EXHIBIT 4.35
EXECUTION
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THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 4, 1996
AMONG
GRANITE BROADCASTING CORPORATION,
AS BORROWER,
THE LENDERS LISTED HEREIN,
AS LENDERS,
BANKERS TRUST COMPANY,
AS AGENT
AND
THE BANK OF NEW YORK,
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.
AND
UNION BANK OF CALIFORNIA, N.A.,
AS CO-AGENTS
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GRANITE BROADCASTING CORPORATION
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
TABLE OF CONTENTS
PAGE
SECTION 1.
DEFINITIONS..................... 2
1.1 Certain Defined Terms................................. 2
1.2 Accounting Terms; Utilization of GAAP for Purposes
of Calculations Under Agreement....................... 32
1.3 Other Definitional Provisions......................... 32
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS.............. 32
2.1 Commitments; Loans; Notes............................... 32
2.2 Interest on the Loans................................... 38
2.3 Fees.................................................... 42
2.4 Repayments, Prepayments and Reductions in Revolving
Loan Commitments; General Provisions Regarding
Payments................................................ 43
2.5 Use of Proceeds......................................... 51
2.6 Special Provisions Governing Eurodollar Rate Loans...... 51
2.7 Increased Costs; Taxes; Capital Adequacy................ 54
2.8 Obligation of Lenders and Issuing Lenders to Mitigate... 57
2.9 Guaranties of and Security for the Obligations;
Acknowledgment and Consent.............................. 58
2.10 Replacement of a Lender................................. 59
SECTION 3.
LETTERS OF CREDIT................... 61
3.1 Issuance of Letters of Credit and Lenders' Purchase of
Participations Therein................................. 61
3.2 Letter of Credit Fees.................................. 64
3.3 Drawings and Reimbursement of Amounts Drawn Under
Letters of Credit...................................... 64
3.4 Obligations Absolute................................... 67
3.5 Indemnification; Nature of Issuing Lenders' Duties..... 68
3.6 Increased Costs and Taxes Relating to Letters
of Credit.............................................. 69
(i)
PAGE
SECTION 4.
CONDITIONS TO LOANS AND LETTERS OF CREDIT...... 70
4.1 Conditions to Revolving Loans Made on the
Closing Date.................................... 70
4.2 Conditions to All Loans......................... 74
4.3 Conditions to Letters of Credit................. 76
4.4 Additional Conditions to Additional Credit Loans
and Revolving Loans to Fund Acquisitions........ 76
4.5 Conditions to Additional Credit Commitments..... 80
SECTION 5.
COMPANY'S REPRESENTATIONS AND WARRANTIES...... 82
5.1 Organization, Powers, Qualification, Good
Standing, Business and Subsidiaries............. 82
5.2 Authorization of Borrowing, etc................. 83
5.3 Financial Condition............................. 85
5.4 No Material Adverse Change; No Restricted
Junior Payments.................................. 85
5.5 Title to Properties; Liens....................... 86
5.6 Litigation; Adverse Facts........................ 86
5.7 Payment of Taxes................................. 86
5.8 Performance of Agreements; Materially Adverse
Agreements....................................... 86
5.9 Governmental Regulation.......................... 87
5.10 Securities Activities............................ 87
5.11 Employee Benefit Plans........................... 87
5.12 Certain Fees..................................... 87
5.13 Environmental Protection......................... 88
5.14 Employee Matters................................. 89
5.15 Disclosure....................................... 89
5.16 Regulation of Lenders............................ 90
5.17 Applicable Law................................... 90
5.18 FCC Licenses and Approvals....................... 90
5.19 Real Property.................................... 91
5.20 Insurance........................................ 92
5.21 Intellectual Property............................ 92
5.22 Loans Permitted under Subordinated Debt Documents.92
5.23 Outstanding Loans................................ 93
(ii)
PAGE
SECTION 6.
COMPANY'S AFFIRMATIVE COVENANTS.............. 93
6.1 Financial Statements and Other Reports........... 93
6.2 Corporate Existence, etc......................... 98
6.3 Payment of Taxes and Claims; Tax Consolidation... 99
6.4 Maintenance of Properties; Insurance............. 99
6.5 Inspection; Lender Meeting....................... 100
6.6 Compliance with Laws, etc.; Maintenance of
FCC Licenses..................................... 100
6.7 Environmental Disclosure and Inspection.......... 100
6.8 Company's Remedial Action Regarding Hazardous
Materials........................................ 102
6.9 Environmental Indemnity.......................... 102
6.10 Interest Rate Protection........................ 102
6.11 Real Estate Leases.............................. 102
6.12 After-Acquired Real Property Security........... 103
6.13 New Subsidiaries................................ 103
6.14 Receipt of WEEK FCC Consent..................... 104
6.15 Ownership Reports............................... 104
PAGE
SECTION 7.
COMPANY'S NEGATIVE COVENANTS............... 104
7.1 Indebtedness..................................... 104
7.2 Liens and Related Matters........................ 106
7.3 Investments; Joint Ventures108
7.4 Contingent Obligations........................... 109
7.5 Restricted Junior Payments....................... 110
7.6 Financial Covenants.............................. 111
7.7 Restriction on Fundamental Changes; Asset Sales;
Issuance of Stock................................ 112
7.8 Restriction on Leases............................ 114
7.9 Sales and Lease-Backs............................ 114
7.10 Sale or Discount of Receivables.................. 115
7.11 Transactions with Shareholders and Affiliates.... 115
7.12 Disposal of Subsidiary Stock..................... 115
7.13 Conduct of Business.............................. 116
7.14 Amendments of Related Documents; Documents
Relating to Subordinated Indebtedness; Amendments
of Material Documents............................ 116
7.15 Fiscal Year...................................... 117
7.16 Transactions With Certain Subsidiaries........... 117
(iii)
PAGE
SECTION 8.
EVENTS OF DEFAULT........................... 117
8.1 Failure to Make Payments When Due....................... 117
8.2 Default in Other Agreements............................. 117
8.3 Breach of Certain Covenants............................. 118
8.4 Breach of Warranty...................................... 118
8.5 Other Defaults Under Loan Documents..................... 118
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc.... 118
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc...... 119
8.8 Judgments and Attachments............................... 119
8.9 Dissolution............................................. 119
8.10 Employee Benefit Plans................................. 119
8.11 Material Adverse Effect................................ 120
8.12 Change in Executive Officers of Company................ 120
8.13 Change in Control...................................... 120
8.14 FCC Licenses........................................... 120
SECTION 9.
AGENT............................... 122
9.1 Appointment............................................. 122
9.2 Powers; General Immunity................................ 122
9.3 Representations and Warranties; No Responsibility
For Appraisal of Creditworthiness....................... 124
9.4 Right to Indemnity...................................... 124
9.5 Payee of Note Treated as Owner.......................... 124
9.6 Successor Agent......................................... 125
9.7 Appointment of Collateral Agent......................... 125
SECTION 10.
MISCELLANEOUS.......................... 125
10.1 Assignments and Participations in Loans and
Letters of Credit....................................... 125
10.2 Expenses................................................ 128
10.3 Indemnity............................................... 128
10.4 Set-Off................................................. 129
10.5 Ratable Sharing......................................... 130
10.6 Amendments and Waivers.................................. 130
10.7 Independence of Covenants............................... 132
10.8 Notices................................................. 132
10.9 Survival of Representations, Warranties and Agreements.. 133
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative.. 133
10.11 Marshalling; Payments Set Aside........................ 133
(iv)
PAGE
10.12 Severability.................................................. 133
10.13 Obligations Several; Independent Nature of Lenders' Rights.... 134
10.14 Headings...................................................... 134
10.15 Applicable Law................................................ 134
10.16 Successors and Assigns........................................ 134
10.17 Consent to Jurisdiction and Service of Process................ 134
10.18 Waiver of Jury Trial.......................................... 135
10.19 Confidentiality............................................... 136
10.20 Counterparts; Effectiveness................................... 136
10.21 Maximum Amount................................................ 137
Signature pages...................................................... S-1
(v)
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
IV FORM OF ADDITIONAL CREDIT NOTE
V FORM OF AMENDED AND RESTATED REVOLVING NOTE
VI FORM OF COMPLIANCE CERTIFICATE
VII FORM OF OPINION OF AKIN, GUMP, STRAUSS, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
VIII-A FORM OF OPINION OF ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇, CALIFORNIA LOCAL COUNSEL
VIII-B FORM OF OPINION OF BEERS, MALLERS, BACKS & SALIN, INDIANA LOCAL
COUNSEL
VIII-C FORM OF OPINION OF HUSCH & EPPENBERGER, ILLINOIS LOCAL COUNSEL
VIII-D FORM OF OPINION OF FRYBERGER, BUCHANAN, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, MINNESOTA
LOCAL COUNSEL
VIII-E FORM OF OPINION OF BOND, ▇▇▇▇▇▇▇▇▇ & KING, LLP, NEW YORK LOCAL COUNSEL
VIII-F FORM OF OPINION OF ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ AND ▇▇▇▇, MICHIGAN LOCAL
COUNSEL
IX FORM OF OPINION OF O'MELVENY & ▇▇▇▇▇
X FORM OF ASSIGNMENT AND ACCEPTANCE
XI FORM OF LETTER FROM PROCESS AGENT
XII FORM OF INTERCOMPANY NOTE
XIII FORM OF BORROWER MORTGAGE
XIV FORM OF SUBSIDIARY MORTGAGE
XV FORM OF LANDLORD CONSENT LETTER
XVI FORM OF SOLVENCY CERTIFICATE
XVII FORM OF ADDITIONAL CREDIT FACILITY SUPPLEMENT
XVIII FORM OF DEPARTING LENDER CONSENT
(vi)
SCHEDULES
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
5.1 SUBSIDIARIES OF COMPANY
5.12 CERTAIN FEES
5.13 ENVIRONMENTAL MATTERS
5.18 FCC LICENSES
5.19 LEASES
5.20 INSURANCE
7.3 CERTAIN EXISTING INVESTMENTS
7.11 CERTAIN PERMITTED TRANSACTIONS WITH AFFILIATES
7.14C NETWORK AFFILIATION AGREEMENTS
(vii)
GRANITE BROADCASTING CORPORATION
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDED AND RESTATED CREDIT AGREEMENT is dated as of September
4, 1996 and entered into by and among GRANITE BROADCASTING CORPORATION, a
Delaware corporation (``COMPANY''), THE FINANCIAL INSTITUTIONS LISTED ON THE
SIGNATURE PAGES HEREOF (each individually referred to herein as a ``LENDER'' and
collectively as ``LENDERS''), BANKERS TRUST COMPANY (``BANKERS''), as agent (in
such capacity, ``AGENT''), and THE BANK OF NEW YORK, FIRST UNION NATIONAL BANK
OF NORTH CAROLINA, ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P. and UNION BANK OF
CALIFORNIA, N.A., as co-agents (in such capacity, each a ``CO-AGENT'').
R E C I T A L S
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WHEREAS, Company, the lenders described therein and Bankers, as
administrative agent, documentation agent and collateral agent, First Union
National Bank of North Carolina, as a co-agent and a co-syndication agent,
▇▇▇▇▇▇▇ Sachs Credit Partners L.P. (formerly known as Pearl Street L.P.), as a
co-agent, BT Securities as a co-syndication agent and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., as a
co-syndication agent, are parties to that certain Second Amended and Restated
Credit Agreement dated as of May 19, 1995, as heretofore amended (as so amended,
without giving effect to this Agreement, the ``EXISTING AGREEMENT'');
WHEREAS, a number of events contemplated under the Existing Agreement have
occurred, including, without limitation, the acquisition of WWMT-TV (such term,
and each other capitalized term used but not defined in these Recitals having
the respective meanings assigned thereto in subsection 1.1 hereof) and WKBW-TV
and the issuance of the New Subordinated Notes and the 1996 Subordinated Notes;
WHEREAS, all of the issued and outstanding Series A, B and C Preferred
Stock of Company has been converted to the common stock of Company;
WHEREAS, Company applied a portion of the proceeds of the 1996 Subordinated
Notes to prepay in full all Term Loans outstanding under and as defined in the
Existing Agreement;
WHEREAS, Company, Bankers, as agent, and the lenders described in the
Existing Agreement desire to amend and restate the Existing Agreement (i) to
modify the credit facilities provided thereunder and to make certain other
amendments to the Existing Agreement, including the deletion of certain
provisions relating to events which have
1
occurred and the modification of certain provisions to reflect changed facts,
and (ii) to add certain Lenders not party to the Existing Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Company, Lenders, Agent and Co-Agents
agree to amend and restate the Existing Agreement to read in its entirety as
follows:
SECTION 1.
DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
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The following terms used in this Agreement shall have the following
meanings:
``ACQUIRED MORTGAGED PROPERTIES'' has the meaning assigned to that term in
subsection 4.4H.
``ACQUISITION'' means, from and after the Closing Date, any acquisition by
Company or any of its Subsidiaries of any radio or television broadcast property
or property incidental to the radio or television broadcast business (including,
without limitation, any transaction in which Company or any of its Subsidiaries
acquires an interest in any LMA) or of an equity interest in, or all or
substantially all of the assets of, or any smaller portion that constitutes an
operating unit or division of, any Person whose exclusive business consists of
the radio or television broadcast business or a business incidental thereto, in
each case as permitted by subsection 7.7(vi); provided that no acquisition of an
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interest in a Joint Venture (other than an LMA) shall be included within the
definition of ``ACQUISITION''.
``ACQUISITION AGREEMENT'' means
(i) the Agreement dated June 15, 1993 between Company and ▇▇▇▇▇▇▇▇
Corporation, as amended, pursuant to which Company purchased from ▇▇▇▇▇▇▇▇
Corporation, the network-affiliated television stations WTVH(TV), serving
Syracuse, New York, and KSEE-TV, serving Fresno-Visalia, California, in
substantially the form heretofore delivered by Company to Agent and
approved pursuant to the terms of the 1993 Agreement;
(ii) the Agreement dated as of October 2, 1994, among Company, Austin
Television, ▇▇▇▇▇▇ Communications, Inc. and ▇▇▇▇▇ Management, Inc. pursuant
to which KBVO, Inc. and KBVO License, Inc. purchased KBVO-TV from Austin
Television, in substantially the form heretofore delivered by Company to
Agent and approved pursuant to the terms of the First Restated Agreement;
(iii) the Purchase and Sale Agreement dated as of February 20, 1995,
among Company, ▇▇▇▇▇ Broadcasting Corporation and WWMT, Inc. pursuant to
which
2
Company purchased WWMT-TV from ▇▇▇▇▇ Broadcasting Corporation and WWMT,
Inc., in substantially the form delivered by Company to Agent and approved
by Agent and Requisite Lenders pursuant to the terms of subsection 4.4 of
the Existing Agreement;
(iv) the Purchase Agreement dated as of May 15, 1995 among Company and
QC III, Queen City Broadcasting, Inc., QCNY and the General Partners of QC
III pursuant to which Company purchased the general partnership interests
of QC III in substantially the form delivered by Company to Agent and
approved by Agent and Requisite Lenders pursuant to the terms of subsection
4.4 of the Existing Agreement; and
(v) any purchase and sale agreement or other operative agreement
executed by Company or any of its Subsidiaries in connection with an
Acquisition;
and ``ACQUISITION AGREEMENTS'' means all such agreements, collectively.
``ACQUISITION ASSETS'' means the assets acquired by Company or any of its
Subsidiaries, as the case may be, in connection with any Acquisition pursuant to
the relevant Acquisition Agreement, including, without limitation, any FCC
Licenses and any real and personal property described therein and any assets of
any Acquisition Subsidiary acquired in connection with such Acquisition.
``ACQUISITION CLOSING DATE'' means, with respect to any Acquisition, the
date on which the conditions to funding any Additional Credit Loan or Revolving
Loan, as applicable, to consummate such Acquisition as set forth in subsection
4.4 are satisfied.
``ACQUISITION SUBSIDIARY'' means any entity formed or acquired by Company
or any of its Subsidiaries in connection with any Acquisition and ``ACQUISITION
SUBSIDIARIES'' means any of the foregoing, collectively, it being understood and
agreed that, for purposes of subsection 4.4 only, ``ACQUISITION SUBSIDIARY'' and
``ACQUISITION SUBSIDIARIES'' shall refer to any entity formed or acquired by
Company or any of its Subsidiaries in connection with the relevant Acquisition
to the extent subsection 4.4 applies to such Acquisition.
``ADDITIONAL CREDIT COMMITMENT'' or ``ADDITIONAL CREDIT COMMITMENTS'' means
the commitment or the commitments of a Lender or Lenders to make Additional
Credit Loans pursuant to subsection 2.1A(ii).
``ADDITIONAL CREDIT FACILITY CLOSING DATE'' means, with respect to each
Additional Credit Facility, the date on which the applicable Additional Credit
Facility Supplement becomes effective in accordance with subsection 4.5.
``ADDITIONAL CREDIT FACILITY SUPPLEMENT'' means a Supplement to this
Agreement executed and delivered by Company, Agent, and one or more Additional
Credit Lenders substantially in the forth of Exhibit XVII annexed hereto, which
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sets forth (a) the Additional
3
Credit Commitments of each such Additional Credit Lender, (b) any fees to be
paid in connection with such Additional Credit Commitments in addition to the
fees payable pursuant to subsection 2.3 and (e) to the extent such Additional
Credit Lender is not a Lender party to this Agreement at such time, the
agreement of the Additional Credit Lenders to become Lenders parties to and
bound by this Agreement and the other Loan Documents.
``ADDITIONAL CREDIT LENDER'' and ``ADDITIONAL CREDIT LENDERS'' means any
Lender or Lenders with an unused Additional Credit Commitment hereunder and/or
any Additional Credit Loans outstanding hereunder.
``ADDITIONAL CREDIT LOAN EXPOSURE'' means, with respect to any Additional
Credit Lender as of any date of determination prior to the termination of the
Additional Credit Commitments, that Lender's Additional Credit Commitment and
thereafter, the aggregate outstanding principal amount of the Additional Credit
Loans of that Additional Credit Lender.
``ADDITIONAL CREDIT LOANS'' means the Loans made by the Additional Credit
Lenders to Company pursuant to subsection 2.1A(ii).
``ADDITIONAL CREDIT NOTES'' means (i) the promissory notes of Company
issued pursuant to subsection 2.1D and (ii) any promissory notes issued by
Company pursuant to the last sentence of subsection 10.1B(i) in connection with
assignments of the Additional Credit Commitments and Additional Credits of any
Lenders, in each case substantially in the form of Exhibit IV annexed hereto, as
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they may be amended, restated, replaced, supplemented or otherwise modified from
time to time.
``ADDITIONAL SUBORDINATED INDEBTEDNESS'' has the meaning assigned to that
term in subsection 7.1(xi).
``ADJUSTED EURODOLLAR RATE'' means, for any Interest Rate Determination
Date with respect to a Eurodollar Rate Loan, the rate per annum obtained by
dividing (i) the offered quotation (rounded upward to the nearest 1/16 of one
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percent) to first class banks in the interbank Eurodollar market by Bankers for
U.S. dollar deposits of amounts in same day funds comparable to the principal
amount of the Eurodollar Rate Loan of Bankers for which the Adjusted Eurodollar
Rate is then being determined with maturities comparable to the Interest Period
for which such Adjusted Eurodollar Rate will apply as of approximately 10:00
a.m. (New York time) on such Interest Rate Determination Date by (ii) a
--
percentage equal to 100% minus the stated maximum rate of all reserve
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requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable on such Interest Rate
Determination Date to any member bank of the Federal Reserve System in respect
of ``Eurocurrency liabilities'' as defined in Regulation D (or any successor
category of liabilities under Regulation D).
4
``AGENT'' means Bankers, as agent for the Lenders hereunder in accordance
with Section 9, and as successor to the ``Administrative Agent'' as such term is
defined in the Existing Agreement, and also means and includes any successor
Agent appointed pursuant to subsection 9.6.
``AFFECTED LENDER'' has the meaning assigned to that term in subsection
2.6C.
``AFFILIATE'', as applied to any Person, means any other Person directly or
indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, ``control'' (including, with
correlative meanings, the terms ``controlling'', ``controlled by'' and ``under
common control with''), as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person, whether through the ownership of voting securities
or by contract or otherwise.
``AGREEMENT'' means the Existing Agreement, as amended and restated in its
entirety by this Third Amended and Restated Credit Agreement dated as of
September 4, 1996, as it may be further amended, supplemented or otherwise
modified from time to time.
``APPLICABLE MARGIN'' means, for each Loan, a percentage per annum
determined by reference to the Leverage Ratio as set forth below:
BASE EURODOLLAR
LEVERAGE RATIO RATE LOANS RATE LOANS
=====================================================================================
Greater Than or Equal To 6.0 TO 1 1.125% 2.375%
Greater Than or Equal To 5.5 to 1 and less than 6.0 to 1 0.875% 2.125%
Greater Than or Equal To 5.0 to 1 and less than 5.5 to 1 0.625% 1.875%
Greater Than or Equal To 4.5 to 1 and less than 5.0 to 1 0.375% 1.625%
Greater Than or Equal To 4.0 to 1 and less than 4.5 to 1 0.125% 1.375%
less than 4.0 to 1 0% 1.125%
=====================================================================================
``ASSET SALE'' means the sale by Company or any of its Subsidiaries to any
Person other than Company or any of its wholly-owned Subsidiaries of (i) any of
the stock (other than directors' qualifying shares if required by applicable
law) of any of Company's Subsidiaries, (ii) substantially all of the assets of
any division or line of business of Company or any of its Subsidiaries, or (iii)
any other assets (whether tangible or intangible) of Company or any of its
Subsidiaries outside of the ordinary course of business.
``ASSET SALE PREPAYMENT AMOUNT'' has the meaning assigned to that term in
subsection 2.4B(iii)(a).
5
``ASSIGNMENT AND ACCEPTANCE'' means an Assignment and Acceptance entered
into by a Lender and an Eligible Assignee, and accepted by Agent, in
substantially the form of Exhibit X annexed hereto.
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``BANKERS'' has the meaning assigned to that term in the introduction to
this Agreement.
``BANKRUPTCY CODE'' means Title 11 of the United States Code entitled
``Bankruptcy'', as now and hereafter in effect, or any successor statute.
``BASE RATE'' means, at any time, the higher of (x) the Prime Rate or (y)
the rate which is 1/2 of 1% in excess of the Federal Funds Effective Rate.
``BASE RATE LOANS'' means Loans bearing interest at rates determined by
reference to the Base Rate as provided in subsection 2.2A.
``BORROWER MORTGAGE'' means, collectively, (i) the Mortgage, Assignment of
Rents and Fixture Filing dated as of the Closing Date and delivered by Company
in favor of Collateral Agent, on behalf of Lenders, substantially in the form of
Exhibit XIII annexed hereto, pursuant to which Company is granting to Collateral
------------
Agent a first priority lien on Company's real property located in Peoria,
Illinois and (ii) any mortgage or deed of trust or similar security document
executed, acknowledged and delivered from time to time by Company to Collateral
Agent in substantially the form of Exhibit XIII annexed hereto which encumbers
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the fee or leasehold interest of Company in real property, as any of the
foregoing may hereafter be amended, restated, supplemented or otherwise modified
from time to time.
``BORROWER PLEDGE AND SECURITY AGREEMENT'' means the Borrower Pledge and
Security Agreement dated as of December 23, 1993 between Borrower and Collateral
Agent, as such agreement may be amended, restated, supplemented or otherwise
modified from time to time.
``BUSINESS DAY'' means (i) for all purposes other than as covered by clause
(ii) below, any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the State of New York or is a day on which banking
institutions located in such state are authorized or required by law or other
governmental action to close, and (ii) with respect to all notices,
determinations, fundings and payments in connection with the Adjusted Eurodollar
Rate or any Eurodollar Rate Loans, any day that is a Business Day described in
clause (i) above and that is also a day for trading by and between banks in
Dollar deposits in the applicable interbank Eurodollar market.
``CAPITAL LEASE'', as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
``CASH'' means money, currency or a credit balance in a Deposit Account.
6
``CASH EQUIVALENTS'' means (i) marketable securities issued or directly and
unconditionally guaranteed by the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having the highest rating obtainable
from either Standard & Poor's Corporation or ▇▇▇▇▇'▇ Investors Service, Inc.;
(iii) commercial paper maturing no more than 180 days from the date of
acquisition thereof and, at the time of acquisition, having a rating of at least
A-1 from Standard & Poor's Corporation or at least P-1 from ▇▇▇▇▇'▇ Investors
Service, Inc.; (iv) certificates of deposit or bankers' acceptances maturing
within one year from the date of acquisition thereof issued by any Lender or any
commercial bank organized under the laws of the United States of America or any
state thereof or the District of Columbia having unimpaired capital and surplus
of not less than $100,000,000 (each Lender and each such commercial bank herein
called a ``CASH EQUIVALENT BANK''); (v) Eurodollar time deposits having a
maturity of less than one year purchased directly from any Cash Equivalent Bank
(whether such deposit is with such Cash Equivalent Bank or any other Cash
Equivalent Bank) and (vi) repurchase agreements and reverse repurchase
agreements with any Lender or Cash Equivalent Bank relating to marketable direct
obligations issued or unconditionally guaranteed by the United States Government
or issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof; provided that the terms of such agreements comply with the
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guidelines set forth in the Federal Financial Institutions Examination Council
Supervisory Policy - Repurchase Agreements of Depositary Institutions With
Securities Dealers and Others as adopted by the Comptroller of the Currency on
October 31, 1985.
``CASH PROCEEDS'' means, with respect to any Asset Sale, Cash payments
(including any Cash received by way of deferred payment pursuant to, or
monetization of, a note receivable or otherwise, but only as and when so
received) received from such Asset Sale.
``CHANGE OF CONTROL'' means the occurrence of any of the following: any
Person or any two or more Persons (other than one or more Permitted Holders)
acting in concert and constituting a ``group'' (a ``GROUP'') for purposes of
Section 13(d) of the Exchange Act, together with any Affiliates of any such
Person, shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Exchange Act),
directly or indirectly, of Securities of Company (or other Securities
convertible into such Securities) representing 50% or more of the combined
voting power of all Securities of Company entitled to vote in the election of
directors, or any such Person or Group succeeds in having sufficient of its
nominees elected to the Board of Directors of Company such that such nominees,
when added to any existing director remaining on the Board of Directors after
such election who is an Affiliate of such Person or Group, will constitute a
majority of the Board of Directors of Company.
7
``CLOSING DATE'' means the date on or before September 15, 1996 on which
the conditions set forth in subsection 4.1 are met and this Agreement becomes
effective.
``CO-AGENTS'' has the meaning assigned to that term in the introduction to
this Agreement, it being understood and agreed that the Co-Agents shall have no
obligations or duties as agents for or on behalf of any party to this Agreement
or any other Loan Document.
``COLLATERAL'' means all ``Collateral'' referred to in the Collateral
Documents and all other property that is subject to any lien, security interest
or other charge or encumbrance in favor of Collateral Agent or Lenders to secure
the Obligations.
``COLLATERAL AGENT'' means Bankers, in its capacity as collateral agent
under subsection 9.7 and the Collateral Documents.
``COLLATERAL DOCUMENTS'' means, collectively, the Borrower Pledge and
Security Agreement, the Subsidiary Guaranty, the Subsidiary Pledge and Security
Agreement, the Mortgages and all other deeds of trust, mortgages, security
agreements, pledge agreements, assignments, licenses, landlord consents and
releases and all other instruments or documents (including, without limitation,
UCC-1 financing statements, fixture filings or similar documents required in
order to perfect the Liens created by the Collateral Documents) delivered by a
Credit Party pursuant to the 1993 Agreement, the Existing Agreement, this
Agreement or any other Loan Document in order to grant to Collateral Agent on
behalf of Lenders, Liens in real, personal or mixed property of that Credit
Party.
``COMMERCIAL LETTER OF CREDIT'' means any letter of credit or similar
instrument issued for the purpose of providing the primary payment mechanism in
connection with the purchase of any materials, goods or services by Company or
any of its Subsidiaries.
``COMMITMENT'' or ``COMMITMENTS'' means the Additional Credit Commitments
and the Revolving Loan Commitments.
``COMMITMENT LETTER'' means the Letter Agreement dated June 28, 1996 by and
between Bankers and Company.
``COMMON STOCK (NONVOTING)'' means the common stock of Company, par value
$.01 per share, having no voting rights except as required by law or as
determined by Company's Board of Directors.
``COMMUNICATIONS ACT'' means the Communications Act of 1934, as amended, or
any successor statute or statutes thereto, and all rules, regulations, written
policies, orders and decisions of the FCC thereunder, in each case as from time
to time in effect.
``COMMUNICATIONS REGULATORY AUTHORITY'' means any communications regulatory
commission, agency, department, board or authority (including, without
limitation, the FCC).
8
``COMPANY'' has the meaning assigned to that term in the introduction to
this Agreement.
``COMPANY COMMON STOCK'' means the Voting Common Stock and the Common Stock
(Nonvoting) of Company.
``COMPANY FCC LICENSES'' means the FCC Licenses held by Company in
connection with the ownership and operation of the WEEK television broadcast
station serving Peoria-Bloomington, Illinois.
``COMPLIANCE CERTIFICATE'' means a certificate substantially in the form of
Exhibit VI annexed hereto delivered to Agent and Lenders by Company pursuant to
----------
subsection 6.1(iii).
``CONSOLIDATED ADJUSTED EBITDA'' means, for any period, the sum of the
amounts for such period of (i) Consolidated Net Income, (ii) Consolidated
Interest Expense, (iii) provisions for taxes based on income and provisions for
franchise taxes (but, with respect to franchise taxes an amount not to exceed
$150,000 for such period), (iv) total depreciation expense, (v) total
amortization expense (including, without duplication, Programming Amortization
Expense), and (vi) other non-cash items reducing Consolidated Net Income less
----
other non-cash items increasing Consolidated Net Income, all of the foregoing as
determined on a consolidated basis for Company and its Subsidiaries in
conformity with GAAP; provided that the income of Company and its Subsidiaries
--------
from any LMA shall only be included in Consolidated Adjusted EBITDA to the
extent that it does not exceed 10% thereof.
``CONSOLIDATED BROADCAST CASH FLOW'' means, for any period, the sum of (i)
Consolidated Adjusted EBITDA for such period minus (ii) Consolidated Corporate
-----
Overhead for such period, to the extent, but only to the extent, such
Consolidated Corporate Overhead was not deducted in determining Consolidated
Adjusted EBITDA of Company and its Subsidiaries for such period minus (iii)
-----
Programming Cash Payments for such period, to the extent, but only to the
extent, such Programming Cash Payments were not deducted in determining
Consolidated Adjusted EBITDA of Company and its Subsidiaries for such period.
``CONSOLIDATED CAPITAL EXPENDITURES'' means, for any period, the sum of (i)
the aggregate of all expenditures (whether paid in cash or other consideration
or accrued as a liability and including that portion of Capital Leases which is
capitalized on the consolidated balance sheet of Company and its Subsidiaries)
by Company and its Subsidiaries during that period that, in conformity with
GAAP, are included in ``additions to property, plant or equipment'' or
comparable items reflected in the consolidated statement of cash flows of
Company and its Subsidiaries plus (ii) to the extent not covered by clause (i)
----
of this definition, the aggregate of all expenditures by Company and its
Subsidiaries during that period to acquire (by purchase or otherwise) the
business, property or fixed assets of, or stock or other evidence of beneficial
ownership of, any Person other than Company or any of its Subsidiaries
(excluding expenditures to make any Acquisition); provided that the term
--------
9
``Consolidated Capital Expenditures'' shall not include the value of non-cash
assets of the Company or its Subsidiaries exchanged for other assets in the
ordinary course of business to the extent the aggregate of all such assets so
exchanged (during any Fiscal Year) is less than $1,000,000.
``CONSOLIDATED CASH INTEREST EXPENSE'' means, for any period, Consolidated
Interest Expense excluding (i) interest expense for such period not payable in
cash (including amortization of original issue discount and deferred financing
costs) and (ii) any non-cash interest component of Capital Leases, all as
determined on a consolidated basis for Company and its Subsidiaries in
conformity with GAAP.
``CONSOLIDATED CORPORATE OVERHEAD'' means, for any period, that portion of
the overhead expense, including legal, audit, accounting and insurance expense,
of Company and its Subsidiaries not directly allocable to the operation of the
broadcast systems and other operating assets of Company and its Subsidiaries.
Consolidated Corporate Overhead shall include salaries of employees of Company
and its Subsidiaries, to the extent that such salaries are not directly
allocable to the operation of the broadcast systems and other operating assets
of Company and its Subsidiaries.
``CONSOLIDATED CURRENT ASSETS'' means, as at any date of determination, the
total assets of Company and its Subsidiaries on a consolidated basis which may
properly be classified as current assets in conformity with GAAP, excluding Cash
and Cash Equivalents.
``CONSOLIDATED CURRENT LIABILITIES'' means, as at any date of
determination, the total liabilities of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current liabilities in
conformity with GAAP.
``CONSOLIDATED FIXED CHARGES'' means for any period, the sum of the amounts
for such period of (i) Consolidated Cash Interest Expense, (ii) scheduled
principal payments of all Indebtedness, and (iii) cash dividend payments made
pursuant to subsection 7.5, all as determined on a consolidated basis for
Company and its Subsidiaries in conformity with GAAP.
``CONSOLIDATED INTEREST EXPENSE'' means, for any period, total interest
expense (including that portion attributable to Capital Leases in accordance
with GAAP and capitalized interest) of Company and its Subsidiaries on a
consolidated basis with respect to all outstanding Indebtedness of Company and
its Subsidiaries, and including, without limitation, all commissions, discounts
and other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net costs under Interest Rate Agreements, but
excluding, however, any amounts referred to in subsection 2.3 payable to Agent
and Lenders on or before the Closing Date.
``CONSOLIDATED NET INCOME'' means, for any period, the net income (or loss)
of Company and its Subsidiaries on a consolidated basis for such period taken as
a single accounting period determined in conformity with GAAP; provided that
--------
there shall be
10
excluded (i) the income (or loss) of any Person (other than a Subsidiary of
Company) in which any other Person (other than Company or any of its
Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to Company or any of its
Subsidiaries by such Person during such period, (ii) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of Company or is merged
into or consolidated with Company or any of its Subsidiaries or that Person's
assets are acquired by Company or any of its Subsidiaries, (iii) the income of
any Subsidiary of Company to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary, (iv) any after-tax gains or losses attributable
to Asset Sales or returned surplus assets of any Pension Plan, and (v) (to the
extent not included in clauses (i) through (iv) above) any net extraordinary
gains or net non-cash extraordinary losses.
``CONSOLIDATED RENTAL PAYMENTS'' means, for any period, the aggregate
amount of all rents paid or payable by Company and its Subsidiaries on a
consolidated basis during that period under all Capital Leases to which Company
or any of its Subsidiaries is a party as lessee.
``CONSOLIDATED SENIOR DEBT'' means, as at any date, Consolidated Total Debt
minus the aggregate principal amount of Subordinated Indebtedness outstanding on
-----
such date for Company and its Subsidiaries, determined on a consolidated basis
in conformity with GAAP.
``CONSOLIDATED TOTAL DEBT'' means, as at any date of determination, the
aggregate stated balance sheet amount of all Funded Debt of Company and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
``CONSOLIDATED WORKING CAPITAL'' means, as at any date of determination,
the excess of Consolidated Current Assets over Consolidated Current Liabilities.
