documents.
(iii) The Borrower or a Guarantor has good, marketable and insurable
fee simple title to all Real Property and a valid and indefeasible
leasehold interest in all Leaseholds, free and clear of all liens, charges
and encumbrances of every kind and character, except for those created or
permitted by this Agreement and the Collateral Documents.
(iv) Each Ground Lease (as defined in the Mortgages) is a valid and
subsisting lease in full force and effect in accordance with the terms
thereof; the Borrower or a Guarantor, as the case may be, is in possession
of all Real Property and the Leaseholds constituting part of the Collateral
and no material
94
default by the Borrower or such Guarantor, as the case may be, exists and
neither the Borrower nor any Guarantor has knowledge of any other default
under such Ground Lease or other agreement relating to any Real Property or
Leaseholds constituting part of the Collateral; and no lien, charge or
encumbrance of any kind or character exists on or with respect to the
Borrower's or the Guarantor's, as the case may be, interest in any such
Real Property or Leasehold, other than Permitted Liens.
4.01(u) Consents. Set forth in Schedule 4.01(u) is a complete and
--------
accurate list of all consents required in connection with the Acquisition, the
other Closing Date Transactions and the Loan Documents (including, but not
limited to, consents relating to all network affiliation contracts, power site
leases and FCC matters), all of which will have been duly obtained and shall be
in full force and effect on the Closing Date and at all times thereafter, except
where the failure to obtain such consents will not have a material adverse
effect, alone or in the aggregate, on the business, condition (financial or
otherwise), operations, properties or prospects of the Borrower or any of its
Subsidiaries.
4.01(v) Security Agreements. As of the Closing Date and at all times
-------------------
thereafter, each Security Agreement will create valid and perfected first
priority security interests in and liens on the Collateral covered thereby
(except as provided therein), such security interests and liens being in each
case enforceable against all third parties and securing the payment of all
obligations purported to be secured thereby, and all filings and other actions
necessary or advisable to perfect and protect such security interests shall have
been duly made or taken.
4.01(w) Mortgages. From and after the recording of the Mortgage
---------
Amendments and the KCAL Mortgage, each Mortgage will create a valid and
enforceable first priority mortgage lien on and security interest in the Real
Property covered thereby, enforceable against the Borrower or the Guarantor
granting such Mortgage, as the case may be, and all third parties, and securing
the payment of all obligations purported to be secured thereby, and all filings
and other actions necessary or desirable to perfect and protect such mortgage
lien and security interest will have been duly taken.
4.01(x) Status Under Communications Act. Each material license,
-------------------------------
permit and other authority issued, granted, approved or otherwise authorized by
the FCC for the
95
benefit of the Borrower or any of its Subsidiaries is in good standing,
unimpaired by any act or omission of the Borrower or any of its Subsidiaries or
any of their respective officers, directors, employees or agents. Neither the
Borrower nor any of its Subsidiaries is the subject of any outstanding citation,
order or, to the knowledge of the Borrower, investigation by the FCC which would
have a material adverse effect on the business, condition (financial or
otherwise), operations, properties or prospects of the Borrower or any of its
Subsidiaries, and no such citation, order or investigation to the knowledge of
the Borrower or any of its Subsidiaries is contemplated by the FCC. The Borrower
and each of its Subsidiaries has filed all material reports and applications
required to be filed by the FCC or the Communications Act and has paid all fees
required to be paid by the FCC or the Communications Act.
4.01(y) Compliance with Environmental Requirements; No Hazardous
--------------------------------------------------------
Materials. Except as described on Schedule 4.01(y) and except to the extent the
---------
matters referred to below would result in liabilities for the Borrower and its
Subsidiaries of less than $100,000 in the aggregate, after giving effect to the
Acquisition:
(i) Other than in compliance with all applicable Environmental Laws,
no Hazardous Materials are located on any properties now or previously
owned, leased or operated by the Borrower or any of its Subsidiaries or
have been released into the environment, or deposited, discharged, placed
or disposed of at, on or under any of such properties. No portion of any
such property is being used, or has been used at any previous time, for the
disposal, storage, treatment, processing or other handling of Hazardous
Materials (other than processing or handling incidental to the generation
of Hazardous Materials in compliance with all applicable Environmental
Laws).
(ii) No asbestos or asbestos-containing materials in airborne or
friable form are present on any of the properties now or previously owned,
leased or operated by the Borrower or any of its Subsidiaries.
(iii) No polychlorinated biphenyls are located on or in any properties
now or previously owned, leased or operated by the Borrower or any of its
Subsidiaries, in the form of electrical transformers, fluorescent light
fixtures with ballasts, cooling oils or any other device or form.
96
(iv) No underground storage tanks are located on any properties now
or previously owned, leased or operated by the Borrower or any of its
Subsidiaries, or were located on any such property and subsequently removed
or filled.
(v) No notice, notification, demand, request for information,
complaint, citation, summons, investigation, administrative order, consent
order and agreement, litigation or settlement with respect to Hazardous
Materials has been received by the Borrower or any of its Subsidiaries or,
to the Borrower's knowledge, is proposed, threatened or anticipated with
respect to or in connection with the operation of any properties now or
previously owned, leased or operated by the Borrower or any of its
Subsidiaries. All such properties and their existing and prior uses comply
and at all times have complied with any applicable governmental
requirements relating to environmental matters or Hazardous Materials.
There is no condition on any of such properties which is in violation of
any applicable governmental requirements relating to Hazardous Materials,
and neither the Borrower nor any of its Subsidiaries has received any
communication from or on behalf of any governmental authority that any such
condition exists. None of such properties nor any property to which the
Borrower has, directly or indirectly, transported or arranged for the
transportation of any material is listed or, to the Borrower's knowledge,
proposed for listing on the National Priorities List promulgated pursuant
to CERCLA, on CERCLIS (as defined in CERCLA) or on any similar federal,
state or foreign list of sites requiring investigation or cleanup, nor, to
the knowledge of the Borrower, is any such property anticipated or
threatened to be placed on any such list.
(vi) There has been no environmental investigation, study, audit,
test, review or other analysis conducted of which the Borrower has
knowledge in relation to the current or prior business of the Borrower or
any property or facility now or previously owned, leased or operated by the
Borrower or any of its Subsidiaries which has not been delivered to the
Lenders or will not have been delivered to the Lenders at least five days
prior to the Closing Date.
For purposes of this Section 4.01(y), (x) the terms "Borrower" and "Subsidiary"
shall include any business or business entity (including a corporation) which
is, in whole
97
or in part, a predecessor of the Borrower or any Subsidiary if the Borrower or
such Subsidiary, as a successor to such business or business entity, is or could
be subject to successor liability under applicable law and (y) any
representation made with respect to properties not presently owned, leased or
operated by the Company or any of its Subsidiaries shall be limited to
conditions, activities or requirements at or in connection with such properties
for which the Borrower or any of its Subsidiaries is or could be subject to
liability.
4.01(z) Compliance with Laws. The Borrower and its Subsidiaries are
--------------------
in compliance in all material respects with all applicable laws, rules and
regulations, other than such laws, rules or regulations (i) the validity or
applicability of which the Borrower or such Subsidiary is contesting in good
faith or (ii) the failure to comply with which would not have a material adverse
effect on the business, condition (financial or otherwise), operations,
properties or prospects of the Borrower or any of its Subsidiaries.
4.01(aa) Representations in Related Documents are True and Correct.
---------------------------------------------------------
Each of the representations and warranties of the Borrower and its Subsidiaries
contained in the Related Documents is true and correct in all material respects.
4.01(bb) Obligations are Senior Debt and Designated Senior Debt. All
------------------------------------------------------
obligations of the Borrower and the Guarantors under this Amended Agreement, the
Notes, the Letters of Credit, the Guaranty Agreement, the other Loan Documents
and any Interest Rate Protection Agreements are "Senior Debt" and "Designated
Senior Debt" within the meaning of, and are entitled to the benefits of, Article
X of the indentures governing the 1994 Subordinated Notes, the 1995 Subordinated
Notes and the 1996 Subordinated Notes and of any indentures governing any other
Permitted Subordinated Debt.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Obligation
---------------------
hereunder or under any Loan Document shall remain unpaid, or any Letter of
Credit shall be outstanding, or any Lender shall have any Term Loan Commitment
or Revolving Facility Commitment hereunder, the Borrower will, unless the
Majority Lenders otherwise consent in writing:
98
5.01(a) Compliance with Laws, Etc. Perform and promptly comply, and
--------------------------
cause each of its Subsidiaries to perform and promptly comply, in all
material respects, and cause all property of the Borrower and each such
Subsidiary to be maintained, used and operated in all material respects in
accordance with all (i) present and future laws, ordinances, rules,
regulations, orders and requirements (including, without limitation, the
Communications Act, Environmental Laws and ERISA) of every duly constituted
governmental or quasi-governmental authority or agency applicable to the
Borrower, any of its Subsidiaries or any of their properties, (ii)
similarly applicable orders, rules and regulations of any regulatory,
licensing, accrediting, insurance underwriting or rating organization or
other body exercising similar functions, and (iii) similarly applicable
duties or obligations of any kind imposed under any certificate of
occupancy, Leasehold or otherwise by law, covenant, conditions, agreement
or easement, public or private, in each case except where the failure to
perform and promptly comply would not result in a material adverse affect
on the business, condition (financial or otherwise), operations, properties
or prospects of the Borrower, of any of its Subsidiaries or of the Borrower
and its Subsidiaries taken as a whole.
5.01(b) Conduct of Business; Preservation of Corporate Existence.
--------------------------------------------------------
Continue, and cause each of its Subsidiaries to continue, to engage only in
business of the same general type as now conducted by the Borrower and its
Subsidiaries, and preserve and maintain, and cause each of its Subsidiaries
that is a corporation to preserve and maintain, its corporate existence and
corporate rights (charter and statutory), and those corporate franchises
material to the business or operations of the Borrower or such Subsidiary
and to cause each of its Subsidiaries that is a partnership to preserve and
maintain its existence as a partnership and its rights (both under law and
pursuant to its partnership agreement) as such, and those franchises
material to the business or operations of such partnership.
5.01(c) Visitation Rights. At any reasonable time and from time to
-----------------
time, upon reasonable notice permit any Agent or any of the Lenders or any
agents or representatives thereof to examine and make copies of and
abstracts from the records and books of account of, and visit the
properties of, the Borrower and any of
99
its Subsidiaries, and to discuss the business and financial affairs,
finances and accounts of the Borrower and any of its Subsidiaries with any
of their officers or directors and with its independent certified public
accountants and advise such accountants that the Agents and the Lenders
have been authorized to exercise all rights of the Borrower to require such
accountants to disclose any and all financial statements and other
information of any kind that they may have with respect to the Borrower and
any of its Subsidiaries and direct such accountants to comply with any
requirements of any Agent or any Lender for such information.
5.01(d) Keeping of Books. Keep, and cause each of its Subsidiaries
----------------
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each of its Subsidiaries in accordance with
generally accepted accounting principles.
5.01(e) Maintenance of Insurance. Maintain, and cause each of its
------------------------
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts, with such deductibles
and covering such risks as is usually carried by companies engaged in
similar businesses and owning similar properties in the same general areas
in which the Borrower or such Subsidiary operates. If the Borrower or any
Subsidiary receives any Major Casualty Proceeds, notwithstanding any
requirements contained in the Collateral Documents requiring that Major
Casualty Proceeds must be paid directly to the Administrative Agent, the
Borrower shall deliver, and shall cause each of its Subsidiaries to
deliver, such Major Casualty Proceeds to the Administrative Agent, to be
held, applied and distributed in accordance with Section 5 of the Security
Agreement. Until so delivered, any such Major Casualty Proceeds shall be
held in trust for the benefit of the Administrative Agent, the
Documentation Agent, the Lenders and the Issuing Bank, and shall not be
commingled with any other funds or property of the Borrower or any of its
Subsidiaries.