``CONTINGENT OBLIGATION'', as applied to any Person, means any direct or
indirect liability, contingent or otherwise, of that Person (i) with respect to
any Indebtedness, lease, dividend or other obligation of another if the primary
purpose or intent thereof by the Person incurring the Contingent Obligation is
to provide assurance to the obligee of such obligation of another that such
obligation of another will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such obligation
will be protected (in whole or in part) against loss in respect thereof, (ii)
with respect to any letter of credit issued for the account of that Person or as
to which that Person is otherwise liable for reimbursement of drawings, or (iii)
under Interest Rate Agreements. Contingent Obligations shall include, without
limitation, (a) the direct or indirect guaranty, endorsement (otherwise than for
collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of the obligation
of another, (b) the obligation to make take-or-pay or similar payments if
required regardless of non-performance by any other party or parties to an
agreement, and (c) any liability of such
11
Person for the obligation of another through any agreement (contingent or
otherwise) (X) to purchase, repurchase or otherwise acquire such obligation or
any security therefor, or to provide funds for the payment or discharge of such
obligation (whether in the form of loans, advances, stock purchases, capital
contributions or otherwise) or (Y) to maintain the solvency or any balance sheet
item, level of income or financial condition of another if, in the case of any
agreement described under subclauses (X) or (Y) of this sentence, the primary
purpose or intent thereof is as described in the preceding sentence. The amount
of any Contingent Obligation shall be equal to the amount of the obligation so
guaranteed or otherwise supported or, if less, the amount to which such
Contingent Obligation is specifically limited.
``CONTRACTUAL OBLIGATION'', as applied to any Person, means any provision
of any Security issued by that Person or of any material indenture, mortgage,
deed of trust, contract, undertaking, agreement or other instrument to which
that Person is a party or by which it or any of its properties is bound or to
which it or any of its properties is subject.
``CREDIT PARTY'' means any of Company and any Subsidiary of Company party
to any Loan Document, and ``CREDIT PARTIES'' means all such Persons
collectively.
``DEPARTING LENDER'' means each ``Lender'' party to, and as defined in, the
Existing Agreement which will not be a Lender hereunder on the Closing Date.
``DEPARTING LENDER CONSENT'' means the consent made by each Departing
Lender, substantially in the form of Exhibit XVIII annexed hereto.
-------------
``DEPOSIT ACCOUNT'' means a demand, time, savings, passbook or like account
with a bank, savings and loan association, credit union or like organization,
other than an account evidenced by a negotiable certificate of deposit.
``DOLLARS'' and the sign ``$'' mean the lawful money of the United States
of America.
``ELIGIBLE ASSIGNEE'' means (A) (i) a commercial bank organized under the
laws of the United States or any state thereof having a combined capital and
surplus of at least $250,000,000; (ii) a savings and loan association or savings
bank organized under the laws of the United States or any state thereof having a
combined capital and surplus of at least $250,000,000; (iii) a commercial bank
organized under the laws of any other country or a political subdivision thereof
having a combined capital and surplus of at least $250,000,000; provided that
--------
(x) such bank is acting through a branch or agency located in the United States
or (y) such bank is organized under the laws of a country that is a member of
the Organization for Economic Cooperation and Development or a political
subdivision of such country; and (iv) any other entity which is an ``accredited
investor'' (as defined in Regulation D under the Securities Act) which extends
credit or buys loans as one of its businesses including, but not limited to,
insurance companies, mutual funds and lease financing companies, in each case
(under clauses (i) through (iv) above) that is reasonably acceptable
12
to Agent and (B) any Lender and any Affiliate of any Lender; provided that no
--------
Affiliate of Company shall be an Eligible Assignee.
``EMPLOYEE BENEFIT PLAN'' means any ``employee benefit plan'' as defined in
Section 3(3) of ERISA which is, or was at any time, maintained or contributed to
by Company or any of its ERISA Affiliates.
``EMPLOYMENT AGREEMENTS'' means the Employment Agreement dated as of
September 20, 1993 between Company and W. ▇▇▇ ▇▇▇▇▇▇▇▇ and the Employment
Agreement dated as of September 20, 1993 between Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇, in
the form that each such agreement existed on the 1993 Closing Date.
``ENVIRONMENTAL CLAIM'' means any accusation, allegation, notice of
violation, claim, demand, abatement order or other order or direction
(conditional or otherwise) by any government authority or any Person for any
damage, including, without limitation, personal injury (including sickness,
disease or death), tangible or intangible property damage, contribution,
indemnity, indirect or consequential damages, damage to the environment,
nuisance, pollution, contamination or other adverse effects on the environment,
or for fines, penalties or restrictions, in each case relating to, resulting
from or in connection with Hazardous Materials and relating to Company, any of
its Subsidiaries, any of their respective Affiliates or any Facility.
``ENVIRONMENTAL LAWS'' means all statutes, ordinances, orders, rules,
regulations, plans, policies or decrees and the like relating to (i)
environmental matters, including, without limitation, those relating to fines,
injunctions, penalties, damages, contribution, cost recovery compensation,
losses or injuries resulting from the Release or threatened Release of Hazardous
Materials, (ii) the generation, use, storage, transportation or disposal of
Hazardous Materials, or (iii) occupational safety and health, industrial
hygiene, land use or the protection of human, plant or animal health or welfare,
in any manner applicable to Company or any of its Subsidiaries or any of their
respective properties, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. (S) 9601 et
--
seq.), the Hazardous Materials Transportation Act (49 U.S.C. (S) 1801 et seq.),
--- -- ---
the Resource Conservation and Recovery Act (42 U.S.C. (S) 6901 et seq.), the
-- ---
Federal Water Pollution Control Act (33 U.S.C. (S) 1251 et seq.), the Clean Air
-- ---
Act (42 U.S.C. (S) 7401 et seq.), the Toxic Substances Control Act (15 U.S.C.
-- ---
(S) 2601 et seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7
-- ---
U.S.C. (S)136 et seq.), the Occupational Safety and Health Act (29 U.S.C. (S)
-- ---
651 et seq.) and the Emergency Planning and Community Right-to-Know Act (42
-- ---
U.S.C. (S) 11001 et seq.), each as amended or supplemented, and any analogous
-- ---
future or present local, state and federal statutes and regulations promulgated
pursuant thereto, each as in effect as of the date of determination.
``EQUITY PROCEEDS'' means the cash proceeds of any sale or issuance by
Company of any equity securities of Company (including, without limitation, any
shares of Non-Restricted Common Stock).
13
``ERISA'' means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
``ERISA AFFILIATE'', as applied to any Person, means (i) any corporation
which is, or was at any time, a member of a controlled group of corporations
within the meaning of Section 414(b) of the Internal Revenue Code of which that
Person is, or was at any time, a member; (ii) any trade or business (whether or
not incorporated) which is, or was at any time, a member of a group of trades or
businesses under common control within the meaning of Section 414(c) of the
Internal Revenue Code of which that Person is, or was at any time, a member; and
(iii) any member of an affiliated service group within the meaning of Section
414(m) or (o) of the Internal Revenue Code of which that Person, any corporation
described in clause (i) above or any trade or business described in clause (ii)
above is, or was at any time, a member.
``ERISA EVENT'' means (i) a ``reportable event'' within the meaning of
Section 4043 of ERISA and the regulations issued thereunder with respect to any
Pension Plan (excluding those for which the provision for 30-day notice to the
PBGC has been waived by regulation); (ii) the failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the
Internal Revenue Code) or the failure to make by its due date a required
installment under Section 412(m) of the Internal Revenue Code with respect to
any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan
pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such
plan in a distress termination described in Section 4041(c) of ERISA; (iv) the
withdrawal by Company or any of its ERISA Affiliates from any Pension Plan with
two or more contributing sponsors or the termination of any such Pension Plan
resulting in liability pursuant to Sections 4063 or 4064 of ERISA; (v) the
institution by the PBGC of proceedings to terminate any Pension Plan, or the
occurrence of any event or condition which might constitute grounds under ERISA
for the termination of, or the appointment of a trustee to administer, any
Pension Plan; (vi) the imposition of liability on Company or any of its ERISA
Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the
application of Section 4212(c) of ERISA; (vii) the withdrawal by Company or any
of its ERISA Affiliates in a complete or partial withdrawal (within the meaning
of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any
potential liability therefor, or the receipt by Company or any of its ERISA
Affiliates of notice from any Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to
terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the
occurrence of an act or omission which could give rise to the imposition on
Company or any of its ERISA Affiliates of fines, penalties, taxes or related
charges under Chapter 43 of the Internal Revenue Code or under Section 409 or
502(c), (i) or (l) or 4071 of ERISA in respect of any Employee Benefit Plan;
(ix) the assertion of a material claim (other than routine claims for benefits)
against any Employee Benefit Plan other than a Multiemployer Plan or the assets
thereof, or against Company or any of its ERISA Affiliates in connection with
any such Employee Benefit Plan; (x) receipt from the Internal Revenue Service of
notice of the failure of any Pension Plan
14
(or any other Employee Benefit Plan intended to be qualified under Section
401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the
Internal Revenue Code, or the failure of any trust forming part of any Pension
Plan to qualify for exemption from taxation under Section 501(a) of the Internal
Revenue Code; or (xi) the imposition of a Lien pursuant to Section 401(a)(29) or
412(n) of the Internal Revenue Code or pursuant to ERISA with respect to any
Pension Plan.
``EURODOLLAR RATE LOANS'' means Loans bearing interest at rates determined
by reference to the Adjusted Eurodollar Rate as provided in subsection 2.2A.
``EVENT OF DEFAULT'' means each of the events set forth in Section 8.
``EXCHANGE ACT'' means the Securities Exchange Act of 1934, as amended from
time to time, and any successor statute.
``EXISTING AGREEMENT'' has the meaning assigned to that term in the
introduction to this Agreement.
``FACILITIES'' means any and all real property (including, without
limitation, all buildings, fixtures or other improvements located thereon) now,
hereafter or heretofore owned, leased, operated or used by Company or any of its
Subsidiaries or any of their respective predecessors or Affiliates.
``FCC'' means the Federal Communications Commission and any successor
governmental agency performing functions similar to those performed by the
Federal Communications Commission on the date hereof.
``FCC CONSENT'' means the initial written action or actions of the FCC
approving in the case of any radio or television broadcast station acquired in
connection with an Acquisition, the transfer of the FCC Licenses used in
connection with the ownership and operation of such station from the holder
thereof immediately prior to giving effect to such Acquisition and the
applicable License Co., in each case in form and substance satisfactory to Agent
and Requisite Lenders.
``FCC LICENSES'' has the meaning assigned to that term in subsection 5.18.
``FEDERAL FUNDS EFFECTIVE RATE'' means, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by Agent from three Federal funds brokers of recognized
standing selected by Agent.
15
``FINAL ORDER'' has the meaning assigned to that term in subsection 4.4E.
``FIRST RESTATED AGREEMENT'' means the Amended and Restated Credit
Agreement dated as of February 1, 1995 by and among Company, the lenders
described therein and Bankers, as agent.
``FIRST RESTATEMENT CLOSING DATE'' means February 1, 1995.
``FISCAL YEAR'' means the fiscal year of Company and its Subsidiaries
ending on December 31 of each calendar year.
``FUNDED DEBT,'' as applied to any Person, means all Indebtedness of that
Person (other than any liability with respect to Programming Obligations and any
Indebtedness otherwise permitted under subsection 7.1(viii)), which by its terms
or by the terms of any instrument or agreement relating thereto matures more
than one year from, or is directly renewable or extendable at the option of the
debtor to a date more than one year from (including an option of the debtor
under a revolving credit or similar agreement obligating the lender or lenders
to extend credit over a period of one year or more from), the date of the
creation thereof; it being understood and agreed that ``FUNDED DEBT'' shall
include all amounts owing by Company with respect to Loans and Letters of Credit
outstanding hereunder.
``FUNDING DATE'' means the date of the funding of a Loan.
``GAAP'' means, subject to the limitations on the application thereof set
forth in subsection 1.2, generally accepted accounting principles set forth in
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, in each case as the same are applicable to the circumstances as of
the date of determination.
``GOVERNMENTAL AUTHORIZATION'' means any permit, license, authorization,
plan, directive, waiver, consent order or consent decree of or from any federal,
state or local governmental authority, agency or court.
``GOVERNMENTAL ENTITY'' means any court or tribunal in any jurisdiction or
any federal, state, municipal, domestic, foreign or other administrative agency,
department, commission, board, bureau or other governmental authority or
instrumentality.
``HAZARDOUS MATERIALS'' means (i) any chemical, material or substance at
any time defined as or included in the definition of ``hazardous substances'',
``hazardous wastes'', ``hazardous materials'', ``extremely hazardous waste'',
``restricted hazardous waste'', ``infectious waste'', ``toxic substances'' or
any other formulations intended to define, list or classify substances by reason
of deleterious properties such as ignitability, corrosivity,
16
reactivity, carcinogenicity, toxicity, reproductive toxicity, ``TCLP toxicity''
or ``EP toxicity'' or words of similar import under any applicable Environmental
Laws or publications promulgated pursuant thereto; (ii) any oil, petroleum,
petroleum fraction or petroleum derived substance; (iii) any drilling fluids,
produced waters and other wastes associated with the exploration, development or
production of crude oil, natural gas or geothermal resources; (iv) any flammable
substances or explosives; (v) any radioactive materials; (vi) asbestos in any
form; (vii) urea formaldehyde foam insulation; (viii) electrical equipment which
contains any oil or dielectric fluid containing levels of polychlorinated
biphenyls in excess of fifty parts per million; (ix) pesticides; and (x) any
other chemical, material or substance, exposure to which is prohibited, limited
or regulated by any governmental authority or which may or could pose a hazard
to the health and safety of the owners, occupants or any Persons in the vicinity
of the Facilities.
``INDEBTEDNESS'', as applied to any Person, means (i) all indebtedness for
borrowed money plus the maximum aggregate amount which is or at any time
----
thereafter may become available for drawing under any Letter of Credit then
outstanding, (ii) that portion of obligations with respect to Capital Leases
that is properly classified as a liability on a balance sheet in conformity
with GAAP, (iii) notes payable and drafts accepted representing extensions of
credit whether or not representing obligations for borrowed money, (iv) any
obligation owed for all or any part of the deferred purchase price of property
or services (excluding any such obligations incurred under ERISA), which
purchase price is (a) due more than one year from the date of incurrence of the
obligation in respect thereof or (b) evidenced by a note or similar written
instrument, (v) all indebtedness secured by any Lien on any property or asset
owned or held by that Person regardless of whether the indebtedness secured
thereby shall have been assumed by that Person or is nonrecourse to the credit
of that Person (provided, however, that the amount of any such Indebtedness that
is nonrecourse to such Person shall be the lesser of the fair market value of
the property or asset subject to the Lien and the amount of the Indebtedness
secured), (vi) to the extent not otherwise included above, all liabilities of
that Person with respect to Programming Obligations, and (vii) all indebtedness
in respect of termination payments or other liquidated damage obligations of
Company pursuant to Interest Rate Agreements. Obligations under Interest Rate
Agreements (except as set forth in clause (vii) above) constitute Contingent
Obligations and not Indebtedness.
``INDEMNITEE'' has the meaning assigned to that term in subsection 10.3.
``INTELLECTUAL PROPERTY'' means all patents, trademarks, tradenames,
copyrights, technology, know-how and processes used in or necessary for the
conduct of the business of Company and its Subsidiaries as currently conducted
that are material to the condition (financial or otherwise), business or
operations of Company and its Subsidiaries, taken as a whole.
``INTERCOMPANY NOTE'' and ``INTERCOMPANY NOTES'' means (i) those certain
Subordinated Intercompany Promissory Notes of the Company or any of its
Subsidiaries issued in accordance with subsection 7.1(iv) of this Agreement to
evidence Indebtedness of Company
17
or any such Subsidiary in the form of Exhibit XII annexed hereto and (ii) the
-----------
QCNY Intercompany Note, as such Intercompany Notes may be amended, restated,
supplemented or otherwise modified from time to time in accordance with the
terms hereof and thereof.
``INTEREST PAYMENT DATE'' means (i) with respect to any Base Rate Loan,
each January 31, April 30, July 31 and October 31 of each year, commencing on
the first such date to occur after the Closing Date, and (ii) with respect to
any Eurodollar Rate Loan, the last day of each Interest Period applicable to
such Loan; provided that in the case of each Interest Period of longer than
--------
three months, ``INTEREST PAYMENT DATE'' shall also include each date that is
three months or an integral multiple thereof, after the commencement of such
Interest Period.
``INTEREST PERIOD'' has the meaning assigned to that term in subsection
2.2B.
``INTEREST RATE AGREEMENT'' means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement designed to protect Company or any of its Subsidiaries
against fluctuations in interest rates.
``INTEREST RATE DETERMINATION DATE'' means each date for calculating the
Adjusted Eurodollar Rate for purposes of determining the interest rate in
respect of an Interest Period. The Interest Rate Determination Date shall be
the second Business Day prior to the first day of the related Interest Period
for a Eurodollar Rate Loan.
``INTERNAL REVENUE CODE'' means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter.
``INVESTMENT'' means (i) any direct or indirect purchase or other
acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, stock or other Securities of any other Person, or (ii) any direct
or indirect loan, advance (other than advances to employees for moving,
entertainment and travel expenses, drawing accounts and similar expenditures in
the ordinary course of business) or capital contribution by Company or any of
its Subsidiaries to any other Person other than a Subsidiary of Company,
including all indebtedness and accounts receivable from that other Person that
are not current assets or did not arise from sales to that other Person in the
ordinary course of business. The amount of any Investment shall be the original
cost of such Investment plus the cost of all additions thereto, without any
adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment.
``ISSUING LENDER'' means, with respect to any Letter of Credit, the Lender
having a Revolving Loan Commitment which agrees or is otherwise obligated to
issue such Letter of Credit, determined as provided in subsection 3.1B(ii).
``JOINT VENTURE'' means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; provided
--------
that in no event shall any
18
corporate Subsidiary of any Person be considered to be a Joint Venture to which
such Person is a party.
``KBVO, INC.'' means KBVO, Inc., a Delaware corporation, which is wholly-
owned by Company, and was formed to acquire KBVO-TV.
``LANDLORD CONSENT LETTER'' means a landlord consent letter substantially
in the form of Exhibit XV annexed hereto or such other form as shall be
----------
acceptable to Collateral Agent, in its sole discretion, executed, acknowledged
and delivered to Collateral Agent with respect to any real property as to which
Company or any of its Subsidiaries has a leasehold interest and ``Landlord
Consent Letters'' means all such letters collectively.
``LEASES'' has the meaning assigned to that term in subsection 4.1D.
``LENDER'' and ``LENDERS'' means the persons identified as ``Lenders'' and
listed on the signature pages of this Agreement, or party to any Additional
Credit Facility Supplement, together with their respective successors and
permitted assigns pursuant to subsection 10.1.
``LENDER'S POLICY'' has the meaning assigned to that term in subsection
4.1C.
``LETTER OF CREDIT'' or ``LETTERS OF CREDIT'' means Commercial Letters of
Credit and Standby Letters of Credit issued or to be issued by Issuing Lenders
for the account of Company pursuant to subsection 3.1.
``LETTER OF CREDIT USAGE'' means, as at any date of determination, the sum
of (i) the maximum aggregate amount which is or at any time thereafter may
become available for drawing under all Letters of Credit then outstanding plus
----
(ii) the aggregate amount of all drawings under Letters of Credit honored by
Issuing Lenders and not theretofore reimbursed by Company (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to subsection
3.3B).
``LEVERAGE RATIO'' means the ratio of Consolidated Total Debt to
Consolidated Broadcast Cash Flow, in each case as set forth in the most recent
financial statements delivered by Company to Agent pursuant to clause (ii) or
(iii) of subsection 6.1 (accompanied by a Compliance Certificate delivered by
Company pursuant to clause (iv) of subsection 6.1). For purposes of
calculation, Consolidated Total Debt shall be determined as of the date of such
financial statements and Consolidated Broadcast Cash Flow shall be determined
for the twelve-month period ended on the date of such financial statements.
``LICENSE CO.'' means any wholly-owned direct or indirect Subsidiary of
Company established solely for the purpose of holding the FCC Licenses now or
hereafter acquired or owned by Company or any of its Subsidiaries (other than
the Company FCC Licenses, which shall be held by WEEK License Co. from and after
the consummation of the WEEK License Transfer pursuant to subsection 6.14),
including, without limitation, any of KNTV License, Inc., WPTA-TV License, Inc.,
KBJR License, Inc., WTVH License, Inc., KSEE
19
License, Inc., WWMT-TV License, Inc. WKBW-TV License, Inc., KBVO License, Inc.,
any Acquisition Subsidiary meeting the foregoing requirements of this definition
and, from and after the creation thereof pursuant to subsection 6.14, WEEK
License Co., and ``LICENSE COS.'' means all such companies collectively.
``LIEN'' means any lien, mortgage, deed of trust, pledge, assignment,
security interest, charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature thereof, and
any agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
``LOAN'' or ``LOANS'' means one or more of the Additional Credit Loans,
Revolving Loans or any combination thereof.
``LOAN DOCUMENTS'' means this Agreement, the Notes, the Additional Credit
Facility Supplements (if any), the Letters of Credit (and any applications for,
or reimbursement agreements or other documents or certificates executed by
Company in favor of an Issuing Lender relating to, the Letters of Credit), any
Interest Rate Agreements entered into between Company and any Lender and the
Collateral Documents.
``LMA'' means any time brokerage, local marketing or similar arrangement
pursuant to which Company or any of its Subsidiaries agrees to provide
television or radio management services, television or radio programming, or
assets related to the provision of television or radio broadcasting to the
licensee of a television or radio broadcast station or to sell commercial
advertising to occupy the airtime of such broadcast station.
``MARGIN STOCK'' has the meaning assigned to that term in Regulation U of
the Board of Governors of the Federal Reserve System as in effect from time to
time.
``MATERIAL AGREEMENTS'' means the Network Affiliation Agreements, the
Employment Agreements, the Leases, any Program Contract pursuant to which
Company's aggregate Programming Obligations thereunder is equal to or greater
than $500,000 (calculated as the unamortized amount of such Programming
Obligations on any date of determination), the Acquisition Agreements and any
other agreements and other documents material to the business of Company and its
Subsidiaries.
``MATERIAL ADVERSE EFFECT'' means (i) a material adverse effect upon the
business, operations, properties, assets, condition (financial or otherwise) or
prospects of Company and its Subsidiaries on a consolidated basis or (ii) the
impairment of the ability of Company to perform, or of Agent or Lenders to
enforce, the Obligations, in each case in this clause (ii) that could reasonably
be expected to have a material adverse effect upon the rights and interests of
Agent and Lenders hereunder or under any other Loan Document.
``MAXIMUM AMOUNT'' has the meaning assigned to that term in subsection
10.21.
20
``MORTGAGED PROPERTY'' has the meaning assigned to that term in subsection
4.1C.
``MORTGAGES'' means, collectively, the Borrower Mortgage and each
Subsidiary Mortgage.
``MULTIEMPLOYER PLAN'' means a ``multiemployer plan'', as defined in
Section 3(37) of ERISA, to which Company or any of its ERISA Affiliates is
contributing, or ever has contributed, or to which Company or any of its ERISA
Affiliates has, or ever has had, an obligation to contribute.
``NET CASH PROCEEDS'' means, with respect to any Asset Sale, Cash Proceeds
of such Asset Sale net of bona fide direct costs of sale including (i) income or
gains taxes reasonably estimated to be actually payable as a result of such
Asset Sale within two years of the date of such Asset Sale and (ii) payment of
the outstanding principal amount of, premium or penalty, if any, and interest on
any Indebtedness (other than the Loans) required to be repaid under the terms
thereof as a result of such Asset Sale.
``NET DEBT PROCEEDS'' means the cash proceeds of any sale or issuance by
Company of any Additional Subordinated Indebtedness net of underwriting
discounts and commissions and other reasonable costs associated therewith.
``NETWORK AFFILIATION AGREEMENTS'' means, collectively, the Affiliation
Agreements between Company or any Subsidiary of Company and any of the Networks,
as the case may be, listed in Schedule 7.14C annexed hereto, as it may be
--------------
supplemented pursuant to subsection 4.4N to include any such Affiliation
Agreements acquired in connection with any Acquisition, as any such agreement
may be amended, supplemented or otherwise modified as permitted by the terms of
this Agreement and including any replacement agreement, which shall in all
respects be reasonably satisfactory to Requisite Lenders.
``NETWORKS'' means one or more of the National Broadcasting Company
Incorporated (``NBC''), the American Broadcasting Company (``ABC''), CBS, Inc.
(``CBS''), or the Fox Broadcasting Company (``FOX''), as the context requires.
``NEW LENDER'' has the meaning assigned to that term in subsection
2.1A(ii).
``NEW PREFERRED STOCK'' means Company's Cumulative Convertible Exchangeable
Preferred Stock, par value $.01 per share, issued by Company pursuant to its
Third Amended and Restated Certificate of Incorporation.
``NEW SUBORDINATED INDEBTEDNESS'' means the Indebtedness of Company
evidenced by the New Subordinated Note Documents and the 1996 Subordinated Note
Documents.
``NEW SUBORDINATED NOTE DOCUMENTS'' means the New Subordinated Note
Indenture, the New Subordinated Notes and the 1996 Subordinated Note Documents.
21
``NEW SUBORDINATED NOTE INDENTURE'' means the Senior Subordinated Note
Indenture dated as of May 19, 1995, as such Indenture may be amended, restated,
supplemented or otherwise modified from time to time in accordance with the
provisions of subsection 7.14.
``NEW SUBORDINATED NOTES'' means the 10-3/8% Series A Senior Subordinated
Notes due May 15, 2005 issued by Company and the 1996 Subordinated Notes.
``NEW SUBSIDIARY'' has the meaning assigned to that term in subsection
6.13.
``1993 AGREEMENT'' means the Credit Agreement dated as of December 23, 1993
among the Company, the lenders party thereto, and Bankers, as agent.
``1993 CLOSING DATE'' means December 23, 1993.
``1996 SUBORDINATED NOTE DOCUMENTS'' means the indenture and other
documents pursuant to which the 1996 Subordinated Notes are issued.
``1996 SUBORDINATED NOTE INDENTURE'' means the indenture dated as of
February 22, 1996 pursuant to which the 1996 Subordinated Notes were issued, as
such Indenture may be amended, restated, supplemented or otherwise modified from
time to time in accordance with the provisions of subsection 7.14.
``1996 SUBORDINATED NOTES'' means the 9-3/8% Series A Senior Subordinated
Notes due December 1, 2005 issued by Company and the 9-3/8% Senior Subordinated
Notes due December 1, 2005 issued by Company.
``NON-RESTRICTED CAPITAL STOCK'' means any capital stock of Company with
respect to which Company has no obligation at any time on or before the date
which is one year after the final maturity of the Obligations under this
Agreement to (i) declare or pay any dividend or other distribution, (ii) make
any redemption, repurchase, retirement or acquisition, (iii) make any return of
capital to the holder thereof, or (iv) make any other distribution of any kind.
``NOTES'' means one or more of the Additional Credit Notes (if any) or
Revolving Notes or any combination thereof.
``NOTICE OF BORROWING'' means a notice substantially in the form of Exhibit
-------
I annexed hereto delivered by Company to Agent pursuant to subsection 2.1B with
-
respect to a proposed borrowing.
``NOTICE OF CONVERSION/CONTINUATION'' means a notice substantially in the
form of Exhibit II annexed hereto delivered by Company to Agent pursuant to
----------
subsection 2.2D with respect to a proposed conversion or continuation of the
applicable basis for determining the interest rate with respect to the Loans
specified therein.
22
``NOTICE OF ISSUANCE OF LETTER OF CREDIT'' means a notice substantially in
the form of Exhibit III annexed hereto delivered by Company to Agent pursuant to
-----------
subsection 3.1B(i) with respect to the proposed issuance of a Letter of Credit.
``OBLIGATIONS'' means all obligations of every nature of Company or any
other Credit Party from time to time owed to Agent, Collateral Agent, Lenders or
any of them under the Loan Documents, whether for principal, interest,
reimbursement of amounts drawn under Letters of Credit, fees, expenses,
indemnification or otherwise.
``OFFICERS' CERTIFICATE'' means, as applied to any corporation, a
certificate executed on behalf of such corporation by its chairman of the board
(if an officer) or its president or one of its vice presidents and by its chief
financial officer or its treasurer, or, in the case of a Compliance Certificate,
by the Vice President and Controller of Company; provided, that every Officers'
--------
Certificate with respect to the compliance with a condition precedent to the
making of any Loans hereunder shall include (i) a statement that the officer or
officers making or giving such Officers' Certificate have read such condition
and any definitions or other provisions contained in this Agreement relating
thereto, (ii) a statement that, in the opinion of the signers, they have made or
have caused to be made such examination or investigation as is necessary to
enable them to express an informed opinion as to whether or not such condition
has been complied with, and (iii) a statement as to whether, in the opinion of
the signers, such condition has been complied with.
``OPERATING LEASE'' means, as applied to any Person, any lease (including,
without limitation, leases that may be terminated by the lessee at any time) of
any property (whether real, personal or mixed) that is not a Capital Lease other
than any such lease under which that Person is the lessor.
``OWNERSHIP REPORTS'' means, with respect to any broadcast radio or
television station owned by the Company or any of its Subsidiaries, the reports
and certifications filed with the FCC pursuant to 47 C.F.R. (S) 73.3615, or any
comparable reports filed pursuant to any successor regulation thereto.
``PBGC'' means the Pension Benefit Guaranty Corporation (or any successor
thereto).
``PENSION PLAN'' means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
``PERMITTED ENCUMBRANCES'' means the following types of Liens (other than
any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Internal
Revenue Code or by ERISA):
(i) Liens for taxes, assessments or governmental charges or claims the
payment of which is not, at the time, required by subsection 6.3;
23
(ii) (a) contractual Liens of landlords existing as of the 1993
Closing Date and encumbering property listed on Schedule 5.19 (other than
-------------
property of KBVO, Inc., WWMT-TV, Inc., and WKBW-TV, Inc. and any radio or
television broadcasting station acquired pursuant to an Acquisition), (b)
contractual Liens of the landlord under any lease of real property as to
which Company or any of its Subsidiaries has a leasehold interest subject
to a Mortgage and in respect of which the Collateral Agent has received a
Landlord Consent Letter from the landlord entitled to such Lien, (c)
contractual Liens of the landlord under any lease of real property as to
which Company or any of its Subsidiaries has a leasehold interest not
subject to a Mortgage, and (d) statutory Liens of landlords, carriers,
warehousemen, mechanics and materialmen and other Liens imposed by law, in
each case, incurred in the ordinary course of business for sums not yet
delinquent or being contested in good faith, if such reserve or other
appropriate provision, if any, as shall be required by GAAP shall have been
made therefor;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(iv) any attachment or judgment Lien not constituting an Event of
Default under subsection 8.8;
(v) leases or subleases granted to others not interfering in any
material respect with the ordinary conduct of the business of Company and
its Subsidiaries taken as a whole;
(vi) easements, rights-of-way, restrictions, minor defects,
encroachments or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the ordinary
conduct of the business of Company and its Subsidiaries taken as a whole;
(vii) subject to the restrictions in clause (ii) above, any (a)
interest or title of a lessor or sublessor under any lease permitted by
this Agreement, (b) restriction or encumbrance that the interest or title
of such lessor or sublessor may be subject to, or (c) subordination of the
interest of the lessee or sublessee under such lease to any restriction or
encumbrance referred to in the preceding clause (b);
(viii) Liens arising from filing UCC financing statements relating
solely to leases permitted by this Agreement; and
(ix) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights
and remedies as to deposit
24
accounts or other funds maintained with a creditor depository institution;
provided, that (a) such deposit account is not a dedicated cash collateral
account and is not subject to restrictions against access by Company or any
of its Subsidiaries in excess of those set forth by regulations promulgated
by the Federal Reserve Board, and (b) such deposit account is not intended
by Company or any of its Subsidiaries to provide collateral to the
depository institution.
``PERMITTED HOLDERS'' means (i) W. ▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇, (ii)
the members of the immediate family of either of them, (iii) any trust created
for the benefit of the Persons described in clauses (i) or (ii) or any of their
estates or (iv) any corporation that is controlled by and Person described in
clauses (i), (ii) or (iii).
``PERSON'' means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, joint stock
companies, Joint Ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts or other organizations, whether or not
legal entities, and governments and agencies and political subdivisions thereof.
``POTENTIAL EVENT OF DEFAULT'' means a condition or event that, after
notice or lapse of time or both, would constitute an Event of Default.
``PRIME RATE'' means the rate that Bankers announces from time to time as
its prime lending rate, as in effect from time to time. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. Bankers or any other Lender may make
commercial loans or other loans at rates of interest at, above or below the
Prime Rate.
``PRO FORMA BASIS'' means, with respect to compliance with any covenant
hereunder, compliance with such covenant after giving effect to any proposed
acquisition, asset sale, or any other action which requires compliance on a Pro
Forma Basis. In making any determination of compliance on a Pro Forma Basis,
such determination shall be performed (i) from and after any Acquisition Closing
Date, with respect to any Acquisition, by using the consolidated financial
statements of Company and its Subsidiaries most recently required to be
delivered under subsection 6.1 and the audited financial statements for the most
recently ended fiscal period of the target of any such Acquisition (subject to
adjustment thereto as agreed to by Agent), and (ii) with respect to any other
such determination, after good faith consultation with Agent using the
consolidated financial statements of Company and its Subsidiaries most recently
required to be delivered under subsection 6.1 for the 12 months preceding such
event, in each case which consolidated financial statements shall be
reformulated as if any acquisition, asset sale, or any other action, and any
Indebtedness or other Liabilities incurred in connection therewith, had been
consummated at the beginning of the period specified in the covenant with
respect to which Pro Forma Basis compliance is required, giving effect to such
adjustments as shall be acceptable to Agent, to the extent that such
calculations include any period prior to such Acquisition Date.
25
``PROGRAM'' means any radio or television series or other program produced
or distributed for radio or television release (including any syndicated series
or other program regardless of its medium of initial exploitation), in each case
whether recorded on film, videotape, audiotape, cassette, cartridge, disc or by
any other means, method, process or device, whether now known or hereafter
developed.
``PROGRAM CONTRACTS'' means all contracts for radio, television, film,
programs, music and related audio rights and syndicated series exhibition rights
acquired under license agreements.
``PROGRAM RIGHTS'' means any right whether arising under Program Contracts
or otherwise, to sell, distribute, subdistribute, exhibit, lease, sublease,
license, sublicense or otherwise exploit Programs.
``PROGRAMMING AMORTIZATION EXPENSE'' means, as at any date of
determination, total amortization expense of Company and its Subsidiaries for
the most recently completed twelve consecutive month period which is directly
attributable to Programs, Program Rights or Program Contracts, determined on a
consolidated basis in conformity with GAAP.
``PROGRAMMING CASH PAYMENTS'' means, as at any date of determination, the
aggregate cash payments actually made by Company and its Subsidiaries for the
most recently completed twelve consecutive month period in respect of
Programming Obligations, determined on a consolidated basis in conformity with
GAAP.
``PROGRAMMING OBLIGATIONS'' means at any date of determination, all direct
or indirect liabilities, contingent or otherwise, with respect to Program
Contracts, Programs or Program Rights of Company and its Subsidiaries, whether
or not reflected on the consolidated balance sheet of Company and its
Subsidiaries prepared in conformity with GAAP.
``PRO RATA SHARE'' means,
(i) with respect to all payments, computations and other matters
relating to any Additional Credit Commitment of any Additional Credit
Lender, the percentage obtained by dividing (x) the Additional Credit Loan
--------
Exposure of that Additional Credit Lender by (y) the aggregate Additional
--
Credit Loan Exposure of all Additional Credit Lenders;
(ii) with respect to all payments, computations and other matters
relating to the Revolving Loan Commitment or the Revolving Loans of any
Lender or any Letters of Credit issued or participations therein purchased
by any Lender, the percentage obtained by dividing (x) the Revolving Loan
--------
Exposure of that Lender by (y) the aggregate Revolving Loan Exposure of all
--
Lenders;
(iii) for all other purposes with respect to each Lender, the
percentage obtained by dividing (x) the sum of the Additional Credit Loan
--------
Exposure and
26
Revolving Loan Exposure of that Lender by (y) the sum of the aggregate
--
Additional Credit Loan Exposure and Revolving Loan Exposure of all Lenders;
The initial Pro Rata Share of each Lender for purposes of each of clauses (ii)
and (iii) of the preceding sentence is set forth opposite the name of that
Lender in Schedule 2.1 annexed hereto; provided that Schedule 2.1 shall be
------------ -------- ------------
amended and each Lender's Pro Rata Share shall be adjusted from time to time to
give effect to the execution of any Additional Credit Facility Supplements and
the addition or removal of any Lender as provided herein or by assignment
pursuant to subsection 10.18.
``PROSPECTUS'' means the Prospectus dated December 16, 1993, pursuant to
which Company offered the New Preferred Stock.
``PURCHASING LENDER'' has the meaning assigned to that term in subsection
2.1E.
``QC III'' means Queen City III Limited Partnership, a Delaware limited
partnership.
``QCNY'' means Queen City Broadcasting of New York, Inc., a New York
corporation and a wholly-owned Subsidiary of Queen City.
``QCNY INTERCOMPANY NOTE'' means the intercompany promissory note dated
June 29, 1995 by QCNY in favor of Company evidencing all amounts owed by QCNY to
Company including, without limitation, all amounts lent by Company to QCNY to
refinance certain outstanding Indebtedness of QCNY in connection with the
acquisition of WKBW-TV.
``QUEEN CITY'' means Queen City Broadcasting, Inc., a Delaware corporation.
``REGULATION D'' means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
``REIMBURSEMENT DATE'' has the meaning assigned to that term in subsection
3.3B.
``RELATED DOCUMENTS'' means, collectively, the Subordinated Note Documents,
the New Subordinated Note Documents, the Third Amended and Restated Certificate
of Incorporation (including each Certificate of Designation in respect of each
class of New Preferred Stock), the New Preferred Stock, the Prospectus, the
Intercompany Notes and the Acquisition Agreements.
``RELEASE'' means any release, spill, emission, leaking, pumping, pouring,
injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching
or migration of Hazardous Materials into the indoor or outdoor environment
(including, without limitation, the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Materials), or
into or out of any Facility, including the movement of any Hazardous Material
through the air, soil, surface water, groundwater or property.
27
``REPLACED LENDER'' has the meaning assigned to such term in subsection
2.10.
``REPLACEMENT LENDER'' has the meaning assigned to such term in subsection
2.10.
``REQUISITE LENDERS'' means Lenders having or holding 51% or more of the
sum of (i) the aggregate Additional Credit Loan Exposure of all Additional
Credit Lenders and (ii) the aggregate Revolving Loan Exposure of all Lenders.
``RESTRICTED JUNIOR PAYMENT'' means (i) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock of Company
now or hereafter outstanding, except a dividend payable solely in shares of that
class of stock to the holders of that class or payable solely in shares of any
Non-Restricted Capital Stock, (ii) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or indirect, of
any shares of any class of stock of Company now or hereafter outstanding, except
a redemption, retirement or other such payment made solely through the issuance
of shares of any Non-Restricted Capital Stock to the holders of such class of
stock, (iii) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class of
stock of Company now or hereafter outstanding, except through the issuance of
shares of any Non-Restricted Capital Stock to the holders of such class of
stock, and (iv) any payment or prepayment of principal of, premium, if any, or
interest on, or redemption, purchase, retirement, defeasance (including in-
substance or legal defeasance), sinking fund or similar payment with respect to,
any Subordinated Indebtedness, except through the issuance of shares of any Non-
Restricted Stock to the holders of such Indebtedness.
``REVOLVING LOAN COMMITMENT'' or ``REVOLVING LOAN COMMITMENTS'' means the
commitment or the commitments of a Lender or Lenders to make Revolving Loans and
issue or participate in Letters of Credit as set forth in subsections 2.1A(ii)
and 3.1A.
``REVOLVING LOAN COMMITMENT TERMINATION DATE'' means the Revolving Loan
Commitment Termination Date then in effect, which shall be the earliest of (i)
December 31, 2003, (ii) the date as of which the Obligations shall have become
immediately due and payable pursuant to Section 8, and (iii) the date on which
all of the Obligations are paid in full (including, without limitation, the
repayment, expiration, termination or cash collateralization of Letters of
Credit pursuant to this Agreement) and all Commitments are reduced to zero.
``REVOLVING LOAN EXPOSURE'' means, with respect to any Lender as of any
date of determination prior to the termination of the Revolving Loan
Commitments, that Lender's Revolving Loan Commitment and thereafter, the sum of
(i) the aggregate outstanding principal amount of the Revolving Loans of that
Lender, (ii) in the event that Lender is an Issuing Lender, the aggregate Letter
of Credit Usage in respect of all Letters of Credit issued by that Lender (in
each case net of any participations purchased by other Lenders in such Letters
of Credit or any unreimbursed drawings thereunder) and (iii) the aggregate
28
amount of all participations purchased by that Lender in any outstanding Letters
of Credit or any unreimbursed drawings under any Letters of Credit.
``REVOLVING LOANS'' means the Loans made by Lenders to Company pursuant to
subsection 2.1A(ii).
``REVOLVING NOTES'' means (i) the promissory notes of Company issued
pursuant to subsection 2.1D on the Closing Date, amending and restating the
Revolving Notes issued under the Existing Agreement, and (ii) any promissory
notes issued by Company pursuant to the last sentence of subsection 10.1B(i) in
connection with assignments of the Revolving Loan Commitments and Revolving
Loans of any Lenders, in each case substantially in the form of Exhibit V
---------
annexed hereto, as they may be amended, restated, replaced, supplemented or
otherwise modified from time to time.
``SECURITIES'' means any stock, shares, partnership interests, voting trust
certificates, certificates of interest or participation in any profit-sharing
agreement or arrangement, options, warrants, bonds, debentures, notes, or other
evidences of indebtedness, secured or unsecured, convertible, subordinated or
otherwise, or in general any instruments commonly known as ``securities'' or any
certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.
``SECURITIES ACT'' means the Securities Act of 1933, as amended from time
to time, and any successor statute.
``SELLING LENDER'' has the meaning assigned to that term in subsection
2.1E.
``STANDBY LETTER OF CREDIT'' means any standby letter of credit or similar
instrument issued for the purpose of supporting (i) Indebtedness of Company or
any of its Subsidiaries in respect of industrial revenue or development bonds or
financings, (ii) workers' compensation liabilities of Company or any of its
Subsidiaries, (iii) the obligations of third party insurers of Company or any of
its Subsidiaries arising by virtue of the laws of any jurisdiction requiring
third party insurers, (iv) obligations with respect to Capital Leases or
Operating Leases of Company or any of its Subsidiaries, and (v) performance,
payment, deposit or surety obligations of Company or any of its Subsidiaries, in
any case if required by law or governmental rule or regulation or in accordance
with custom and practice in the industry; provided that Standby Letters of
--------
Credit may not be issued for the purpose of supporting (a) trade payables or (b)
Indebtedness constituting ``antecedent debt'' (as that term is used in Section
547 of the Bankruptcy Code).
``SUBORDINATED DEBT PREPAYMENT AMOUNT'' has the meaning assigned to that
term in subsection 2.4B(iii)(c).
29
``SUBORDINATED INDEBTEDNESS'' means (i) the Indebtedness evidenced by the
Subordinated Note Documents and the New Subordinated Note Documents and (ii) the
Additional Subordinated Indebtedness, if any.
``SUBORDINATED NOTE DOCUMENTS'' means the Subordinated Note Indenture and
the Subordinated Notes.
``SUBORDINATED NOTE INDENTURE'' means the Senior Subordinated Debenture
Indenture dated as of September 1, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust
Company of New York, as trustee, as such Indenture may have been or may in the
future be amended, restated, supplemented or otherwise modified from time to
time in accordance with the provisions of subsection 7.14.
``SUBORDINATED NOTES'' means the 12.75% Senior Subordinated Debentures due
September 1, 2002 issued pursuant to the Subordinated Note Indenture.
``SUBSIDIARY'' means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof.
``SUBSIDIARY GUARANTY'' means the Subsidiary Guaranty dated as of December
23, 1993 and supplemented as of February 1, 1995, June 1, 1995 and June 29,
1995, among each of Company's Subsidiaries, respectively, and Collateral Agent,
pursuant to which each such Subsidiary has agreed to guarantee the Obligations
of Company under the Loan Documents, and including each counterpart to such
Subsidiary Guaranty executed and delivered by any Acquisition Subsidiary,
pursuant to the terms of subsection 4.4 and any counterparts to such Subsidiary
Guaranty executed and delivered by any New Subsidiary of Company pursuant to the
terms of subsection 6.13, as such Subsidiary Guaranty may be further amended,
restated, supplemented or otherwise modified from time to time.
``SUBSIDIARY MORTGAGES'' means, collectively, (i) each Mortgage, Assignment
of Rents and Fixture Filing and each Deed of Trust, Assignment of Rents and
Fixture Filing, as the case may be, dated as of the Closing Date and delivered
by each of Company's Subsidiaries (other than the License Cos., WKBW-TV, Inc.,
QC III, Queen City and Granite Response Television, Inc.) in favor of Collateral
Agent on behalf of Lenders, in each case substantially in the form of Exhibit
-------
XIV annexed hereto, and (ii) any mortgage or deed of trust or similar security
---
document executed, acknowledged and delivered from time to time by any
Subsidiary of Company to Collateral Agent in substantially the form of Exhibit
-------
XIV annexed hereto which encumbers the fee or leasehold interest of such
---
Subsidiary in real property,
30
as any of the foregoing may hereafter be amended, restated, supplemented or
otherwise modified from time to time.
``SUBSIDIARY PLEDGE AND SECURITY AGREEMENT'' means the Subsidiary Pledge
and Security Agreement dated as of December 23, 1993 and supplemented as of
February 1, 1995, June 1, 1995 and June 29, 1995 among each of Company's
Subsidiaries, and Collateral Agent, as supplemented by each counterpart to such
Subsidiary Pledge and Security Agreement executed and delivered by any
Acquisition Subsidiary, pursuant to the terms of subsection 4.4 and any
counterparts to such Subsidiary Pledge and Security Agreement executed and
delivered by any New Subsidiary of Company pursuant to the terms of subsection
6.13, as such Subsidiary Pledge and Security Agreement may be further amended,
restated, supplemented or otherwise modified from time to time.
``TAX'' or ``TAXES'' means any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever called, by any
Governmental Entity, on whomsoever and wherever imposed, levied, collected,
withheld or assessed; provided that ``TAX ON THE OVERALL NET INCOME'' of a
--------
Person shall be construed as a reference to a tax imposed by the jurisdiction in
which that Person's principal office (and/or, in the case of a Lender, its
lending office) is located or in which that Person is deemed to be doing
business on all or part of the net income, profits or gains of that Person
(whether worldwide, or only insofar as such income, profits or gains are
considered to arise in or to relate to a particular jurisdiction, or otherwise).
``THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION'' means Company's
Third Amended and Restated Certificate of Incorporation filed with the Secretary
of State of the State of Delaware on May 3, 1994.
``TOTAL UTILIZATION OF REVOLVING LOAN COMMITMENTS'' means, as at any date
of determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans (other than Revolving Loans made for the purpose of
reimbursing the applicable Issuing Lender for any amount drawn under any Letter
of Credit but not yet so applied) plus (ii) the Letter of Credit Usage.
----
``VOTING COMMON STOCK'' means common stock of Company, $.01 par value per
share, entitled to one vote per share.
``WEEK FCC CONSENT'' means the initial written action or actions of the FCC
approving the transfer of the Company FCC Licenses from Company to WEEK License
Co., in form and substance satisfactory to Agent and Requisite Lenders.
``WEEK LICENSE CO.'' means a corporation to be formed by the Company to
acquire the Company FCC Licenses pursuant to subsection 6.14, which corporation
shall be a wholly-owned Subsidiary of Company.
31
``WEEK LICENSE TRANSFER'' means the transfer by Company to WEEK License Co.
of the Company FCC Licenses as required by subsection 6.14 hereof.
``WKBW-TV'' means the network-affiliated television station WKBW-TV serving
Buffalo, New York and its auxiliary facilities.
``WKBW-TV, INC.'' means WKBW-TV, Inc., a Delaware corporation, which is
wholly-owned by Company, and was formed to acquire the general partnership
interests of QC III.
``WWMT-TV'' means the network-affiliated television station WWMT-TV serving
Grand Rapids-Kalamazoo-Battle Creek, Michigan, and its auxiliary facilities.
``WWMT-TV, INC.'' means WWMT-TV, Inc., a Delaware corporation, which is
wholly-owned by Company and was formed to acquire WWMT-TV.
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF CALCULATIONS UNDER
------------------------------------------------------------------------
AGREEMENT.
---------
Except as otherwise expressly provided in this Agreement, all accounting
terms not otherwise defined herein shall have the meanings assigned to them in
conformity with GAAP. Financial statements and other information required to be
delivered by Company to Lenders pursuant to clauses (i), (ii) and (xii) of
subsection 6.1 shall be prepared in accordance with GAAP as in effect at the
time of such preparation (and delivered together with the reconciliation
statements provided for in subsection 6.1(iv)). Calculations in connection with
the definitions, covenants and other provisions of this Agreement shall utilize
accounting principles and policies in conformity with those used to prepare the
financial statements referred to in subsection 5.3.
1.3 OTHER DEFINITIONAL PROVISIONS.
-----------------------------
References to ``Sections'' and ``subsections'' shall be to Sections and
subsections, respectively, of this Agreement unless otherwise specifically
provided. Any of the terms defined in subsection 1.1 may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference.
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; LOANS; NOTES.
-------------------------
A. COMMITMENTS.
(i) Revolving Loans. Subject to the terms and conditions of this
---------------
Agreement and in reliance upon the representations and warranties of
Company
32
herein set forth, each Lender hereby severally agrees, subject to the
limitations set forth below with respect to the maximum amount of Revolving
Loans permitted to be outstanding from time to time, (i) to maintain as
Revolving Loans hereunder its Pro Rata Share of the principal amount of
``Revolving Loans'' as defined in and which are outstanding under the
Existing Agreement as of the Closing Date after giving effect to subsection
2.1E and (ii) to lend to Company from time to time during the period from
the Closing Date to but excluding the Revolving Loan Commitment Termination
Date an aggregate amount (including Revolving Loans outstanding under the
preceding clause (i)) not exceeding its Pro Rata Share of the aggregate
amount of the Revolving Loan Commitments to be used for the purposes
identified in subsection 2.5A. The original amount of each Lender's
Revolving Loan Commitment is set forth opposite its name on Schedule 2.1
------------
annexed hereto and the aggregate original amount of the Revolving Loan
Commitments is $200,000,000; provided that the Revolving Loan Commitments
--------
of Lenders shall be adjusted to give effect to any assignments of the
Revolving Loan Commitments pursuant to subsection 10.1B; provided, further
-------- -------
that the amount of the Revolving Loan Commitments shall be reduced from
time to time by the amount of any reductions thereto made pursuant to
subsections 2.4B(ii) and 2.4B(iii); provided still further that, for so
-------- ----- -------
long as the sum of the aggregate Revolving Loan Commitments plus the
----
aggregate Additional Credit Commitments exceeds $10,000,000, not less than
$10,000,000 of the sum of the aggregate Revolving Loan Commitments plus the
----
aggregate Additional Credit Commitments shall be used or available solely
for working capital and other general corporate purposes, and from and
after the date that the sum of the aggregate Revolving Loan Commitments
plus the aggregate Additional Credit Commitments is equal to or less than
----
$10,000,000, any further drawings under either the Revolving Loan
Commitments or the Additional Credit Commitments shall be available solely
for working capital and other general corporate purposes. Each Lender's
Revolving Loan Commitment shall expire on the Revolving Loan Commitment
Termination Date and all Revolving Loans and all other amounts owed
hereunder with respect to the Revolving Loans and the Revolving Loan
Commitments shall be paid in full no later than that date. Amounts
borrowed under this subsection 2.1A(ii) may be repaid and reborrowed to but
excluding the Revolving Loan Commitment Termination Date.
Anything contained in this Agreement to the contrary notwithstanding,
the Revolving Loans and the Revolving Loan Commitments shall be subject to
the limitation that in no event shall the Total Utilization of Revolving
Loan Commitments at any time exceed the Revolving Loan Commitments then in
effect.
(ii) Additional Credit Loans. Subject to the terms and conditions of
-----------------------
this Agreement and in reliance upon the representations and warranties of
Company herein set forth, the Additional Credit Lenders may agree pursuant
to one or more Additional Credit Facility Supplements and subject to the
limitations set forth below with respect to the maximum amount of
Additional Credit Loans permitted to be outstanding from time to time, to
lend to Company from time to time during the
33
period from the applicable Additional Credit Facility Closing Date to but
excluding the Revolving Loan Commitment Termination Date an aggregate
amount not exceeding its Pro Rata Share of the aggregate amount of the
Additional Credit Commitments set forth in the applicable Additional Credit
Facility Supplement to be used for the purposes identified in subsection
2.5A. The maximum cumulative aggregate permitted amount of the Additional
Credit Commitments is $100,000,000; provided that the Additional Credit
--------
Commitments of the Additional Credit Lenders shall be adjusted to give
effect to any assignments of the Additional Credit Commitments pursuant to
subsection 10.1B; provided, further that the maximum aggregate amount of
-------- -------
the Additional Credit Commitments shall be reduced from time to time by the
amount of any reductions thereto made pursuant to subsections 2.4B(ii) and
2.4B(iii); provided still further that the Additional Credit Commitments
-------- ----- -------
shall be subject to the limitation set forth in the third proviso of
subsection 2.1A(i). Each Additional Credit Lender's Additional Credit
Commitment shall expire on the Revolving Loan Commitment Termination Date
and all Additional Credit Loans and all other amounts owed hereunder with
respect to the Additional Credit Loans and the Additional Credit
Commitments shall be paid in full no later than that date.
Anything contained in this Agreement to the contrary notwithstanding,
the Additional Credit Loans and the Additional Credit Commitments shall be
subject to the limitation that in no event shall the aggregate amount of
Additional Credit Loans at any time exceed the Additional Credit
Commitments then in effect and applicable to such Additional Credit Loans.
Company shall have the right on or before December 31, 2000, to
request in writing one or more Additional Credit Commitments from Lenders
in an amount equal to any integral multiple of $5,000,000, of at least
$10,000,000, but no more than $100,000,000 in the aggregate, subject to the
reductions in Commitments pursuant to subsection 2.4B(ii) and 2.4B(iii);
provided, that (i) no Event of Default or Potential Event of Default shall
--------
have occurred and be continuing, and (ii) the Revolving Loan Commitments
shall not have terminated or been reduced to zero. Within 15 Business Days
of such request, each Lender shall notify the Agent, whether or not, in the
exercise of its sole discretion, it is willing to commit to make Additional
Credit Loans and the maximum amount to which it is willing to commit and
the Agent shall promptly notify Company and each other Lender of each
Lender's decision and shall allocate the Additional Credit Commitments
among the Lenders by Agent following consultation with Company. Any Lender
that does not so notify the Agent within such period shall not be deemed to
have committed to any such requested Additional Credit Commitments. If the
Lenders are not willing to commit to the requested Additional Commitments
in the requested amount, then within 45 Business Days of Company's original
request, with notice thereof to the other Lenders, another one or more
financial institutions reasonably acceptable to the Company and the Agent
(each a ``NEW LENDER'') may commit to provide the remainder of the required
Additional Credit Commitment.
34
Upon receipt of notice from the Agent to the Lenders and Company that the
Lenders, or sufficient Lenders and New Lenders, have agreed to commit to an
aggregate amount equal to the Additional Credit Commitments requested by
Company (or such lesser amount as Company shall agree, which shall be at
least $10,000,000 and an integral multiple of $1,000,000), then, provided,
--------
that (i) no Event of Default or Potential Event of Default shall have
occurred and be continuing at such time or after giving effect to the
requested Additional Credit Commitments, and (ii) the Revolving Loan
Commitments shall not have terminated or been reduced to zero, Company, the
Agent, the Lenders willing to provide such Additional Credit Commitments
and the New Lenders (if any) shall execute and deliver to the Agent an
Additional Credit Facility Supplement and satisfy each of the conditions
set forth in subsection 4.5.
B. BORROWING MECHANICS. Additional Credit Loans or Revolving Loans made
on any Funding Date (other than Revolving Loans made pursuant to subsection 3.3B
for the purpose of reimbursing any Issuing Lender for the amount of a drawing
under a Letter of Credit issued by it) shall be in an aggregate minimum amount
of $250,000 and integral multiples of $250,000 in excess of that amount;
provided that Additional Credit Loans or Revolving Loans made on any Funding
--------
Date as Eurodollar Rate Loans shall be in the aggregate minimum amount of
$1,000,000 and integral multiples of $500,000 in excess of that amount.
Whenever Company desires that Additional Credit Lenders make Additional Credit
Loans, or that Lenders make Revolving Loans, it shall deliver to Agent a Notice
of Borrowing no later than 11:00 A.M. (New York time) at least three Business
Days in advance of the proposed Funding Date (in the case of a Eurodollar Rate
Loan), or at least one Business Day in advance of the proposed Funding Date (in
the case of a Base Rate Loan). The Notice of Borrowing shall specify (i) the
proposed Funding Date (which shall be a Business Day), (ii) the amount and type
of Loans requested, and in the case of Additional Credit Loans, the applicable
Additional Credit Commitment, (iii) in the case of Loans made on the Closing
Date, that such Loans shall be Base Rate Loans, (iv) in the case of Loans not
made on the Closing Date, whether such Loans shall be Base Rate Loans or
Eurodollar Rate Loans, and (v) in the case of any Loans requested to be made as
Eurodollar Rate Loans, the initial Interest Period requested therefor; provided
--------
that the initial Funding Date with respect to any Eurodollar Rate Loans
requested to be made hereunder shall not be a date earlier than the date
occurring ten Business Days after the Closing Date. Additional Credit Loans and
Revolving Loans may be continued as or converted into Base Rate Loans and
Eurodollar Rate Loans in the manner provided in subsection 2.2D. In lieu of
delivering the above-described Notice of Borrowing, Company may give Agent
telephonic notice by the required time of any proposed borrowing under this
subsection 2.1B; provided that such notice shall be promptly confirmed in
--------
writing by delivery of a Notice of Borrowing to Agent on or before the
applicable Funding Date.
Neither Agent nor any Lender shall incur any liability to Company in acting
upon any telephonic notice referred to above that Agent believes in good faith
to have been given by a duly authorized officer or other person authorized to
borrow on behalf of Company or for otherwise acting in good faith under this
subsection 2.1B, and upon funding of Loans by
35
Lenders in accordance with this Agreement pursuant to any such telephonic notice
Company shall have effected Loans hereunder.
Company shall notify Agent prior to the funding of any Loans in the event
that any of the matters to which Company is required to certify in the
applicable Notice of Borrowing is no longer true and correct as of the
applicable Funding Date, and the acceptance by Company of the proceeds of any
Loans shall constitute a re-certification by Company, as of the applicable
Funding Date, as to the matters to which Company is required to certify in the
applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice
of Borrowing for a Eurodollar Rate Loan (or telephonic notice in lieu thereof)
shall be irrevocable on and after the related Interest Rate Determination Date,
and Company shall be bound to make a borrowing in accordance therewith.
C. DISBURSEMENT OF FUNDS. All Loans under this Agreement shall be made
by Lenders simultaneously and proportionately to their respective Pro Rata
Shares, it being understood that no Lender shall be responsible for any default
by any other Lender in that other Lender's obligation to make a Loan requested
hereunder nor shall the Commitment of any Lender to make the particular type of
Loan requested be increased or decreased as a result of a default by any other
Lender in that other Lender's obligation to make a Loan requested hereunder.
Promptly after receipt by Agent of a Notice of Borrowing pursuant to subsection
2.1B (or telephonic notice in lieu thereof), Agent shall notify each Lender of
the proposed borrowing. Each Lender shall make the amount of its Loan available
to Agent, in same day funds, at the office of Agent located at One Bankers Trust
Plaza, New York, New York, not later than 3:00 P.M. (New York time) on the
applicable Funding Date. Except as provided in subsection 3.3B with respect to
Revolving Loans used to reimburse any Issuing Lender for the amount of a drawing
under a Letter of Credit issued by it, upon satisfaction or waiver of the
conditions precedent specified in subsections 4.1 (in the case of Loans made on
the Closing Date), 4.4 (in the case of Loans made on any Acquisition Closing
Date) and 4.2 (in the case of all Loans), Agent shall make the proceeds of such
Loans available to Company on the applicable Funding Date by causing an amount
of same day funds equal to the proceeds of all such Loans received by Agent from
Lenders to be credited to the account of Company at the office of Agent
specified in the preceding sentence.
Unless Agent shall have been notified by any Lender prior to the Funding
Date for any Loans that such Lender does not intend to make available to Agent
the amount of such Lender's Loan requested on such Funding Date, Agent may
assume that such Lender has made such amount available to Agent on such Funding
Date and Agent may, in its sole discretion, but shall not be obligated to, make
available to Company a corresponding amount on such Funding Date. If such
corresponding amount is not in fact made available to Agent by such Lender,
Agent shall be entitled to recover such corresponding amount on demand from such
Lender together with interest thereon, for each day from such Funding Date until
the date such amount is paid to Agent, at the customary rate set by Agent for
the
36
correction of errors among banks for three Business Days and thereafter at the
Base Rate. If such Lender does not pay such corresponding amount forthwith upon
Agent's demand therefor, Agent shall promptly notify Company and Company shall
immediately pay such corresponding amount to Agent together with interest
thereon, for each day from such Funding Date until the date such amount is paid
to Agent, at the rate payable under this Agreement for Base Rate Loans. Nothing
in this subsection 2.1C shall be deemed to relieve any Lender from its
obligation to fulfill its Commitments hereunder or to prejudice any rights that
Company may have against any Lender as a result of any default by such Lender
hereunder.
D. NOTES. Company shall execute and deliver to each Lender (or to Agent
for that Lender) on the Closing Date a Revolving Note substantially in the form
of Exhibit V annexed hereto to evidence that Lender's Revolving Loans, in the
---------
principal amount of that Lender's Revolving Loan Commitment and with other
appropriate insertions. Upon the execution and delivery of any Additional
Credit Facility Supplement pursuant to subsection 4.5, Company shall execute and
deliver to each applicable Additional Credit Lender (or to Agent for that
Lender), an Additional Credit Note substantially in the form of Exhibit IV
----------
annexed hereto to evidence that Additional Credit Lender's Additional Credit
Commitment (as set forth in the applicable Additional Credit Facility
Supplement) and with other appropriate insertions.
E. REALLOCATION OF PRO RATA SHARES. On the Closing Date, each Lender
that will have a greater Pro Rata Share upon the Closing Date than its Pro Rata
Share (under and as defined in the Existing Credit Agreement) immediately prior
to the Closing Date (including any Lender not party to the Existing Credit
Agreement immediately prior to the Closing Date) (each a ``PURCHASING LENDER''),
without executing an Assignment Agreement, shall be deemed to have automatically
purchased assignments pro rata from each Departing Lender and each Lender that
will have a smaller Pro Rata Share upon the Closing Date (each a ``SELLING
LENDER'') in all such Selling Lenders' rights and obligations under this
Agreement and the other Loan Documents, including with respect to Revolving Loan
Commitments, the commitments of Lenders to purchase participations in the
Letters of Credit and outstanding Revolving Loans (collectively, except as set
forth below, the ``ASSIGNED RIGHTS AND OBLIGATIONS'') so that, after giving
effect to such assignments, each Lender shall have its respective Pro Rata Share
as set forth in Schedule 2.1 (as adjusted as required under the definition of
------------
Pro Rata Share) of the Assigned Rights and Obligations. Each such purchase
hereunder shall be at par for a purchase price equal to the principal amount of
Loans and without recourse, representation or warranty, except that, each
Selling Lender shall be deemed to represent and warrant to each Purchasing
Lender that the Assigned Rights and Obligations of such Selling Lender are not
subject to any Liens created by that Selling Lender.
Agent shall calculate the net amount to be paid or received by each
Lender in connection with the assignments effected hereunder on the Closing
Date. Each Purchasing Lender required to make a payment shall make the net
amount of its required payment available to Agent, in same day funds, at the
office of Agent located at One
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, not later than 12:00 p.m. (New York
time) on the Closing Date. Agent shall distribute on the Closing Date the
proceeds of such amounts to the Selling Lenders entitled to receive payments,
pro rata in proportion to the amount each Selling Lender is entitled to receive
at the primary address set forth below such Selling Lender's name on the
signature pages hereof or at such other address as such Selling Lender may
request in writing to Agent.
2.2 INTEREST ON THE LOANS.
---------------------
A. RATE OF INTEREST. Subject to the provisions of subsections 2.6 and
2.7, each Additional Credit Loan and each Revolving Loan shall bear interest on
the unpaid principal amount thereof from the date made through maturity (whether
by acceleration or otherwise) at a rate determined by reference to the Base Rate
or the Adjusted Eurodollar Rate, as the case may be. The applicable basis for
determining the rate of interest with respect to any Loan shall be selected by
Company initially at the time a Notice of Borrowing is given with respect to
such Loan pursuant to subsection 2.1B. The basis for determining the interest
rate with respect to any Loan may be changed from time to time pursuant to
subsection 2.2D. If on any day a Loan is outstanding with respect to which
notice has not been delivered to Agent in accordance with the terms of this
Agreement specifying the applicable basis for determining the rate of interest,
then for that day that Loan shall bear interest determined by reference to the
Base Rate.
Subject to the provisions of subsections 2.2E and 2.7, the Loans shall bear
interest through maturity as follows:
(i) if a Base Rate Loan, then at the sum of the Base Rate plus the
----
Applicable Margin in effect from time to time; or
(ii) if a Eurodollar Rate Loan, then at the sum of the Adjusted
Eurodollar Rate plus the Applicable Margin in effect from time to time
----
during the applicable Interest Period.
The Applicable Margin at any time shall be that determined with reference
to the most recent Compliance Certificate delivered to Agent by Company, as set
forth in the definition of ``APPLICABLE MARGIN'', any such change to become
effective on the day following delivery of such Compliance Certificate to Agent;
provided that the Applicable Margin on and as of the Closing Date shall be
determined with reference to the pro forma Compliance Certificate delivered to
--- -----
Agent pursuant to subsection 4.1.
B. INTEREST PERIODS. In connection with each Eurodollar Rate Loan,
Company may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
``INTEREST PERIOD'') to be applicable to such Loan, which Interest Period shall
be, at Company's option, either a one, two, three or six month period, in the
case of a Eurodollar Rate Loan; provided that:
--------
38
(i) the initial Interest Period for any Eurodollar Rate Loan shall
commence on the Funding Date in respect of such Loan, in the case of a Loan
initially made as a Eurodollar Rate Loan, or on the date specified in the
applicable Notice of Conversion/ Continuation, in the case of a Loan
converted to a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods applicable
to a Eurodollar Rate Loan continued as such pursuant to a Notice of
Conversion/Continuation, each successive Interest Period shall commence on
the day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided that, in the case of a Eurodollar Rate
--------
Loan, if any Interest Period would otherwise expire on a day that is not a
Business Day but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(iv) any Interest Period for a Eurodollar Rate Loan that begins on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (v) of this subsection 2.2B, end
on the last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the Loans shall
extend beyond December 31, 2003;
(vi) no Interest Period with respect to any portion of the Revolving
Loans shall extend beyond the date on which a permanent reduction of the
Revolving Loan Commitments is scheduled to occur unless the sum of (a) the
aggregate principal amount of Revolving Loans that are Base Rate Loans plus
----
(b) the aggregate principal amount of Revolving Loans that are Eurodollar
Rate Loans with Interest Periods expiring on or before such date plus (c)
----
the excess of the Revolving Loan Commitments then in effect over the
aggregate principal amount of Revolving Loans then outstanding equals or
exceeds the permanent reduction of the Revolving Loan Commitments that is
scheduled to occur on such date;
(vii) no Interest Period with respect to any portion of any
Additional Credit Loans shall extend beyond the date on which a permanent
reduction of the corresponding Additional Credit Commitments is scheduled
to occur unless the sum of (a) the aggregate principal amount of all
Additional Credit Loans corresponding to such Additional Credit Commitments
that are Base Rate Loans plus (b) the aggregate principal amount of all
----
Additional Credit Loans corresponding to such Additional Credit Commitments
that are Eurodollar Rate Loans with Interest Periods expiring on or before
such date plus (c) the excess of such Additional Credit
----
39
Commitments then in effect over the aggregate principal amount of
Additional Credit Loans corresponding thereto then outstanding equals or
exceeds the permanent reduction of such Additional Credit Commitments that
is scheduled to occur on such date;
(viii) there shall be no more than 10 Interest Periods relating to
Eurodollar Rate Loans or any combination thereof outstanding at any time;
and
(ix) in the event Company fails to specify an Interest Period for any
Eurodollar Rate Loan in the applicable Notice of Borrowing or Notice of
Conversion/Continuation, Company shall be deemed to have selected an
Interest Period of one month.
C. INTEREST PAYMENTS. Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity).
D. CONVERSION OR CONTINUATION. Subject to the provisions of subsection
2.6, Company shall have the option (i) to convert at any time all or any part of
its outstanding Additional Credit Loans or Revolving Loans equal to $1,000,000
and integral multiples of $500,000 in excess of that amount from Loans bearing
interest at a rate determined by reference to one basis to Loans bearing
interest at a rate determined by reference to an alternative basis or (ii) upon
the expiration of any Interest Period applicable to a Eurodollar Rate Loan, to
continue all or any portion of such Loan equal to $1,000,000 and integral
multiples of $500,000 in excess of that amount as a Eurodollar Rate Loan;
provided, however, that a Eurodollar Rate Loan may only be converted into a Base
--------- -------
Rate Loan on the expiration date of an Interest Period applicable thereto; and
provided, further that no Loan may be made as or converted into a Base Rate Loan
-------- -------
during the period from December 24 of any year to and including January 7 of the
immediately succeeding year for the purpose of investing in securities bearing
interest at a rate determined by reference to any other basis for the purpose of
arbitrage or speculation.
Company shall deliver a Notice of Conversion/Continuation to Agent no later
than 11:00 A.M. (New York time) at least one Business Day in advance of the
proposed conversion date (in the case of a conversion to a Base Rate Loan) and
at least three Business Days in advance of the proposed conversion/continuation
date (in the case of a conversion to, or a continuation of, a Eurodollar Rate
Loan). A Notice of Conversion/Continuation shall specify (i) the proposed
conversion/continuation date (which shall be a Business Day), (ii) the amount
and type of the Loan to be converted/continued, (iii) the nature of the proposed
conversion/continuation, (iv) in the case of a conversion to, or a continuation
of, a Eurodollar Rate Loan, the requested Interest Period, and (v) in the case
of a conversion to, or a continuation of, a Eurodollar Rate Loan, that no
Potential Event of Default or Event of Default has occurred and is continuing.
In lieu of delivering the above-described Notice of Conversion/Continuation,
Company may give Agent telephonic
40
notice by the required time of any proposed conversion/continuation under this
subsection 2.2D; provided that such notice shall be promptly confirmed in
--------
writing by delivery of a Notice of Conversion/Continuation to Agent on or before
the proposed conversion/continuation date.