5.01(f) Payment of Taxes, Etc. (i) File, and cause each of its
----------------------
Subsidiaries to file, all tax returns and information and other similar
filings (Federal, state, local and foreign) required to be filed; (ii) pay
and discharge, and cause each of its Subsidiaries to pay and discharge,
before the same shall become
100
delinquent, (A) all taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (B) all lawful claims that, if
unpaid, might by law become a Lien upon its property; provided, however,
-------- -------
that neither the Borrower nor any such Subsidiary shall be required to pay
or discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and in respect of which
adequate provision for payment has been made and adequate reserves are
being maintained in accordance with generally accepted accounting
principles and as long as the proceedings referred to above could not
subject any Agent or any Lender to any civil or criminal penalty or
liability or involve any risk of the sale, loss or forfeiture of any item
of Collateral and, where applicable, in accordance with the Mortgages; and
provided further that in the case of any item of the foregoing description
-------- -------
involving in excess of $250,000, the appropriateness of the proceedings
shall be supported by an opinion of the independent counsel responsible for
such proceedings and the adequacy of such reserves, if any, shall be
supported by an opinion of the independent accountants of the contesting
Person (which opinions shall be delivered to the Lenders); and (iii)
maintain, and cause each of its Subsidiaries to maintain, appropriate
reserves in respect of all taxes, assessments, governmental charges and
levies imposed on it or upon its property.
5.01(g) Maintenance of Properties, Etc. Maintain and preserve, and
-------------------------------
cause each of its Subsidiaries to maintain and preserve, in good working
order and condition, ordinary wear and tear excepted, all of its properties
with respect to which failure to so maintain and preserve would have a
material adverse effect on the business, condition (financial or
otherwise), operations, properties or prospects of the Borrower or any
Subsidiary or on the value or utility to the Borrower or such Subsidiary of
any property material to its business.
5.01(h) Maintenance of FCC Licenses, Affiliation Agreements, Etc.
---------------------------------------------------------
Maintain and preserve, and cause each of its Subsidiaries to maintain and
preserve, each license, franchise, permit and other authorization necessary
or desirable under the Communications Act or otherwise with respect to
which the failure to so maintain and preserve would have a material adverse
effect on the business, condition (financial or otherwise), operations,
properties or prospects of the Borrower or any such Subsidiary or on the
value or
101
utility to the Borrower or such Subsidiary of any such authorization,
including, but not limited to, performing and observing (except as
otherwise provided by law) each term and provision of each network
affiliation agreement to which it is a party and maintaining each such
agreement in full force and effect, it being understood that failure to
maintain any such network affiliation agreement in full force and effect
shall be deemed to result in such a material adverse effect, such material
adverse effect being deemed to occur at such time as programming ceases to
be provided pursuant to such network affiliation agreement; provided that
--------
such material adverse effect shall not be deemed to occur if, prior to the
time that such programming ceases, the Borrower or such Subsidiary shall
have entered into a network affiliation agreement with another network
which agreement and network are reasonably satisfactory to the Majority
Lenders.
5.01(i) Arm's-Length Transactions. Conduct, and cause each of its
-------------------------
Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of its Affiliates (including ▇▇▇▇ ▇▇▇▇▇ Inc.) on
terms that are fair and reasonable and no less favorable to the Borrower or
such Subsidiary than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate of the Borrower or any such
Subsidiary, as the case may be, and, in each case in which ▇▇▇▇ ▇▇▇▇▇ Inc.
or another Affiliate of the Borrower acts as sales representative,
commission agent or the like on behalf of the Borrower or any of its
Subsidiaries, cause the arrangements with respect thereto to provide that
such Affiliate (i) shall not receive, directly or indirectly, compensation
(including percentage of the sales price to be paid, time and terms of
payment) or other benefits greater than that which is then typical in the
industry for similar transactions, and (ii) shall deal at all times with
the Borrower and its Subsidiaries at arm's length; provided that, so
--------
long as the Borrower owns (directly or indirectly) 100% of the capital
stock or partnership interests of each Guarantor, transactions between the
Borrower and any Guarantor or between any two Guarantors need not be on
terms no less favorable than any such party would obtain in a comparable
arm's-length transaction.
5.01(j) Solvency. Continue to be Solvent and cause each of its
--------
Subsidiaries to continue to be Solvent.
102
5.01(k) Plan Contribution. Make, and cause each Subsidiary to make,
-----------------
when due, all contributions required by law to be made to all Plans.
5.01(l) Pro Forma Debt Service Coverage. Cause, at all times, the
-------------------------------
ratio of (i) the excess of Operating Cash Flow over Capital Expenditures,
in each case for the four consecutive Fiscal Quarters then most recently
ended, to (ii) Pro Forma Debt Service at such time to be not less than 1.10
to 1.
5.01(m) Interest Coverage. Cause, (i) as of the Closing Date, the
-----------------
ratio of Operating Cash Flow to Total Interest Expense, in each case for
the four consecutive Fiscal Quarters then most recently ended, to be not
less than 1.50 and (ii) as of the last day of each Fiscal Quarter during
any year set forth below, the ratio of Operating Cash Flow to Total
Interest Expense, in each case for the four consecutive Fiscal Quarters
ending on such day, to be not less than the required ratio set forth below
opposite such year:
Fiscal Quarter Required
Ending During Ratio
---------------------- --------
1996 1.50
1997 1.60
1998 1.80
1999 1.95
Thereafter 2.25
5.01(n) Senior Debt to Operating Cash Flow Ratio. Cause, (i) as of
----------------------------------------
the Closing Date, the ratio of (x) Senior Debt as of the Closing Date to
(y) Operating Cash Flow for the four consecutive Fiscal Quarters then most
recently ended to be not greater than 3.50 and (ii) as of the last day of
each Fiscal Quarter during any year set forth below, the ratio of (A)
Senior Debt as of such day to (B) Operating Cash Flow for the four
consecutive Fiscal Quarters ending on such day to be not greater than the
required ratio set forth below opposite the last day of such Fiscal
Quarter:
103
Fiscal Quarter Required
Ending During Ratio
---------------------- --------
1996 3.25
1997 3.00
1998 2.75
1999 2.75
Thereafter 2.25
5.01(o) Debt to Operating Cash Flow Ratio. Cause the Debt to
---------------------------------
Operating Cash Flow Ratio (i) as of the Closing Date to be equal to or less
than 6.50 and (ii) as of the last day of each Fiscal Quarter during any
year set forth below, to be equal to or less than the required ratio set
forth below opposite the last day of such Fiscal Quarter:
Fiscal Quarter Required
Ending During Ratio
---------------------- --------
1996 6.25
1997 6.25
1998 5.50
1999 5.00
Thereafter 4.50
5.01(p) Accuracy of Information Given to Lenders. Use its best
----------------------------------------
efforts to ensure that all written information, exhibits or reports
furnished by the Borrower or any of its Subsidiaries to any Agent or any
Lender will contain no untrue statement of a material fact and will not
omit to state any material fact or any fact necessary to make the
statements contained therein not misleading.
5.01(q) Management. Retain as its chief executive officer its
----------
present Chairman. Notwithstanding anything to the contrary in this
Agreement, all policy and operational decisions relating to the operations
of any television broadcasting stations now or hereafter owned or operated
by the Borrower or any of its Subsidiaries will remain within the exclusive
control of the Borrower or its Subsidiaries.
5.01(r) Further Assurances. Promptly, upon request by any Agent or
------------------
any Lender through the Documentation Agent, correct, and cause each party
to a
104
Loan Document to promptly correct, any defect or error that may be
discovered in any Loan Document or in the execution, acknowledgement or
recordation thereof. Promptly, upon request by any Agent or any Lender
through the Documentation Agent, the Borrower also will, and will cause
each Guarantor to, do, execute, acknowledge, deliver, record, re-record,
file, re-file, register and re-register, any and all such further acts,
deeds, conveyances, pledge agreements, security agreements, mortgages,
deeds of trust, trust deeds, assignments, estoppel certificates, financing
statements and continuations thereof, notices of assignment, transfers,
certificates, assurances and other instruments (including but not limited
to subleases or other grants of rights with respect to the Leasehold
interests) as any Agent or any Lender through the Documentation Agent may
require from time to time in order (i) to carry out more effectively the
purposes of this Agreement or any other Loan Document, (ii) to subject to
the Liens created by any of the Loan Documents any of the Borrower's and
its Subsidiaries' properties, rights or interests covered or now or
hereafter intended to be covered by any of the Loan Documents, (iii) to
perfect and maintain the validity, effectiveness and priority of any of the
Collateral Documents and the Liens intended to be created thereby, and (iv)
to better assure, convey, grant, assign, transfer, preserve, protect and
confirm to the Agents and the Lenders the rights granted or now or
hereafter intended to be granted to the Agents and/or the Lenders under any
Loan Document or under any other instrument executed in connection with any
Loan Document to which the Borrower or any of its Subsidiaries is or may
become a party.
5.01(s) Management of Partnerships. Cause the KLFY Partnership, the
--------------------------
WKRN Partnership and the WATE Partnership to be managed and operated, and
cause their respective affairs to be conducted, in accordance with the
terms and conditions of the KLFY Partnership Agreement, the WKRN
Partnership Agreement and the WATE Partnership Agreement, respectively.
5.01(t) Hazardous Materials; Remediation. Promptly give notice to
--------------------------------
the Lenders in writing of any complaint, order, citation, notice or other
written communication from any Person with respect to, or if the Borrower
becomes aware of, (x) the existence or alleged existence of a violation of
any applicable Environmental Law or the incurrence of any material
liability, obligation, loss, damage, cost, expense,
105
fine, penalty or sanction or the requirement to commence any material
remedial action resulting from or in connection with any air emission,
water discharge, noise emission, Hazardous Material or any other
environmental, health or safety matter at, upon, under or within any of the
properties now or previously owned, leased or operated by the Borrower or
any of its Subsidiaries, or due to the operations or activities of the
Borrower, any Subsidiary or any other Person on or in connection with any
such property or any part thereof, in each case if the Borrower or any of
its Subsidiaries is or could be subject to liability therefor or (y) any
release on any of such properties of Hazardous Materials in a quantity that
is reportable under any applicable Environmental Law; and (ii) promptly
comply with any governmental requirements requiring the removal, treatment
or disposal of such Hazardous Materials and provide evidence satisfactory
to the Majority Lenders of such compliance.
5.01(u) FCC Filings. Within 30 days of the execution hereof and
-----------
thereof, file with the FCC a copy of this Agreement and of each other Loan
Document required to be filed with the FCC pursuant to 47 C.F.R. Section
73.3613, and confirm in writing to the Administrative Agent that such
copies have been duly and timely filed.
SECTION 5.02. Negative Covenants. So long as any Obligation
------------------
hereunder or under any Loan Document shall remain unpaid, or any Letter of
Credit shall be outstanding, or any Lender shall have any Term Loan Commitment
or Revolving Facility Commitment hereunder, the Borrower will not, without the
written consent of the Majority Lenders or, in the case of Section 5.02(c) or
Section 5.02(d), without the written consent of each Lender:
5.02(a) Liens, Etc. Create, incur, assume or suffer to exist, or
-----------
permit any of its Subsidiaries to create, incur, assume or suffer to exist,
any Lien upon or with respect to any of its assets or properties of any
character (including, without limitation, accounts and shares of capital
stock and partnership interests of the Borrower's Subsidiaries), whether
now owned or hereafter acquired, or assign any right to receive income, or
sign or file, or permit any of its Subsidiaries to sign or file, under the
Uniform Commercial Code or any comparable statute of any jurisdiction a
financing statement that names the Borrower or any of its Subsidiaries as
debtor, or sign, or permit any of its Subsidiaries to sign, any security
106
agreement authorizing any secured party thereunder to file such a financing
statement, or assign, or permit any of its Subsidiaries to assign, any
accounts; excluding, however, from the operation of the foregoing
--------- -------
restrictions the Liens created by or pursuant to the Loan Documents and
Permitted Liens.
5.02(b) Debt. Create, incur, assume, guarantee or suffer to exist,
----
or permit any of its Subsidiaries to create, incur, assume, guarantee or
suffer to exist, any Debt, other than (i) Debt under the Loan Documents,
(ii) Debt existing on the date of this Amended Agreement and listed on
Schedule 4.01(n), (iii) Debt existing on the date of this Amended Agreement
and not listed on Schedule 4.01(n) in an aggregate principal amount not to
exceed $250,000, (iv) Existing Subordinated Debt, and (v) Debt incurred
after the Closing Date when no Default is then continuing or would result
therefrom as follows:
(A) Debt incurred by the Borrower or any Subsidiary of the
Borrower in the ordinary course of business, consistent with past
practice, for the deferred purchase price of goods or services;
(B) Permitted Subordinated Debt;
(C) Debt of the Borrower or any Subsidiary of the Borrower
secured by a Lien described in clause (vii) of the definition of
Permitted Liens, in an aggregate principal amount outstanding at any
time not to exceed $10,000,000;
(D) Obligations of the Borrower or any Subsidiary under Capital
Leases; provided that the aggregate amount of Capital Lease
--------
Obligations with respect to all such Capital Leases shall not at any
time exceed $5,000,000;
(E) Guaranteed Debt in an aggregate principal amount outstanding
at any time not to exceed $1,000,000; and
(F) Obligations of the Borrower under any Interest Rate
Protection Agreements and other Derivatives Obligations to the extent
permitted by Section 5.02(s).
5.02(c) Mergers. Merge or consolidate with or into any Person, or
-------
permit any of its Subsidiaries to do so or agree to any such transaction;
provided that
--------
107
if no Default shall have occurred and be continuing, and the Borrower or
such Subsidiary is the surviving entity, the prior written consent of each
Lender shall not be required but the prior written consent of the Majority
Lenders shall be required.
5.02(d) Sales, Etc., of Assets. Unless the Borrower obtains the
----------------------
prior written consent of each Lender, sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer or
otherwise dispose of, any assets, except (i) sales, leases, transfers and
other dispositions of inventory and used, surplus or worn-out equipment
(including abandonment of assets having no further useful life to the
Borrower or such Subsidiary, as the case may be) made in the ordinary
course of business of the Borrower or such Subsidiary, as the case may be,
(ii) transfers by the Borrower or a Guarantor to another Guarantor or the
Borrower so long as the Borrower owns directly 100% of the capital stock of
each Guarantor that is a corporation and directly or through one or more
wholly owned Subsidiaries 100% of the partnership interests of each
Guarantor that is a partnership, and (iii) Permitted Asset Sales.
5.02(e) Maintenance of Ownership of Subsidiaries; Issuance of Stock
-----------------------------------------------------------
and Partnership Interests, Etc. Sell or otherwise dispose of, or commit to
-------------------------------
sell or otherwise dispose of, any shares of capital stock of or any
partnership interests in any of its Subsidiaries unless such disposition
constitutes a Permitted Asset Sale, or permit any of its Subsidiaries to
issue, sell or otherwise dispose of, or commit to issue, sell or otherwise
dispose of, any shares of its capital stock or any partnership interests or
capital stock of or partnership interests in any other Subsidiary of the
Borrower.
5.02(f) Investments in Other Persons and Asset Purchases. Make, or
------------------------------------------------
permit any of its Subsidiaries to make, any loan or advance to, or
investment in, any other Person, or purchase or otherwise acquire, or
permit any of its Subsidiaries to purchase or otherwise acquire, any shares
of capital stock, obligations or other securities of, make any capital
contribution to, or otherwise invest in, any other Person (an
"Investment"), or make any Asset Purchase except for (i) Temporary Cash
----------
Investments, (ii) trade receivables created in the ordinary course of the
business of the Borrower or its Subsidiaries, (iii) Investments in the
Borrower by any Guarantor, Investments in any Guarantor
108
by the Borrower or by any other Guarantor and purchases of shares of common
stock of the Borrower to the extent permitted by clause (iv) of Section
5.02(g) hereof, (iv) Asset Purchases and Investments made after the date
hereof in any one or more Persons, other than the Borrower or any
Guarantor, in an aggregate amount of all Asset Purchases made since the
Closing Date, together with Investments outstanding at any time, not
exceeding $7,500,000, (v) Permitted Acquisitions, (vi) Permitted
Acquisition Deposits and (vii) Investments in Tower Affiliates, to the
extent incidental to the ownership and operation of the transmission towers
owned by such Tower Affiliates. Without limiting the generality of the
foregoing, the Borrower will not, and will not permit any Subsidiary to,
acquire or create any Subsidiary, unless (x) arrangements satisfactory to
the Agents shall have been made for (A) the pledge of the stock of such
Subsidiary to the Administrative Agent for its benefit and the benefit of
the Secured Parties, (B) such Subsidiary to become a Guarantor hereunder
and (C) the granting of liens and security interests in substantially all
of the assets of such Subsidiary to the Administrative Agent for its
benefit and the benefit of the Secured Parties or (y) such Subsidiary is
created in anticipation of a Permitted Acquisition and, prior to the time
of such Permitted Acquisition, neither the book value nor the fair market
value of the assets of such Subsidiary (disregarding its rights, if any,
under the related acquisition agreement) exceeds $50,000; provided that the
--------
provisions of clause (c) of the definition of "Permitted Acquisition" must
be satisfied at the time of such Permitted Acquisition.
5.02(g) Restricted Payments. Declare or make any Restricted Payment,
-------------------
or return any capital to its stockholders as such, or make any distribution
of assets, stock, warrants, rights, obligations or securities to its
stockholders as such, or permit any of its Subsidiaries to declare or make
any Restricted Payment, or return any capital to any of their stockholders
or to any of the Borrower's stockholders, or make any distribution of
assets to any of their stockholders or any of the Borrower's stockholders
as such, except that (i) the Borrower's Subsidiaries may pay cash dividends
to the Borrower, (ii) any Subsidiary of the Borrower that is a partnership
may make distributions to its partners in accordance with the provisions of
the partnership agreement governing such partnership, (iii) the Borrower
may purchase shares of (or options to purchase shares of) its common stock
109
from employees of the Borrower or any Subsidiary of the Borrower so long as
(x) before and after giving effect to any such purchase, no Default shall
have occurred and be continuing and (y) the aggregate number of shares
(including the equivalent number of shares in the case of options)
purchased by the Borrower from all employees since the Closing Date shall
not exceed 2% of the aggregate number of shares of the Borrower's Class A
Common Stock, Class B Common Stock and Class C Common Stock outstanding on
the Closing Date and (iv) the Borrower may purchase, or make distributions
of cash dividends on, shares of its common stock so long as before and
after giving effect to any such purchase or distribution, (A) no Default
shall have occurred and be continuing, (B) at the time of any such purchase
or distribution, the Debt to Operating Cash Flow Ratio, after giving effect
to such purchase or distribution, shall be less than 5.50, (C) the
aggregate amount paid by the Borrower for all such purchases and
distributions pursuant to this clause (iv) from and after the Closing Date
shall not exceed $20,000,000 and (D) before and after giving effect to any
such purchase or distribution, the Borrower shall be in compliance with
Section 4.05(a) of the indenture governing any Existing Subordinated Debt
as in effect on the Closing Date, and of any equivalent provisions of any
indentures governing any Permitted Subordinated Debt.
5.02(h) Prepayment of Debt. Prepay, redeem, defease (whether
------------------
actually or in substance) or purchase, in any manner (or deposit or set
aside funds for the purpose of any of the foregoing), make any payment in
respect of principal of or premium on, or make any payment in respect of
interest on any Debt (including, without limitation, any Existing
Subordinated Debt and any Permitted Subordinated Debt), or permit any of
its Subsidiaries to prepay, redeem, defease (whether actually or in
substance) or purchase in any manner, make any payment in respect of
principal of or premium on, or make any payment in respect of interest on
any Debt (including, without limitation, any Existing Subordinated Debt and
any Permitted Subordinated Debt), in each case other than:
(i) regularly scheduled repayments of principal or payments of
interest required in accordance with the terms of the instruments governing
the respective Debt;
(ii) any repayments or prepayments of principal and any payments of
interest in respect of the Notes;
110
(iii) regularly scheduled rental payments in respect of Capital
Leases;
(iv) if the Debt to Operating Cash Flow Ratio is 5.0 or greater on or
before June 30, 2000, or 4.5 or greater thereafter, any prepayment,
redemption, defeasance or purchase of any Existing Subordinated Debt or
Permitted Subordinated Debt, so long as before and after giving effect
thereto, (A) the aggregate amount paid by the Borrower or any other Loan
Party for all such prepayments, redemptions, defeasances and purchases
pursuant to this clause (iv) after the Closing Date shall not exceed
$20,000,000, (B) no Default shall have occurred and be continuing and (C)
the Borrower shall be in compliance with all Subordinated Debt Documents;
(v) if the Debt to Operating Cash Flow Ratio is less than 5.0 on or
before June 30, 2000, or 4.5 thereafter, any prepayment, redemption,
defeasance or purchase of any Existing Subordinated Debt or Permitted
Subordinated Debt in an unlimited amount, so long as before and after
giving effect thereto, (A) no Default shall have occurred and be continuing
and (B) the Borrower shall be in compliance with all Subordinated Debt
Documents; and
(vi) any prepayment, redemption, defeasance or purchase of any
Existing Subordinated Debt from the Net Proceeds of Refinancing Permitted
Subordinated Debt at the time of issuance thereof so long as before and
after giving effect thereto, no Default shall have occurred and be
continuing and the Borrower shall be in compliance with all Subordinated
Debt Documents.
5.02(i) Change in Business; Cease Broadcasting. Engage, or permit
--------------------------------------
any of its Subsidiaries to engage, in any business other than over-the-air
television broadcasting and activities incidental or reasonably related
thereto; or permit any broadcast station operated by the Borrower or any of
its Subsidiaries to cease broadcasting for a period in excess of 10
consecutive days.
5.02(j) Change of Accountants. Replace its then current Independent
---------------------
Public Accountants unless the successor independent public accountants
qualify as an Independent Public Accountant as defined in this Agreement
and the Borrower shall have delivered to the successor independent public
accountants a letter complying with the provisions of Section 3.01(g)(19).
111
5.02(k) Amendment of Charter or By-Laws. Amend, modify or change in
-------------------------------
any manner, or permit any of its Subsidiaries to amend, modify or change in
any manner, the provisions of its certificate of incorporation or by-laws
or any agreement entered into by it or any of its Subsidiaries with respect
to its capital stock or partnership interests, including the KLFY
Partnership Agreement, the WKRN Partnership Agreement and the WATE
Partnership Agreement, unless in each case such amendment, modification or
change would not be disadvantageous to the Lenders and the Borrower shall
have delivered prior written notice to the Lenders of such amendment,
modification or change, with a copy thereof.
5.02(l) Termination of Licenses. Terminate, lose, fail to hold or
-----------------------
fail to renew, or permit any of its Subsidiaries to terminate, lose, fail
to hold or fail to renew, any license, permit or authorization granted by
the FCC if such termination, loss or failure to hold or failure to renew
would have a materially adverse effect upon the business, condition
(financial or otherwise), operations, properties or prospects of the
Borrower or any such Subsidiary.