Neither Agent nor any Lender shall incur any liability to Company in acting
upon any telephonic notice referred to above that Agent believes in good faith
to have been given by a duly authorized officer or other person authorized to
act on behalf of Company or for otherwise acting in good faith under this
subsection 2.2D, and upon conversion or continuation of the applicable basis for
determining the interest rate with respect to any Loans in accordance with this
Agreement pursuant to any such telephonic notice Company shall have effected a
conversion or continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice
of Conversion/Continuation for conversion to, or continuation of, a Eurodollar
Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable on and
after the related Interest Rate Determination Date, and Company shall be bound
to effect a conversion or continuation in accordance therewith.
E. DEFAULT RATE. Upon the occurrence and during the continuation of any
Event of Default, the outstanding principal amount of all Loans, any interest
payments thereon not paid when due and any fees and other amounts then due and
payable hereunder, shall thereafter bear interest (including post-petition
interest in any proceeding under the Bankruptcy Code or other applicable
bankruptcy laws) payable upon demand at a rate that is 2% per annum in excess of
the interest rate otherwise payable under this Agreement with respect to the
applicable Loans (or, in the case of any such fees and other amounts, at a rate
which is 2% per annum in excess of the interest rate otherwise payable under
this Agreement for Base Rate Loans); provided that, in the case of Eurodollar
--------
Rate Loans, upon the expiration of the Interest Period in effect at the time any
such increase in interest rate is effective such Eurodollar Rate Loans shall
thereupon become Base Rate Loans and shall thereafter bear interest payable upon
demand at a rate which is 2% per annum in excess of the interest rate otherwise
payable under this Agreement for Base Rate Loans. Payment or acceptance of the
increased rates of interest provided for in this subsection 2.2E is not a
permitted alternative to timely payment and shall not constitute a waiver of any
Event of Default or otherwise prejudice or limit any rights or remedies of Agent
or any Lender.
F. COMPUTATION OF INTEREST. Interest on the Loans shall be computed (i)
in the case of Base Rate Loans, on the basis of a 365-day or 366-day year, as
the case may be, and (ii) in the case of Eurodollar Rate Loans, on the basis of
a 360-day year, in each case for the actual number of days elapsed in the period
during which it accrues. In computing interest on any Loan, the date of the
making of such Loan or the first day of an Interest Period applicable to such
Loan or, with respect to a Base Rate Loan being converted from a Eurodollar Rate
Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate Loan
shall be included, and the date of payment of such Loan or the expiration date
of an Interest Period applicable to such Loan or, with respect to a Base Rate
Loan being
41
converted to a Eurodollar Rate Loan, the date of conversion of such Base Rate
Loan to such Eurodollar Rate Loan shall be excluded; provided that if a Loan is
--------
repaid on the same day on which it is made, one day's interest shall be paid on
that Loan.
2.3 FEES.
----
A. COMMITMENT FEES.
(i) Company agrees to pay to Agent, for distribution to each Lender in
proportion to that Lender's Pro Rata Share, commitment fees for the period
from and including the Closing Date to and excluding the Revolving Loan
Commitment Termination Date equal to (a) the average of the daily excess of
the Revolving Loan Commitments over the sum of (x) the aggregate principal
amount of Revolving Loans outstanding plus (y) the Letter of Credit Usage,
----
multiplied by (b) 1/4 of 1% per annum, such commitment fees to be
-------------
calculated on the basis of a 360-day year and the actual number of days
elapsed and to be payable quarterly in arrears on January 31, April 30,
July 31 and October 31 of each year, commencing on the first such date to
occur after the Closing Date, and on the Revolving Loan Commitment
Termination Date (provided however that such per annum percentage shall be
-------- -------
increased to 3/8 of 1% per annum during any period in which the Leverage
Ratio is greater than 4.00:1.00); and
(ii) Company agrees to pay to Agent, with respect to the Additional
Credit Commitments made under each Additional Credit Facility Supplement,
for distribution to each Additional Credit Lender in proportion to that
Additional Credit Lender's Pro Rata Share, commitment fees for the period
from and including the applicable Additional Credit Closing Date to and
excluding the Revolving Loan Commitment Termination Date (a) the average of
the daily excess of the applicable Additional Credit Commitments over the
aggregate principal amount of Additional Credit Loans outstanding
thereunder, multiplied by (b) 1/4 of 1% per annum, such commitment fees to
-------------
be calculated on the basis of a 360-day year and the actual number of days
elapsed and to be payable quarterly in arrears on January 31, April 30,
July 31 and October 31 of each year, commencing on the first such date to
occur after the applicable Additional Credit Facility Closing Date, and on
the Revolving Loan Commitment Termination Date (provided however that such
-------- -------
per annum percentage shall be increased to 3/8 of 1% per annum during any
period in which the Leverage Ratio is greater than 4.00:1.00).
B. ANNUAL ADMINISTRATIVE FEE. Company agrees to pay to Agent an annual
administrative fee in the amount of $75,000, payable in advance on each
anniversary of the 1993 Closing Date.
C. OTHER FEES. Company agrees to pay to Agent such other fees in the
amounts and at the times separately agreed upon between Company and Agent,
Company agrees to
42
pay to Agent such additional fees at the times and for the purposes as may be
set forth in the Additional Credit Facility Supplements.
2.4 REPAYMENTS, PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN COMMITMENTS;
---------------------------------------------------------------------
GENERAL PROVISIONS REGARDING PAYMENTS.
-------------------------------------
A. SCHEDULED COMMITMENT REDUCTIONS OF REVOLVING LOAN COMMITMENTS AND
ADDITIONAL CREDIT COMMITMENTS. (i) The Revolving Loan Commitments shall be
permanently reduced on the dates and in the amounts set forth below, such that
the Revolving Loan Commitments after such Scheduled Commitment Reductions,
subject to any reductions made theretofore or thereafter pursuant to subsections
2.4B(ii) and 2.4B(iii), shall be as set forth below:
SCHEDULED REVOLVING
DATE REDUCTION COMMITMENT
AMOUNT (SUBJECT TO 2.4B(II)
AND
2.4B(III))
============================================================
December 31, 1998 $ 5,000,000 $195,000,000
March 31, 1999 $ 5,000,000 $190,000,000
June 30, 1999 $ 5,000,000 $185,000,000
September 30, 1999 $ 5,000,000 $180,000,000
December 31, 1999 $ 5,000,000 $175,000,000
March 31, 2000 $ 7,500,000 $167,500,000
June 30, 2000 $ 7,500,000 $160,000,000
September 30, 2000 $ 7,500,000 $152,500,000
December 31, 2000 $ 7,500,000 $145,000,000
March 31, 2001 $ 7,500,000 $137,500,000
June 30, 2001 $ 12,500,000 $125,000,000
September 30, 2001 $ 12,500,000 $112,500,000
December 31, 2001 $ 12,500,000 $100,000,000
March 31, 2002 $ 12,500,000 $ 87,500,000
June 30, 2002 $ 12,500,000 $ 75,000,000
September 30, 2002 $ 12,500,000 $ 62,500,000
December 31, 2002 $ 12,500,000 $ 50,000,000
March 31, 2003 $ 12,500,000 $ 37,500,000
June 30, 2003 $ 12,500,000 $ 25,000,000
September 30, 2003 $ 12,500,000 $ 12,500,000
43
SCHEDULED REVOLVING
DATE REDUCTION COMMITMENT
AMOUNT (SUBJECT TO 2.4B(II)
AND
2.4B(III))
============================================================
December 31, 2003 $ 12,500,000 $0
Total $200,000,000
============================================================
; provided that the scheduled reductions of the Revolving Loan Commitments
--------
set forth above shall be reduced in connection with any voluntary or
mandatory reductions of the Revolving Loan Commitments in accordance with
subsection 2.4B(iv).
(ii) Scheduled Reductions of Additional Credit Commitments. From and
-----------------------------------------------------
after each Additional Credit Closing Date, the Additional Credit
Commitments which become effective on such date shall be permanently
reduced on the dates, commencing March 31, 2001, and in the amounts set
forth on Schedule B to the applicable Additional Credit Facility
Supplement, to be calculated by the Agent such that on March 31, 2001, and
each June 30, September 30, December 31 and March 31 thereafter, to and
including the Revolving Loan Termination Date, a permanent reduction of the
applicable Additional Credit Commitments shall be made in an amount equal
to one-twelfth of the initial aggregate amount of such Additional Credit
Commitments; provided that such scheduled reductions of the Additional
--------
Credit Commitments shall be reduced in connection with any voluntary or
mandatory reductions of the Additional Credit Commitments in accordance
with subsection 2.4B(iv) and the applicable Additional Credit Facility
Supplement.
B. PREPAYMENTS AND UNSCHEDULED REDUCTIONS IN COMMITMENTS.
(i) Voluntary Prepayments.
---------------------
(a) Company may, upon not less than one Business Day's prior
written or telephonic notice, in the case of Base Rate Loans, and
three Business Days' prior written or telephonic notice, in the case
of Eurodollar Rate Loans, in each case confirmed in writing to Agent
(which notice Agent will promptly transmit by facsimile, telegram,
telex or telephone to each Lender), at any time and from time to time
prepay any Loans on any Business Day in whole or in part in an
aggregate minimum amount of $250,000 and integral multiples of
$250,000 in excess of that amount; provided, however, that if Company
-------- -------
prepays a Eurodollar Rate Loan other than on the expiration of the
Interest Period applicable thereto Company shall compensate Lenders
for all reasonable losses, expenses and liabilities in accordance with
subsection 2.6D. Notice of prepayment having been given as aforesaid,
the principal amount of the Loans specified in such notice shall
become due and payable on the
44
prepayment date specified therein. Any such voluntary prepayment
shall be applied as specified in subsection 2.4B(iv).
(b) In the event Company is entitled to replace a non-consenting
Lender pursuant to subsection 10.6B, Company shall have the right,
upon five Business Days' prior written notice to Agent (which notice
Agent shall promptly transmit to each of the Lenders), to prepay all
Loans, together with accrued and unpaid interest, fees and other
amounts owing to such Lender in accordance with subsection 10.6B so
long as (1) in the case of the prepayment of the Revolving Loans of
any Lender pursuant to this subsection 2.4B(i)(b), the Revolving Loan
Commitment of such Lender is terminated concurrently with such
prepayment pursuant to subsection 2.4B(ii)(c) (at which time Schedule
--------
2.1 shall be deemed modified to reflect the changed Revolving Loan
---
Commitments), (2) in the case of the prepayment of the Additional
Credit Loans of any Lender pursuant to this subsection 2.4B(i)(b), the
Additional Credit Commitments of such Lender are terminated
concurrently with such prepayment pursuant to subsection 2.4B(ii)(c)
(at which time Schedule A to the applicable Additional Credit Facility
Supplements shall be deemed modified to reflect the changed Additional
Credit Commitments), and (3) in the case of the prepayment of the
Loans of any Lender, the consents required by subsection 10.6B in
connection with the prepayment pursuant to this subsection 2.4B(i)(b)
shall have been obtained, and at such time, such Lender shall no
longer constitute a ``Lender'' for purposes of this Agreement, except
with respect to indemnifications under this Agreement (including,
without limitation, subsections 2.6D, 2.7, 3.5, 3.6, 5.12, 10.3 and
10.4), which shall survive as to such Lender.
(ii) Voluntary Reductions of Commitments. Company may, upon not less
-----------------------------------
than one Business Day prior written or telephonic notice confirmed in
writing to Agent (which notice Agent will promptly transmit by facsimile,
telegram, telex or telephone to each Lender),
(a) at any time and from time to time terminate in whole or
permanently reduce in part, without premium or penalty, the Revolving
Loan Commitments in an amount up to the amount by which the Revolving
Loan Commitments exceeds the Total Utilization of Revolving Loan
Commitments at the time of such proposed termination or reduction
after giving effect to any payments or prepayments made on the date of
such termination or reduction; provided that any such partial
--------
reduction of the Revolving Loan Commitments shall be in an aggregate
minimum amount of $250,000 and integral multiples of $250,000 in
excess of that amount. Company's notice to Agent shall designate the
date (which shall be a Business Day) of such termination or reduction
and the amount of any partial reduction, and such termination or
reduction of the Revolving Loan Commitments shall be effective on the
date specified in Company's notice and shall reduce the
45
Revolving Loan Commitment of each Lender proportionately to its Pro
Rata Share; and provided, further, that if the reduction in Revolving
-------- -------
Loan Commitments will be accompanied by a repayment of any Eurodollar
Rate Loans pursuant to subsection 2.4B(iii)(b), then Company shall
have given three Business Days' prior written notice to Agent; and
(b) at any time and from time to time after each Additional
Credit Closing Date, terminate in whole or permanently reduce in part,
without premium or penalty, any Additional Credit Commitments in an
amount up to the amount by which the Additional Credit Commitments
exceeds the aggregate amount of Additional Credit Loans outstanding at
the time of such proposed termination or reduction after giving effect
to any payments or prepayments made on the date of such termination or
reduction; provided that any such partial reduction of the Additional
--------
Credit Commitments shall be in an aggregate minimum amount of $250,000
and integral multiples of $250,000 in excess of that amount.
Company's notice to Agent shall designate the date (which shall be a
Business Day) of such termination or reduction and the amount of any
partial reduction and the Additional Credit Commitment(s) which are to
be so terminated or reduced, and such termination or reduction of the
Additional Credit Commitments shall be effective on the date specified
in Company's notice and shall reduce such Additional Credit Commitment
of each Additional Credit Lender proportionately to its Pro Rata
Share; and provided, further, that if the reduction in Additional
-------- -------
Credit Commitments will be accompanied by a repayment of any
Eurodollar Rate Loans pursuant to subsection 2.4B(iii)(b), then
Company shall have given three Business Days' prior written notice to
Agent.
(c) In the event Company is entitled to replace a non-consenting
Lender pursuant to subsection 10.6B, Company shall have the right,
upon five Business Days' written notice to Agent (which notice Agent
shall promptly transmit to each of the Lenders), to terminate the
entire Revolving Loan Commitment and Additional Credit Commitments of
such Lender, so long as (1) all Loans, together with accrued and
unpaid interest, fees and other amounts owing to such Lender are
repaid, including without limitation amounts owing to such Lender
pursuant to subsection 2.6D, pursuant to subsection 2.4B(i)(b)
concurrently with the effectiveness of such termination (at which time
Schedule 2.1 and Schedule A to any applicable Additional Credit
------------
Facility Supplement shall be deemed modified to reflect such changed
amounts) and (2) the consents required by subsection 10.6B in
connection with the prepayment pursuant to subsection 2.4B(i)(b) shall
have been obtained, and at such time, such Lender shall no longer
constitute a ``Lender'' for purposes of this Agreement, except with
respect to indemnifications under this Agreement (including, without
limitation, subsections 2.6D, 2.7, 3.5, 3.6, 5.12, 10.3 and 10.4),
which shall survive as to such Lender.
46
(iii) Mandatory Prepayments and Mandatory Reductions of Commitments.
-------------------------------------------------------------
The Loans shall be prepaid and/or the Commitments shall be permanently
reduced in the amounts and under the circumstances set forth below, all
such prepayments and/or reductions to be applied as set forth below or as
more specifically provided in subsection 2.4B(iv):
(a) Prepayments and Reductions from Asset Sales. No later than
-------------------------------------------
the second Business Day following the date of receipt by Company or
any of its Subsidiaries of Cash Proceeds of any Asset Sale, Company
shall prepay the Loans in an amount equal to the Net Cash Proceeds of
such Asset Sale and, to the extent the Net Cash Proceeds of such Asset
Sale exceed the sum of (i) the aggregate outstanding principal amount
of the Loans and (ii) that portion of the amount set forth in clause
(3) below not theretofore counted towards any other Asset Sale
hereunder, Company shall deposit and maintain such Net Cash Proceeds
in a collateral account established pursuant to documentation
reasonably satisfactory to Agent as Collateral for the Obligations;
provided that such Net Cash Proceeds shall be released at the request
--------
of Company, (A) to the extent required to pay the purchase price of
any Acquisition permitted by subsection 7.7(vi), (B) to repurchase or
to redeem subordinated Indebtedness pursuant to subsection 7.5(i) and
(C) after one year to Company, to the extent not required to be
applied to the prepayment of the Loans in accordance with this clause.
No later than 240 days following the date of receipt by Company or any
of its Subsidiaries of Cash Proceeds of any Asset Sale, Company shall
(x) reduce the Commitments in an amount equal to the excess of the Net
Cash Proceeds of such Asset Sale over the sum of (1) the purchase
price of any Acquisition consummated within either (a) 120 days prior
to the consummation of such Asset Sale (provided that such Acquisition
was not financed with the proceeds of any Loans or Additional
Subordinated Indebtedness) or (b) 240 days following the date of such
Asset Sale, (2) the aggregate amount of repurchases or redemptions of
Subordinated Indebtedness pursuant to subsection 7.5(i) during such
360 day period and (3) $10,000,000, to the extent that such Net Cash
Proceeds may, to the reasonable satisfaction of Agent, be so applied
to the purchase price of such Acquisition or otherwise pursuant to the
Related Documents without requiring the purchase, redemption or
prepayment of Subordinated Indebtedness not expressly permitted
hereunder (such amount, the ``ASSET SALE PREPAYMENT AMOUNT'');
provided, that for purposes of calculating the Asset Sale Prepayment
--------
Amount for any Asset Sale, any Asset Sales or redemptions or
repurchases or portion of the amount set forth in clause (3) above
included in calculating the Asset Sale Prepayment Amount or the
Subordinated Debt Prepayment Amount in respect of any other Asset Sale
or any issuance of Additional Subordinated Indebtedness shall be
excluded from the foregoing clauses (1), (2) and (3), as applicable,
and (y) prepay the Loans to the extent required under subsection
2.4B(iii)(b) as a result of such reduction in the Commitments.
Concurrently with any prepayment of the Loans and/or
47
reduction of the Commitments pursuant to this subsection 2.4B(iii)(a),
Company shall deliver to Agent an Officers' Certificate demonstrating
the derivation of the Net Cash Proceeds of the correlative Asset Sale
from the gross sales price thereof and the calculation of the Asset
Sale Prepayment Amount. In the event that Company shall, at any time
after receipt of Cash Proceeds of any Asset Sale requiring a
prepayment and/or a reduction of Commitments pursuant to this
subsection 2.4B(iii)(a), determine that the prepayments and/or
reductions of the Revolving Loan Commitments previously made in
respect of such Asset Sale were in an aggregate amount less than that
required by the terms of this subsection 2.4B(iii)(a), Company shall
promptly make an additional prepayment of the Loans (and, if
applicable, the Commitments shall be permanently reduced), in the
manner described above in an amount equal to the amount of any such
deficit, and Company shall concurrently therewith deliver to Agent an
Officers' Certificate demonstrating the derivation of the additional
Net Cash Proceeds resulting in such deficit.
(b) Prepayments Due to Reductions or Restrictions of Revolving
----------------------------------------------------------
Loan Commitments and Additional Credit Commitments. Company shall
--------------------------------------------------
from time to time prepay (1) the Revolving Loans to the extent
necessary to give effect to the limitations set forth in the second
paragraph of subsection 2.1A(i) and (2) the Additional Credit Loans to
the extent necessary to give effect to the limitations set forth in
the second paragraph of subsection 2.1A(ii).
(c) Prepayments and Reductions Due to Issuance of Additional
--------------------------------------------------------
Subordinated Indebtedness. On the date of receipt by Company of any
-------------------------
proceeds of Additional Subordinated Indebtedness, if (x) the ratio of
Consolidated Total Debt to Consolidated Broadcast Cash Flow then
exceeds 4.50:1.00 and gross proceeds from such Additional Subordinated
Indebtedness exceed $25,000,000, then (y) Company shall reduce the
Commitments in an amount equal to the excess of the Net Debt Proceeds
of such Additional Subordinated Indebtedness over the sum of (1) the
purchase price of any Acquisition consummated substantially
concurrently with the issuance of such Additional Subordinated
Indebtedness, to the extent the proceeds of such Additional
Subordinated Indebtedness were applied thereto and (2) the aggregate
amount of such net proceeds applied to refinance or repurchase any
other Subordinated Indebtedness pursuant to subsection 7.5(i) (such
amount, the ``SUBORDINATED DEBT PREPAYMENT AMOUNT'') and prepay the
Loans to the extent required under subsection 2.4B(iii)(b) as a result
of such reduction in the Commitments. Concurrently with any
prepayment of the Loans and/or reduction of the Commitments pursuant
to this subsection 2.4B(iii)(c), Company shall deliver to Agent an
Officers' Certificate demonstrating the derivation of the Net Debt
Proceeds of the correlative issuance of Additional
48
Subordinated Indebtedness from the gross sales price thereof and the
calculation of the Subordinated Debt Repayment Amount.
(iv) Application of Prepayments and Unscheduled Reductions of
--------------------------------------------------------
Revolving Loan Commitments and Additional Credit Commitments.
------------------------------------------------------------
(a) Application of Voluntary Prepayments by Type of Loans and
---------------------------------------------------------
Order of Maturity. Any voluntary prepayments pursuant to subsection
-----------------
2.4B(i) shall be applied as specified by Company in the applicable
notice of prepayment; provided that in the event Company fails to
--------
specify the Loans to which any such prepayment shall be applied, such
prepayment shall be applied first to repay outstanding Revolving Loans
-----
and Additional Credit Loans on a pro rata basis to the full extent
thereof and second to cash collateralize any outstanding Letters of
------
Credit.
(b) Application of Prepayments to Base Rate Loans and Eurodollar
------------------------------------------------------------
Rate Loans. Considering Additional Credit Loans and Revolving Loans
----------
being prepaid separately, any prepayment thereof shall be applied
first to Base Rate Loans to the full extent thereof before application
to Eurodollar Rate Loans, in each case in a manner which minimizes the
amount of any payments required to be made by Company pursuant to
subsection 2.6D.
(c) Application of Mandatory Prepayments by Type of Loans. Any
-----------------------------------------------------
amount required to be applied as a mandatory prepayment of the Loans
and/or a reduction of the Commitments pursuant to subsections
2.4B(iii)(a)-(c) shall be applied first to permanently reduce the
-----
Additional Credit Commitments and Revolving Loan Commitments on a pro
rata basis and then, to the extent that the Revolving Loan Commitments
are less than the Letter of Credit Usage, cash collateralize Letters
of Credit outstanding.
(d) Application of Unscheduled Reductions of Revolving Loan
-------------------------------------------------------
Commitments. Any voluntary reduction of the Revolving Loan
-----------
Commitments pursuant to subsection 2.4B(ii) shall be applied to reduce
on a pro rata basis the scheduled reductions of the Revolving Loan
Commitments set forth in subsection 2.4A(i). Any mandatory reduction
of the Revolving Loan Commitments pursuant to subsection 2.4B(iii)
shall be applied on a pro rata basis (in accordance with the
respective outstanding principal amounts thereof) to each scheduled
reduction of the Revolving Loan Commitments set forth in subsection
2.4A(i) that is remaining at the time of such mandatory reduction.
(e) Application of Unscheduled Reductions of Additional Credit
----------------------------------------------------------
Commitments. Any voluntary reduction of the Additional Credit
-----------
Commitments pursuant to subsection 2.4B(ii) shall be applied on a pro
rata basis to reduce the scheduled reductions of the Additional Credit
Commitments set
49
forth in subsection 2.4A(ii). Any mandatory reduction of the
Additional Credit Commitments pursuant to subsection 2.4B(iii) shall
be applied on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof) to each scheduled reduction of
the Additional Credit Commitments referred to in subsection 2.4A(ii)
that is remaining at the time of such mandatory reduction.
C. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) Manner and Time of Payment. All payments by Company of principal,
--------------------------
interest, fees and other Obligations hereunder and under the Notes shall be
made in same day funds and without defense, setoff or counterclaim, free of
any restriction or condition, and delivered to Agent not later than 12:00
Noon (New York time) on the date due at its office located at One Bankers
Trust Plaza, New York, New York, for the account of Lenders; funds received
by Agent after that time on such due date shall be deemed to have been paid
by Company on the next succeeding Business Day. Company hereby authorizes
Agent (upon concurrent notice to Company) to charge its accounts with Agent
in order to cause timely payment to be made to Agent of all principal,
interest, fees and expenses due hereunder (subject to sufficient funds
being available in its accounts for that purpose); provided, however, that
-------- -------
the failure by Agent to provide such concurrent notice as set forth above
shall not limit or otherwise affect Agent's ability or authority to charge
Company's account hereunder.
(ii) Application of Payments to Principal and Interest. All payments
-------------------------------------------------
in respect of the principal amount of any Loan shall include payment of
accrued interest on the principal amount being repaid or prepaid, and all
such payments shall be applied to the payment of interest before
application to principal.
(iii) Apportionment of Payments. Aggregate principal and interest
-------------------------
payments shall be apportioned among all outstanding Loans to which such
payments relate, in each case proportionately to Lenders' respective Pro
Rata Shares. Agent shall promptly distribute to each Lender, at its
primary address set forth below its name on the appropriate signature page
hereof or at such other address as such Lender may request, its Pro Rata
Share of all such payments received by Agent and the commitment fees of
such Lender when received by Agent pursuant to subsection 2.3.
Notwithstanding the foregoing provisions of this subsection 2.4C(iii), if,
pursuant to the provisions of subsection 2.6C, any Notice of
Conversion/Continuation is withdrawn as to any Affected Lender or if any
Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any
Eurodollar Rate Loans, Agent shall give effect thereto in apportioning
payments received thereafter.
(iv) Payments on Business Days. Whenever any payment to be made
-------------------------
hereunder shall be stated to be due on a day that is not a Business Day,
such payment shall be made on the next succeeding Business Day and such
extension of
50
time shall be included in the computation of the payment of interest
hereunder or of the commitment fees hereunder, as the case may be.
(v) Notation of Payment. Each Lender agrees that before disposing of
-------------------
any Note held by it, or any part thereof (other than by granting
participations therein), that Lender will make a notation thereon of all
Loans evidenced by that Note and all principal payments previously made
thereon and of the date to which interest thereon has been paid; provided
--------
that the failure to make (or any error in the making of) a notation of any
Loan made under such Note shall not limit or otherwise affect the
obligations of Company hereunder or under such Note with respect to any
Loan or any payments of principal or interest on such Note.
2.5 USE OF PROCEEDS.
---------------
A. ADDITIONAL CREDIT LOANS AND REVOLVING LOANS. The proceeds of the
Additional Credit Loans and Revolving Loans shall be applied by Company for (i)
working capital and other general corporate purposes, (ii) the repurchase or
purchase of Subordinated Notes or New Subordinated Notes in accordance with the
provisions of subsection 7.5(i), (iii) the making of Investments in accordance
with subsection 7.3 hereof and (iv) the making of Acquisitions in accordance
with the provisions of subsection 7.7(vi) hereof.
B. MARGIN REGULATIONS. No portion of the proceeds of any borrowing under
this Agreement shall be used by Company or any of its Subsidiaries in any manner
that might cause the borrowing or the application of such proceeds to violate
Regulation G, Regulation U, Regulation T or Regulation X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board or
to violate the Exchange Act, in each case as in effect on the date or dates of
such borrowing and such use of proceeds.
2.6 SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS.
--------------------------------------------------
Notwithstanding any other provision of this Agreement to the contrary, the
following provisions shall govern with respect to Eurodollar Rate Loans as to
the matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as practicable
after 10:00 A.M. (New York time) on each Interest Rate Determination Date, Agent
shall determine (which determination shall, absent manifest error, be final,
conclusive and binding upon all parties) the interest rate that shall apply to
the Eurodollar Rate Loans for which an interest rate is then being determined
for the applicable Interest Period and shall promptly give notice thereof (in
writing or by telephone confirmed in writing) to Company and each Lender.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the event that
Agent shall have determined (which determination shall be final and conclusive
and binding upon all parties hereto), on any Interest Rate Determination Date
with respect to any Eurodollar Rate Loans, that by reason of circumstances
affecting the interbank Eurodollar market,
51
adequate and fair means do not exist for ascertaining the interest rate
applicable to such Loans on the basis provided for in the definition of Adjusted
Eurodollar Rate, Agent shall on such date give notice (by telecopy or by
telephone confirmed in writing) to Company and each Lender of such
determination, whereupon (i) no Loans may be made as, or converted to,
Eurodollar Rate Loans until such time as Agent notifies Company and Lenders that
the circumstances giving rise to such notice no longer exist and (ii) any Notice
of Borrowing or Notice of Conversion/Continuation given by Company with respect
to the Loans in respect of which such determination was made shall be deemed to
be rescinded by Company.
C. ILLEGALITY OR IMPRACTICABILITY OF EURODOLLAR RATE LOANS. In the event
that on any date any Lender shall have determined (which determination shall be
final and conclusive and binding upon all parties hereto but shall be made only
after consultation with Company and Agent) that the making, maintaining or
continuation of its Eurodollar Rate Loans (i) has become unlawful as a result of
compliance by such Lender in good faith with any law, treaty, governmental rule,
regulation, guideline or order (or would conflict with any such treaty,
governmental rule, regulation, guideline or order not having the force of law
even though the failure to comply therewith would not be unlawful) or (ii) has
become impracticable, or would cause such Lender material hardship, as a result
of contingencies occurring after the date of this Agreement which materially and
adversely affect the interbank Eurodollar market or the position of such Lender
in that market, then, and in any such event, such Lender shall be an ``AFFECTED
LENDER'' and it shall on that day give notice (by telecopy or by telephone
confirmed in writing) to Company and Agent of such determination (which notice
Agent shall promptly transmit to each other Lender). Thereafter (a) the
obligation of the Affected Lender to make Loans as, or to convert Loans to,
Eurodollar Rate Loans shall be suspended until such notice shall be withdrawn by
the Affected Lender, (b) to the extent such determination by the Affected Lender
relates to a Eurodollar Rate Loan then being requested by Company pursuant to a
Notice of Borrowing or a Notice of Conversion/Continuation, the Affected Lender
shall make such Loan as (or convert such Loan to, as the case may be) a Base
Rate Loan, (c) the Affected Lender's obligation to maintain its outstanding
Eurodollar Rate Loans, as the case may be (the ``AFFECTED LOANS''), shall be
terminated at the earlier to occur of the expiration of the Interest Period then
in effect with respect to the Affected Loans or when required by law, and (d)
the Affected Loans shall automatically convert into Base Rate Loans on the date
of such termination. Notwithstanding the foregoing, to the extent a
determination by an Affected Lender as described above relates to a Eurodollar
Rate Loan then being requested by Company pursuant to a Notice of Borrowing or a
Notice of Conversion/Continuation, Company shall have the option, subject to the
provisions of subsection 2.6D, to rescind such Notice of Borrowing or Notice of
Conversion/Continuation as to all Lenders by giving notice (by telecopy or by
telephone confirmed in writing) to Agent of such rescission on the date on which
the Affected Lender gives notice of its determination as described above (which
notice of rescission Agent shall promptly transmit to each other Lender).
Except as provided in the immediately preceding sentence, nothing in this
subsection 2.6C shall affect the obligation of any Lender other than an Affected
Lender to make or maintain Loans as, or to convert Loans to, Eurodollar Rate
Loans in accordance with the terms of this Agreement.
52
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST PERIODS.
Company shall compensate each Lender, upon written request by that Lender (which
request shall set forth the basis for requesting such amounts), for all
reasonable losses, expenses and liabilities (including, without limitation, any
interest paid by that Lender to lenders of funds borrowed by it to make or carry
its Eurodollar Rate Loans and any loss, expense or liability sustained by that
Lender in connection with the liquidation or re-employment of such funds) which
that Lender may sustain: (i) if for any reason (other than a default by that
Lender) a borrowing of any Eurodollar Rate Loan does not occur on a date
specified therefor in a Notice of Borrowing or a telephonic request for
borrowing, or a conversion to or continuation of any Eurodollar Rate Loan does
not occur on a date specified therefor in a Notice of Conversion/Continuation or
a telephonic request for conversion or continuation, (ii) if any prepayment or
conversion of any of its Eurodollar Rate Loans occurs on a date that is not the
last day of an Interest Period applicable to that Loan, (iii) if any prepayment
of any of its Eurodollar Rate Loans is not made on any date specified in a
notice of prepayment given by Company, or (iv) as a consequence of any other
default by Company in the repayment of its Eurodollar Rate Loans when required
by the terms of this Agreement.
E. BOOKING OF EURODOLLAR RATE LOANS. Any Lender may make, carry or
transfer Eurodollar Rate Loans at, to, or for the account of any of its branch
offices or the office of an Affiliate of that Lender.
F. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR RATE LOANS. Calculation
of all amounts payable to a Lender under this subsection 2.6 and under
subsection 2.7A shall be made as though that Lender had actually funded each of
its relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit
bearing interest at the rate obtained pursuant to clause (i) of the definition
of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar
Rate Loan and having a maturity comparable to the relevant Interest Period and
through the transfer of such Eurodollar deposit from an offshore office of that
Lender to a domestic office of that Lender in the United States of America;
provided, however, that each Lender may fund each of its Eurodollar Rate Loans
-------- -------
in any manner it sees fit and the foregoing assumptions shall be utilized only
for the purposes of calculating amounts payable under this subsection 2.6 and
under subsection 2.7A.
G. EURODOLLAR RATE LOANS AFTER DEFAULT. After the occurrence of and
during the continuation of a Potential Event of Default or an Event of Default,
(i) Company may not elect to have a Loan be made or maintained as, or converted
to, a Eurodollar Rate Loan after the expiration of any Interest Period then in
effect for that Loan and (ii) subject to the provisions of subsection 2.6D, any
Notice of Borrowing or Notice of Conversion/Continuation given by Company with
respect to a requested borrowing or conversion/continuation that has not yet
occurred shall be deemed to be rescinded by Company.
53
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
----------------------------------------
A. COMPENSATION FOR INCREASED COSTS AND TAXES. Subject to the provisions
of subsection 2.7B, in the event that any Lender shall determine (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) that any law, treaty or governmental rule, regulation
or order, or any change therein or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a court or
governmental authority, in each case that becomes effective after the date
hereof, or compliance by such Lender with any guideline, request or directive
issued or made after the date hereof by any central bank or other governmental
or quasi-governmental authority (whether or not having the force of law):
(i) subjects such Lender (or its applicable lending office) to any
additional Tax (other than any Tax on the overall net income of such
Lender) with respect to this Agreement or any of its obligations hereunder
or any payments to such Lender (or its applicable lending office) of
principal, interest, fees or any other amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve (including
without limitation any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement against assets held by, or deposits or other liabilities in or
for the account of, or advances or loans by, or other credit extended by,
or any other acquisition of funds by, any office of such Lender (other than
any such reserve or other requirements with respect to Eurodollar Rate
Loans that are reflected in the definition of Adjusted Eurodollar Rate, as
the case may be); or
(iii) imposes any other condition (other than with respect to a Tax
matter) on or affecting such Lender (or its applicable lending office) or
its obligations hereunder, the interbank Eurodollar market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Loans hereunder or to reduce any amount
received or receivable by such Lender (or its applicable lending office) with
respect thereto; then, in any such case, Company shall promptly pay to such
Lender, upon receipt of the statement referred to in the next sentence, such
additional amount or amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as may be necessary to compensate such Lender
for any such increased cost or reduction in amounts received or receivable
hereunder. Such Lender shall deliver to Company (with a copy to Agent) a
written statement, setting forth in reasonable detail the basis for calculating
the additional amounts owed to such Lender under this subsection 2.7A, which
statement shall be conclusive and binding upon all parties hereto absent
manifest error.