5.02(m) Amendment, Etc. of Related Documents. Without the express
------------------------------------
prior written consent of the Majority Lenders, (i) cancel or terminate any
Related Document or consent to or accept any cancellation or termination
thereof, (ii) amend or otherwise modify any material term or provision of
any Related Document or give any consent, waiver or approval with respect
thereto (provided that the provisions of Article X of the indentures
--------
governing the 1994 Subordinated Notes, the 1995 Subordinated Notes and the
1996 Subordinated Notes, any similar provisions of any indentures governing
any other Permitted Subordinated Debt and the definitions of any defined
terms used therein shall be deemed to be material), (iii) waive any breach
of any material term or provision of any Related Document or any default
thereunder as a result thereof, or (iv) take or fail to take any other
action in connection with the Related Documents that would impair the
interests or rights of any Agent or any Lender.
5.02(n) Trade Debt. Create, incur, assume, guarantee, or suffer to
----------
exist Trade Debt other than in the ordinary course of business.
5.02(o) Employee Benefit Costs and Liabilities.
--------------------------------------
112
Create, incur, assume, guarantee or suffer to exist, or permit any ERISA
Affiliate to create, incur, assume, guarantee or suffer to exist, (i) any
Insufficiency with respect to a Plan or any obligation with respect to a
Multiemployer Plan or (ii) any liability with respect to welfare plans (as
defined in Section 3(1) of ERISA, but excluding medical plans established
for the benefit of employees of the Borrower or any Subsidiaries) if,
immediately after giving effect to such liability, the aggregate annualized
cost (including, without limitation, the cost of insurance premiums) with
respect to such plans for which the Borrower is or may become liable in any
fiscal year of the Borrower would exceed $250,000.
5.02(p) Plan Amendments. Adopt an amendment with respect to which
---------------
security is required under Section 307 of ERISA to any Plan.
5.02(q) Limited Partners. Permit LAT, YBT or YBK (i) to conduct any
----------------
business other than to acquire and hold a limited partnership interest in,
respectively, the KLFY Partnership, the WKRN Partnership and the WATE
Partnership and to exercise their rights and perform their obligations
under the KLFY Partnership Agreement, the WKRN Partnership Agreement and
the WATE Partnership Agreement, respectively, (ii) to cause or permit, or
agree to cause or permit in the future (upon the happening of a contingency
or otherwise), any consensual security interest, lien or other encumbrance
upon any of its assets or (iii) to hold any interest whatsoever in any
asset other than (A) a limited partnership interest in the KLFY
Partnership, the WKRN Partnership or the WATE Partnership and (B) cash;
provided that any cash in excess of $10,000 is distributed to the Borrower
--------
or paid to the KLFY Partnership, the WKRN Partnership or the WATE
Partnership within 30 days of receipt thereof by LAT, YBT or YBK.
5.02(r) Limitation on Payment Restrictions Affecting Subsidiaries.
---------------------------------------------------------
Permit to exist, directly or indirectly, or create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Subsidiary in existence on the Closing Date to: (i) pay any
dividends or make any other distributions on its capital stock or
partnership or other equity interests owned by the Borrower or any
Subsidiary of the Borrower; (ii) pay any obligations owed to the Borrower
or any other Subsidiary; (iii) make loans or advances
113
to the Borrower or any other Subsidiary; or (iv) transfer any of its
properties or assets to the Borrower or any other Subsidiary, except for
encumbrances or restrictions existing under applicable law.
5.02(s) Interest Rate Protection. Enter into, or permit any of its
------------------------
Subsidiaries to enter into, interest rate cap agreements or other interest
rate protection, except (i) Interest Rate Protection Agreements or (ii)
other interest rate cap agreements or other interest rate protection that
do not require or provide for the imposition of any Lien on any asset of
the Borrower or any of its Subsidiaries, and which contain conditions and
are with financial institutions acceptable to the Agents.
SECTION 5.03. Reporting Requirements. So long as any Obligation
----------------------
hereunder or under any Loan Document shall remain unpaid, or any Letter of
Credit shall be outstanding, or any Lender shall have any Term Loan Commitment
or Revolving Facility Commitment hereunder, the Borrower will furnish to each
Lender (and, in the case of the Notice of Debt to Operating Cash Flow Ratio,
also to the Administrative Agent) the following:
5.03(a) In a form reasonably acceptable to the Majority Lenders (i)
on or before the 25th day after the end of each month that is not the last
month of a Fiscal Quarter, Consolidated balance sheets of the Borrower and
its Subsidiaries as of the last day of such month and Consolidated
statements of income and retained earnings (including the sales and
Operating Cash Flow components thereof) and Consolidated statements of
changes in cash flow (including, without limitation, cash payments in
respect of Capital Expenditures and Film Expense) of the Borrower and its
Subsidiaries for such month and for the period commencing on the first day
of such Fiscal Year and ending on the last day of such month (and, in the
case of such statements of income, comparing the actual amounts thereof
with the amounts budgeted therefor and with the actual amounts thereof in
the equivalent periods of the immediately preceding Fiscal Year), in each
case certified by the chief financial officer of the Borrower, together
with (A) a certificate of the chief financial officer of the Borrower
stating that no Default has occurred and is continuing or, if a Default has
occurred and is continuing, a statement as to the nature thereof and the
action that the Borrower has taken or proposes to take with respect thereto
and (B)
114
a schedule (each, a "Notice of Debt to Operating Cash Flow Ratio")
-------------------------------------------
prepared by the chief financial officer of the Borrower, in form
satisfactory to the Lenders, of the computations used by the Borrower to
determine the Debt to Operating Cash Flow Ratio as of the last day of such
month.
5.03(b) As soon as available and in any event within 45 days after
the end of each of the first three quarters of each Fiscal Year of the
Borrower, the Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such quarter, and the related Consolidated
statements of income and retained earnings and Consolidated statements of
changes in cash flow of the Borrower and its Subsidiaries for each of such
quarters and the period commencing at the end of the previous Fiscal Year
and ending with the end of such quarter, in each case in form and substance
satisfactory to the Lenders, certified by the chief financial officer of
the Borrower as having been prepared in accordance with generally accepted
accounting principles, together with (i) a certificate of the chief
financial officer of the Borrower, substantially in the form of Exhibit T
and (ii) a schedule prepared by the chief financial officer of the
Borrower, in form satisfactory to the Lenders, of the computations used by
the Borrower in determining, as of the end of such fiscal quarter,
compliance with the limitations contained in Sections 5.01(l), 5.01(m),
5.01(n), 5.01(o), 5.02(a), 5.02(b), 5.02(d), 5.02(f), 5.02(g), 5.02(h),
6.01(d), 6.01(g), 6.01(k), 6.01(m), 6.01(n) and 6.01(o).
5.03(c) As soon as available and in any event within 90 days after
the end of each Fiscal Year of the Borrower, a copy of the annual report
for such year for the Borrower and its Subsidiaries, including therein a
Consolidated balance sheet of the Borrower and its Subsidiaries as of the
end of such Fiscal Year and a Consolidated statement of income and retained
earnings and a Consolidated statement of changes in cash flow, of the
Borrower and its Subsidiaries for such Fiscal Year, certified in a manner
acceptable to the Lenders by the Independent Public Accountants, together
with (i) a certificate of such accounting firm to the Lenders stating that,
in the course of the regular audit of the business of the Borrower and its
Subsidiaries, which audit was conducted by such accounting firm in
accordance with generally accepted auditing standards, such accounting firm
has obtained no knowledge that a Default has occurred and is
115
continuing, or if, in the opinion of such accounting firm, a Default has
occurred and is continuing, a statement as to the nature thereof, (ii) a
certificate of the chief financial officer of the Borrower substantially in
the form of Exhibit T, (iii) a schedule prepared by the chief financial
officer of the Borrower, in form satisfactory to the Lenders, of the
computations used by the Borrower in determining, as of the end of such
Fiscal Year, compliance with limitations contained in Sections 5.01(l),
5.01(m), 5.01(n), 5.01(o), 5.02(a), 5.02(b), 5.02(d), 5.02(f), 5.02(g),
5.02(h), 6.01(d), 6.01(g), 6.01(k), 6.01(m), 6.01(n) and 6.01(o) and the
calculation of the Debt to Operating Cash Flow Ratio as of the last day of
such Fiscal Year, and (iv) unaudited consolidating balance sheets as of the
end of such Fiscal Year and statements of income and retained earnings and
statements of the sources and uses of funds for such Fiscal Year for the
Borrower and each of its Subsidiaries, certified by the chief financial
officer of the Borrower;
5.03(d) As soon as available and in any event by the end of each
Fiscal Year, a copy of the annual business and financial plan of the
Borrower and its Consolidated Subsidiaries for the next ending Fiscal Year
on a monthly basis (for each fiscal month) and for the subsequent Fiscal
Year on an annual basis, in form and substance satisfactory to the
Administrative Agent, which plan will include (i) projected Consolidated
balance sheets of the Borrower for the next ending Fiscal Year; (ii)
projected Consolidated cash flow analyses of the Borrower and each of its
Subsidiaries for each of the twelve months following the end of such Fiscal
Year, on a monthly basis, and for the next ending Fiscal Year on an annual
basis; and (iii) projected Consolidated income statements of the Borrower
and each of its Subsidiaries for each of the twelve months following the
end of such Fiscal Year, on a monthly basis, and for the next ending Fiscal
Year on an annual basis;
5.03(e) Promptly after the sending or filing thereof, copies of all
proxy statements, financial statements and reports which the Borrower or
any of its Subsidiaries sends to their respective shareholders and copies
of all registration statements and reports on Forms 10-K, 10-Q and 8-K (or
their equivalent) which the Borrower or any of its Subsidiaries files with
the Securities and Exchange Commission or any national securities exchange;
116
5.03(f) Promptly after the commencement thereof, notice of all
actions, suits, hearings and proceedings before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic
or foreign, affecting the Borrower or any of its Subsidiaries of the type
described in Section 4.01(h) or in Section 6.01(g);
5.03(g) As soon as possible and in any event within five days after
the occurrence of any Default, a statement by the chief financial officer
of the Borrower setting forth details of such Default and the action which
the Borrower has taken or proposes to take with respect thereto;
5.03(h) Promptly upon becoming aware that any Termination Event with
respect to any Plan has occurred, a statement by the chief financial
officer of the Borrower describing such Termination Event and each action,
if any, which the Borrower and each such ERISA Affiliate proposes to take
with respect thereto;
5.03(i) Promptly and in any event within two Domestic Business Days
after receipt thereof by the Borrower or any ERISA Affiliate from the PBGC,
copies of each notice received by the Borrower or any ERISA Affiliate from
the PBGC stating the PBGC's intention to terminate any Plan or to have a
trustee appointed to administer any Plan;
5.03(j) Promptly and in any event within 30 days after the filing
thereof with the Internal Revenue Service, copies of each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Plan;
5.03(k) At the time notice is given or required to be given to the
PBGC under Section 302(f)(4)(A) of ERISA of the failure to make timely
payments to a Plan, a copy of any such notice filed and a statement of the
chief financial officer of the Borrower setting forth (A) sufficient
information necessary to determine the amount of the lien under Section
302(f)(3), (B) the reason for the failure to make the required payments and
(C) the action, if any, which the Borrower or its ERISA Affiliates proposes
to take with respect thereto;
5.03(l) Promptly and in any event within five Domestic Business Days
after receipt thereof by the Borrower or any ERISA Affiliate from the
sponsor of a Multiemployer Plan, a copy of each notice received by
117
the Borrower or any ERISA Affiliate concerning (A) the imposition of
Withdrawal Liability by a Multiemployer Plan, (B) the determination that a
Multiemployer Plan is, or is expected to be, in reorganization within the
meaning of Title IV of ERISA, (C) the termination of a Multiemployer Plan
within the meaning of Title IV of ERISA or (D) the amount of liability
incurred, or expected to be incurred, by the Borrower or any ERISA
Affiliate in connection with any event described in clause (A), (B) or (C)
above;
5.03(m) Promptly notify, and cause each of its Subsidiaries to
promptly notify, the Administrative Agent (i) of any lapse, termination or
relinquishment of any station license, permit or other authorization from
the FCC held by the Borrower or any of its Subsidiaries or any failure by
the FCC to renew or extend any such license, permit or other authorization
for other than the usual period thereof, which lapse, termination,
relinquishment, failure to renew or extend would have a material adverse
effect on the business, condition (financial or otherwise), operations,
properties or prospects of the Borrower or any of its Subsidiaries; and
(ii) of any complaint or other matter filed with or communicated to the
FCC, of which the Borrower or any of its Subsidiaries has knowledge and
which might have a materially adverse effect upon the renewal or extension
of any station license, permit or other authorization held by the Borrower
or any of its Subsidiaries, including, without limitation, (A) any
complaint to which the FCC has requested an answer, (B) any petition to
deny, or informal objection filed with regard to, an application filed by
the Borrower or any of its Subsidiaries with the FCC or any mutually
exclusive competing application filed for authority to broadcast on the
frequencies or channels licensed to the Borrower or any of its Subsidiaries
and (C) any citation or notice of violation or order to show cause or order
to become a party to a proceeding issued by the FCC against the Borrower or
any of its Subsidiaries;
5.03(n) Promptly after any significant change in accounting policies
or reporting practices, notice and a description in reasonable detail of
such change;
5.03(o) Copies of any statement or report to be furnished to any
other holder of the securities of the Borrower or any of its Subsidiaries
pursuant to the terms of any indenture, loan or credit or similar agreement
and not otherwise required to be furnished to
118
the Lenders pursuant to any other clause of this Section 5.03, at such time
as such statement or report is to be furnished to such other holder
pursuant to such terms;
5.03(p) As soon as possible after the end of each Fiscal Year, a
statement certified by the chief financial officer of the Borrower setting
forth in reasonable detail any changes since the date of this Agreement,
not previously reported pursuant to this paragraph (p), in the information
set forth in Schedules 4.01(h), 4.01(m), 4.01(t) and 4.01(y), or stating
that no such changes have occurred;
5.03(q) Such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any of its
Subsidiaries as the Administrative Agent or any Lender may from time to
time reasonably request;
5.03(r) On or before the 90th day of each Fiscal Year, a certificate
of the Independent Public Accountants, in form satisfactory to the Lenders,
setting forth their calculation of Excess Cash Flow for the immediately
preceding Fiscal Year, both before and after giving effect to clause (y) of
the last sentence of Section 2.09(b);
5.03(s) Promptly after (i) the Borrower shall fail to make any
payment when due under the Subordinated Debt Documents, (ii) there shall
have been an acceleration of the maturity of any Existing Subordinated Debt
or any Permitted Subordinated Debt, (iii) the trustee under the indenture
for any Existing Subordinated Debt or any Permitted Subordinated Debt or
any holder thereof shall have asserted in writing that an "Event of
Default" as defined therein shall have occurred and (iv) the commencement
of any enforcement proceeding with respect to any Existing Subordinated
Debt or any Permitted Subordinated Debt, notice thereof, including a
description in reasonable detail of the circumstances, and a statement of
the chief financial officer of the Borrower setting forth the action the
Borrower has taken or proposes to take with respect thereto; and
5.03(t) Promptly after the expiration or any termination of any
network affiliation agreements of the Borrower or any Subsidiary, notice
thereof, including a description in reasonable detail of the circumstances,
and a statement of the chief financial
119
officer of the Borrower setting forth the action the Borrower has taken or
proposes to take with respect thereto.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
-----------------
("Events of Default") shall occur and be continuing:
-------------------
6.01(a) The Borrower shall fail to pay within two days of the due
date any interest on any Note, shall fail to reimburse when due any drawing
under any Letter of Credit or shall fail to pay when due any principal on
any Note, any fees or other amounts payable under any Loan Document; or
6.01(b) Any representation or warranty made by any Loan Party in or
in connection with any Loan Document or any amendment thereto or Related
Document to which it is a party or any certificate or financial information
delivered pursuant to any Loan Document or any amendment thereto or Related
Document shall prove to have been incorrect in any material respect when
made; or
6.01(c) Any Loan Party (i) shall fail to perform or observe any term,
covenant or agreement contained in Section 2.20, 5.01, 5.02 or 5.03(g) of
this Agreement, in any Mortgage, in Sections 4, 6, 7, 8, 9 or 10 of any
Security Agreement or in any other provision of any Collateral Document
that is comparable to any such Section of any Security Agreement or (ii)
shall fail to perform or observe any other term, covenant or agreement
contained in any Loan Document on its part to be performed or observed if
such failure shall remain unremedied for 10 days after written notice
thereof shall have been given to the Borrower by the Administrative Agent
or any Lender; or
6.01(d) The Borrower or any Subsidiary shall fail to make when due or
within any applicable grace period any payment in respect of any Material
Financial Obligations (other than the Notes); any event or condition shall
occur which results in the acceleration of the maturity of any Debt
(excluding Debt evidenced by the Notes) of the Borrower or any of its
Subsidiaries (as the case may be) having an aggregate
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unpaid principal amount in excess of $1,000,000 or enables (or, with the
giving of notice or lapse of time or both, would enable) the holder of such
Debt or any Person acting on such holder's behalf to accelerate the
maturity thereof; the Borrower or any of its Subsidiaries shall fail to pay
when the same becomes due any rental payments in respect of any leases
(other than payments with respect to Capital Lease Obligations) requiring
in the aggregate, annual lease payments in excess of $1,000,000, and such
failure shall continue after the applicable grace period, if any, specified
in the lease or leases relating to such rental payment; or any such Debt
shall be declared to be due and payable, or required to be prepaid (other
than by a regularly scheduled required prepayment), prior to the stated
maturity thereof; or
6.01(e) Any "Event of Default" as defined in any Subordinated Debt
Document; or
6.01(f) The Borrower or any of its Subsidiaries shall generally not
pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against the Borrower or any of its Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, or other similar official for it or for
any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 30 days or
any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against it or the appointment
of a receiver, trustee, custodian or other similar official for it or any
substantial part of its property) shall occur; or the Borrower or any of
its Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (f); or
6.01(g) One or more judgments or orders for the payment of money
aggregating more than $1,000,000 shall be rendered against the Borrower or
any of its Subsidiaries and either (i) enforcement proceedings
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shall have been commenced by any creditor upon such judgment(s) or order(s)
or (ii) there shall be any period of 10 consecutive days (or, if such
proceedings are in a state court, such longer period (not to exceed 30
days) following the entry of such judgement or order during which the
Borrower shall be entitled under applicable state law to file an appeal as
of right) during which a stay of enforcement of such judgment(s) or
order(s), by reason of a pending appeal or otherwise, shall not be in
effect; or
6.01(h) Any non-monetary judgment or order shall be rendered against
the Borrower or any of its Subsidiaries that is materially adverse to the
Borrower and its Subsidiaries taken as a whole, and either (i) enforcement
proceedings shall have been commenced by any Person upon such judgment or
order or (ii) there shall be any period of 30 consecutive days during which
a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
6.01(i) Any provision of any Loan Document after delivery thereof
shall for any reason cease to be valid and binding on any Loan Party, or
any Loan Party shall so state in writing; or
6.01(j) Any Collateral Document after delivery thereof shall for any
reason cease to create a valid and perfected first priority security
interest in any Collateral purported to be covered thereby; or
6.01(k) Any Termination Event with respect to a Plan shall have
occurred and, 30 days after notice thereof was required by the terms hereof
to have been given to the Administrative Agent by the Borrower, (i) such
Termination Event shall still exist and (ii) the sum (determined as of the
date of occurrence of such Termination Event) of the Insufficiency of such
Plan and the Insufficiency of any and all other Plans with respect to which
a Termination Event shall have occurred and then exist (or, in the case of
a Plan with respect to which a Termination Event described in clause (ii)
of the definition of Termination Event shall have occurred and then exist,
the liability related thereto) is equal to or greater than $250,000; or
6.01(l) The Borrower shall cease to own directly 100% of the issued
and outstanding Voting Stock of each Subsidiary that is a corporation or
shall cease to own,
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directly or through one or more wholly owned Subsidiaries, 100% of the
partnership interests of each Subsidiary that is a partnership, except in
the case of any Subsidiary of which the Borrower shall have disposed of all
Voting Stock and all partnership interests pursuant to a Permitted Asset
Sale; or
6.01(m) The Borrower or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount which, when aggregated
with all other amounts required to be paid to Multiemployer Plans in
connection with Withdrawal Liabilities (determined as of the date of such
notification), exceeds $250,000; or
6.01(n) The Borrower or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, if as a result of such reorganization or termination the aggregate
annual contributions of the Borrower and its ERISA Affiliates to all
Multiemployer Plans which are then in reorganization or being terminated
have been or will be increased over the average annual amounts contributed
to such Multiemployer Plans for the three most recent plan years which
include the date hereof by an amount exceeding $250,000; or
6.01(o) The Borrower or any ERISA Affiliate shall have committed a
failure described in Section 302(f)(1) of ERISA and the amount determined
under Section 302(f)(3) of ERISA is equal to or greater than $250,000; or
6.01(p) The Acquisition shall be voided or otherwise declared
ineffective before any court or governmental entity; or any such proceeding
shall be commenced and shall not be dismissed within 60 days and the
Administrative Agent shall not have received an opinion of counsel
satisfactory to the Majority Lenders to the effect that there is no
substantial likelihood that the outcome of the proceedings would have the
effect of voiding or otherwise declaring ineffective the Acquisition; or
6.01(q) The FCC shall designate for hearing any station license or
permit held by the Borrower or any of its Subsidiaries (i) to determine
whether the station license or permit should be revoked or modified
123
in a materially adverse manner, (ii) to determine whether the station
license should be renewed or (iii) to determine whether an application for
renewal of a license for a station operated by the Borrower or any of its
Subsidiaries should be granted or whether the application of another party
for said frequency or channel should be granted and in each such case there
is a reasonable possibility of an adverse decision which could adversely
affect the condition (financial or otherwise), operations or properties of
the Borrower or such Subsidiary; or the FCC shall reverse, modify or set
aside the FCC order approving the Acquisition or remand the proceeding
relating to any such order for reconsideration; or
6.01(r) There shall occur a material adverse change in the condition
(financial or otherwise), operations or properties of (i) the Borrower or
(ii) any of its Subsidiaries or (iii) the Borrower and its Subsidiaries
taken as a whole; or
6.01(s) ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, members of their respective
immediate families, Persons controlled (as defined in the definition of
Affiliate) by ▇▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇ and members of management of the
Borrower shall fail to hold, in the aggregate for all such individuals and
other Persons, record and beneficial title to at least 51% (by number of
votes) of the Voting Stock of the Borrower; or
6.01(t) Any person or group of persons (within the meaning of Section
13 or 14 of the Securities Exchange Act of 1934, as amended), other than
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and members of their respective immediate
families, shall have acquired beneficial ownership (within the meaning of
Rule 13d-3 promulgated by the Securities and Exchange Commission under said
Act) of 25% or more (by number of votes) of the Voting Stock of the
Borrower; or, during any period of 12 consecutive calendar months (or 24
consecutive calendar months if the Borrower shall have a board of directors
with staggered terms of office), individuals who were directors of the
Borrower on the first day of such period shall cease to constitute a
majority of the board of directors of the Borrower; or
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Majority Lenders, by notice to the Borrower,
declare the obligation of each Lender to make Advances and the obligation of the
Issuing Bank to issue Letters of Credit to
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be terminated, whereupon the same shall forthwith terminate, and (ii) shall at
the request, or may with the consent, of the Majority Lenders, by notice to the
Borrower, declare the Notes, all interest thereon, all Letter of Credit
Obligations, all Letter of Credit fees and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Notes, all interest
thereon, all Letter of Credit Obligations, all Letter of Credit fees and all
such other amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower; provided, however, that in the event of
-------- -------
the acceleration of the maturity of any Permitted Subordinated Debt or the
commencement of any voluntary proceeding or the taking of any corporate action
referred to in subsection (f) above, or the actual or deemed entry of an order
for relief with respect to the Borrower or any of its Subsidiaries under the
Bankruptcy Reform Act of 1978, as amended, (A) the obligation of each Lender to
make Advances (including Swingline Advances) and the obligation of the Issuing
Bank to issue Letters of Credit shall automatically be terminated and (B) the
Notes, all such interest and all such amounts shall automatically become and be
due and payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the Borrower.