54
B. WITHHOLDING OF TAXES.
(i) Payments to Be Free and Clear. All sums payable by Company under
-----------------------------
this Agreement and the other Loan Documents shall be paid free and clear of
and (except to the extent required by law) without any deduction or
withholding on account of any Tax (other than a Tax on the overall net
income of any Lender) imposed, levied, collected, withheld or assessed by
or within the United States of America or any political subdivision in or
of the United States of America or any other jurisdiction from or to which
a payment is made by or on behalf of Company or by any federation or
organization of which the United States of America or any such jurisdiction
is a member at the time of payment.
(ii) Grossing-up of Payments. If Company or any other Person is
-----------------------
required by law to make any deduction or withholding on account of any such
Tax from any sum paid or payable by Company to Agent or any Lender under
any of the Loan Documents:
(a) Company shall notify Agent of any such requirement or any
change in any such requirement as soon as Company becomes aware of it;
(b) Company shall pay any such Tax before the date on which
penalties attach thereto, such payment to be made (if the liability to
pay is imposed on Company) for its own account or (if that liability
is imposed on Agent or such Lender, as the case may be) on behalf of
and in the name of Agent or such Lender;
(c) the sum payable by Company in respect of which the relevant
deduction, withholding or payment is required shall be increased to
the extent necessary to ensure that, after the making of that
deduction, withholding or payment, Agent or such Lender, as the case
may be, receives on the due date a net sum equal to what it would have
received had no such deduction, withholding or payment been required
or made; and
(d) within 30 days after paying any sum from which it is required
by law to make any deduction or withholding, and within 30 days after
the due date of payment of any Tax which it is required by clause (b)
above to pay, Company shall deliver to Agent evidence satisfactory to
the other affected parties of such deduction, withholding or payment
and of the remittance thereof to the relevant taxing or other
authority.
(iii) U.S. Tax Certificates. Each Lender that is organized under the
---------------------
laws of any jurisdiction other than the United States or any state or other
political subdivision thereof shall deliver to Agent for transmission to
Company, on or prior to the Closing Date (in the case of each Lender listed
on the signature pages hereof) or on the date of the Assignment and
Acceptance pursuant to which it becomes a
55
Lender (in the case of each other Lender), and at such other times as may
be necessary in the determination of Company or Agent (each in the
reasonable exercise of its discretion), such certificates, documents or
other evidence, properly completed and duly executed by such Lender
(including, without limitation, Internal Revenue Service Form 1001 or Form
4224 or any other certificate or statement of exemption required by
Treasury Regulations Section 1.1441-4(a) or Section 1.1441-6(c) or any
successor thereto) to establish that such Lender is not subject to
deduction or withholding of United States federal income tax under Section
1441 or 1442 of the Internal Revenue Code or otherwise (or under any
comparable provisions of any successor statute) with respect to any
payments to such Lender of principal, interest, fees or other amounts
payable under any of the Loan Documents. Company shall not be required to
pay any additional amount to any such Lender under clause (c) of subsection
2.7B(ii) if such Lender shall have failed to satisfy the requirements of
the immediately preceding sentence; provided that if such Lender shall have
--------
satisfied such requirements on the Closing Date (in the case of each Lender
listed on the signature pages hereof) or on the date of the Assignment and
Acceptance pursuant to which it became a Lender (in the case of each other
Lender), nothing in this subsection 2.7B(iii) shall relieve Company of its
obligation to pay any additional amounts pursuant to clause (c) of
subsection 2.7B(ii) in the event that, as a result of any change in
applicable law, such Lender is no longer properly entitled to deliver
certificates, documents or other evidence at a subsequent date establishing
the fact that such Lender is not subject to withholding as described in the
immediately preceding sentence.
(iv) Replacement of Lenders Under Certain Circumstances. Each Lender
--------------------------------------------------
hereby severally agrees that, if no Event of Default or Potential Event of
Default then exists, Company shall have the right to replace any Lender
with a successor Lender hereunder (each such successor Lender, a
``SUCCESSOR LENDER'') if, as a result of the application of the provisions
of subsection 2.7B (including the proviso to subsection 2.7B(iii)), Company
is required to pay additional amounts to such Lender pursuant to subsection
2.7B(ii) while not required to pay such additional amounts generally with
respect to all Lenders; provided that each Successor Lender (i) must be
--------
acceptable to Agent in its sole discretion, (ii) must become a Lender
hereunder pursuant to Section 10.1 hereof and (iii) must purchase for cash
without recourse the respective replaced Lender's interest in the
obligations of Company to such Lender in the aggregate unpaid principal
amount of, and accrued interest on, such Lender's Loans and fees and any
other amount owing hereunder. Notwithstanding the foregoing, Company shall
not have any right to replace Bankers as a Lender pursuant to this clause
(iv).
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have determined that
the adoption, effectiveness, phase-in or applicability of any law, rule or
regulation (or any provision thereof) regarding capital adequacy, or any change
therein or 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
56
its applicable lending office) with any guideline, request or directive
regarding capital adequacy (whether or not having the force of law) of any such
governmental authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to,
such Lender's Loans or Commitments or Letters of Credit or participations
therein or other obligations hereunder with respect to the Loans or the Letters
of Credit to a level below that which such Lender or such controlling
corporation could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of
such Lender or such controlling corporation with regard to capital adequacy),
then from time to time, within five Business Days after receipt by Company from
such Lender of the statement referred to in the next sentence, Company shall pay
to such Lender such additional amount or amounts as will compensate such Lender
or such controlling corporation on an after-tax basis for such reduction. Such
Lender shall deliver to Company (with a copy to Agent) a written statement,
setting forth in reasonable detail the basis of the calculation of such
additional amounts, which statement shall be conclusive and binding upon all
parties hereto absent manifest error.
2.8 OBLIGATION OF LENDERS AND ISSUING LENDERS TO MITIGATE.
-----------------------------------------------------
Each Lender and Issuing Lender agrees that, as promptly as practicable
after the officer of such Lender or Issuing Lender responsible for administering
the Loans or Letters of Credit of such Lender or Issuing Lender, as the case may
be, becomes aware of the occurrence of an event or the existence of a condition
that would cause such Lender to become an Affected Lender or that would entitle
such Lender or Issuing Lender to receive payments under subsection 2.7 or
subsection 3.6, it will, to the extent not inconsistent with the internal
policies of such Lender or Issuing Lender and any applicable legal or regulatory
restrictions, use reasonable efforts (i) to make, issue, fund or maintain the
Commitments of such Lender or the affected Loans or Letters of Credit of such
Lender or Issuing Lender through another lending or letter of credit office of
such Lender or Issuing Lender, or (ii) take such other measures as such Lender
or Issuing Lender may deem reasonable, if as a result thereof the circumstances
which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such
Lender or Issuing Lender pursuant to subsection 2.7 or subsection 3.6 would be
materially reduced and if, as determined by such Lender or Issuing Lender in its
sole discretion, the making, issuing, funding or maintaining of such Commitments
or Loans or Letters of Credit through such other lending or letter of credit
office or in accordance with such other measures, as the case may be, would not
otherwise materially adversely affect such Commitments or Loans or Letters of
Credit or the interests of such Lender or Issuing Lender; provided that such
--------
Lender or Issuing Lender will not be obligated to utilize such other lending or
letter of credit office pursuant to this subsection 2.8 unless Company agrees to
pay all incremental expenses incurred by such Lender or Issuing Lender as a
result of utilizing such other lending or letter of credit office as described
in clause (i) above. A certificate as to the amount of any such expenses
payable by Company pursuant to this subsection 2.8 (setting forth in reasonable
detail the basis for requesting such amount)
57
submitted by such Lender or Issuing Lender to Company (with a copy to Agent)
shall be conclusive absent manifest error.
2.9 GUARANTIES OF AND SECURITY FOR THE OBLIGATIONS; ACKNOWLEDGMENT AND CONSENT.
--------------------------------------------------------------------------
A. COMPANY SECURITY. To secure the full performance of the Obligations,
pursuant to the Borrower Pledge and Security Agreement, Company has granted and,
by the execution, acknowledgement, delivery and recordation of the Borrower
Mortgage, shall grant to Collateral Agent on behalf of Lenders, a duly perfected
first priority Lien (subject to Liens permitted hereby) on all real, personal
and mixed property of Company now owned or (except in the case of real property)
hereafter acquired by Company (except to the extent prohibited by the FCC or the
Communications Act), including, without limitation, the Leases, which Agent,
Collateral Agent or Requisite Lenders has heretofore requested or may request.
Company shall execute and deliver any and all additional Collateral Documents
including, without limitation, financing statements, termination statements,
collateral search reports, title reports, title insurance and landlord waivers
and consents, trademark documentation, opinions of counsel and such other
perfection documents, instruments, information and materials with respect to the
property of Company as Agent or Collateral Agent may reasonably request. All of
the foregoing shall be in form and substance reasonably satisfactory to
Collateral Agent.
B. SUBSIDIARY GUARANTY. As further security for the full performance of
the Obligations, each Credit Party (other than Company and the Acquisition
Subsidiaries) has executed and delivered to Collateral Agent on behalf of
Lenders, the Subsidiary Guaranty and, in the case of each Acquisition
Subsidiary, shall execute and deliver a counterpart thereto on the applicable
Acquisition Closing Date.
C. SECURITY FOR GUARANTY. To secure the full performance of its
obligations under the Subsidiary Guaranty, each Credit Party has granted,
pursuant to the Subsidiary Pledge and Security Agreement and (except in the case
of the License Cos., WKBW-TV, Inc., QC III, Queen City and Granite Response
Television, Inc.) shall grant, by the execution, acknowledgement, delivery and
recordation of a Subsidiary Mortgage, and each Acquisition Subsidiary shall
grant, by the execution and delivery on the applicable Acquisition Closing Date
of a counterpart to the Subsidiary Pledge and Security Agreement, to Collateral
Agent on behalf of Lenders, a perfected, first priority Lien (subject to Liens
permitted hereby) on all real, personal and mixed property of such Credit Party
now owned or (except in the case of real property) hereafter acquired thereby
(except to the extent prohibited by the FCC or the Communications Act), and
which Agent, Collateral Agent or Requisite Lenders have heretofore requested or
may request. Each Credit Party (other than Company) shall execute and deliver
any and all Collateral Documents, including, without limitation, the financing
statements, termination statements, collateral search reports and such other
perfection documents, instruments, information and material with respect to the
property of such Credit Party as Collateral Agent or Agent may reasonably
request. All of the foregoing shall be in form and substance reasonably
satisfactory to Collateral Agent.
58
D. FURTHER ASSURANCES REGARDING SECURITY; ADDITIONAL SECURITY. Company
shall and shall cause each of the other Credit Parties to, from time to time,
execute and deliver to Collateral Agent on behalf of Lenders, such additional
Collateral Documents, statements, documents, agreements, consents and reports as
Agent, Collateral Agent or Requisite Lenders may from time to time reasonably
request to evidence, perfect or otherwise implement or assure the security for
repayment of the Obligations and the full performance of the obligations under
the Subsidiary Guaranty. With respect to the Lenders' Policies, upon Agent's
request, Company shall arrange for co-insurance and/or reinsurance, with
companies and in amounts satisfactory to Agent. All reinsurance policies shall
include direct access agreements acceptable to Agent. Any further advances made
by Lenders hereunder shall be conditioned upon Agent obtaining such additional
endorsements to the Lenders' Policies insuring the additional amount of the Loan
and the validity and priority of such advances as Agent deems necessary or
advisable.
E. ACKNOWLEDGMENT AND CONSENT TO AMENDMENT AND RESTATEMENT OF EXISTING
AGREEMENT. Each Credit Party hereby acknowledges that it has reviewed the terms
and provisions of this Agreement and consents to the amendment of the Existing
Agreement effected pursuant hereto. Company hereby confirms that the Borrower
Pledge and Security Agreement and each Subsidiary hereby confirms that the
Subsidiary Guaranty and the Subsidiary Pledge and Security Agreement and all
Collateral encumbered thereby will continue to guaranty or secure, as the case
may be, to the fullest extent possible, the payment and performance of all
``Guarantied Obligations'' or ``Secured Obligations'', as the case may be (in
each case as such terms are defined in the applicable Loan Document), including
without limitation the payment and performance of all such ``Guarantied
Obligations'' or ``Secured Obligations'', as the case may, in respect of the
Obligations of Company now or hereafter existing under or in respect of the
Existing Agreement (as amended hereby) and the Notes. For purposes of each of
the Collateral Documents the term ``Credit Agreement'' means this Agreement.
Company hereby acknowledges and agrees that the Borrower Pledge and
Security Agreement shall continue in full force and effect and that all of its
obligations thereunder shall be valid and enforceable and shall not be impaired
or limited by the execution or effectiveness hereof. Each Credit Party (other
than Company) hereby acknowledges and agrees that the Subsidiary Guaranty and
the Subsidiary Pledge and Security Agreement shall continue in full force and
effect and that all of its obligations thereunder shall be valid and enforceable
and shall not be impaired or limited by the execution or effectiveness hereof.
Each Subsidiary acknowledges and agrees that (i) notwithstanding the
conditions to effectiveness set forth in this Agreement, such Subsidiary is not
required by the terms of the Existing Agreement or any other Loan Document to
consent to the amendments to the Existing Agreement effected pursuant hereto and
(ii) nothing in the Existing Agreement, this Agreement or any other Loan
Document shall be deemed to require the consent of such Subsidiary to any future
amendments to the Existing Agreement or this Agreement.
2.10 REPLACEMENT OF A LENDER
-----------------------
59
In the event of a refusal by a Lender to consent to a proposed change,
waiver, discharge or termination with respect to this Agreement which has been
approved by the Requisite Lenders, Company shall have the right for a 60 day
period following such refusal, to replace such Lender (a ``REPLACED LENDER'')
with one or more Eligible Assignees (collectively, the ``REPLACEMENT LENDER'')
acceptable to Agent, provided that (i) at the time of any replacement pursuant
to this subsection 2.10 the Replacement Lender and Replaced Lender shall enter
into one or more Assignment Agreements pursuant to subsection 10.1B (and with
all fees payable pursuant to such subsection 10.1B to be paid by the Replacement
Lender) pursuant to which the Replacement Lender shall acquire all of the
outstanding Loans and Commitments of, and in each case participations in Letters
of Credit by, the Replaced Lender and, in connection therewith, shall pay to (x)
the Replaced Lender in respect thereof an amount equal to the sum of (A) an
amount equal to the principal of, and all accrued interest on, all outstanding
Loans of the Replaced Lender, (B) an amount equal to all unpaid drawings with
respect to Letters of Credit that have been funded by (and not reimbursed to)
such Replaced Lender, together with all then unpaid interest with respect
thereto at such time and (C) an amount equal to all accrued, but theretofore
unpaid, fees owing to the Replaced Lender with respect thereto, and (y) the
appropriate Issuing Lender an amount equal to such Replaced Lender's Pro Rata
Share of any unpaid drawings with respect to Letters of Credit (which at such
time remains an unpaid drawing) issued by it to the extent such amount was not
theretofore funded by such Replaced Lender, and (ii) all obligations (including
without limitation all such amounts, if any, owing under subsection 2.6D) of
Company owing to the Replaced Lender (other than those specifically described in
clause (i) above in respect of which the assignment purchase price has been, or
is concurrently being, paid), shall be paid in full to such Replaced Lender
concurrently with such replacement. Upon the execution of the respective
Assignment Agreements, the payment of amounts referred to in clauses (i) and
(ii) above and delivery to the Replacement Lender of the appropriate Note or
Notes executed by Company, the Replacement Lender shall become a Lender
hereunder and the Replaced Lender shall cease to constitute a Lender hereunder
except with respect to indemnification provisions under this Agreement which by
the terms of this Agreement survive the termination of this Agreement, which
indemnification provisions shall survive as to such Replaced Lender.
Notwithstanding anything to the contrary contained above, no Issuing Lender may
be replaced hereunder at any time while it has Letters of Credit outstanding
hereunder unless arrangements satisfactory to such Issuing Lender (including the
furnishing of a Standby Letter of Credit in form and substance, and issued by an
issuer satisfactory to such Issuing Lender or the furnishing of cash collateral
in amounts and pursuant to arrangements satisfactory to such Issuing Lender)
have been made with respect to such outstanding Letters of Credit.
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SECTION 3.
LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF PARTICIPATIONS
---------------------------------------------------------------------
THEREIN.
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A. LETTERS OF CREDIT. In addition to Company requesting that Lenders
having a Revolving Loan Commitment make Revolving Loans pursuant to subsection
2.1A(ii), Company may request, in accordance with the provisions of this
subsection 3.1, from time to time during the period from the Closing Date to but
excluding the Revolving Loan Commitment Termination Date, that one or more
Lenders issue Letters of Credit for the account of Company for the purposes
specified in the definitions of Commercial Letters of Credit and Standby Letters
of Credit. Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of Company herein set forth,
any one or more Lenders having a Revolving Loan Commitment may, but (except as
provided in subsection 3.1B(ii)) shall not be obligated to, issue such Letters
of Credit in accordance with the provisions of this subsection 3.1; provided
--------
that Company shall not request that any Lender issue (and no Lender shall
issue):
(i) any Letter of Credit if, after giving effect to such issuance, the
Total Utilization of Revolving Loan Commitments would exceed the Revolving
Loan Commitments then in effect;
(ii) any Standby Letter of Credit having an expiration date later than
the earlier of (a) the Revolving Loan Commitment Termination Date and (b)
the date which is one year from the date of issuance of such Standby Letter
of Credit; provided that the immediately preceding clause (b) shall not
--------
prevent any Issuing Lender from agreeing that a Standby Letter of Credit
will automatically be extended for one or more successive periods not to
exceed one year each unless such Issuing Lender elects not to extend for
any such additional period; provided, further that such Issuing Lender
-------- -------
shall deliver a written notice to Agent setting forth the last day on which
such Issuing Lender may give notice that it will not extend such Standby
Letter of Credit (the ``NOTIFICATION DATE'' with respect to such Standby
Letter of Credit) promptly prior to such Notification Date; and provided,
--------
further that, unless Requisite Lenders otherwise consent, such Issuing
-------
Lender shall give notice that it will not extend such Standby Letter of
Credit if it has knowledge that an Event of Default has occurred and is
continuing on such Notification Date;
(iii) any Commercial Letter of Credit having an expiration date (a)
later than the earlier of (X) the Revolving Loan Commitment Termination
Date and (Y) the date which is 180 days from the date of issuance of such
Commercial Letter of Credit or (b) that is otherwise unacceptable to the
applicable Issuing Lender in its reasonable discretion;
(iv) any Letter of Credit denominated in a currency other than
Dollars; or
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(v) any Letter of Credit if, after giving effect to such issuance, the
Letter of Credit Usage would exceed $10,000,000.
B. MECHANICS OF ISSUANCE.
(i) Notice of Issuance. Whenever Company desires the issuance of a
------------------
Letter of Credit, it shall deliver to Agent a Notice of Issuance of Letter
of Credit no later than 11:00 A.M. (New York time) at least ten Business
Days (in the case of Standby Letters of Credit), or five Business Days (in
the case of Commercial Letters of Credit), or in each case such shorter
period as may be agreed to by the Issuing Lender in any particular
instance, in advance of the proposed date of issuance. The Notice of
Issuance of Letter of Credit shall specify (a) the proposed date of
issuance (which shall be a Business Day), (b) the face amount of the Letter
of Credit, (c) the expiration date of the Letter of Credit, (d) the name
and address of the beneficiary, and (e) the verbatim text of the proposed
Letter of Credit or the proposed terms and conditions thereof, including a
precise description of any documents and the verbatim text of any
certificates to be presented by the beneficiary which, if presented by the
beneficiary prior to the expiration date of the Letter of Credit, would
require the Issuing Lender to make payment under the Letter of Credit;
provided that the Issuing Lender, in its reasonable discretion, may require
--------
changes in the text of the proposed Letter of Credit or any such documents
or certificates; and provided, further that no Letter of Credit shall
-------- -------
require payment against a conforming draft to be made thereunder on the
same business day (under the laws of the jurisdiction in which the office
of the Issuing Lender to which such draft is required to be presented is
located) that such draft is presented if such presentation is made after
10:00 A.M. (in the time zone of such office of the Issuing Lender) on such
business day.
Company shall notify the applicable Issuing Lender (and Agent, if
Agent is not such Issuing Lender) prior to the issuance of any Letter of
Credit in the event that any of the matters to which Company is required to
certify in the applicable Notice of Issuance of Letter of Credit is no
longer true and correct as of the proposed date of issuance of such Letter
of Credit, and upon the issuance of any Letter of Credit Company shall be
deemed to have re-certified, as of the date of such issuance, as to the
matters to which Company is required to certify in the applicable Notice of
Issuance of Letter of Credit.
(ii) Determination of Issuing Lender. Upon receipt by Agent of a
-------------------------------
Notice of Issuance of Letter of Credit pursuant to subsection 3.1B(i)
requesting the issuance of a Letter of Credit, in the event Agent elects to
issue such Letter of Credit, Agent shall promptly so notify Company, and
Agent shall be the Issuing Lender with respect thereto. In the event that
Agent, in its sole discretion, elects not to issue such Letter of Credit,
Agent shall promptly so notify Company, whereupon Company may request any
other Lender having a Revolving Loan Commitment to issue such Letter of
Credit by delivering to such Lender a copy of the applicable Notice of
Issuance of Letter of Credit. Any Lender so requested to issue such Letter
of Credit shall
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promptly notify Company and Agent whether or not, in its sole discretion,
it has elected to issue such Letter of Credit, and any such Lender which so
elects to issue such Letter of Credit shall be the Issuing Lender with
respect thereto. In the event that all other Lenders having a Revolving
Loan Commitment shall have declined to issue such Letter of Credit,
notwithstanding the prior election of Agent not to issue such Letter of
Credit, Agent shall be obligated to issue such Letter of Credit and shall
be the Issuing Lender with respect thereto, notwithstanding the fact that
the Letter of Credit Usage with respect to such Letter of Credit and with
respect to all other Letters of Credit issued by Agent, when aggregated
with Agent's outstanding Revolving Loans, may exceed Agent's Revolving Loan
Commitment then in effect.
(iii) Notification to Lenders. Promptly after receipt of a Notice of
-----------------------
Issuance of Letter of Credit and the determination of the Issuing Lender
with respect to the proposed Letter of Credit, (a) Agent shall notify each
Lender having a Revolving Loan Commitment of the proposed issuance of such
Letter of Credit, the Issuing Lender and the amount of such Lender's
respective participation therein, determined in accordance with subsection
3.1C, and (b) the Issuing Lender shall deliver to each other Lender having
a Revolving Loan Commitment a copy of such Notice of Issuance of Letter of
Credit.
(iv) Issuance of Letter of Credit. Upon satisfaction or waiver (in
----------------------------
accordance with subsection 10.6) of the conditions set forth in subsection
4.3, the Issuing Lender shall issue the requested Letter of Credit in
accordance with the Issuing Lender's standard operating procedures, and
upon its issuance of such Letter of Credit the Issuing Lender shall
promptly notify Agent and each Lender having a Revolving Loan Commitment of
such issuance, which notice shall be accompanied by a copy of such Letter
of Credit.
(v) Reports to Lenders. Within 15 days after the end of each calendar
------------------
quarter ending after the Closing Date, so long as any Letter of Credit
shall have been outstanding during such calendar quarter, each Issuing
Lender shall deliver to each other Lender having a Revolving Loan
Commitment a report setting forth for such calendar quarter the daily
maximum amount available to be drawn under the Letters of Credit issued by
such Issuing Lender that were outstanding during such calendar quarter.
C. LENDERS' PURCHASE OF PARTICIPATIONS IN LETTERS OF CREDIT. Immediately
upon the issuance of each Letter of Credit, each Lender having a Revolving Loan
Commitment shall be deemed to, and hereby agrees to, have irrevocably purchased
from the Issuing Lender a participation in such Letter of Credit and drawings
thereunder in an amount equal to such Lender's Pro Rata Share of the maximum
amount which is or at any time may become available to be drawn thereunder.
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3.2 LETTER OF CREDIT FEES.
---------------------
Company agrees to pay the following amounts with respect to Letters of
Credit issued hereunder:
(i) with respect to each Standby Letter of Credit, (a) Company shall
pay to the Issuing Lender a fronting fee equal to 0.25% per annum of the
daily maximum amount available to be drawn under such Standby Letter of
Credit and (b) Company shall pay to Agent a letter of credit fee equal to
the Applicable Margin in effect from time to time with respect to
Eurodollar Rate Loans during the period such Letter of Credit is
outstanding, in each case payable in arrears on each January 31, April 30,
July 31 and October 31 of each year and computed on the basis of a 360-day
year for the actual number of days elapsed;
(ii) with respect to each Commercial Letter of Credit, (a) Company
shall pay to the Issuing Lender a fronting fee equal to 0.25% per annum of
the daily maximum amount available to be drawn under such Commercial Letter
of Credit and (b) Company shall pay to Agent a letter of credit fee equal
to the Applicable Margin in effect from time to time with respect to
Eurodollar Rate Loans during the period such Letter of Credit is
outstanding, in each case payable in arrears on each January 31, April 30,
July 31 and October 31 of each year and computed on the basis of a 360-day
year for the actual number of days elapsed; and
(iii) with respect to the issuance, amendment or transfer of each
Letter of Credit and each drawing made thereunder (without duplication of
the fees payable under clauses (i) and (ii) above), Company shall pay to
the applicable Issuing Lender documentary and processing charges in
accordance with such Issuing Lender's standard schedule for such charges in
effect at the time of such issuance, amendment, transfer or drawing, as the
case may be.
Promptly upon receipt by Agent of any amount described in clause (i)(b) or
(ii)(b) of this subsection 3.2, Agent shall distribute to each other Lender
having a Revolving Loan Commitment its Pro Rata Share of such amount.
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
-------------------------------------------------------------------
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO REQUESTS FOR
DRAWINGS. In determining whether to honor any request for drawing under any
Letter of Credit by the beneficiary thereof, the Issuing Lender shall be
responsible only to determine that the documents and certificates required to be
delivered under such Letter of Credit have been delivered and that they comply
on their face with the requirements of such Letter of Credit.
B. REIMBURSEMENT BY COMPANY OF AMOUNTS DRAWN UNDER LETTERS OF CREDIT. In
the event an Issuing Lender has determined to honor a request for drawing under
a Letter of Credit issued by it, such Issuing Lender shall immediately notify
Company and Agent, and
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Company shall reimburse such Issuing Lender on or before the Business Day
immediately following the date on which such drawing is honored (the
``REIMBURSEMENT DATE'') in an amount in same day funds equal to the amount of
such drawing; provided that, anything contained in this Agreement to the
--------
contrary notwithstanding, (i) unless Company shall have notified Agent and such
Issuing Lender prior to 11:00 A.M. (New York time) on the date of such drawing
that Company intends to reimburse such Issuing Lender for the amount of such
drawing with funds other than the proceeds of Revolving Loans, Company shall be
deemed to have given a timely Notice of Borrowing to Agent requesting Lenders to
make Revolving Loans that are Base Rate Loans on the Reimbursement Date in an
amount equal to the amount of such drawing and (ii) subject to satisfaction or
waiver of the conditions specified in subsection 4.2C, Lenders shall, on the
Reimbursement Date, make Revolving Loans that are Base Rate Loans in the amount
of such drawing, the proceeds of which shall be applied directly by Agent to
reimburse such Issuing Lender for the amount of such drawing; and provided,
--------
further that if for any reason proceeds of Revolving Loans are not received by
-------
such Issuing Lender on the Reimbursement Date in an amount equal to the amount
of such drawing, Company shall reimburse such Issuing Lender, on demand, in an
amount in same day funds equal to the excess of the amount of such drawing over
the aggregate amount of such Revolving Loans, if any, which are so received.
Nothing in this subsection 3.3B shall be deemed to relieve any Lender from its
obligation to make Revolving Loans on the terms and conditions set forth in this
Agreement, and Company shall retain any and all rights it may have against any
Lender resulting from the failure of such Lender to make such Revolving Loans
under this subsection 3.3B.
C. PAYMENT BY LENDERS OF UNREIMBURSED DRAWINGS UNDER LETTERS OF CREDIT.
(i) Payment by Lenders. In the event that Company shall fail for any
------------------
reason to reimburse any Issuing Lender as provided in subsection 3.3B in an
amount equal to the amount of any drawing honored by such Issuing Lender
under a Letter of Credit issued by it, such Issuing Lender shall promptly
notify each other Lender of the unreimbursed amount of such drawing and of
such other Lender's respective participation therein based on such Lender's
Pro Rata Share. Each Lender having a Revolving Loan Commitment shall make
available to such Issuing Lender an amount equal to its respective
participation, in same day funds, at the office of such Issuing Lender
specified in such notice, not later than 11:30 A.M. (New York time) on the
first business day (under the laws of the jurisdiction in which such office
of such Issuing Lender is located) after the date notified by such Issuing
Lender. In the event that any Lender having a Revolving Loan Commitment
fails to make available to such Issuing Lender on such business day the
amount of such Lender's participation in such Letter of Credit as provided
in this subsection 3.3C, such Issuing Lender shall be entitled to recover
such amount on demand from such Lender together with interest thereon at
the rate customarily used by such Issuing Lender for the correction of
errors among banks for three Business Days and thereafter at the Base Rate.
Nothing in this subsection 3.3C shall be deemed to prejudice the right of
any Lender having a Revolving Loan Commitment to recover from any Issuing
Lender any amounts made available by such Lender to such Issuing Lender
pursuant to this
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subsection 3.3C in the event that it is determined by the final judgment of
a court of competent jurisdiction that the payment with respect to a Letter
of Credit by such Issuing Lender in respect of which payment was made by
such Lender constituted gross negligence or willful misconduct on the part
of such Issuing Lender.
(ii) Distribution to Lenders of Reimbursements Received From Company.
---------------------------------------------------------------
In the event any Issuing Lender shall have been reimbursed by other Lenders
pursuant to subsection 3.3C(i) for all or any portion of any drawing
honored by such Issuing Lender under a Letter of Credit issued by it, such
Issuing Lender shall distribute to each other Lender having a Revolving
Loan Commitment which has paid all amounts payable by it under subsection
3.3C(i) with respect to such drawing such other Lender's Pro Rata Share of
all payments subsequently received by such Issuing Lender from Company in
reimbursement of such drawing when such payments are received. Any such
distribution shall be made to a Lender at its primary address set forth
below its name on the appropriate signature page hereof or at such other
address as such Lender may request.
D. INTEREST ON AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
(i) Payment of Interest by Company. Company agrees to pay to each
------------------------------
Issuing Lender, with respect to any drawings made under any Letters of
Credit issued by it, interest on the amount paid by such Issuing Lender in
respect of each such drawing from the date of such payment to but excluding
the date such amount is reimbursed by Company (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to subsection
3.3B) at a rate equal to (a) for the period from the date such drawing is
honored to but excluding the Reimbursement Date, the rate then in effect
under this Agreement with respect to Revolving Loans that are Base Rate
Loans and (b) thereafter, a rate which is 2% per annum in excess of the
rate of interest otherwise payable under this Agreement with respect to
Revolving Loans that are Base Rate Loans. Interest payable pursuant to
this subsection 3.3D(i) shall be computed on the basis of a 365-day or 366-
day year, as the case may be, for the actual number of days elapsed in the
period during which it accrues and shall be payable on demand or, if no
demand is made, on the date on which the related drawing under a Letter of
Credit is reimbursed in full.
(ii) Distribution of Interest Payments by Issuing Lender. Promptly
---------------------------------------------------
upon receipt by any Issuing Lender of any payment of interest pursuant to
subsection 3.3D(i), (a) such Issuing Lender shall distribute to each other
Lender having a Revolving Loan Commitment, out of the interest received by
such Issuing Lender in respect of the period from the date of payment of
the applicable drawing under a Letter of Credit issued by such Issuing
Lender to but excluding the date on which such Issuing Lender is reimbursed
for the amount of such drawing (including any such reimbursement out of the
proceeds of Revolving Loans pursuant to subsection 3.3B), the amount that
such other Lender would have been entitled to receive in respect of the
letter of credit fee that would have been payable in respect of such
66
Letter of Credit for such period pursuant to subsection 3.2 if no drawing
had been made under such Letter of Credit, and (b) in the event such
Issuing Lender shall have been reimbursed by other Lenders pursuant to
subsection 3.3C(i) for all or any portion of such drawing, such Issuing
Lender shall distribute to each other Lender which has paid all amounts
payable by it under subsection 3.3C(i) with respect to such drawing such
other Lender's Pro Rata Share of any interest received by such Issuing
Lender in respect of that portion of such drawing so reimbursed by other
Lenders for the period from the date on which such Issuing Lender was so
reimbursed by other Lenders to and including the date on which such portion
of such drawing is reimbursed by Company. Any such distribution shall be
made to a Lender at its primary address set forth below its name on the
appropriate signature page hereof or at such other address as such Lender
may request.
3.4 OBLIGATIONS ABSOLUTE.
--------------------
The obligation of Company to reimburse each Issuing Lender for
drawings made under the Letters of Credit issued by it and to repay any
Revolving Loans made by Lenders pursuant to subsection 3.3B and the
obligations of Lenders under subsection 3.3C(i) shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances including, without limitation, the
following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, set-off, defense or other right which
Company or any Lender may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), any Issuing Lender or other Lender or any other
Person or, in the case of a Lender, against Company, whether in connection
with this Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between Company or one of
its Subsidiaries and the beneficiary for which any Letter of Credit was
procured);
(iii) any draft, demand, certificate or other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) payment by the applicable Issuing Lender under any Letter of
Credit against presentation of a demand, draft or certificate or other
document which does not comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or any
of its Subsidiaries;
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(vi) any breach of this Agreement or any other Loan Document by any
party thereto;
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing;
provided, in each case, that payment by the applicable Issuing Lender under the
--------
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question
(as determined by a final judgment of a court of competent jurisdiction).
3.5 INDEMNIFICATION; NATURE OF ISSUING LENDERS' DUTIES.
--------------------------------------------------
A. INDEMNIFICATION. In addition to amounts payable as provided in
subsection 3.6, Company hereby agrees to protect, indemnify, pay and save
harmless each Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which such Issuing Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit by such Issuing
Lender, other than as a result of (a) the gross negligence or willful misconduct
of such Issuing Lender as determined by a final judgment of a court of competent
jurisdiction or (b) subject to the following clause (ii), the wrongful dishonor
by such Issuing Lender of a proper demand for payment made under any Letter of
Credit issued by it or (ii) the failure of such Issuing Lender to honor a
drawing under any such Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
government or governmental authority (all such acts or omissions herein called
``GOVERNMENTAL ACTS'').
B. NATURE OF ISSUING LENDERS' DUTIES. As between Company and any Issuing
Lender, Company assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by such Issuing Lender by, the respective beneficiaries
of such Letters of Credit. In furtherance and not in limitation of the
foregoing, such Issuing Lender shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they
68
be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or
delay in the transmission or otherwise of any document required in order to make
a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of such Issuing Lender, including without
limitation any Governmental Acts, and none of the above shall affect or impair,
or prevent the vesting of, any of such Issuing Lender's rights or powers
hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5B, any action
taken or omitted by any Issuing Lender under or in connection with the Letters
of Credit issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not put such Issuing Lender under any
resulting liability to Company.
Notwithstanding anything to the contrary contained in this subsection 3.5,
Company shall retain any and all rights it may have against any Issuing Lender
for any liability arising solely out of the gross negligence or willful
misconduct of such Issuing Lender, as determined by a final judgment of a court
of competent jurisdiction.