SECTION 6.02. Cash Cover. The Borrower agrees, in addition to the
----------
provisions of Section 6.01 hereof, that upon the occurrence and during the
continuance of any Event of Default, it shall, if requested by the
Administrative Agent upon the instruction of Lenders having more than 50% in
aggregate amount of the Revolving Facility Commitments (or, if the Revolving
Facility Commitments shall have been terminated, holding at least 50% of the
Letter of Credit Obligations), pay to the Administrative Agent an amount in
immediately available funds equal to the aggregate amount available for drawing
under all Letters of Credit then outstanding at such time, and such funds shall
be held as collateral pursuant to arrangements satisfactory to the
Administrative Agent); provided that, upon the occurrence of any Event of
--------
Default specified in clause (f) of Section 6.01 with respect to the Borrower,
the Borrower shall pay such amount forthwith without any notice or demand or any
other act by the Administrative Agent or any Lender.
ARTICLE VII
THE AGENTS
SECTION 7.01. Appointment and Authorization.
-----------------------------
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Each Lender appoints and authorizes each Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement, the Notes and the
Collateral Documents as are delegated to such Agent by the terms hereof or
thereof, together with all such powers as are reasonably incidental thereto.
SECTION 7.02. Agents and Affiliates. Each Agent shall have the same
---------------------
rights and powers under this Agreement as any other Lender and may exercise or
refrain from exercising the same as though it were not an Agent. Each Agent and
each of their respective affiliates may accept deposits from, lend money to,
acquire equity interests in and generally engage in any kind of business with
the Borrower or any Subsidiary or affiliate of the Borrower as if it were not an
Agent hereunder.
SECTION 7.03. Actions by Agents. The obligations of the Agents
-----------------
hereunder are only those expressly set forth herein and neither the Agents nor
the Co-Arrangers shall have or be deemed to have any fiduciary relationship with
any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
with respect to the Agents or the Co-Arrangers. Without limiting the generality
of the foregoing, no Agent shall be required to take any action with respect to
any Default, except as expressly provided in Article VI or Section 7.10.
SECTION 7.04. Consultation with Experts. Each of the Agents may
-------------------------
consult with legal counsel (who may be internal counsel or counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agents. No Agent or any of such Agent's
-------------------
affiliates nor any of their respective directors, officers, agents, or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Majority Lenders or (ii) in the
absence of its own gross negligence or willful misconduct. No Agent nor any of
their respective directors, officers, agents or employees shall be responsible
for or have any duty to ascertain, inquire into or verify (i) any statement,
warranty or representation made in connection with this Agreement or any
borrowing hereunder; (ii) the performance or observance of any of the covenants
or agreements of the Borrower; (iii) the satisfaction of any condition specified
in Article III,
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except receipt of items required to be delivered to the Documentation Agent; or
(iv) the validity, effectiveness or genuineness of this Agreement, the Notes or
any other instrument or writing furnished in connection herewith. No Agent shall
incur any liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex or similar writing)
believed by it to be genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Lender shall, ratably in
---------------
accordance with its Lender Share, indemnify each of the Agents, their respective
affiliates and the directors, officers, agents and employees of each of the
Agents or of their respective affiliates (each an "Indemnitee") (to the extent
not reimbursed by the Borrower) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from the Indemnitee's gross negligence or willful
misconduct) that the Indemnitee may suffer or incur in connection with this
Agreement or any action taken or omitted by the Indemnitee hereunder. The
provisions of this Section 7.06 shall survive any termination of this Agreement.
SECTION 7.07. Credit Decision. Each Lender acknowledges that it has,
---------------
independently and without reliance upon any Agent, any Co-Arranger, any Agent's
affiliate, any Co-Arranger's affiliate, any other Lender or any of their
respective directors, officers, agents or employees, and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon any Agent, any Co-Arranger, any
Agent's affiliate, any Co-Arranger's affiliate, any other Lender or any of their
respective directors, officers, agents or employees, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking any action under this Agreement.
SECTION 7.08. Successor Agent. Any Agent may resign at any time by
---------------
giving written notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Majority Lenders shall have the right to appoint a successor to
such Agent. If no such successor for such Agent shall have been so appointed by
the Majority Lenders, and shall have accepted such appointment within 30 days
after the retiring Agent gives notice of resignation, then the retiring Agent
may, on behalf of the Lenders, appoint a
127
successor Agent, which shall be a Lender organized or licensed under the laws of
the United States of America or of any State thereof and having a combined
capital and surplus of at least $50,000,000. Upon the acceptance of its
appointment as an Agent hereunder by a successor Agent in the same capacity,
such successor Agent shall thereupon succeed to and become vested with all the
rights and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring Agent's
resignation hereunder, the provisions of this Article shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was an Agent.
SECTION 7.09. Managing Agent and Co-Agents. None of the Banks listed
----------------------------
on the cover page hereof as Managing Agent or as Co-Agent, in its capacity as
Managing Agent or Co-Agent, as the case may be, shall have any rights or
responsibilities under this Agreement or any other Loan Documents in such
capacity. This Section 7.09 shall not affect in any way the rights and
responsibilities of any such Bank as a Lender (including as a Swingline Lender)
hereunder.
SECTION 7.10. Notice of Default; Collateral Documents.
---------------------------------------
7.10(a) The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower or any Guarantor referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". If the Administrative Agent receives such a notice, it shall give
prompt notice thereof to each of the Lenders.
7.10(b) Subject to Section 8.01, as to any matters not expressly
provided for in the Collateral Documents (including the timing and methods of
realization upon any Collateral), the Administrative Agent shall act or refrain
from acting in accordance with written instructions from the Majority Lenders
or, in the absence of such instructions, in accordance with its discretion;
provided that the Administrative Agent shall not be obligated to take any action
--------
if the Administrative Agent believes that such action is or may be contrary to
any applicable law or might cause the Administrative Agent to incur any loss or
liability for which it has not been indemnified to its reasonable satisfaction.
7.10(c) The Administrative Agent shall not be
128
responsible for the existence, genuineness or value of any Collateral or for the
validity, perfection, priority or enforceability of the security interests in
any Collateral, whether impaired by operation of law or by reason of any action
or omission to act on its part under any Collateral Document. The Administrative
Agent shall have no duty to ascertain or inquire as to the performance or
observance of any terms of any Collateral Document by any Person.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc.
----------------
8.01(a) No amendment or waiver of any provision of this Agreement or
of any Note, nor consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Majority Lenders (and, if the rights or duties of any Agent or the Issuing Bank
are affected thereby, by such Agent or the Issuing Bank, as the case may be),
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no such
-------- -------
amendment, waiver or consent shall, unless in writing and signed by all Lenders,
do any of the following:
(a) waive any of the conditions specified in Article III,
(b) change the percentage of the Lender Shares or the percentage of
any of the Term Loan Commitments or Revolving Facility Commitments or of
the aggregate unpaid principal amount of the Notes, or the number of
Lenders, which shall be required for the Lenders or any of them to take any
action hereunder,
(c) amend this Section 8.01, or
(d) change the definition of Majority Lenders; and provided further
-------- -------
that no such amendment, waiver or consent shall, unless in writing and signed by
all Lenders with Term Loan Commitments, do any of the following:
(i) increase any of the Term Loan Commitments or subject such Lenders
to any additional obligations,
129
(ii) reduce the principal of, the interest rate or accrued interest
on, the Term Loan Advances or any fees or other amounts payable to any such
Lenders under any Loan Document,
(iii) postpone the Term Loan Termination Date or any date fixed for
any payment of interest or fees in respect of any Term Loan Advance;
and provided further that no such amendment, waiver or consent shall, unless in
-------- -------
writing and signed by all Lenders with Revolving Facility Commitments, do any of
the following:
(x) increase the Revolving Facility Commitments or subject such
Lenders to any additional obligations,
(y) reduce the principal of, the interest rate or accrued interest
on, the Revolving Facility Advances or the amount of any Letter of Credit
Obligations or any fees or other amounts payable to any such Lenders under
any Loan Document, or
(z) postpone the Revolving Facility Termination Date or any date
fixed for any payment of interest or fees in respect of any Revolving
Facility Advance;
and provided further that no such amendment, waiver or consent shall, unless in
-------- -------
writing and signed by all Lenders with Revolving Facility Commitments and the
Swingline Lender, do any of the following:
(1) increase the Swingline Commitment or subject the Swingline Lender
to any additional obligations,
(2) reduce the principal of, the interest rate or accrued interest
on, the Swingline Advances or any fees or other amounts payable to the
Swingline Lender under any Loan Document, or
(3) postpone any date fixed for any payment of principal, interest or
fees in respect of any Swingline Advance;
and provided further that no such amendment, waiver or consent shall
-------- -------
(A) postpone any date fixed for any repayment or prepayment of
principal of any Term Loan Advance, or reduce the amount of any mandatory
repayment or prepayment of any Term Loan Advance, unless it is in
130
writing and signed by Lenders with at least 75% of the aggregate unpaid
amount of the Term Loan Advances; provided that no such date shall be
--------
postponed beyond the Term Loan Termination Date unless it is in writing and
signed by all Lenders with Term Loan Commitments, or
(B) postpone any date fixed for any repayment or prepayment of
principal of any Revolving Facility Advance or Letter of Credit Obligation,
or for any reduction in the Revolving Facility Commitments, or reduce the
amount of any mandatory repayment or prepayment of any Revolving Facility
Advance, unless it is in writing and signed by Lenders with at least 75% of
the aggregate amount of the Revolving Facility Commitments; provided that
--------
no such date shall be postponed beyond the Revolving Facility Termination
Date unless it is in writing and signed by all Lenders with Revolving
Facility Commitments.
8.01(b) No amendment or waiver of any provision of any Mortgage, nor
consent to any departure by the applicable Guarantor therefrom, shall in any
event be effective unless the same shall be in writing and signed by the
applicable Guarantor and the Administrative Agent with the written consent of
the Majority Lenders, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; provided
--------
that, except as provided in Section 7.02 of the applicable Mortgage, no such
amendment, waiver or consent shall release any of the Collateral unless in
writing and signed by the applicable Guarantor and the Administrative Agent with
the written consent of all of the Lenders; and provided further that no such
-------- -------
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent with the written consent of all of the Lenders, amend
Section 7.02 of any Mortgage, Section 7.04 of any Mortgage that is a mortgage or
Section 7.05 of any Mortgage that is a deed of trust.
8.01(c) No amendment or waiver of any provision of any other Loan
Document, nor consent to any departure by the applicable Loan Party therefrom,
shall be effective except in accordance with the terms thereof.