3.6 INCREASED COSTS AND TAXES RELATING TO LETTERS OF CREDIT.
-------------------------------------------------------
In the event that any Issuing Lender or Lender having a Revolving Loan
Commitment shall determine (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto) that any law, treaty
or governmental rule, regulation or order, or any change therein or in the
interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or governmental authority, in each case that
becomes effective after the date hereof, or compliance by any Issuing Lender or
Lender having a Revolving Loan Commitment with any guideline, request or
directive issued or made after the date hereof by any central bank or other
governmental or quasi-governmental authority (whether or not having the force of
law):
(i) subjects such Issuing Lender or Lender (or its applicable lending
or letter of credit office) to any additional Tax (other than any Tax on
the overall net income of such Issuing Lender or Lender) with respect to
the issuing or maintaining of any Letters of Credit or the purchasing or
maintaining of any participations therein or any other obligations under
this Section 3, whether directly or by such being imposed on or suffered by
any particular Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve (including
without limitation any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement in respect of any Letters of Credit issued by any Issuing
Lender or participations therein purchased by any Lender; or
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(iii) imposes any other condition on or affecting such Issuing Lender
or Lender (or its applicable lending or letter of credit office) regarding
this Section 3 or any Letter of Credit or any participation therein;
and the result of any of the foregoing is to increase the cost to such Issuing
Lender or Lender of agreeing to issue, issuing or maintaining any Letter of
Credit or agreeing to purchase, purchasing or maintaining any participation
therein or to reduce any amount received or receivable by such Issuing Lender or
Lender (or its applicable lending or letter of credit office) with respect
thereto; then, in any case, Company shall promptly pay to such Issuing Lender or
Lender, upon receipt of the statement referred to in the next sentence, such
additional amount or amounts as may be necessary to compensate such Issuing
Lender or Lender for any such increased cost or reduction in amounts received or
receivable hereunder. Such Issuing Lender or Lender shall deliver to Company a
written statement, setting forth in reasonable detail the basis for calculating
the additional amounts owed to such Issuing Lender or Lender under this
subsection 3.6, which statement shall be conclusive and binding upon all parties
hereto absent manifest error.
SECTION 4.
CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of Letters of
Credit hereunder are subject to the satisfaction of the following conditions.
4.1 CONDITIONS TO REVOLVING LOANS MADE ON THE CLOSING DATE.
------------------------------------------------------
The effectiveness of this Agreement is subject to prior or concurrent
satisfaction of the following conditions:
A. CREDIT PARTY DOCUMENTS. On or before the Closing Date, Company shall
deliver or cause to be delivered to Lenders (or to Agent for Lenders with
sufficient originally executed copies, where appropriate, for each Lender and
its counsel) the following, each, unless otherwise noted, dated the Closing
Date:
(i) Certified copies of each Credit Party's Certificate of
Incorporation or other charter documents (including, in the case of QC III,
its Certificate of Limited Partnership and Statements of Partnership),
together with a good standing certificate from the Secretary of State of
the state of its incorporation and each other state in which it is
qualified as a foreign corporation to do business, each dated a recent date
prior to the Closing Date;
(ii) Copies of each Credit Party's Bylaws (other than QC III),
certified as of the Closing Date by such Credit Party's corporate secretary
or an assistant secretary;
70
(iii) Resolutions of each Credit Party's Board of Directors (or, in
the case of QC III, all documents of its partners) approving and
authorizing the execution, delivery and performance of each of the Loan
Documents to which it is a party, certified as of the Closing Date by such
Credit Party's corporate secretary or an assistant secretary as being in
full force and effect without modification or amendment;
(iv) Signature and incumbency certificates of each Credit Party's
officers executing any of the Loan Documents;
(v) Executed originals of this Agreement, the Notes (duly executed in
accordance with subsection 2.1D, drawn to the order of each Lender and with
appropriate insertions) and the other Loan Documents and any amendments to
the Collateral Documents that may be required under subsection 4.1B and
4.1C; and
(vi) Such other documents as Agent may reasonably request.
B. SECURITY INTERESTS. Each Credit Party shall have taken or caused to
be taken (and Collateral Agent shall have received satisfactory evidence
thereof) such actions in such a manner so that Collateral Agent for the benefit
of Lenders has a valid and perfected first priority security interest (subject
to the Liens permitted hereunder) as of such date in the entire Collateral
(other than Deposit Accounts). Such actions shall include, without limitation,
(i) delivery to Collateral Agent of certificates (which certificates shall be
registered in the name of Collateral Agent or properly endorsed in blank for
transfer or accompanied by irrevocable undated powers duly endorsed in blank,
all in form and substance satisfactory to Collateral Agent) representing the
capital stock of each Subsidiary of any such Credit Party pledged pursuant to
the Collateral Documents, delivery to the Collateral Agent of Intercompany Notes
pledged pursuant to the Collateral Documents and delivery to Collateral Agent of
all other instruments (duly endorsed where appropriate) evidencing the
Collateral, (ii) filing of Uniform Commercial Code financing statements as to
the Collateral for all jurisdictions as may be necessary or desirable to perfect
Lenders' security interest in the Collateral, and (iii) delivery of all other
evidence reasonably satisfactory to Collateral Agent that all other filings,
recordings and other actions Collateral Agent deems necessary or advisable to
establish, preserve and perfect the first priority Liens granted to Collateral
Agent on behalf of Lenders shall have been made.
C. MORTGAGES; LENDER'S POLICIES. Each Credit Party (other than any
License Co., WKBW-TV, Inc., QC III, Queen City and Granite Response Television,
Inc.) shall have executed and delivered to Collateral Agent, for the benefit of
Lenders, a Mortgage and such other agreements, instruments and documents as
Agent may reasonably require in order to effect a valid, perfected and
enforceable first priority lien (subject to any Liens permitted hereby) and
security interest in favor of Collateral Agent on behalf of Lenders in all of
such Person's interests in real property, whether fee or leasehold interests,
and all improvements now or hereafter located thereon (each such property, a
``MORTGAGED PROPERTY''). Agent shall have received from each Credit Party, as
appropriate, a Landlord Consent Letter with
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respect to each Mortgage on a Lease (or, with respect to any such Mortgage for
which a Landlord Consent Letter was delivered in connection with the Existing
Agreement, an acknowledgement from such landlord that the existing Landlord
Consent Letter shall be applicable to such Mortgage) in form and substance
satisfactory to Agent and an ALTA lender's title insurance policy or other form
of policy satisfactory to Agent (``LENDER'S POLICY'') issued by a company or
companies satisfactory to Agent, in an amount satisfactory to Agent, with all
premiums paid thereon, and which shall insure that (i) the Obligations of
Company and its Subsidiaries, as applicable, are secured by a valid first Lien
on the Mortgaged Properties subject only to the title exceptions approved by
Agent, and (ii) Company is current in the payment of all applicable state and
local taxes, charges and assessments affecting the Mortgaged Properties. The
Lender's Policy shall contain, to the extent available, (1) a comprehensive
lender's endorsement, (2) a broad form zoning endorsement, including parking,
(3) a survey accuracy endorsement, (4) a usury endorsement, (5) appropriate
encroachment endorsements, (6) a tie-in endorsement, (7) a last-dollar
endorsement, (8) a variable rate endorsement, (9) a revolving loan endorsement,
(10) an endorsement with respect to the amendment of the Obligations effected or
contemplated hereby and (11) such other endorsements as Collateral Agent deems
necessary or advisable, all in form and substance satisfactory to Collateral
Agent. No title indemnities shall be established in connection with the
issuance of the Lender's Policy.
D. LEASES. Company shall have delivered an Officer's Certificate in form
and substance reasonably satisfactory to Agent certifying that the copies of all
real, personal or mixed property leases to which Company or any Subsidiary of
Company is a party and which are subject to a Mortgage in effect on the date
hereof in favor of Collateral Agent and Lenders (the ``LEASES'') and heretofore
delivered pursuant to the Existing Agreement continue to be true, complete and
correct and in full force and effect.
E. ENVIRONMENTAL AUDIT. On or before the Closing Date, Company shall
have delivered copies of any/each environmental audit report or such other
information as Agent may reasonably request relating to the interests of any
Credit Party under the Mortgages, all of the foregoing to be in form and
substance satisfactory to Agent.
F. LICENSES. Each of the FCC Licenses shall be in full force and effect.
G. REFINANCING OF LOANS UNDER EXISTING AGREEMENT; FEES; LETTERS OF
CREDIT. On or before the Closing Date, (i) Company shall have paid to Agent,
for distribution (as appropriate) to Agent, Lenders and Departing Lenders, all
interest and fees accrued under the Existing Agreement (including, without
limitation, any ``breakage fees'' under subsection 2.6D of the Existing Credit
Agreement) on or before the Closing Date and the fees payable on the Closing
Date referred to in subsection 2.3 and (iii) no Letters of Credit shall be
outstanding under the Existing Agreement as of the Closing Date.
H. REALLOCATION AMOUNTS; DEPARTING LENDER CONSENT. Agent shall have
received (i) from each Purchasing Lender the net amount of its payment required
pursuant to
72
subsection 2.1E and (ii) from each Departing Lender with a copy for each Lender,
a copy of its Departing Lender Consent.
I. COMPLIANCE CERTIFICATE; SATISFACTION OF DEBT INCURRENCE RATIOS. On
the Closing Date, Company shall have delivered (i) a Compliance Certificate,
substantially in the form of Exhibit VI hereto, demonstrating in reasonable
----------
detail compliance on a pro forma basis by Company and its Subsidiaries as of the
Closing Date with the restrictions set forth in Section 7 and (ii) a certificate
of the chief financial officer of Company stating that, as of the Closing Date,
Company is able to incur at least the aggregate amount of Loans continued or
borrowed on the Closing Date without causing an event of default or event or
condition that, after notice or the lapse of time, or both, would become an
event of default under the Subordinated Note Documents or the New Subordinated
Note Documents, and shall demonstrate in reasonable detail satisfaction on a pro
forma basis as of the Closing Date by Company and its Subsidiaries of the debt
incurrence tests set forth in Section 1008 of the Subordinated Note Indenture,
Section 1008 of the New Subordinated Note Indenture and Section 1008 of the 1996
Subordinated Note Indenture.
J. OPINIONS OF COMPANY'S COUNSEL. Agent shall have received, for
distribution to Lenders and their respective counsel, originally executed copies
of one or more favorable written opinions of Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇,
L.L.P., counsel for Company, in form and substance reasonably satisfactory to
Agent and its counsel, dated as of the Closing Date and setting forth
substantially the matters in the opinions designated in Exhibit VII annexed
-----------
hereto and as to such other matters as Agent acting on behalf of Lenders may
reasonably request.
K. OPINIONS OF AGENT'S COUNSEL. Agent shall have received, for
distribution to Lenders, originally executed copies of one or more favorable
written opinions of O'Melveny & ▇▇▇▇▇, counsel to Agent, dated as of the Closing
Date, substantially in the form of Exhibit IX annexed hereto and as to such
----------
other matters as Agent acting on behalf of Lenders may reasonably request.
L. OPINIONS OF COMPANY'S LOCAL COUNSEL. Agent shall have received, for
distribution to Lenders and their respective counsel, originally executed copies
of one or more favorable written opinions of local counsel of Company in the
States of California, Indiana, Illinois, Minnesota, Michigan and New York in
each case dated as of the date hereof, substantially in the form of Exhibits
--------
VIII-A to VIII-F annexed hereto, as to matters relating to the Mortgages.
------ ------
M. ACCEPTANCE BY PROCESS AGENT. Agent shall have received a letter
substantially in the form of Exhibit XI annexed hereto from the initial agent
----------
for service of process designated by Company in subsection 10.17.
N. EVIDENCE OF INSURANCE. Collateral Agent shall have received an
Officers' Certificate of Company setting forth a schedule of insurance with
respect to each of the insurance policies required pursuant to subsection 6.4
hereof, and Collateral Agent shall be
73
satisfied with the nature and scope of these insurance policies and each such
insurance policy shall name Collateral Agent on behalf of Lenders as loss payee
and shall have a lender's loss payable endorsement in form acceptable to Agent.
O. NO MATERIAL ADVERSE EFFECT. Since December 31, 1995, no Material
Adverse Effect (in the sole opinion of Agent) shall have occurred.
P. SOLVENCY CERTIFICATE. On or before the Closing Date, Company shall
have delivered a certificate of the chief financial officer of Company,
substantially in the form of Exhibit XVI annexed hereto, with appropriate
-----------
attachments, demonstrating that, after giving effect to the transactions
contemplated by this Agreement, the fair salable value of the assets of Company
will not be less than the probable liability on its debts, that Company will be
able to pay its debts as they mature and that Company will not have unreasonably
small capital to conduct its business, all in form and substance reasonably
satisfactory to Agent and Requisite Lenders.
Q. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS. (i)
Company shall have delivered to Agent an Officers' Certificate, in form and
substance satisfactory to Agent, to the effect that the representations and
warranties in Section 5 hereof are true, correct and complete in all material
respects on and as of the Closing Date to the same extent as though made on and
as of that date and that Company shall have performed in all material respects
all agreements and satisfied all conditions which this Agreement provides shall
be performed or satisfied by it on or before the Closing Date except as
otherwise disclosed to and agreed to in writing by Agent and Requisite Lenders
and (ii) each Subsidiary shall have delivered to Agent an Officers' Certificate,
in form and substance satisfactory to Agent, to the effect that the
representations and warranties of such Subsidiaries set forth in the Subsidiary
Guaranty and the Subsidiary Pledge and Security Agreement are true, correct and
complete in all material respects on and as of the Closing Date to the same
extent as though made on and as of that date and that such Subsidiaries shall
have performed in all material respects all agreements and satisfied all
conditions which the Subsidiary Guaranty and the Subsidiary Pledge and Security
Agreement provide shall be performed or satisfied by it on or before the Closing
Date except as otherwise disclosed to and agreed to in writing by Agent and
Requisite Lenders.
R. COMPLETION OF PROCEEDINGS. All corporate and other proceedings taken
or to be taken in connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by Agent, acting on
behalf of Lenders, and its counsel shall be satisfactory in form and substance
to Agent and such counsel, and Agent and such counsel shall have received all
such counterpart originals or certified copies of such documents as Agent may
reasonably request.
4.2 CONDITIONS TO ALL LOANS.
-----------------------
The obligations of Lenders to make Loans on each Funding Date shall be
subject to the following further conditions precedent:
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A. With respect to any Additional Credit Loans, the conditions precedent
specified in subsection 4.5 shall have been satisfied with respect to the
applicable Additional Credit Commitment.
B. Agent shall have received before that Funding Date, in accordance with
the provisions of subsection 2.1B, an originally executed Notice of Borrowing,
in each case signed by the chief executive officer, the chief financial officer
or the treasurer of Company or by any executive officer of Company designated by
any of the above-described officers on behalf of Company in a writing delivered
to Agent.
C. As of that Funding Date:
(i) The representations and warranties contained herein and in the
other Loan Documents shall be true, correct and complete in all material
respects on and as of that Funding Date to the same extent as though made
on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true, correct and complete
in all material respects on and as of such earlier date;
(ii) No event shall have occurred and be continuing or would result
from the consummation of the borrowing contemplated by such Notice of
Borrowing that would constitute an Event of Default or a Potential Event of
Default;
(iii) Company shall have performed in all material respects all
agreements and satisfied all conditions which this Agreement provides shall
be performed or satisfied by it on or before that Funding Date;
(iv) No order, judgment or decree of any court, arbitrator or
governmental authority shall purport to enjoin or restrain any Lender from
making the Loans to be made by it on that Funding Date;
(v) The making of the Loans requested on such Funding Date shall not
violate any law including, without limitation, Regulation G, Regulation T,
Regulation U or Regulation X of the Board of Governors of the Federal
Reserve System; and
(vi) There shall not be pending or, to the knowledge of Company,
threatened, any action, suit, proceeding, governmental investigation or
arbitration against or affecting Company or any of its Subsidiaries or any
property of Company or any of its Subsidiaries that has not been disclosed
by Company in writing pursuant to subsection 5.6 or 6.1(x) prior to the
making of the last preceding Loans (or, in the case of the Loans made upon
the Closing Date, prior to the execution of this Agreement), and there
shall have occurred no development not so disclosed in any such action,
suit, proceeding, governmental investigation or arbitration so disclosed,
that, in either event, in the opinion of Agent or of Requisite Lenders,
would be
75
expected to have a Material Adverse Effect; and no injunction or other
restraining order shall have been issued and no hearing to cause an
injunction or other restraining order to be issued shall be pending or
noticed with respect to any action, suit or proceeding seeking to enjoin or
otherwise prevent the consummation of, or to recover any damages or obtain
relief as a result of, the transactions contemplated by this Agreement or
the making of Loans hereunder.
4.3 CONDITIONS TO LETTERS OF CREDIT.
-------------------------------
The issuance of any Letter of Credit hereunder (whether or not the
applicable Issuing Lender is obligated to issue such Letter of Credit) is
subject to the following conditions precedent:
A. On or before the date of issuance of such Letter of Credit, Agent
shall have received, in accordance with the provisions of subsection
3.1B(i), an originally executed Notice of Issuance of Letter of Credit, in
each case signed by the chief executive officer, the chief financial
officer or the treasurer of Company or by any executive officer of Company
designated by any of the above-described officers on behalf of Company in a
writing delivered to Agent, together with all other information specified
in subsection 3.1B(i) and such other documents or information as the
applicable Issuing Lender may reasonably require in connection with the
issuance of such Letter of Credit.
B. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.2C shall be satisfied to the same
extent as if the issuance of such Letter of Credit were the making of a
Loan and the date of issuance of such Letter of Credit were a Funding Date.
4.4 ADDITIONAL CONDITIONS TO ADDITIONAL CREDIT LOANS AND REVOLVING LOANS TO
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FUND ACQUISITIONS.
-----------------
The obligations of Lenders to make Additional Credit Loans and Revolving
Loans in connection with any Acquisition shall be subject to the effectiveness
of this Agreement pursuant to subsection 4.1 and, in addition to, but without
duplication of, the conditions precedent specified in subsection 4.2 (and in the
case of Additional Credit Loans only, subsection 4.5), shall be subject to prior
or concurrent satisfaction of the following conditions (it being understood and
agreed that Company shall not be required to comply with the conditions set
forth in this subsection 4.4 (other than the conditions set forth in subsection
4.4B) with respect to any Additional Credit Loans or Revolving Loans made in
connection with an Acquisition solely of an LMA):
A. CREDIT PARTY DOCUMENTS. On or before each Acquisition Closing Date,
Company shall deliver or cause to be delivered to Lenders (or to Agent for
Lenders with sufficient originally executed copies, where appropriate, for each
Lender and its counsel) the following, each, unless otherwise noted, dated such
Acquisition Closing Date:
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(i) Certified copies of each Acquisition Subsidiary's Certificate of
Incorporation or other charter documents, together with a good standing
certificate from the Secretary of State of the state of its incorporation
and each other state in which it is qualified as a foreign corporation to
do business, each dated a recent date prior to such Acquisition Closing
Date;
(ii) Copies of each Acquisition Subsidiary's Bylaws, certified as of
such Acquisition Closing Date by such Credit Party's corporate secretary or
an assistant secretary;
(iii) Resolutions of each Acquisition Subsidiary's Board of
Directors approving and authorizing the execution, delivery and performance
of each of the Loan Documents to which it is a party, certified as of such
Acquisition Closing Date by such Credit Party's corporate secretary or an
assistant secretary as being in full force and effect without modification
or amendment;
(iv) Signature and incumbency certificates of each Acquisition
Subsidiary's officers executing any of the Loan Documents;
(v) Executed originals of counterparts to the Guaranty and the
Subsidiary Pledge and Security Agreement and the other Loan Documents and
Collateral Documents that may be required under subsection 4.4H and 4.4I;
and
(vi) Such other documents as Agent may reasonably request.
B. DELIVERY OF ACQUISITION AGREEMENT. The form and substance of the
applicable Acquisition Agreement shall be in all respects reasonably
satisfactory to Agent, and Company shall have delivered to Agent true and
complete copies of such Acquisition Agreement, including any amendments,
modifications and supplements thereto and the other documents delivered in
connection therewith as of such Acquisition Closing Date (which shall be in form
reasonably satisfactory to Agent), certified by an officer of Company.
C. ACQUISITION. Concurrent with the making of the Additional Credit
Loans or Revolving Loans, as the case may be, the Acquisition shall become
effective in accordance with the applicable Acquisition Agreement, without any
material variation therefrom, except as disclosed to Lenders and consented to in
writing by Agent.
D. DELIVERY OF OPINIONS OF COUNSEL. On or before each Acquisition
Closing Date, Company shall obtain and deliver for Agent and Lenders originally
executed copies of the favorable written opinions of each of the counsel
referred to in the applicable Acquisition Agreement, in form and substance
satisfactory to Agent and its counsel, dated as of such Acquisition Closing
Date, as to the matters specified in such agreements, and each such opinion of
counsel shall state that Agent and Lenders are entitled to rely thereon.
77
E. LICENSES TRANSFER. (i) All necessary FCC Licenses with respect to any
radio or television broadcast station to be acquired in connection with such
Acquisition shall be in full force and effect, (ii) the applicable FCC Consent
shall have been obtained in form and substance satisfactory to Agent and either
(x) such FCC Consent and all other Governmental Authorizations from the FCC
required in connection with such acquisition shall not have been reversed,
stayed, enjoined, set aside, annulled or suspended and the time for filing a
request for administrative or judicial relief with respect to such consent, or
for instituting administrative review thereof sua sponte, shall have expired
--- ------
without any such filing having been made or notice of such review having been
issued, or, in the event of such filing or review sua sponte, such filing or
--- ------
review sua sponte shall have been disposed of favorably to the grant of such
--- ------
consent and the time for seeking further relief with respect thereto shall have
expired without any request for such further relief having been filed (with
respect to any FCC License, including, without limitation, the Company FCC
Licenses, referred to herein as a ``FINAL ORDER''), or (y) Agent and Requisite
Lenders shall not have notified Company that they have determined, in their sole
discretion, that there is a reasonable basis for concluding that such FCC
Consent may not become a Final Order in due course, and (iii) the transfer of
the related FCC Licenses to the applicable License Co. shall have been
consummated.
F. ENVIRONMENTAL AUDIT. On or before each Acquisition Closing Date,
Company shall have delivered copies of each environmental audit report or such
other information as Agent may reasonably request relating to the interests of
any Acquisition Subsidiary in the Acquisition Assets, all of the foregoing to be
in form and substance reasonably satisfactory to Agent.
G. ACQUISITION ASSETS AND LIABILITIES. As of each Acquisition Closing
Date the Acquisition Assets acquired pursuant to the consummation of the
applicable Acquisition Agreement shall be free and clear of all Liens (other
than Permitted Encumbrances and Liens created pursuant to the Collateral
Documents) and all assets and liabilities assumed by Company and any Acquisition
Subsidiary pursuant to such Acquisition Agreement shall be reasonably acceptable
to Agent.
H. DELIVERY OF MORTGAGES; MORTGAGE POLICIES. Agent shall have received
(A) from each Acquisition Subsidiary (other than any License Co.) fully executed
and acknowledged Subsidiary Mortgages, in each case in form and substance
reasonably satisfactory to Agent and its counsel, and each Acquisition
Subsidiary (other than any License Co.) shall execute and deliver such other
agreements, instruments and documents as Agent may reasonably require in order
to effect a valid, perfected and enforceable first priority lien (subject to any
Liens permitted hereby) and security interest in favor of Collateral Agent on
behalf of Lenders in all of such Person's interests in real property, whether
fee or leasehold interests, and all improvements now or hereafter located
thereon (each such property, an ``ACQUIRED MORTGAGED PROPERTY''), (B) a Landlord
Consent Letter with respect to each Subsidiary Mortgage on a Lease forming part
of the Acquired Mortgaged Property, and (C) a Lender's Policy issued by a
company or companies satisfactory to Agent, in an amount reasonably acceptable
to Agent, with all premiums paid thereon, and which shall insure that (i) the
78
Obligations of Company are secured by a valid first Lien on the Acquired
Mortgaged Properties subject only to the title exceptions approved by Agent, and
(ii) Company is current in the payment of all applicable state and local taxes,
charges and assessments affecting the Acquired Mortgaged Property. The Lender's
Policy shall contain, to the extent available, (1) a comprehensive lender's
endorsement, (2) a broad form zoning endorsement, including parking, (3) a
survey accuracy endorsement, (4) a usury endorsement, (5) appropriate
encroachment endorsements, (6) a tie-in endorsement, (7) a last-dollar
endorsement, (8) a variable rate endorsement, (9) a revolving loan endorsement,
(10) an endorsement with respect to the amendment of the Obligations effected or
contemplated hereby and (11) such other endorsements as Collateral Agent deems
necessary or advisable, all in form and substance satisfactory to Collateral
Agent. No title indemnities shall be established in connection with the
issuance of the Lender's Policy. Agent shall have received evidence
satisfactory to Agent as to whether (a) the Acquired Mortgaged Property is in an
area designated by the Federal Emergency Management Agency as having special
flood or mud slide hazards (a ``FLOOD HAZARD PROPERTY'') and (b) the community
in which such Flood Hazard Property is located is participating in the National
Flood Insurance Program; and, if such Acquired Mortgaged Property contains any
Flood Hazard Property, Agent shall have received the applicable Acquisition
Subsidiary's, as the case may be, written acknowledgement of receipt of written
notification from Agent (x) as to the existence of such Flood Hazard Property
and (y) as to whether the community in which such Flood Hazard Property is
located is participating in the National Flood Insurance Program.
I. SECURITY INTERESTS. To the extent not otherwise satisfied pursuant to
subsection 4.1B, each Credit Party shall have taken or caused to be taken (and
Collateral Agent shall have received satisfactory evidence thereof) such actions
in such a manner so that Collateral Agent has a valid and perfected first
priority security interest (subject to any Liens permitted hereby) as of such
date in the entire Acquisition Assets to the extent provided for in the
Collateral Documents. Such actions shall include, without limitation, (i)
delivery to Collateral Agent of certificates (which certificates shall be
registered in the name of Collateral Agent or properly endorsed in blank for
transfer or accompanied by irrevocable undated stock powers duly endorsed in
blank, all in form and substance satisfactory to Collateral Agent) representing
the partnership interests, to the extent such interests are evidenced by
certificates, and capital stock pledged pursuant to the Collateral Documents and
delivery to Collateral Agent of all other instruments (duly endorsed where
appropriate) evidencing the Acquisition Assets, as applicable, (ii) filing of
Uniform Commercial Code financing statements as to the Acquisition Assets for
all jurisdictions as may be necessary or desirable to perfect Lenders security
interests in the Acquisition Assets, and (iii) delivery of all other evidence
reasonably satisfactory to Collateral Agent that all other filings, recordings
and other actions Collateral Agent deems reasonably necessary or advisable to
establish, preserve and perfect the first priority Liens granted to Collateral
Agent on behalf of Lenders shall have been made.
J. DELIVERY OF COMPLIANCE CERTIFICATE. On each Acquisition Closing Date,
Company shall have delivered a Compliance Certificate, substantially in the form
of Exhibit VI hereto, demonstrating in reasonable detail compliance, on a Pro
----------
Forma Basis,
79
by Company and its Subsidiaries as of such Acquisition Closing Date with the
restrictions set forth in Section 7.
K. EVIDENCE OF INSURANCE. Collateral Agent shall have received an
Officers' Certificate of Company setting forth a schedule of insurance with
respect to each of the insurance policies required pursuant to subsection 6.4
hereof, and Collateral Agent shall be satisfied with the nature and scope of
these insurance policies and each such insurance policy shall name Collateral
Agent on behalf of Lenders as loss payee.
L. DELIVERY OF SOLVENCY CERTIFICATE. On or before each Acquisition
Closing Date, Company shall have delivered a certificate of the chief financial
officer of Company, substantially in the form of Exhibit XVI annexed hereto,
-----------
with appropriate attachments, demonstrating that, after giving effect to the
transactions contemplated by this Agreement, including the making of the Loans
on such Acquisition Closing Date and the application of proceeds as contemplated
herein, the fair salable value of the assets of Company will not be less than
the probable liability on its debts, that Company will be able to pay its debts
as they mature and that Company will not have unreasonably small capital to
conduct its business, all in form and substance reasonably satisfactory to Agent
and Requisite Lenders.
M. DELIVERY OF OPINIONS OF CREDIT PARTIES COUNSEL. Lenders and their
respective counsel shall have received originally executed copies of one or more
favorable written opinions of (i) each of the local counsel to Company in the
jurisdictions where the Acquisition Assets are located, in form and substance
reasonably satisfactory to Agent and their counsel, dated as of the applicable
Acquisition Closing Date and as to such matters as Agent may reasonably request,
and (ii) Company's FCC counsel acceptable to Agent, in form and substance
reasonably satisfactory to Agent, as to such matters as Agent may reasonably
request.
N. OFFICER'S CERTIFICATE. Company shall have delivered an Officer's
Certificate in form and substance satisfactory to Agent containing supplements
to the Schedules to this Agreement, which supplements shall in all respects be
satisfactory to Agent, in its sole discretion, and certifying that the
representations and warranties of Company set forth herein are true and correct
as of the applicable Acquisition Closing Date after giving effect to the related
Acquisition and such supplements to the Schedules hereto.
O. ADDITIONAL REQUIREMENTS. Company shall have complied with each of the
requirements set forth in subsection 7.7(vi).
4.5 CONDITIONS TO ADDITIONAL CREDIT COMMITMENTS.
-------------------------------------------
The effectiveness of any Additional Credit Commitment shall be subject to
the effectiveness of this Agreement pursuant to subsection 4.1 and shall be
subject to prior or concurrent satisfaction of the following conditions:
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A. COMPANY DOCUMENTS. On or before the applicable Additional Credit
Facility Closing Date, Company shall deliver or cause to be delivered to Lenders
(or to Agent for Lenders with sufficient originally executed copies, where
appropriate, for each Lender and its counsel) the following, each, unless
otherwise noted, dated such Additional Credit Facility Closing Date:
(i) Certified copies of Company's Certificate of Incorporation or
other charter documents, together with a good standing certificate from the
Secretary of State of the state of its incorporation and each other state
in which it is qualified as a foreign corporation to do business, each
dated a recent date prior to such Additional Credit Facility Closing Date;
(ii) Copies of Company's Bylaws, certified as of such Additional
Credit Facility Closing Date by Company's corporate secretary or an
assistant secretary;
(iii) Resolutions of Company's Board of Directors approving and
authorizing the execution, delivery and performance of such Additional
Credit Facility Supplement and any other Loan Documents to be executed in
connection therewith, certified as of the Additional Credit Facility
Closing Date by Company's corporate secretary or an assistant secretary as
being in full force and effect without modification or amendment;
(iv) Signature and incumbency certificates of Company's officers
executing such Additional Credit Facility Supplement and any other Loan
Documents to be executed in connection therewith;
(v) Executed originals of the applicable Additional Credit Facility
Supplement, the applicable Additional Credit Notes (duly executed in
accordance with subsection 2.1D, drawn to the order of each applicable
Additional Credit Lender and with appropriate insertions) and the other
Loan Documents, any amendments to the Mortgages that may be required
because of the increase in the Commitments, and any amendments to the
Collateral Documents that may be required under subsection 4.5C; and
(vi) Such other documents as Agent may reasonably request.
B. OPINIONS OF COMPANY'S COUNSEL. Agent shall have received, for
distribution to Lenders and their respective counsel, originally executed copies
of one or more favorable written opinions of Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇,
L.L.P., counsel for Company, in form and substance reasonably satisfactory to
Agent and its counsel, dated as of the applicable Additional Credit Facility
Closing Date and setting forth substantially such matters as Agent acting on
behalf of Lenders may reasonably request.
81
C. COLLATERAL DOCUMENTS. Each Credit Party shall have taken or caused to
be taken all actions specified in subsections 4.1B, 4.1C and 4.1L as if such
subsections applied as of the Additional Credit Facility Closing Date.
D. COMPLIANCE CERTIFICATE; SATISFACTION OF DEBT INCURRENCE RATIOS. On
the applicable Additional Credit Facility Closing Date, Company shall have
delivered to Agent (i) a Compliance Certificate, substantially in the form of
Exhibit VI hereto, demonstrating in reasonable detail compliance, on a pro forma
----------
basis by Company and its Subsidiaries as of such Additional Credit Facility
Closing Date with the restrictions set forth in Section 7 and (ii) a certificate
of the chief financial officer of Company stating that, as of the Closing Date,
Company is able to incur an aggregate amount of debt at least equal to the Loans
as of such date (after giving effect to any Loans to be drawn on such date)
without causing an event of default or event or condition that, after notice or
the lapse of time, or both, would become an event of default under the
Subordinated Note Documents or the New Subordinated Note Documents or the
documents relating to any Additional Subordinated Indebtedness, and shall
demonstrate in reasonable detail satisfaction on a pro forma basis as of the
Closing Date by Company and its Subsidiaries of the debt incurrence tests set
forth in Section 1008 of the Subordinated Note Indenture, Section 1008 of the
New Subordinated Note Indenture, Section 1008 of the 1996 Subordinated Note
Indenture and any comparable provision of any documents relating to Additional
Subordinated Indebtedness.
E. SOLVENCY CERTIFICATE. On or before the applicable Additional Credit
Facility Closing Date, Company shall have delivered to Agent a certificate of
the chief financial officer of Company, substantially in the form of Exhibit XVI
-----------
annexed hereto, with appropriate attachments, demonstrating that, after giving
effect to the Additional Credit Commitment and the transactions contemplated by
this Agreement, the fair salable value of the assets of Company will not be less
than the probable liability on its debts, that Company will be able to pay its
debts as they mature and that Company will not have unreasonably small capital
to conduct its business, all in form and substance reasonably satisfactory to
Agent and Requisite Lenders.
SECTION 5.
COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make the
Loans, to induce Issuing Lenders to issue Letters of Credit and to induce other
Lenders to purchase participations therein, Company represents and warrants to
each Lender, on the date of this Agreement, on each Funding Date and on the date
of issuance of each Letter of Credit, that the following statements are true,
correct and complete:
5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
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SUBSIDIARIES.
------------
A. ORGANIZATION AND POWERS. Each Credit Party (other than QC III) is a
corporation duly organized, validly existing and in good standing under the laws
of its state
82
of incorporation and has all requisite corporate power and authority to own and
operate its properties, to carry on its business as now conducted and as
proposed to be conducted, to enter into the Loan Documents to which it is a
party, to carry out the transactions contemplated hereby and thereby and, in the
case of Company, to issue and pay the Notes. QC III is a limited partnership
duly formed and validly existing under the laws of the State of Delaware and has
all requisite partnership power and authority to own and operate its properties,
to carry on its business as now conducted and proposed to be conducted, to enter
into the Loan Documents to which it is a party and to carry out the transactions
contemplated hereby and thereby.
B. QUALIFICATION AND GOOD STANDING. Each Credit Party is qualified to do
business and in good standing in every jurisdiction where its assets are located
and wherever necessary to carry out its business and operations, except in
jurisdictions where the failure to be so qualified or in good standing has not
had and will not have a Material Adverse Effect.
C. CONDUCT OF BUSINESS. Company and its Subsidiaries are engaged only in
the businesses permitted to be engaged in pursuant to subsection 7.13.
D. SUBSIDIARIES. All of the Subsidiaries of Company as of the Closing
Date are identified in Schedule 5.1 annexed hereto, as it may be supplemental
------------
pursuant to subsection 4.4N. The capital stock of each of the Subsidiaries of
Company (other than QC III) is duly authorized, validly issued, fully paid and
nonassessable and none of such capital stock constitutes Margin Stock. Schedule
--------
5.1 annexed hereto, as it may be supplemented pursuant to subsection 4.4N,
---
correctly sets forth the ownership interest of Company in each of its
Subsidiaries identified therein.