SECTION 8.02. Notices, Etc. All notices and other communications
-------------
provided for hereunder or under any other Loan Document shall be in writing
(including telegraphic, telecopy, telex or cable communication) and mailed
(prepaid registered or certified mail, return receipt requested), telegraphed,
telecopied, telexed, cabled or
131
delivered (by hand or other courier service): if to the Borrower, at its address
at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Chairman, with a copy to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.; if
to any Guarantor, at its address c/o the Borrower, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman, with a copy to
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.; if to any Bank, at its Domestic
Lending Office specified in its Administrative Questionnaire; if to any other
Lender, at its Domestic Lending Office specified in the Assignment and
Assumption Agreement pursuant to which it became a Lender; if to the Syndication
Agent, at its address at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: R.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇; if to the Documentation Agent, at its address at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇; and
if to the Administrative Agent, at its address at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Mail Stop
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Agency Services Group, Attention:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ or, as to each party, at such other address as shall be
designated by such party in a written notice to the other parties. All such
notices and communications shall, when mailed, be effective three days after
being mailed and, when telegraphed, telecopied, telexed or cabled, be effective
when delivered to the telegraph company, sent by telecopy, confirmed by telex
answerback or delivered to the cable company, respectively, except that notices
and communications to the Administrative Agent pursuant to Article II shall not
be effective until received by the Administrative Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
-------------------
Lender or any Agent to exercise, and no delay in exercising, any right under any
Loan Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any right under any Loan Document preclude any other or further
exercise thereof or the exercise of any other right. The remedies provided in
the Loan Documents are cumulative and not exclusive of any remedies provided by
law.
SECTION 8.04. Costs and Expenses; Indemnities.
-------------------------------
8.04(a) The Borrower agrees to pay on demand all reasonable costs and
expenses incurred by any Agent or any Affiliate of an Agent or by a Person
acting upon the request or on behalf of any Agent or any Affiliate of an Agent
in connection with the preparation, execution, delivery,
132
filing, recording, administration, modification and amendment of the Loan
Documents and the other documents to be delivered thereunder (such
administration costs and expenses shall include, without limitation, reasonable
costs incurred in connection with any audits of the Borrower and its
Subsidiaries, all costs and expenses incurred in connection with appraisals,
audits and search reports, all filing fees, and the fees and expenses of counsel
that any Agent or any Affiliate of an Agent may consult, from time to time, in
connection with the Loan Documents), including, without limitation, the
reasonable fees and out-of-pocket expenses of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, local
counsel who may be retained by any of said counsel or by any Agent or any
Affiliate of an Agent with respect thereto and with respect to advising any
Agent or any Affiliate of an Agent as to its rights and responsibilities under
the Loan Documents, and all reasonable costs and expenses, if any (including
reasonable fees and out-of-pocket expenses of counsel to any Agent or Affiliate
of an Agent, or any Lender or Affiliate of a Lender (including in-house counsel
of any Lender or of such Affiliate of a Lender) and all other FCC fees),
incurred by any Agent, any Affiliate of an Agent, any Lender or any Affiliate of
a Lender or any Person acting upon the request or on behalf of any Agent, any
Affiliate of an Agent, any Lender or any Affiliate of a Lender in connection
with the enforcement of the Loan Documents and the other documents to be
delivered under the Loan Documents.
8.04(b) The Borrower agrees to indemnify, pay and hold harmless each
Agent, each Affiliate of an Agent, each Lender, each Affiliate of a Lender and
their respective officers, directors, employees and agents (collectively called
the "Indemnitees") from and against any and all liabilities, obligations,
-----------
losses, damages, penalties, actions, judgments, suits, claims, costs, expenses
and disbursements of any kind or nature whatsoever (including the fees and
disbursements of counsel for such Indemnitee) in connection with any
investigative, administrative or judicial proceeding, whether or not such
Indemnitee shall be designated a party thereto, and the expenses of
investigation by engineers, environmental consultants and similar technical
personnel and any commission, fee or compensation claimed by any broker (other
than any broker retained by or on behalf of any Agent or any Lender) asserting
any right to payment for the transactions contemplated hereby, which may be
imposed on, incurred by or asserted against such Indemnitee as a result of or in
connection with the transactions contemplated hereby or by the other Related
Documents (including (i)(A) as a direct or indirect result of the presence on or
under, or escape, seepage, leakage, spillage, discharge, emission or release
133
from, any property now or previously owned, leased or operated by the Borrower
or any of its Subsidiaries of any Hazardous Materials, (B) arising out of or
relating to the offsite disposal of any materials generated or present on any
such property or (C) arising out of or resulting from the environmental
condition of any such property or the applicability of any governmental
requirements relating to Hazardous Materials, whether or not occasioned wholly
or in part by any condition, accident or event caused by any act or omission of
the Borrower or any of its Subsidiaries, and (ii) proposed and actual extensions
of credit under this Agreement) and the use or intended use of the proceeds of
any Borrowing, except that the Borrower shall have no obligation hereunder to an
Indemnitee with respect to any liability resulting from the gross negligence or
wilful misconduct of such Indemnitee. To the extent that the undertaking set
forth in the immediately preceding sentence may be unenforceable, the Borrower
shall contribute the maximum portion which it is permitted to pay and satisfy
under applicable law to the payment and satisfaction of all such indemnified
liabilities incurred by the Indemnitees or any of them. Without limiting the
generality of any provision of this Section, to the fullest extent permitted by
law, the Borrower hereby waives all rights for contribution or any other rights
of recovery with respect to liabilities, losses, damages, costs and expenses
arising under or relating to Environmental Laws that it might have by statute or
otherwise against any Indemnitee.
134
SECTION 8.05 Right of Set-off.
----------------
8.05(a) Upon (i) the occurrence and during the continuance of any
Event of Default and (ii) the making of the request or the granting of the
consent specified by Section 6.01 to authorize the Administrative Agent to
declare the Notes and the Letter of Credit Obligations due and payable pursuant
to the provisions of Section 6.01, each Lender (and a Participant thereof) is
hereby authorized, subject to the provisions of Section 8.05(b), at any time and
from time to time, to the fullest extent permitted by law (without penalty,
sanction or loss of collateral), to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing to such Lender to or for the credit or the
account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under any Loan Document, irrespective of whether or
not such Lender shall have made any demand under such Loan Document and although
such obligations may be unmatured. Each Lender agrees promptly to notify the
Borrower after such set-off and application made by such Lender; provided that
such failure to give such--------notice shall not affect the validity of such
set-off and application. The rights of each Lender under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which such Lender may have. Each Lender agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to any Note held by it and Letter of Credit Obligations owed to it
which is greater than the proportion received by any other Lender in respect of
the aggregate amount of principal and interest due with respect to any Note held
by such other Lender and Letter of Credit Obligations owed to such other Lender,
such adjustments shall be made as may be required so that all such payments of
principal and interest with respect to the Notes held by the Lenders and Letter
of Credit Obligations owed to all Lenders shall be shared by the Lenders pro
rata.
8.05(b) The Lenders agree among themselves that, except upon the
written consent of the Majority Lenders, no Lender shall, with respect to any
Note or other obligation under any Loan Document, exercise any right described
in Section 8.05(a). If a Lender breaches its obligation under the foregoing
sentence, then such Lender shall be deemed to have waived any right to the
benefits of the Collateral Documents, as against any other Lender. Each Lender
waives all rights to enforce any rights under this Agreement, under the Notes or
under any other Loan Document without the prior
135
written consent of the Majority Lenders. Each Lender further agrees that all
rights under the Collateral Documents shall be exercised only through the
Administrative Agent.
SECTION 8.06. BINDING EFFECT; GOVERNING LAW. THIS AGREEMENT SHALL
-----------------------------
BECOME EFFECTIVE WHEN IT SHALL HAVE BEEN EXECUTED BY THE BORROWER, EACH EXISTING
GUARANTOR, THE ADMINISTRATIVE AGENT, THE SYNDICATION AGENT, THE DOCUMENTATION
AGENT AND THE SWINGLINE LENDER AND WHEN THE DOCUMENTATION AGENT SHALL HAVE BEEN
NOTIFIED BY EACH BANK (OTHER THAN THE SWINGLINE LENDER) THAT SUCH BANK HAS
EXECUTED IT (WHICH NOTIFICATION MAY BE IN THE FORM OF DELIVERY OF AN EXECUTED
SIGNATURE PAGE TO THE DOCUMENTATION AGENT BY FACSIMILE TRANSMISSION) AND
THEREAFTER SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE BORROWER, THE
ADMINISTRATIVE AGENT, THE SYNDICATION AGENT, THE DOCUMENTATION AGENT AND EACH
LENDER AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, EXCEPT THAT THE BORROWER
SHALL NOT HAVE THE RIGHT TO ASSIGN ITS RIGHTS HEREUNDER OR ANY INTEREST HEREIN
WITHOUT THE PRIOR WRITTEN CONSENT OF ALL LENDERS. IF THE CLOSING DATE SHALL NOT
HAVE OCCURRED BY DECEMBER 31, 1996, THIS AGREEMENT SHALL TERMINATE AND CEASE TO
BE OF ANY FORCE OR EFFECT. THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.07. Successors and Assigns. 8.07(a) The provisions of
----------------------
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that the Borrower may
not assign or otherwise transfer any of its rights under this Agreement without
the prior written consent of all Lenders.
8.07(b) Any Lender may at any time grant to one or more commercial
banks, mutual funds, financial institutions or other "accredited investors" (as
defined in Regulation D of the Securities Act of 1933, as amended) (each a
"Participant") participating interests in its Term Loan Commitment, Revolving
Facility Commitment or any or all of its Advances. In the event of any such
grant by a Lender of a participating interest to a Participant, whether or not
any notice thereof is given to the Borrower or the Administrative Agent, such
Lender shall remain responsible for the performance of its obligations
hereunder, and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement pursuant to which any Lender
may grant such a participating interest shall provide that such Lender shall
136
retain the sole right and responsibility to enforce the obligations of the
Borrower hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; provided
--------
that such participation agreement may provide that such Lender
will not agree to any modification, amendment or waiver of this Agreement
described in clause (i) of the second proviso, clause (x) of the third proviso
or clause (1) of the fourth proviso, to Section 8.01(a) (unless the
participant's share of such Lender's Term Loan Commitment or Revolving Facility
Commitment would not be increased and any additional obligations imposed on the
Lenders would not be imposed upon the participant) or in clauses (ii) or (iii)
of the second proviso, clauses (y) or (z) of the third proviso or clauses (2)
and (3) of the fourth proviso, of Section 8.01(a) without the consent of the
Participant. The Borrower agrees that each Participant shall, to the extent
provided in its participation agreement, be entitled to the benefits of Sections
2.10(e), 2.12, 2.14, 2.16, 2.17, 2.18, 2.19 and 8.04 with respect to its
participating interest. An assignment or other transfer which is not permitted
by subsection (c) or (d) below shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in accordance
with this subsection (b).