E. ACQUISITIONS. Company and each Subsidiary making any Acquisition
shall have the corporate, partnership or other power to consummate such
Acquisition upon the consummation thereof, on the terms set forth in the
applicable Acquisition Agreement. Upon the consummation of any Acquisition,
such Acquisition shall have been duly authorized by all necessary action of
Company and any of its Subsidiaries participating therein.
5.2 AUTHORIZATION OF BORROWING, ETC.
--------------------------------
A. AUTHORIZATION OF BORROWING. The execution, delivery and performance
of the Loan Documents and the issuance, delivery and payment of the Notes and
Intercompany Notes have been duly authorized by all necessary corporate or
partnership action, as the case may be, on the part of each Credit Party party
thereto.
B. NO CONFLICT. The execution, delivery and performance by each Credit
Party of the Loan Documents to which it is a party, the issuance, delivery and
payment of the Notes and the consummation of the transactions contemplated by
the Loan Documents and the issuance of the Subordinated Indebtedness and, from
and after any Acquisition Closing
83
Date, the consummation of the related Acquisition, do not and will not (i)
violate any provision of any law or any governmental rule or regulation
applicable to Company or any other Credit Party, the Certificate of
Incorporation, other charter documents or Bylaws of Company or any other Credit
Party, or any order, judgment or decree of any court or other agency of
government binding on Company or any other Credit Party, (ii) conflict with,
result in a breach of or constitute (with due notice or lapse of time or both) a
default under any Contractual Obligation of Company or any other Credit Party,
(iii) result in or require the creation or imposition of any Lien upon any of
the properties or assets of Company or any other Credit Party, (other than any
Liens created under any of the Loan Documents in favor of Collateral Agent on
behalf of Lenders), or (iv) require any approval of stockholders or any approval
or consent of any Person under any Contractual Obligation of Company or any
other Credit Party, except for such approvals or consents which will be obtained
on or before the Closing Date (or, in the case of an Acquisition, on or before
the applicable Acquisition Closing Date) and disclosed in writing to Lenders.
C. GOVERNMENTAL CONSENTS. The execution, delivery and performance by
each Credit Party of the Loan Documents, the Subordinated Note Documents and the
New Subordinated Note Documents to which it is a party, the issuance, delivery
and payment of the Notes, the issuance, delivery and payment of the Subordinated
Notes pursuant to the Subordinated Note Documents, the issuance, delivery and
payment of the New Subordinated Notes pursuant to the New Subordinated Note
Documents and the consummation of the transactions contemplated by the Loan
Documents, the Subordinated Note Documents and the New Subordinated Note
Documents do not and will not require any registration with, consent or approval
of, or notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body, except for (i) such consents,
approvals, filings, recordations and registrations as contemplated by the
Collateral Documents in order to perfect, continue or enforce the security
interests in the Collateral thereunder, (ii) routine corporate filings to
maintain the corporate good standing of Company and its Subsidiaries, (iii)
filing of the Borrower Pledge and Security Agreement and the Subsidiary Pledge
and Security Agreement with the FCC, (iv) the consents of the FCC set forth
under subsection 6.14 and (v) with respect to any Acquisition, such consents,
filings, approvals and authorizations as shall have been made or obtained prior
to the consummation of such Acquisition.
D. BINDING OBLIGATION. Each of the Loan Documents has been duly executed
and delivered by each Credit Party party thereto and is the legally valid and
binding obligation of such Person, enforceable against such Person in accordance
with its respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability.
E. VALID ISSUANCE OF COMPANY COMMON STOCK, NEW PREFERRED STOCK AND
SUBORDINATED INDEBTEDNESS. The Company Common Stock and New Preferred Stock has
been duly and validly issued, fully paid and nonassessable. No stockholder of
Company has or will have any preemptive rights to subscribe for any additional
Securities of Company.
84
The Subordinated Note Documents and the New Subordinated Note Documents (and all
other Subordinated Indebtedness) are the legally valid and binding obligations
of Company, enforceable against Company in accordance with their respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability. The subordination
provisions of the Subordinated Note Documents and the New Subordinated Note
Documents (and all other Subordinated Indebtedness) will be enforceable against
the holders thereof and the Loans and all other monetary Obligations of Company
hereunder are and will be within the definition of ``Senior Debt'' included in
such provisions, to the extent that they are obligations of Company in respect
of principal, interest, reimbursements of amounts drawn under Letters of Credit,
penalties, fees, expenses, indemnification or other reimbursements. The
issuance and sale of the Company Common Stock, the New Preferred Stock and the
Subordinated Indebtedness either (a) has been registered or qualified under
applicable federal and state securities laws or (b) was exempt therefrom.
5.3 FINANCIAL CONDITION.
-------------------
Company has heretofore delivered to Lenders, at Lenders' request, the
following financial statements and information: (i) the audited consolidated
balance sheets of Company and its Subsidiaries as at December 31, 1995 and the
related consolidated statements of income, stockholders' equity and cash flows
of Company and its Subsidiaries for the Fiscal Year then ended and (ii) the
unaudited consolidated balance sheets of Company and its Subsidiaries as at June
30, 1996 and the related unaudited consolidated statements of income,
stockholders' equity and cash flows of Company and its Subsidiaries for the
three months then ended. All such statements were prepared in conformity with
GAAP and fairly present the financial position (on a consolidated basis) of the
entities described in such financial statements as at the respective dates
thereof and the results of operations and cash flows (on a consolidated basis)
of the entities described therein for each of the periods then ended, subject,
in the case of any such unaudited financial statements, to changes resulting
from audit and normal year-end adjustments. As of the Closing Date, Company
does not (and will not following the funding of the Loans, if any, to be made on
the Closing Date) have any Contingent Obligation, contingent liability or
liability for taxes, long-term lease or unusual forward or long-term commitment
that is not reflected in the foregoing financial statements or the notes thereto
and which in any such case is material in relation to the business, operations,
properties, assets, condition (financial or otherwise) or prospects of Company
or any of its Subsidiaries.
5.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED JUNIOR PAYMENTS.
---------------------------------------------------------
Since December 31, 1995, no event or change has occurred that has caused or
evidences, either in any case or in the aggregate, a Material Adverse Effect.
Since the 1993 Closing Date, neither Company nor any of its Subsidiaries has
directly or indirectly declared, ordered, paid or made, or set apart any sum or
property for, any Restricted Junior Payment or agreed to do so except as
permitted by subsection 7.5.
85
5.5 TITLE TO PROPERTIES; LIENS.
--------------------------
Company and its Subsidiaries have good, sufficient and legal title to all
of their respective properties and assets reflected in the financial statements
referred to in subsection 5.3 or in the most recent financial statements
delivered pursuant to subsection 6.1, except for assets disposed of since the
date of such financial statements in the ordinary course of business or as
otherwise permitted under subsection 7.7. Except as permitted by this
Agreement, all such properties and assets are free and clear of Liens.
5.6 LITIGATION; ADVERSE FACTS.
-------------------------
There is no action, suit, proceeding, arbitration or governmental
investigation (whether or not purportedly on behalf of Company or any of its
Subsidiaries) at law or in equity or before or by any federal, state, municipal
or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, pending or, to the knowledge of Company,
threatened against or affecting Company or any of its Subsidiaries or any
property of Company or any of its Subsidiaries that has had, or could reasonably
be expected to result in, a Material Adverse Effect. Neither Company nor any of
its Subsidiaries is (i) in violation of any applicable law that has had, or
could reasonably be expected to result in, a Material Adverse Effect or (ii)
subject to or in default with respect to any final judgment, writ, injunction,
decree, rule or regulation of any court or any federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, that has had, or could reasonably be
expected to result in, a Material Adverse Effect.
5.7 PAYMENT OF TAXES.
----------------
Except to the extent permitted by subsection 6.3, all tax returns and
reports of Company and its Subsidiaries required to be filed by any of them have
been timely filed, and all taxes, assessments, fees and other governmental
charges upon Company and its Subsidiaries and upon their respective properties,
assets, income, businesses and franchises which are due and payable have been
paid when due and payable. Company knows of no proposed tax assessment against
Company or any of its Subsidiaries which is not being actively contested by
Company or such Subsidiary in good faith and by appropriate proceedings;
provided that such reserves or other appropriate provisions, if any, as shall be
--------
required in conformity with GAAP shall have been made or provided therefor.
5.8 PERFORMANCE OF AGREEMENTS; MATERIALLY ADVERSE AGREEMENTS.
--------------------------------------------------------
A. Neither Company nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any of its Contractual Obligations, and no condition
exists that, with the giving of notice or the lapse of time or both, would
constitute such a default, except where the consequences, direct or indirect, of
such default or defaults, if any, would not have a Material Adverse Effect.
86
B. Neither Company nor any of its Subsidiaries is a party to or is
otherwise subject to any agreement or instrument or any charter or other
internal restriction which contains any overly burdensome or restrictive
provision, the compliance with which could reasonably be expected to result in,
individually or in the aggregate, a Material Adverse Effect.
5.9 GOVERNMENTAL REGULATION.
-----------------------
Neither Company nor any of its Subsidiaries is subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act or the Investment Company Act of 1940 or under any other
federal or state statute or regulation which may limit its ability to incur
Indebtedness or which may otherwise render all or any portion of the Obligations
unenforceable.
5.10 SECURITIES ACTIVITIES.
---------------------
Neither Company nor any of its Subsidiaries is engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any Margin Stock.
5.11 EMPLOYEE BENEFIT PLANS.
----------------------
A. Company and each of its ERISA Affiliates are in substantial compliance
with all applicable provisions and requirements of ERISA and the regulations and
published interpretations thereunder with respect to each Employee Benefit Plan,
and have performed all their obligations under each Employee Benefit Plan.
B. No ERISA Event has occurred or is reasonably expected to occur.
C. Except to the extent required under Section 4980B of the Internal
Revenue Code, no Employee Benefit Plan provides health or welfare benefits
(through the purchase of insurance or otherwise) for any retired or former
employees of Company or any of its ERISA Affiliates.
D. As of the most recent valuation date for any Pension Plan, the amount
of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA),
individually or in the aggregate for all Pension Plans (excluding for purposes
of such computation any Pension Plans with respect to which assets exceed
benefit liabilities), does not exceed $1,000,000.
5.12 CERTAIN FEES.
------------
Except as set forth on Schedule 5.12 annexed hereto, as it may be
-------------
supplemented pursuant to subsection 4.4N, no broker's or finder's fee or
commission will be payable with respect to this Agreement or any of the
transactions contemplated hereby, and Company hereby indemnifies Lenders
against, and agrees that it will hold Lenders harmless from, any
87
claim, demand or liability for any such broker's or finder's fees alleged to
have been incurred in connection herewith or therewith and any expenses
(including reasonable fees, expenses and disbursements of counsel) arising in
connection with any such claim, demand or liability.
5.13 ENVIRONMENTAL PROTECTION.
------------------------
Except as set forth in Schedule 5.13 annexed hereto (as it may be
-------------
supplemented pursuant to subsection 4.4N):
(i) the operations of Company and each of its Subsidiaries (including,
without limitation, all operations and conditions at or in the Facilities)
comply in all material respects with all Environmental Laws;
(ii) Company and each of its Subsidiaries have obtained all
Governmental Authorizations under Environmental Laws necessary to their
respective operations, and all such Governmental Authorizations are in good
standing, and Company and each of its Subsidiaries are in compliance with
all material terms and conditions of such Governmental Authorizations;
(iii) neither Company nor any of its Subsidiaries has received (a)
any notice or claim to the effect that it is or may be liable to any Person
as a result of or in connection with any Hazardous Materials or (b) any
letter or request for information under Section 104 of the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. (S)
9604) or comparable state laws, and, to the best of Company's knowledge,
none of the operations of Company or any of its Subsidiaries is the subject
of any federal or state investigation relating to or in connection with any
Hazardous Materials at any Facility or at any other location;
(iv) none of the operations of Company or any of its Subsidiaries is
subject to any judicial or administrative proceeding alleging the violation
of or liability under any Environmental Laws which if adversely determined
could reasonably be expected to have a Material Adverse Effect;
(v) neither Company nor any of its Subsidiaries nor any of their
respective Facilities or operations are subject to any outstanding written
order or agreement with any governmental authority or private party
relating to (a) any Environmental Laws or (b) any Environmental Claims;
(vi) neither Company nor any of its Subsidiaries has any contingent
liability in connection with any Release of any Hazardous Materials by
Company or any of its Subsidiaries;
(vii) neither Company nor any of its Subsidiaries nor, to the best
knowledge of Company, any predecessor of Company or any of its Subsidiaries
has filed any
88
notice under any Environmental Law indicating past or present treatment or
Release of Hazardous Materials at any Facility, and none of Company's or
any of its Subsidiaries' operations involves the generation,
transportation, treatment, storage or disposal of hazardous waste, as
defined under 40 C.F.R. Parts 260-270 or any state equivalent;
(viii) no Hazardous Materials exist on, under or about any Facility
in a manner that has a reasonable possibility of giving rise to an
Environmental Claim having a Material Adverse Effect, and neither Company
nor any of its Subsidiaries has filed any notice or report of a Release of
any Hazardous Materials that has a reasonable possibility of giving rise to
an Environmental Claim having a Material Adverse Effect;
(ix) neither Company nor any of its Subsidiaries nor, to the best
knowledge of Company, any of their respective predecessors has disposed of
any Hazardous Materials in a manner that has a reasonable possibility of
giving rise to an Environmental Claim having a Material Adverse Effect;
(x) no underground storage tanks or surface impoundments are on or at
any Facility; and
(xi) no Lien in favor of any Person relating to or in connection with
any Environmental Claim has been filed or has been attached to any
Facility.
5.14 EMPLOYEE MATTERS.
----------------
There is no strike or work stoppage in existence or, to Company's
knowledge, threatened involving Company or any of its Subsidiaries that
could reasonably be expected to have a Material Adverse Effect.
5.15 DISCLOSURE.
----------
No representation or warranty of Company or any other Credit Party
contained in any Loan Document, any New Subordinated Note Document or in
any other document, certificate or written statement furnished to Lenders
by or on behalf of Company or any such Credit Party for use in connection
with the transactions contemplated by this Agreement (including any
Acquisition), the other Loan Documents and the New Subordinated Note
Documents contains any untrue statement of a material fact or omits to
state a material fact (known to Company, in the case of any document not
furnished by it) necessary in order to make the statements contained herein
or therein not misleading in light of the circumstances in which the same
were made. Any projections and pro forma financial information contained
in such materials are based upon good faith estimates and assumptions
believed by Company to be reasonable at the time made, it being recognized
by Lenders that such projections as to future events are not to be viewed
as facts and that actual results during the period or periods covered by
any such projections may differ from
89
the projected results. There is no fact known (or which should upon the
reasonable exercise of diligence be known) to Company (other than matters
of a general economic nature) that has had, or could reasonably be expected
to result in, a Material Adverse Effect and that has not been disclosed
herein or in such other documents, certificates and statements furnished to
Lenders for use in connection with the transactions contemplated hereby.
5.16 REGULATION OF LENDERS.
---------------------
None of Agent, Collateral Agent nor any Lender will, by reason of the
execution, delivery and performance (other than the exercise of remedies)
of any of the Loan Documents, be subject to the regulation or control of
the FCC or any other Communications Regulatory Authority.
5.17 APPLICABLE LAW.
--------------
Company and each other Credit Party is in compliance with the
requirements of all applicable laws, rules, regulations, orders,
applications, reporting and licensing requirements of all governmental
authorities (including, without limitation, all Communications Regulatory
Authorities) except for violations thereof which could not reasonably be
expected to have a Material Adverse Effect; and none of Company nor any
other Credit Party is the subject of any outstanding citation order or
investigation by any Communications Regulatory Authority which could
reasonably be expected to have a Material Adverse Effect, and no such
citation, order or investigation (excluding any rule making proceeding of
general applicability) which could reasonably be expected to have a
Material Adverse Effect, to the knowledge of Company, is contemplated by
any Communications Regulatory Authority.
5.18 FCC LICENSES AND APPROVALS.
--------------------------
A. Each of Company and each other Credit Party has all requisite
power and authority and necessary licenses, authorizations, waivers and
permits (the ``FCC LICENSES'') required under the Communications Act to own
and operate its properties and to carry on its businesses as now conducted
and as proposed to be conducted (other than, for the period prior to any
Acquisition Date, with respect to any properties or businesses to be
acquired in connection with such Acquisition).
B. Set forth in Schedule 5.18, as it may be supplemented pursuant to
-------------
subsection 4.4N to include the FCC Licenses acquired in connection with any
Acquisition, is a complete list of all FCC Licenses of Company and each
other Credit Party. Such list correctly sets forth the termination date of
each such FCC License. Each such FCC License which is materially necessary
to the operation of the business of any such Person is validly issued and
in full force and effect, and constitutes in all material respects, all of
the authorization from any Communications Regulatory Authority necessary
for the operation of such Person's business in the same manner as it is
presently conducted and as proposed to be conducted. Each of Company and
each other Credit Party has taken all material actions and performed all of
its material obligations that are necessary to maintain such
90
FCC Licenses without adverse modification or impairment, and complete and
correct copies of the FCC Licenses of each such Person have been delivered
to Agent. No event has occurred which (a) results in, or after notice or
lapse of time or both would result in, revocation, suspension, adverse
modification, non-renewal, impairment or termination of or any order of
forfeiture with respect to, any FCC License or (b) materially and adversely
affects or in the future may (so far as any Credit Party can now reasonably
foresee) materially adversely affect any of the rights of Company or any
other Credit Party of such Person thereunder. Except as set forth in
Schedule 5.18, as it may be supplemented pursuant to subsection 4.4N to
-------------
include the FCC Licenses acquired in connection with any Acquisition, none
of the FCC Licenses requires that any present stockholder, director,
officer or employee of Company or any other Credit Party remain a
stockholder or employee of such Person, or that any transfer of control of
such Person must be approved by any public or governmental body other than
the FCC.
C. Neither Company nor any other Credit Party is a party to or has
knowledge of any investigation, notice of apparent liability, violation,
forfeiture or other order or complaint issued by or before any court or
regulatory body, including the FCC, or of any other proceedings (other than
proceedings relating to the radio or television industries generally) which
could in any manner threaten or adversely affect the validity or continued
effectiveness of the FCC Licenses of any such Person. Neither Company nor
any other Credit Party has any reason to believe (other than in connection
with there being no legal assurance thereof) that the FCC Licenses listed
and described in Schedule 5.18 as it may be supplemented pursuant to
-------------
subsection 4.4N to include the FCC Licenses acquired in connection with the
any Acquisition, will not be renewed in the ordinary course. Each of
Company and each other Credit Party, as applicable, has filed in a timely
manner all material reports, applications, documents, instruments and
information required to be filed by it pursuant to applicable rules and
regulations or requests of every regulatory body having jurisdiction over
any of its FCC Licenses.
D. None of the facilities used in connection with the Credit Parties'
radio or television broadcasting operations (including without limitation,
the transmitter and tower sites owned or used by Company or any of its
Subsidiaries) violates in any material respect the provisions of any
applicable building codes, fire regulations, building restrictions or other
governmental ordinances, orders, or regulations and each such facility is
zoned so as to permit the commercial uses intended by the owner or occupier
thereof and there are no outstanding variances or special use permits
materially affecting any of the facilities or the uses thereof.
E. Each Ownership Report filed by the Company and its Subsidiaries
with the FCC was true, correct and complete in all material respects as of
the date of such filing.
5.19 REAL PROPERTY.
-------------
Neither Company nor any of its Subsidiaries owns any interest in real
property other than the real property interests and the leases identified
in Schedule 5.19 annexed hereto,
-------------
91
as it may be supplemented pursuant to subsection 4.4N to include any real
property interest acquired by any Credit Party pursuant to any Acquisition.
Schedule 5.19, as so supplemented, accurately states all real property
-------------
interests held by the Credit Parties.
5.20 INSURANCE.
---------
Company and its Subsidiaries maintain, with financially sound and
reputable insurers, insurance with respect to its properties and business
and the properties and business of its Subsidiaries, against loss or damage
of the kinds customarily insured against by corporations of established
reputation engaged in the same or similar business of such types and in
such amounts as are customarily carried under similar circumstances by such
other corporations all as determined by the officers of the Company in
their reasonable discretion. Attached as Schedule 5.20 hereto, as it may
-------------
be supplemented pursuant to subsection 4.4N, is a complete and accurate
description of all policies of insurance that are in effect for Company and
its Subsidiaries.
5.21 INTELLECTUAL PROPERTY
---------------------
A. Company and its Subsidiaries own, or are licensed to use, the
Intellectual Property and all such Intellectual Property is fully protected
and duly and properly registered, filed or issued in the appropriate office
and jurisdictions for such registrations, filing or issuances.
B. No material claim has been made, or to the best knowledge of
Company, asserted by any Person with respect to the use of any such
Intellectual Property, or challenging or questioning the validity or
effectiveness of any such Intellectual Property. The use of such
Intellectual Property by Company or any of its Subsidiaries does not
infringe on the rights of any Person, subject to such claims and
infringements as do not, in the aggregate, give rise to any liabilities on
the part of Company or any of its Subsidiaries that are material to Company
or any of its Subsidiaries. The consummation of the transactions
contemplated by this Agreement will not in any material manner or to any
material extent impair the ownership of (or the license to use, as the case
may be) any of such Intellectual Property by Company or any of its
Subsidiaries.
5.22 LOANS PERMITTED UNDER SUBORDINATED DEBT DOCUMENTS.
-------------------------------------------------
At the time of borrowing thereof, all Loans outstanding or requested
hereunder either were (or will be) expressly permitted under the terms of
Section 1008(i) of the Subordinated Note Indenture, Section 1008(i) of the
New Subordinated Note Indenture, Section 1008(i) of the 1996 Subordinated
Note Indenture or any comparable provision of any documents evidencing
Additional Subordinated Indebtedness or the debt incurrence tests set forth
in Section 1008 of the Subordinated Note Indenture, Section 1008 of the New
Subordinated Note, Section 1008 of the 1996 Subordinated Note Indenture or
any comparable provision of any documents relating to Additional
Subordinated Indebtedness were (or will be) satisfied by Company and its
Subsidiaries.
92
5.23 OUTSTANDING LOANS.
-----------------
None of the Mortgages have become unenforceable as a result of the
failure to pay any additional mortgage recording tax, documentary stamp
tax, tax on intangibles, or other similar taxes due to any state or local
governmental authority by reason of the borrowing, repayment or prepayment,
and subsequent reborrowing of any Loans.
SECTION 6.
COMPANY'S AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 6.
6.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
--------------------------------------
Company will maintain, and cause each of its Subsidiaries to maintain, a
system of accounting established and administered in accordance with sound
business practices to permit preparation of financial statements in conformity
with GAAP. Company will deliver to Agent and Lenders:
(i) Quarterly Financials: as soon as available and in any event
--------------------
within 45 days after the end of each of the first three fiscal quarters of
each Fiscal Year, (a) the consolidated and consolidating balance sheets of
Company and its Subsidiaries as at the end of such fiscal quarter and the
related consolidated and consolidating statements of income, stockholders'
equity and cash flows of Company and its Subsidiaries for such fiscal
quarter and for the period from the beginning of the then current Fiscal
Year to the end of such fiscal quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding periods of
the previous Fiscal Year and the corresponding figures from the
consolidated plan and financial forecast for the current Fiscal Year
delivered pursuant to subsection 6.1(xiii), all in reasonable detail and
certified by the chief financial officer of Company that they fairly
present the financial condition of Company and its Subsidiaries as at the
dates indicated and the results of their operations and their cash flows
for the periods indicated, subject to changes resulting from audit and
normal year-end adjustments, and (b) a narrative report describing the
operations of Company and its Subsidiaries in the form prepared for
presentation to senior management for such fiscal quarter and for the
period from the beginning of the then current Fiscal Year to the end of
such fiscal quarter;
(ii) Year-End Financials: as soon as available and in any event
-------------------
within 90 days after the end of each Fiscal Year, (a) the consolidated
(and, at the request of
93
any Lender, consolidating) balance sheets of Company and its Subsidiaries
as at the end of such Fiscal Year and the related consolidated (and, at the
request of any Lender, consolidating) statements of income, stockholders'
equity and cash flows of Company and its Subsidiaries for such Fiscal Year,
setting forth in each case in comparative form the corresponding figures
for the previous Fiscal Year and the corresponding figures from the
consolidated plan and financial forecast delivered pursuant to subsection
6.1(xiii) for the Fiscal Year covered by such financial statements, all in
reasonable detail and certified by the chief financial officer of Company
that they fairly present the financial condition of Company and its
Subsidiaries as at the dates indicated and the results of their operations
and their cash flows for the periods indicated, (b) a narrative report
describing the operations of Company and its Subsidiaries in the form
prepared for presentation to senior management for such Fiscal Year, and
(c) in the case of such consolidated financial statements, a report thereon
of Ernst & Young or other independent certified public accountants of
recognized national standing selected by Company and satisfactory to Agent,
which report shall be unqualified, shall express no doubts about the
ability of Company and its Subsidiaries to continue as a going concern, and
shall state that such consolidated financial statements fairly present the
consolidated financial position of Company and its Subsidiaries as at the
dates indicated and the results of their operations and their cash flows
for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years (except as otherwise disclosed in such
financial statements) and that the examination by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards;
(iii) Officers' and Compliance Certificates: together with each
-------------------------------------
delivery of financial statements of Company and its Subsidiaries pursuant
to subdivisions (i) and (ii) above, (a) an Officers' Certificate of Company
stating that the signers have reviewed the terms of this Agreement and have
made, or caused to be made under their supervision, a review in reasonable
detail of the transactions and condition of Company and its Subsidiaries
during the accounting period covered by such financial statements and that
such review has not disclosed the existence during or at the end of such
accounting period, and that the signers do not have knowledge of the
existence as at the date of such Officers' Certificate, of any condition or
event that constitutes an Event of Default or Potential Event of Default,
or, if any such condition or event existed or exists, specifying the nature
and period of existence thereof and what action Company has taken, is
taking and proposes to take with respect thereto; and (b) a Compliance
Certificate demonstrating in reasonable detail compliance during and at the
end of the applicable accounting periods with the restrictions contained in
Section 7, except that with respect to the restrictions contained in
subsection 7.6, such Compliance Certificate shall demonstrate in reasonable
detail compliance at the end of the applicable accounting periods only;
(iv) Reconciliation Statements: if, as a result of any change in
-------------------------
accounting principles and policies from those used in the preparation of
the audited financial
94
statements referred to in subsection 5.3, the consolidated financial
statements of Company and its Subsidiaries delivered pursuant to
subdivisions (i), (ii) or (xiii) of this subsection 6.1 will differ in any
material respect from the consolidated financial statements that would have
been delivered pursuant to such subdivisions had no such change in
accounting principles and policies been made, then (a) together with the
first delivery of financial statements pursuant to subdivision (i), (ii) or
(xiii) of this subsection 6.1 following such change, consolidated financial
statements of Company and its Subsidiaries for (y) the current Fiscal Year
to the effective date of such change and (z) the two full Fiscal Years
immediately preceding the Fiscal Year in which such change is made, in each
case prepared on a Pro Forma Basis as if such change had been in effect
during such periods, and (b) together with each delivery of financial
statements pursuant to subdivision (i), (ii) or (xiii) of this subsection
6.1 following such change, a written statement of the chief accounting
officer or chief financial officer of Company setting forth the differences
which would have resulted if such financial statements had been prepared
without giving effect to such change.
(v) Accountants' Certification: together with each delivery of
--------------------------
consolidated financial statements of Company and its Subsidiaries pursuant
to subdivision (ii) above, a written statement by the independent certified
public accountants giving the report thereon (a) stating that their audit
examination has included a review of the terms of this Agreement and the
other Loan Documents (other than the Collateral Documents but including the
Subsidiary Guaranty) as they relate to accounting matters, (b) stating
whether, in connection with their audit examination, any condition or event
that constitutes an Event of Default or Potential Event of Default has come
to their attention and, if such a condition or event has come to their
attention, specifying the nature and period of existence thereof; provided
--------
that such accountants shall not be liable by reason of any failure to
obtain knowledge of any such Event of Default or Potential Event of Default
that would not be disclosed in the course of their audit examination, and
(c) stating that based on their audit examination nothing has come to their
attention that causes them to believe either or both that the information
contained in the certificates delivered therewith pursuant to subdivision
(iv) above is not correct or that the matters set forth in the Compliance
Certificates delivered therewith pursuant to clause (b) of subdivision (iv)
above for the applicable Fiscal Year are not stated in accordance with the
terms of this Agreement;
(vi) Accountants' Reports: promptly upon receipt thereof (unless
--------------------
restricted by applicable professional standards), copies of all reports
submitted to Company by independent certified public accountants in
connection with each annual, interim or special audit of the financial
statements of Company and its Subsidiaries made by such accountants,
including, without limitation, any comment letter submitted by such
accountants to management in connection with their annual audit;
(vii) SEC Filings; Press Releases and FCC Notices: promptly upon
-------------------------------------------
their becoming available, copies of (a) all financial statements, reports,
notices and proxy
95
statements sent or made available generally by Company to its security
holders or by any Subsidiary of Company to its security holders other than
Company or another Subsidiary of Company, (b) all regular and periodic
reports and all registration statements (other than on Form S-8 or a
similar form) and prospectuses, if any, filed by Company or any of its
Subsidiaries with any securities exchange or with the Securities and
Exchange Commission or any governmental or private regulatory authority,
(c) all press releases and other statements made available generally by
Company or any of its Subsidiaries to the public concerning material
developments in the business of Company or any of its Subsidiaries, (d) any
non-routine correspondence or official notices received by Company or any
other Credit Party from any federal, state or local governmental authority
which regulates the operations of Company or any such Credit Party, and (e)
all Ownership Reports filed with the FCC.
(viii) FCC Licenses, etc.: promptly upon receipt of notice of (a)
------------------
any forfeiture, non-renewal, cancellation, termination, revocation,
suspension, impairment or material modification of any FCC License held by
Company or any of its Subsidiaries, or any notice of default or forfeiture
with respect to any such FCC License, or (b) any refusal by any
governmental agency or authority (including, without limitation, the FCC)
to renew or extend any such FCC License, an Officers' Certificate
specifying the nature of such event, the period of existence thereof, and
what action Company and its Subsidiaries are taking or propose to take with
respect thereto;
(ix) Events of Default, etc.: promptly upon any officer of Company
-----------------------
obtaining knowledge (a) of any condition or event that constitutes an Event
of Default or Potential Event of Default, or becoming aware that any Lender
has given any notice (other than to Agent) or taken any other action with
respect to a claimed Event of Default or Potential Event of Default, (b)
that any Person has given any notice to Company or any of its Subsidiaries
or taken any other action with respect to a claimed default or event or
condition of the type referred to in subsection 8.2, (c) of any condition
or event that would be required to be disclosed in a current report filed
by Company with the Securities and Exchange Commission on Form 8-K (Items
1, 2, 4, 5 and 6 of such Form as in effect on the date hereof) if Company
were required to file such reports under the Exchange Act, or (d) of the
occurrence of any event or change that has caused or evidences, either in
any case or in the aggregate, a Material Adverse Effect, an Officers'
Certificate specifying the nature and period of existence of such
condition, event or change, or specifying the notice given or action taken
by any such Person and the nature of such claimed Event of Default,
Potential Event of Default, default, event or condition, and what action
Company has taken, is taking and proposes to take with respect thereto;
(x) Litigation or Other Proceedings: (a) promptly upon any officer of
-------------------------------
Company obtaining knowledge of (X) the institution of, or non-frivolous
threat of, any action, suit, proceeding (whether administrative, judicial
or otherwise),
96
governmental investigation or arbitration against or affecting Company or
any of its Subsidiaries or any property of Company or any of its
Subsidiaries (collectively, ``PROCEEDINGS'') not previously disclosed in
writing by Company to Lenders or (Y) any material development in any
Proceeding that, in any case:
(1) if adversely determined, has a reasonable possibility of
giving rise to a Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the consummation of, or
to recover any damages or obtain relief as a result of, the
transactions contemplated hereby;
written notice thereof together with such other information as may be
reasonably available to Company to enable Lenders and their counsel to
evaluate such matters; and (b) within ten days after the end of each fiscal
quarter of Company, a schedule of all Proceedings involving an alleged
liability of, or claims against or affecting, Company or any of its
Subsidiaries equal to or greater than $5,000,000, and promptly after
request by Agent such other information as may be reasonably requested by
Agent to enable Agent and its counsel to evaluate any of such Proceedings;
(xi) ERISA Events: promptly upon becoming aware of the occurrence of
------------
or forthcoming occurrence of any ERISA Event, a written notice specifying
the nature thereof, what action Company or any of its ERISA Affiliates has
taken, is taking or proposes to take with respect thereto and, when known,
any action taken or threatened by the Internal Revenue Service, the
Department of Labor or the PBGC with respect thereto;
(xii) ERISA Notices: with reasonable promptness, copies of (a) each
-------------
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
filed by Company or any of its ERISA Affiliates with the Internal Revenue
Service with respect to each Pension Plan; (b) all notices received by
Company or any of its ERISA Affiliates from a Multiemployer Plan sponsor
concerning an ERISA Event; and (c) such other documents or governmental
reports or filings relating to any Employee Benefit Plan as Agent shall
reasonably request;
(xiii) Financial Plans: as soon as practicable and in any event no
---------------
later than 45 days after the end of each Fiscal Year, a consolidated plan
and financial forecast for the next succeeding Fiscal Year through Fiscal
Year 2003, including without limitation (a) forecasted consolidated
statements of income and cash flows of Company and its Subsidiaries for
each such Fiscal Year, together with a pro forma Compliance Certificate for
--- -----
the first such Fiscal Year, a computation showing pro forma compliance with
--- -----
subsection 7.6 for each subsequent Fiscal Year through Fiscal Year 2003 and
an explanation of the assumptions on which such forecasts are based, (b)
forecasted consolidated statements of income of Company and its
Subsidiaries for each month of the first such Fiscal Year, together with an
explanation of the
97
assumptions on which such forecasts are based, (c) the amount of forecasted
working capital needs and forecasted unallocated overhead for each such
Fiscal Year, (d) a forecasted budget for each month of the first such
Fiscal Year, and (e) such other information and projections (including,
without limitation, forecasted consolidating balance sheets and
consolidating statements of income) as any Lender may reasonably request;
(xiv) Insurance: as soon as practicable and in any event by the last
---------
day of each Fiscal Year, a report in form and substance satisfactory to
Agent outlining all material insurance coverage maintained as of the date
of such report by Company and its Subsidiaries and all material insurance
coverage planned to be maintained by Company and its Subsidiaries in the
immediately succeeding Fiscal Year;
(xv) Environmental Audits and Reports: as soon as practicable
--------------------------------
following receipt thereof, copies of all environmental audits and reports,
whether prepared by personnel of Company or any of its Subsidiaries or by
independent consultants, with respect to significant environmental matters
at any Facility or which relate to an Environmental Claim which could
result in a Material Adverse Effect;
(xvi) Broadcast Ratings: promptly upon request by Agent or any
-----------------
Lender, copies of summaries of the most recent broadcast and rating reports
prepared by ▇.▇. ▇▇▇▇▇▇▇ Company and received by Company with respect to
Company's and its Subsidiaries' broadcast stations.
(xvii) Board of Directors: with reasonable promptness, written
------------------
notice of any change in the Board of Directors of Company or any of its
Subsidiaries; and
(xviii) Programming Obligations: as soon as available or in any
-----------------------
event within 45 days after the end of each of the first three fiscal
quarters of each Fiscal Year and within 90 days after the end of each
Fiscal Year, the aggregate amount of Programming Obligations as of the end
of each fiscal quarter, at the request of Agent such information to
identify the Programming Obligations of each broadcast station, and to
include, with respect to each such obligation, without limitation, its
amount and the obligor thereof, all in reasonable detail and certified by
the chief financial officer of Company.