8.07(c) Any Lender may at any time assign to one or more commercial
banks, mutual funds, financial institutions or other "accredited investors" (as
defined in Regulation D of the Securities Act of 1933, as amended) (each an
"Assignee") all or any part (equivalent, except when the Assignee is either an
Affiliate of such transferor Lender or already a Lender prior to such
assignment, to at least $5,000,000) of its rights and obligations under this
Agreement, and such Assignee shall assume such rights and obligations, in
respect of (i) its Term Loan Commitment and all of its outstanding Term Loan
Advances, and/or (ii) its Revolving Facility Commitment, all of its outstanding
Revolving Facility Advances, all of its outstanding Letters of Credit and all of
its outstanding Letter of Credit Obligations. In addition, the Swingline
Lender may at any time assign its rights in respect of outstanding Swingline
Advances to Lenders with Revolving Facility Commitments in accordance with
Section 2.01(d). When all of the following conditions shall have been
satisfied, such Assignee shall be a Lender party to this Agreement and shall
have all the rights and obligations of a Lender with a Term Loan Commitment
and/or a Revolving Facility Commitment and/or Swingline Advances, as the case
may be, as set forth in such Assignment and Assumption Agreement, and the
transferor Lender shall be released from its obligations hereunder to a
137
corresponding extent, and no further consent or action by any party shall be
required:
(x) delivery of an Assignment and Assumption Agreement executed by
such Assignee and such transferor
Lender, with the subscribed consent of the Borrower and the Administrative
Agent, which consents shall not be unreasonably withheld or delayed;
provided that (i) if the Assignee is either an Affiliate of such transferor
--------
Lender or was a Lender immediately prior to such assignment, no such
consents shall be required and (ii) if such assignment is made while any
Default is continuing, the consent of the Borrower shall not be required;
(y) payment by such Assignee to such transferor Lender of an amount
equal to the purchase price agreed between such transferor Lender and such
Assignee (or, in the case of the assignment of Swingline Advances, payment
of the purchase price as set forth in Section 2.01(d)); and
(z) except in the case of the assignments pursuant to the Closing Date
Assignment and Assumption Agreement and assignments of Swingline Advances
pursuant to Section 2.01(d), payment to the Administrative Agent of a non-
refundable administrative fee for processing such assignment in the amount
of $1,000 if the Assignee was a Lender immediately prior to such
assignment, or $3,500 otherwise.
If the Assignee is not incorporated under the laws of the United States of
America or a state thereof, it shall deliver to the Borrower and the
Administrative Agent certification as to exemption from deduction or withholding
of any United States federal income taxes in accordance with Section 2.14.
8.07(d) Any Lender may at any time assign all or any portion of its
rights under this Agreement and its Notes to a Federal Reserve Bank. No such
assignment shall release the transferor Lender from its obligations hereunder.
8.07(e) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Assumption Agreement
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lenders and the Term Loan Commitment, Revolving Facility
Commitment and Swingline Commitment of, and principal amount of the Advances
owing to, each Lender from time to time (the "Register"). The
--------
138
entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
8.07(f) Upon its receipt of a completed Assignment and Assumption
Agreement that has been executed and consented to in accordance with Section
8.07(c), together with any Note or Notes subject to such assignment, the
Administrative Agent shall (i) accept such Assignment and Assumption Agreement,
(ii) record the information contained therein in the Register and (iii) give
prompt notice thereof to the Borrower. Except in the case of assignments
pursuant to the Closing Date Assignment and Assumption Agreement, within five
Domestic Business Days after its receipt of such notice, the Borrower, at its
own expense, shall execute and deliver to the Administrative Agent in exchange
for the surrendered Note or Notes, appropriate new Note or Notes, to the order
of such Assignee and, if the assigning Lender has retained any Term Loan
Commitment, Revolving Facility Commitment or any Advances, appropriate new Note
or Notes to the order of the assigning Lender. Except in the case of the
assignments pursuant to the Closing Date Assignment and Assumption Agreement, as
described in Section 2.03(a), and except in the case of assignments of Swingline
Advances, such new Note or Notes shall be in an aggregate principal amount equal
to the aggregate principal amount of such surrendered Note or Notes, shall be
dated the effective date of such Assignment and Assumption Agreement and shall
otherwise be in substantially the form of Exhibit A-1 or Exhibit A-2, as the
case may be.
8.07(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided that, prior to any such disclosure,
--------
the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any confidential information relating to the
Borrower received by it from such Lender.
SECTION 8.08. Headings. Article and Section headings in this
--------
Agreement are included for convenience of reference only and shall not
constitute a part of this
139
Agreement for any other purpose.
SECTION 8.09. Execution in Counterparts; Integration. This Agreement
--------------------------------------
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
SECTION 8.10. Severability of Provisions. Any provision of this
--------------------------
Agreement which is prohibited or unenforceable in any jurisdiction shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 8.11. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
--------------------
SYNDICATION AGENT, THE DOCUMENTATION AGENT, THE ADMINISTRATIVE AGENT, THE
ISSUING BANK AND THE LENDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY
OF THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
SECTION 8.12. Submission to Jurisdiction; Consent to Service of
-------------------------------------------------
Process. The Borrower hereby submits to the nonexclusive jurisdiction of the
-------
United States District Court for the Southern District of New York and of any
New York State court sitting in New York City for purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. The Borrower irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum. Each of the parties hereto irrevocably consents to service of process in
the manner provided for notices in Section 8.02 (except that process may not be
served by telecopy). Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner permitted by law.
SECTION 8.13. Consent to Amendment. Each Lender hereby consents to,
--------------------
and hereby authorizes the Administrative Agent to execute and deliver, the
Global Security Agreement
140
Amendment, the Global Pledge Agreement Amendment, the Guaranty Agreement
Amendment, the Mortgage Amendments, the
141
Guarantor Security Agreements between each of YB of Los Angeles and Fidelity,
respectively, and the Administrative Agent and the Guarantor Pledge Agreement
between YB of Los Angeles and the Administrative Agent.
SECTION 8.14. Survival. The obligations of the Borrower under
--------
Sections 2.10(e), 2.12, 2.14, 2.18 and 8.04 hereof and the obligations of the
Lenders under Section 7.06 hereof shall survive the repayment of the Advances
and the Letter of Credit Obligations and the termination of the Term Loan
Commitments, the Revolving Facility Commitments, the Swingline Commitment and
the Letters of Credit.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
YOUNG BROADCASTING INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Exec. V.P./CFO
BANKERS TRUST COMPANY, AS ADMINISTRATIVE
AGENT AND AS ISSUING BANK
By /s/ ▇. ▇. ▇▇▇▇▇▇
----------------------------
Title: VP
CANADIAN IMPERIAL BANK OF COMMERCE,
AS DOCUMENTATION AGENT
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Director, CIBC Wood Gundy
Securities Corp., As Agent
142
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, AS SYNDICATION AGENT
By /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
BANKS
-----
BANKERS TRUST COMPANY
By /s/ ▇.▇. ▇▇▇▇▇▇
----------------------------
Title: VP
CANADIAN IMPERIAL BANK OF COMMERCE
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Director, CIBC Wood Gundy
Securities Corp., As Agent
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA,
AS SWINGLINE LENDER AND AS A BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Senior Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Vice President
143
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇.
----------------------------
Title: VP
FLEET BANK, N.A.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Title: Senior Vice President
▇▇▇▇▇▇ FINANCIAL, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Assistant Vice President
INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: /s/ Vice President
THE FIRST NATIONAL BANK OF BOSTON
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Managing Director
BANQUE PARIBAS
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Vice President
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Vice President
144
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION EUROPEENNE
By /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
----------------------------
Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Title: Vice President
MERCANTILE BANK OF ST. LOUIS NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Vice President
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME RATE INCOME TRUST
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Senior Vice President
& Director
THE BANK OF NEW YORK
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Title: Vice President
BARCLAYS BANK PLC
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Title: Associate Director
THE DAI-ICHI KANGYO BANK, LTD.
By /s/ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Vice President
145
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------
Title: Senior Vice President
LTCB TRUST COMPANY
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Executive Vice President
MELLON BANK N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Title: Vice President
THE NIPPON CREDIT BANK, LTD.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President & Manager
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH
By /s/ ▇▇▇ ▇▇▇▇▇
----------------------------
Title: Vice President & Manager
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Vice Predsident
THE SANWA BANK, LIMITED, NEW YORK BRANCH
By /s/ ▇▇▇▇▇ ▇. March
----------------------------
Title: Assistant Vice President
146
SOCIETE GENERALE
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Title: Vice President
BANK OF IRELAND GRAND CAYMAN
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Title: Vice President
BANQUE FRANCAISE DU COMMERCE EXTERIEUR
By /s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Title: Vice President
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Title: VP-Group Manager
147
THE UNDERSIGNED EXISTING GUARANTORS HEREBY
CONSENT TO THE FOREGOING AMENDED AGREEMENT:
YOUNG BROADCASTING OF LANSING, INC.
YOUNG BROADCASTING OF LOUISIANA, INC.
YOUNG BROADCASTING OF LA CROSSE, INC.
YOUNG BROADCASTING OF NASHVILLE, INC.
YOUNG BROADCASTING OF ALBANY, INC.
WINNEBAGO TELEVISION CORPORATION
KLFY, L.P.
By: Young Broadcasting of Louisiana, Inc.,
its General Partner
WKRN, L.P.
By: Young Broadcasting of Nashville, Inc.,
its General Partner
LAT, INC.
YBT, INC.
YOUNG BROADCASTING OF RICHMOND, INC.
YOUNG BROADCASTING OF GREEN BAY, INC.
YOUNG BROADCASTING OF KNOXVILLE, INC.
WATE, L.P.
By: Young Broadcasting of Knoxville, Inc.,
its General Partner
YBK, INC.
YOUNG BROADCASTING OF ▇▇▇▇▇▇▇▇▇, INC.
▇▇▇▇▇ BROADCASTING OF SIOUX FALLS, INC.
YOUNG BROADCASTING OF RAPID CITY, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: Executive Vice President
and Chief Financial Officer
148
APPENDIX
--------
Commitments
-----------
Name of Bank Term Loan Revolving Facility
------------------------- Commitment Commitment
------------ ------------------
Bankers Trust Company $ 25,200,000 $ 16,800,000
Canadian Imperial Bank 18,000,000 12,000,000
of Commerce
▇▇▇▇▇▇ Guaranty Trust 18,000,000 12,000,000
Company of New York
First Union National 18,000,000 12,000,000
Bank of North Carolina
Bank of America 15,000,000 10,000,000
National Trust and
Savings Association
Bank of Tokyo- 15,000,000 10,000,000
Mitsubishi Trust
Company
Fleet Bank, N.A. 15,000,000 10,000,000
▇▇▇▇▇▇ Financial, Inc. 15,000,000 10,000,000
Internationale 15,000,000 10,000,000
Nederlanden (U.S.)
Capital Corporation
10,000,000
The First National Bank 15,000,000
of Boston
Banque Paribas 11,700,000 7,800,000
Compagnie Financiere de 11,700,000 7,800,000
CIC et de l'Union
Europeenne
Mercantile Bank of St. 11,700,000 7,800,000
Louis National
Association
149
Name of Bank Term Loan Revolving Facility
------------------------- Commitment Commitment
------------ ------------------
▇▇▇ ▇▇▇▇▇▇ American 11,700,000 7,800,000
Capital Prime Rate
Income Trust
The Bank of New York 7,200,000 4,800,000
Barclays Bank PLC 7,200,000 4,800,000
The Dai-Ichi Kangyo 7,200,000 4,800,000
Bank, Ltd.
The Industrial Bank of
Japan, Limited 7,200,000 4,800,000
LTCB Trust Company 7,200,000 4,800,000
Mellon Bank N.A. 7,200,000 4,800,000
The Nippon Credit Bank, 7,200,000 4,800,000
Ltd.
Cooperatieve Centrale 7,200,000 4,800,000
Raiffeisen-
Boerenleenbank B.A.,
"Rabobank Nederland",
New York Branch
The Sanwa Bank, 7,200,000 4,800,000
Limited, New York
Branch
Societe Generale 7,200,000 4,800,000
Bank of Ireland Grand 6,000,000 4,000,000
Cayman
Banque Francaise du
Commerce Exterieur 6,000,000 4,000,000
------------ ------------
============ ==================
Total
$300,000,000 $200,000,000
============ ============
150