(xix) Other Information: with reasonable promptness, such other
-----------------
information and data with respect to Company or any of its Subsidiaries as
from time to time may be reasonably requested by any Lender.
6.2 CORPORATE EXISTENCE, ETC.
-------------------------
Except as permitted under subsection 7.7, Company will, and will cause
each of its Subsidiaries to, at all times preserve and keep in full force
and effect its corporate existence
98
and all rights and franchises (including, without limitation, all FCC
Licenses) material to its business.
6.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION.
----------------------------------------------
A. Company will, and will cause each of its Subsidiaries to, pay all
taxes, assessments and other governmental charges imposed upon it or any of
its properties or assets or in respect of any of its income, businesses or
franchises before any penalty accrues thereon, and all claims (including,
without limitation, claims for labor, services, materials and supplies) for
sums that have become due and payable and that by law have or may become a
Lien upon any of its properties or assets, prior to the time when any
penalty or fine shall be incurred with respect thereto; provided that no
--------
such charge or claim need be paid if being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted and if
such reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made therefor.
B. Company will not, nor will it permit any of its Subsidiaries to,
file or consent to the filing of any consolidated income tax return with
any Person (other than Company or any of its Subsidiaries).
6.4 MAINTENANCE OF PROPERTIES; INSURANCE.
------------------------------------
A. Company will, and will cause each of its Subsidiaries to, maintain
or cause to be maintained in good repair, working order and condition,
ordinary wear and tear excepted, all material properties used or useful in
the business of Company and its Subsidiaries (including, without
limitation, Intellectual Property) and from time to time will make or cause
to be made all appropriate repairs, renewals and replacements thereof.
Company will maintain or cause to be maintained, with financially sound and
reputable insurers, insurance with respect to its properties and business
and the properties and businesses of its Subsidiaries against loss or
damage of the kinds customarily carried or maintained under similar
circumstances by corporations of established reputation engaged in similar
businesses. Each such policy of insurance shall name Agent for the benefit
of Lenders as the loss payee thereunder with a standard lender's loss
payable endorsement for amounts in excess of $1,000,000 and shall provide
for at least 30 days prior written notice to Agent of any modification or
cancellation of such policy.
B. If any portion of any Mortgaged Property or any Acquired Mortgaged
Property is situated in an area now or subsequently designated as having
special flood hazards as defined by the Flood Disaster Protection Act of
1973, as amended by the National Flood Insurance Reform Act of 1994, and as
further amended from time to time, then the types of insurance that Company
is required to maintain or cause to be maintained shall include flood
insurance in such amounts as Agent shall require, but not less than the
amount required by law. If Company fails to obtain flood insurance as
required, Agent may purchase such flood insurance, and Company shall pay
all premiums and other costs and expenses incurred by Agent.
99
6.5 INSPECTION; LENDER MEETING.
--------------------------
Company shall, and shall cause each of its Subsidiaries to, permit any
authorized representatives designated by any Lender to visit and inspect
any of the properties of Company or any of its Subsidiaries, including its
and their financial and accounting records, and to make copies and take
extracts therefrom, and to discuss its and their affairs, finances and
accounts with its and their officers and independent public accountants
(provided that Company may, if it so chooses, be present at or participate
in any such discussion), all upon reasonable notice and at such reasonable
times during normal business hours and as often as may be reasonably
requested. Without in any way limiting the foregoing, Company will, upon
the request of Agent or Requisite Lenders, participate in a meeting of
Agent and Lenders once during each Fiscal Year to be held at Company's
corporate offices (or such other location as may be agreed to by Company
and Agent) at such time as may be agreed to by Company and Agent.
6.6 COMPLIANCE WITH LAWS, ETC.; MAINTENANCE OF FCC LICENSES.
-------------------------------------------------------
Company shall, and shall cause each of its Subsidiaries to, comply
with the requirements of all applicable laws, rules, regulations and orders
of any governmental authority (including any Communications Regulatory
Authority), including, without limitation, the Communications Act,
noncompliance with which could reasonably be expected to cause a Material
Adverse Effect. Company shall obtain and maintain, and cause each of its
Subsidiaries to obtain and maintain, all licenses, permits, franchises or
other Governmental Authorizations and approvals (including, without
limitation, the FCC Licenses) necessary to own, acquire or dispose of their
respective Properties, to conduct their respective businesses or to comply
with the FCC's or any other Communications Regulatory Authority's
construction, operating and reporting requirements, the violation of which
or the failure to obtain or maintain which could reasonably be expected to
have a Material Adverse Effect.
6.7 ENVIRONMENTAL DISCLOSURE AND INSPECTION.
---------------------------------------
A. Company shall, and shall cause each of its Subsidiaries to,
exercise all due diligence in order to comply and cause (i) all tenants
under any leases or occupancy agreements affecting any portion of the
Facilities and (ii) all other Persons on or occupying such property, to
comply with all Environmental Laws.
B. Company agrees that Agent may, from time to time and in its sole
and absolute discretion, retain, at Company's expense, an independent
professional consultant to review any report relating to Hazardous
Materials prepared by or for Company and to conduct its own investigation
of any Facility then owned, leased, operated or used by Company or any of
its Subsidiaries, and Company agrees to use its best efforts to obtain
permission for Agent's professional consultant to conduct its own
investigation of any Facility previously owned, leased, operated or used by
Company or any of its Subsidiaries. Company hereby grants to Agent and its
agents, employees, consultants and contractors the
100
right to enter into or on to the Facilities then owned, leased, operated or
used by Company or any of its Subsidiaries to perform such tests on such
property as are reasonably necessary to conduct such a review and/or
investigation. Any such investigation of any Facility shall be conducted,
unless otherwise agreed to by Company and Agent, during normal business
hours and, to the extent reasonably practicable, shall be conducted so as
not to interfere with the ongoing operations at any such Facility or to
cause any damage or loss to any property at such Facility. Company and
Agent hereby acknowledge and agree that any report of any investigation
conducted at the request of Agent pursuant to this subsection 6.7B will be
obtained and shall be used by Agent and Lenders for the purposes of
Lenders' internal credit decisions, to monitor and police the Loans and to
protect Lenders' security interests, if any, created by the Loan Documents.
Agent agrees to deliver a copy of any such report to Company with the
understanding that Company acknowledges and agrees that (i) it will
indemnify and hold harmless Collateral Agent, Agent and each Lender from
any costs, losses or liabilities relating to Company's use of or reliance
on such report, (ii) neither Collateral Agent, Agent nor any Lender makes
any representation or warranty with respect to such report, and (iii) by
delivering such report to Company, neither Collateral Agent, Agent nor any
Lender is requiring or recommending the implementation of any suggestions
or recommendations contained in such report.
C. Company shall promptly advise Lenders in writing and in reasonable
detail of (i) any Release of any Hazardous Materials required to be
reported to any federal, state or local governmental or regulatory agency
under any applicable Environmental Laws, (ii) any and all written
communications with respect to any Environmental Claims that have a
reasonable possibility of giving rise to a Material Adverse Effect or with
respect to any Release of Hazardous Materials required to be reported to
any federal, state or local governmental or regulatory agency, (iii) any
remedial action taken by Company or any other Person in response to (x) any
Hazardous Materials on, under or about any Facility, the existence of which
has a reasonable possibility of resulting in an Environmental Claim having
a Material Adverse Effect, or (y) any Environmental Claim that could have a
Material Adverse Effect, (iv) Company's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of any Facility
that could cause such Facility or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or use thereof
under any Environmental Laws, and (v) any request for information from any
governmental agency that suggests such agency is investigating whether
Company or any of its Subsidiaries may be potentially responsible for a
Release of Hazardous Materials.
D. Company shall promptly notify Lenders of (i) any proposed
acquisition of stock, assets, or property by Company or any of its
Subsidiaries that could reasonably be expected to expose Company or any of
its Subsidiaries to, or result in, Environmental Claims that could have a
Material Adverse Effect or that could reasonably be expected to have a
material adverse effect on any Governmental Authorization then held by
Company or any of its Subsidiaries and (ii) any proposed action to be taken
by Company or any of its Subsidiaries to commence manufacturing, industrial
or other operations that could reasonably be expected to subject Company or
any of its Subsidiaries to additional laws,
101
rules or regulations, including, without limitation, laws, rules and
regulations requiring additional environmental permits or licenses.
E. Company shall, at its own expense, provide copies of such
documents or information as Agent may reasonably request in relation to any
matters disclosed pursuant to this subsection 6.7.
6.8 COMPANY'S REMEDIAL ACTION REGARDING HAZARDOUS MATERIALS.
-------------------------------------------------------
Company shall promptly take, and shall cause each of its Subsidiaries
promptly to take, any and all necessary remedial action in connection with
the presence, storage, use, disposal, transportation or Release of any
Hazardous Materials on, under or about any Facility in order to comply with
all applicable Environmental Laws and Governmental Authorizations. In the
event Company or any of its Subsidiaries undertakes any remedial action
with respect to any Hazardous Materials on, under or about any Facility,
Company or such Subsidiary shall conduct and complete such remedial action
in compliance with all applicable Environmental Laws, and in accordance
with the policies, orders and directives of all federal, state and local
governmental authorities except when, and only to the extent that,
Company's or such Subsidiary's liability for such presence, storage, use,
disposal, transportation or discharge of any Hazardous Materials is being
contested in good faith by Company or such Subsidiary.
6.9 ENVIRONMENTAL INDEMNITY.
-----------------------
Company shall fully and promptly pay, perform, discharge, defend,
indemnify and hold harmless each Indemnitee from and against any action,
suit, proceeding, claim or loss suffered or incurred by that Indemnitee
under or on account of any Environmental Laws or Release of any Hazardous
Materials relating to the Facilities other than, and only to the extent
that, such liability is a result of the gross negligence or willful
misconduct of the Indemnitee.
6.10 INTEREST RATE PROTECTION.
------------------------
Company shall promptly take all necessary action so that at all times
not less that 50% of the aggregate Indebtedness of the Company is either
(i) Indebtedness for which the interest rate with respect thereto is fixed
from the date of issuance thereof through maturity or (ii) protected by
Interest Rate Agreements, which Interest Rate Agreements shall be in form
and substance satisfactory to Agent and shall have the effect of
establishing a maximum interest rate acceptable to Agent and shall be of a
duration acceptable to Agent.
6.11 REAL ESTATE LEASES.
------------------
Company and its Subsidiaries shall keep in full force and effect the
Leases; provided, however, that with respect to the Lease (the ``KNTV
-------- -------
LEASE'') dated June 9, 1972 by and between Chy Company and KNTV Channel 11,
as amended, Company and its Subsidiaries
102
shall only be required to keep the KNTV Lease in full force and effect
until September 30, 1997 so long as Company or its Subsidiary shall (i)
have entered into an agreement to renew or extend the term of the KNTV
Lease at least through the term of this Agreement or to enter into a new
lease in replacement therefor in all respects acceptable to Requisite
Lenders, in each case on or before February 28, 1997, and (ii) keep in full
force and effect such renewed or extended KNTV Lease or such new lease, as
the case may be. Company shall provide Agent with a copy of any notice of
default under any of the Leases, received by Company or any of its
Subsidiaries.
6.12 AFTER-ACQUIRED REAL PROPERTY SECURITY.
-------------------------------------
In the event that Company or any of its Subsidiaries purchases or
otherwise acquires any interest in real property after the Closing Date, or
any interests arising under a lease, then Company shall and shall cause its
Subsidiaries to, concurrently with such purchase or other acquisition,
execute and deliver all Collateral Documents and take all other action that
Agent or Requisite Lenders may request to grant to Collateral Agent, on
behalf of Lenders, as security for the Obligations, a first priority Lien
(subject to Liens permitted hereunder) on all such real property interests;
provided that this subsection 6.12 shall not be construed to permit any
--------
transaction otherwise prohibited by the terms of this Agreement.
6.13 NEW SUBSIDIARIES.
----------------
In the event that Company or any of its Subsidiaries effects an
Investment resulting in the acquisition by Company of a new Subsidiary (a
``NEW SUBSIDIARY''), Company shall promptly cause the following to occur:
(i) The New Subsidiary shall execute and deliver a counterpart of the
Subsidiary Guaranty pursuant to which such New Subsidiary shall become
jointly and severally liable as a Guarantor under the Subsidiary Guaranty
and shall assume all obligations as a ``Contributor'' under such Subsidiary
Guaranty. Company or any Subsidiary shall assume all obligations as a
``Pledgor'' under the Borrower Pledge and Security Agreement or the
Subsidiary Pledge and Security Agreement, as applicable, including the
obligation to pledge all equity interests of its direct Subsidiaries to
Collateral Agent on behalf of Lenders;
(ii) Company shall cause the New Subsidiary to execute and deliver a
promissory note evidencing all intercompany Indebtedness owed by such New
Subsidiary to Company and cause such promissory note to be pledged to
Collateral Agent on behalf of Lenders under the Borrower Pledge and
Security Agreement;
(iii) The New Subsidiary shall execute and deliver a counterpart to
the Subsidiary Pledge and Security Agreement and such other Collateral
Documents as Agent or Requisite Lenders may request, including without
limitation, such Collateral Documents as may be required to grant a first
priority Lien (subject to Liens permitted hereunder) on any real property
interests of such New Subsidiary; and
103
(iv) If requested by Agent and Requisite Lenders, opinion(s) of counsel
covering the matters described in clauses (i), (ii) and (iii) above,
substantially in the form of opinions as to similar matters given pursuant
to subsection 4.1 and otherwise in form and substance reasonably
satisfactory to Agent and Requisite Lenders shall be delivered to Agent,
Collateral Agent and each Lender.
6.14 RECEIPT OF WEEK FCC CONSENT.
---------------------------
On or before December 31, 1997, Company shall have taken all action
necessary, including without limitation, the creation of WEEK License Co.,
to consummate the WEEK License Transfer and shall have made a proper and
complete application with the FCC seeking the WEEK FCC Consent, all in form
and substance satisfactory to Agent. On or before June 30, 1998, Company
shall have obtained such WEEK FCC Consent and such WEEK FCC Consent shall
have become a Final Order. The Company FCC Licenses shall have been
transferred to WEEK License Co. no later than 30 days subsequent to the
issuance of the WEEK FCC Consent.
6.15 OWNERSHIP REPORTS.
-----------------
The Ownership Reports for any television broadcasting station acquired in
connection with an Acquisition reflecting the acquisition of such radio or
television broadcasting station by Company shall be filed with the FCC
within a period of 30 days after the relevant Acquisition Closing Date.
SECTION 7.
COMPANY'S NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 7.
7.1 INDEBTEDNESS.
------------
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or guaranty, or otherwise become
or remain directly or indirectly liable with respect to, any Indebtedness,
except:
(i) Company may become and remain liable with respect to the
Obligations;
(ii) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations permitted by subsection 7.4 and, upon any
matured
104
obligations actually arising pursuant thereto, the Indebtedness
corresponding to the Contingent Obligations so extinguished;
(iii) Company and its Subsidiaries may become and remain liable with
respect to Indebtedness in respect of Capital Leases; provided that such
--------
Capital Leases are permitted under the terms of subsection 7.8;
(iv) Company may become and remain liable with respect to Indebtedness
to any of its wholly-owned Subsidiaries, and any wholly-owned Subsidiary of
Company may become and remain liable with respect to Indebtedness to
Company or any other wholly-owned Subsidiary of Company; provided that (a)
--------
all such intercompany Indebtedness shall be evidenced by an Intercompany
Note, (b) all such intercompany Indebtedness owed by Company to any of its
Subsidiaries shall be subordinated in right of payment to the payment in
full of the Obligations pursuant to the terms of the applicable promissory
notes or an intercompany subordination agreement, and (c) any payment by
any Subsidiary of Company under the Subsidiary Guaranty shall result in a
pro tanto reduction of the amount of any intercompany Indebtedness owed by
--- -----
such Subsidiary to Company or to any of its Subsidiaries for whose benefit
such payment is made;
(v) Company may remain liable with respect to the Subordinated Notes
and the New Subordinated Notes;
(vi) Each of Company's Subsidiaries may become and remain liable under
the Subsidiary Guaranty;
(vii) Company may become and remain liable with respect to
Indebtedness in respect of the Interest Rate Agreements required under
subsection 6.10;
(viii) Company and its Subsidiaries may become and remain liable with
respect to trade accounts payable and other accrued liabilities in the
ordinary course of business (to the extent such trade accounts payable and
other accrued liabilities constitute Indebtedness) in an aggregate amount
at any time outstanding not to exceed $500,000 (exclusive of Programming
Obligations);
(ix) Company and its Subsidiaries may become and remain liable with
respect to additional Indebtedness in an aggregate principal amount at any
time outstanding not to exceed $7,500,000;
(x) Company and its Subsidiaries may become and remain liable with
respect to Programming Obligations; and
(xi) so long as at the time of incurrence thereof no Event of Default
or Potential Event of Default has occurred and is continuing or would be
caused thereby, Company may from time to time following the Closing Date
issue debt
105
Securities subordinate in right and time of payment to the Obligations (the
``ADDITIONAL SUBORDINATED INDEBTEDNESS''); provided that (a) such
--------
Additional Subordinated Indebtedness is unsecured, (b) the maturity of such
Additional Subordinated Indebtedness is no earlier than December 31, 2003,
(c) such Additional Subordinated Indebtedness includes representations and
warranties, covenants, events of default and other provisions that are not
more restrictive or burdensome to Company than any other Subordinated
Indebtedness, (d) the subordination provisions of such Additional
Subordinated Indebtedness are no less favorable to the Lenders than the
subordination provisions of any other Subordinated Indebtedness, (e) the
mandatory redemption, retirement, sinking fund or payment provisions of
such Additional Subordinated Indebtedness do not require redemption,
repurchase or payment of any amount in any circumstances which any other
Subordinated Indebtedness would not require redemption, repurchase or
similar payment of any amount, (f) Company can demonstrate in form and
substance satisfactory to Agent that, immediately after giving effect to
such Additional Subordinated Indebtedness, Company is in compliance on a
Pro Forma Basis with all covenants set forth in Section 6 and 7 of this
Agreement through the Revolving Loan Commitment Termination Date, (g) such
Additional Subordinated Indebtedness is otherwise reasonably satisfactory
in form and substance to Agent and Requisite Lenders and (h) Company
applies the Net Debt Proceeds of such Additional Subordinated Indebtedness
to prepay the Loans and reduce the Commitments pursuant to subsection
2.4B(iii)(c) to the extent required thereby.
7.2 LIENS AND RELATED MATTERS.
-------------------------
A. PROHIBITION ON LIENS. Company shall not, and shall not permit any
of its Subsidiaries to, directly or indirectly, create, incur, assume or
permit to exist any Lien on or with respect to any property or asset of any
kind (including any document or instrument in respect of goods or accounts
receivable) of Company or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit
the filing of, or permit to remain in effect, any financing statement or
other similar notice of any Lien with respect to any such property, asset,
income or profits under the Uniform Commercial Code of any State or under
any similar recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens created under the Loan Documents;
(iii) Purchase money mortgages or security interests, conditional
sale arrangements and other similar security interests, on motor vehicles
and equipment acquired by Company or any Subsidiary (hereinafter referred
to individually as a ``PURCHASE MONEY SECURITY INTEREST''); provided,
--------
however, that:
-------
(a) the aggregate amount of Indebtedness outstanding at any time
secured by Purchase Money Security Interests shall not exceed
$3,000,000;
106
(b) the transaction in which any Purchase Money Security Interest is
proposed to be created is not then prohibited by this Agreement;
(c) any Purchase Money Security Interest shall attach only to the
property or asset acquired in such transaction and shall not extend to
or cover any other assets or properties of Company, or, as the case
may be, a Subsidiary;
(d) the Indebtedness secured or covered by any Purchase Money
Security Interest shall not exceed the lesser of the cost or fair
market value of the property or asset acquired and shall not be
renewed, extended or prepaid from the proceeds of any borrowing by
Company or any Subsidiary;
(iv) any Indebtedness of KBVO, Inc. permitted pursuant to subsection
7.1(xii) may be secured by a Lien upon the real property acquired with the
proceeds of such Indebtedness, in form and substance satisfactory to the
Agent; and
(v) Liens securing the fees owed by Company to the trustee pursuant to
the terms of the New Subordinated Note Indenture; provided that the
--------
obligation of Company to pay such fees is subordinate in right and time and
payment to the payment in full of the Obligations.
B. EQUITABLE LIEN IN FAVOR OF LENDERS. If Company or any of its
Subsidiaries shall create or assume any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, other than Liens excepted by
the provisions of subsection 7.2A, it shall make or cause to be made effective
provision whereby the Obligations will be secured by such Lien equally and
ratably with any and all other Indebtedness secured thereby as long as any such
Indebtedness shall be so secured; provided that, notwithstanding the foregoing,
--------
this covenant shall not be construed as a consent by Requisite Lenders to the
creation or assumption of any such Lien not permitted by the provisions of
subsection 7.2A.
C. NO FURTHER NEGATIVE PLEDGES. Except with respect to specific property
encumbered to secure payment of particular Indebtedness or to be sold pursuant
to an executed agreement with respect to an Asset Sale, neither Company nor any
of its Subsidiaries shall enter into any agreement (other than the New
Subordinated Note Indenture) prohibiting the creation or assumption of any Lien
upon any of its properties or assets, whether now owned or hereafter acquired.
D. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO COMPANY OR OTHER
SUBSIDIARIES. Except as provided herein, in the Subordinated Note Indenture and
in the New Subordinated Note Indenture, Company will not, and will not permit
any of its Subsidiaries to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any such Subsidiary to (i) pay dividends or make any other
distributions on any of such Subsidiary's capital stock owned by Company or any
other Subsidiary of Company, (ii) repay or prepay any Indebtedness
107
owed by such Subsidiary to Company or any other Subsidiary of Company, (iii)
make loans or advances to Company or any other Subsidiary of Company, or (iv)
transfer any of its property or assets to Company or any other Subsidiary of
Company other than such restriction included in a contract entered into in the
ordinary course of business and consistent with past practice that contains
provisions restricting the assignment of such contract.
7.3 INVESTMENTS; JOINT VENTURES.
---------------------------
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, make or own any Investment in any Person, including any
Joint Venture, except:
(i) Company and its Subsidiaries may make and own Investments in Cash
Equivalents;
(ii) Company and its Subsidiaries may make intercompany loans to the
extent permitted under subsection 7.1(iv) and may maintain such loans
originally incurred pursuant to subsection 7.1(iv);
(iii) Company and its Subsidiaries may make Consolidated Capital
Expenditures in the ordinary course of business with respect to the
businesses owned by Company and its Subsidiaries as of the Closing Date and
any businesses acquired as the result of any Acquisition in accordance with
the provisions of subsection 7.7(vi);
(iv) Company and its Subsidiaries may continue to own the Investments
owned by them and described in Schedule 7.3 annexed hereto;
------------
(v) Company may continue to own the Investments made in connection
with any acquisition consummated on or before the Closing Date pursuant to
an Acquisition Agreement;
(vi) Company may make and maintain equity Investments in any wholly-
owned Subsidiary of Company or any Person which, upon the making of such
Investment, becomes a wholly-owned Subsidiary of Company;
(vii) Company's Subsidiaries may make and maintain equity Investments
in Company and, to the extent permitted by subsection 7.5, make, maintain
and cancel Investments in the Subordinated Notes, the New Subordinated
Notes and the New Preferred Stock;
(viii) Company may make and maintain Investments in respect of
Interest Rate Agreements to the extent required under subsection 6.10;
108
(ix) Company and its Subsidiaries may make and maintain Investments in
bank accounts maintained in any commercial bank in the ordinary course of
business;
(x) Company may make loans to its officers, directors and employees in
connection with the exercise by any such Person of options to purchase, or
awards of, capital stock of Company which loans shall bear interest as
determined by an executive officer of the Company; provided that (a) the
--------
aggregate principal amount of such loans shall not exceed $2,500,000 in the
aggregate for all such Persons and (b) to the extent the aggregate
principal amount of such loans to any such Person exceeds $1,000,000, the
interest rate applicable thereto shall be subject to the prior approval of
the Board of Directors of Company;
(xi) Company and its Subsidiaries may make Investments pursuant to
Acquisitions permitted under subsection 7.7(vi); and
(xii) Company and its Subsidiaries may make and own Investments in
one or more Joint Ventures in an aggregate amount not to exceed
$10,000,000.
7.4 CONTINGENT OBLIGATIONS.
----------------------
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create or become or remain liable with respect to
any Contingent Obligation, except:
(i) Company may become and remain liable with respect to Contingent
Obligations in respect of Letters of Credit;
(ii) Company may become and remain liable with respect to Contingent
Obligations under Interest Rate Agreements required under subsection 6.10;
(iii) Each of Company's Subsidiaries may become and remain liable
with respect to the Subsidiary Guaranty;
(iv) Company may become and remain liable with respect to Contingent
Obligations of Company under the Acquisition Agreements;
(v) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations in respect of any obligation of Company
or one of its Subsidiaries permitted under this Agreement; provided,
--------
however, that the principal amount of any such Contingent Obligation shall
-------
not exceed the principal amount of the corresponding obligation to which it
relates; provided further that, any such Contingent Obligation shall be
-------- -------
subordinate to the Obligations to the same extent, and on the same terms,
as the corresponding obligation is so subordinated; and
109
(vi) In addition to Contingent Obligations permitted under clauses (i)
through (v) above, Company may become and remain liable with respect to
guaranties made in the ordinary course of business; provided that the
--------
aggregate amount of the obligations so guarantied shall not exceed
$1,000,000 at any time.
7.5 RESTRICTED JUNIOR PAYMENTS.
--------------------------
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, declare, order, pay, make or set apart any sum for
any Restricted Junior Payment; except that:
------
(i) Company may make payments on the Subordinated Notes, the New
Subordinated Notes and in respect of any of the Additional Subordinated
Indebtedness as required by the terms of the Subordinated Notes, New
Subordinated Notes, or the instruments evidencing such Additional
Subordinated Indebtedness, respectively, but subject, in each case to the
subordination provisions contained therein; provided that (X) Company may
--------
repurchase, or Company or any Subsidiary of Company (other than a License
Co.) may purchase, in one or a series of transactions, Subordinated Notes
and New Subordinated Notes; provided that (a) no Event of Default or
--------
Potential Event of Default shall have occurred and be continuing at the
time of such purchase or repurchase, and (b) immediately after giving
effect to each such purchase or repurchase, Company is in compliance on a
Pro Forma Basis with all covenants set forth in Section 6 and 7 of this
Agreement and (Y) Company may redeem the Subordinated Notes on the
maturity date thereof strictly in accordance with the terms of the
Subordinated Note Documents; provided, that (a) no Event of Default or
--------
Potential Event of Default shall have occurred and be continuing at the
time of such redemption and (b) immediately after giving effect to such
redemption, Company is in compliance on a Pro Forma Basis with all
covenants set forth in Sections 6 and 7 of this Agreement.
(ii) any Subsidiary of Company may pay dividends or make other
distributions to Company with respect to Company's ownership interest in
such Subsidiary; and
(iii) Company may pay dividends or make other distributions with
respect to the New Preferred Stock, but only so long as, after giving
effect to such dividend or distribution, no Potential Event of Default or
Event of Default shall have occurred and be continuing; provided, that
--------
Company may repurchase, in one or a series of transactions, New Preferred
Stock so long as (a) no Event of Default or Potential Event of Default
shall have occurred and be continuing at the time of such repurchase, (b)
immediately after giving effect to each such purchase or repurchase,
Company is in compliance on a Pro Forma Basis with all covenants set forth
in Section 6 and 7 of this Agreement, and (c) the fair market value at the
time of such repurchase of the Company Common Stock into which such New
Preferred Stock is
110
convertible is at least 125% of the consideration for such repurchase, and
Company may cancel any New Preferred Stock held by it.
It is understood and agreed that, except as set forth in the proviso to clause
(iii) of this subsection, Company shall not make any Restricted Junior Payment
in respect of any redemption, purchase or other acquisition of any shares of any
class of New Preferred Stock, including, without limitation, in connection with
any ``CHANGE OF CONTROL'' (as such term is defined in the documentation
governing each such class of New Preferred Stock) which would otherwise entitle
the holders of any shares of New Preferred Stock to require Company to redeem,
purchase or otherwise acquire such shares, other than through the issuance by
Company of shares of any Non-Restricted Capital Stock to such holders in payment
of such shares of New Preferred Stock.
7.6 FINANCIAL COVENANTS.
-------------------
A. MAXIMUM TOTAL DEBT LEVERAGE RATIO. Company shall not permit the ratio
of (i) Consolidated Total Debt to (ii) Consolidated Broadcast Cash Flow as of
the last day of any fiscal quarter of Company occurring during any of the
periods set forth below to exceed the correlative ratio indicated (Consolidated
Total Debt to be determined as of such last day and Consolidated Broadcast Cash
Flow to be determined with reference to the twelve-month period ending on such
day):
MAXIMUM TOTAL
PERIOD DEBT LEVERAGE RATIO
================================================================
Closing Date - 06/30/98 6.50 to 1
07/01/98 - 06/30/99 6.00 to 1
07/01/99 - 06/30/2000 5.25 to 1
07/01/2000 and thereafter 4.50 to 1
================================================================
B. MAXIMUM SENIOR DEBT LEVERAGE RATIO. Company shall not permit the
ratio of (i) Consolidated Senior Debt to (ii) Consolidated Broadcast Cash Flow
as of the last day of any fiscal quarter of Company occurring during any of the
periods set forth below to exceed the correlative ratio indicated (Consolidated
Senior Debt to be determined as of such last day and Consolidated Broadcast Cash
Flow to be determined with reference to the twelve-month period ending on such
last day):
111
MAXIMUM SENIOR
PERIOD DEBT LEVERAGE RATIO
=========================================
Closing Date - 06/30/98 4.00 to 1
07/01/98 and thereafter 3.50 to 1
C. MINIMUM FIXED CHARGE COVERAGE RATIO. At any time that the ratio of
Consolidated Senior Debt to Consolidated Broadcast Cash Flow as calculated
pursuant to subsection 7.6B is greater than or equal to 2.00 to 1, Company shall
not permit the ratio of (i) Consolidated Broadcast Cash Flow minus Consolidated
Capital Expenditures to (ii) Consolidated Fixed Charges as of the last day of
any fiscal quarter of Company occurring during any of the periods set forth
below to be less than the correlative ratio indicated (such amounts to be
determined with reference to the twelve month period ending on such last day):
MINIMUM FIXED
CHARGE COVERAGE
PERIOD RATIO
==========================================
Closing Date - 12/31/96 1.00 to 1
01/01/97 - 12/31/97 1.05 to 1
01/01/98 and thereafter 1.10 to 1
7.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES; ISSUANCE OF STOCK.
------------------------------------------------------------------
Company shall not, and shall not permit any of its Subsidiaries to, alter
the corporate, capital or legal structure of Company or any of its Subsidiaries,
or enter into any transaction of merger or consolidation, or liquidate, wind-up
or dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease, sub-lease, transfer or otherwise dispose of, in one transaction or a
series of transactions, all or any part of its business, property or fixed
assets, whether now owned or hereafter acquired, or acquire by purchase any
business, property or fixed assets of, or stock or other evidence of beneficial
ownership of, any Person, except:
(i) any Subsidiary of Company may be merged with or into Company or
any wholly-owned Subsidiary of Company, or be liquidated, wound up or
dissolved, or all or any substantial part of its business, property or
assets may be conveyed, sold, leased, transferred or otherwise disposed of,
in one transaction or a series of transactions, to Company or any wholly-
owned Subsidiary of Company; provided that, in the case of such a merger,
--------
Company or such wholly-owned Subsidiary shall be the continuing or
surviving corporation;
112
(ii) Company and its Subsidiaries may make Investments as permitted
under subsection 7.3 and may make Consolidated Capital Expenditures;
(iii) subject to subsection 7.12, Company and its Subsidiaries may
sell or otherwise dispose of assets in transactions that do not constitute
Asset Sales; provided that the consideration received for such assets shall
--------
be in an amount at least equal to the fair market value thereof;
(iv) Company and its Subsidiaries may make Asset Sales; provided that
--------
(w) neither Company nor any Subsidiary shall sell or otherwise dispose of
any asset pursuant to an Asset Sale if as a result thereof either (A) the
aggregate of all assets sold pursuant to Asset Sales by Company and its
Subsidiaries within the twelve-month period ending on the date of such
Asset Sale would account for greater than 10% of Consolidated Broadcast
Cash Flow for such 12-month period or (B) the aggregate of all assets sold
pursuant to Asset Sales by Company and its Subsidiaries during the term of
this Agreement would account for greater than 25% of Consolidated Broadcast
Cash Flow for the period from the Closing Date to such date of
determination (x) promptly following the consummation of such Asset Sale,
Company delivers to Agent and Lenders an Officer's Certificate
demonstrating the derivation of the Net Cash Proceeds of the correlative
Asset Sale from the gross sales price thereof; (y) the consideration
received for such assets shall be in an amount at least equal to the fair
market value thereof; and (z) the proceeds of such Asset Sales shall be
applied as required by subsection 2.4B(iii)(a).
(v) Company may issue options to purchase shares of Non-Restricted
Capital Stock to employees, directors, officers of Company and its
Subsidiaries and may issue additional shares of Non-Restricted Capital
Stock; and
(vi) Company and its Subsidiaries may make any Acquisition; provided
--------
that (a) Company shall deliver to Agent and Lenders on or before the
applicable Acquisition Closing Date an originally executed Officer's
Certificate of Company demonstrating in reasonable detail the projected
compliance by Company for a five-year period following the related
Acquisition Closing Date with the covenants set forth in Section 7 on a Pro
Forma Basis after giving effect to such Acquisition, which projections
shall be reasonably satisfactory to Agent, (b) any radio broadcasting
station or other radio broadcasting assets to be acquired in connection
with such Acquisition shall be located within the same market as an
existing television broadcast station then owned by Company or any of its
Subsidiaries, (c) to the extent any Acquisition (other than an Acquisition
of an interest in an LMA which is a Joint Venture) is of the equity
interest of any Person, upon giving effect to such Acquisition, such Person
shall be a wholly-owned Subsidiary of Company (and shall have complied with
the requirements set forth in subsections 4.4A, E-K, M and N) or shall have
been merged with and into Company or one of its wholly-owned Subsidiaries,
(d) Company shall deliver to Agent and Requisite Lenders on or before the
applicable Acquisition Closing Date an originally executed Compliance
113
Certificate signed by the chief financial officer of Company demonstrating
in reasonable detail compliance by Company with the covenants set forth in
Section 7 on a Pro Forma Basis after giving effect to such Acquisition, and
(e) from and after the date hereof the aggregate consideration paid by the
Company and its Subsidiaries to purchase radio broadcasting stations or
radio broadcasting assets shall not exceed $20,000,000; provided further
-------- -------
that, notwithstanding anything in the foregoing to the contrary, Company
may not make any Acquisition pursuant to this subsection 7.7(vi) without
the prior consent of the Agent and Requisite Lenders in the event that such
Acquisition would, after giving effect to such Acquisition on a Pro Forma
Basis, cause the ratio of Consolidated Total Debt to Consolidated Broadcast
Cash Flow to be equal to or greater than 6.00:1.00; provided still further
-------- ----- -------
that, notwithstanding anything in the foregoing to the contrary, such
consent shall not be required with respect to any Acquisition for which the
aggregate consideration, together with the aggregate consideration of all
other Acquisitions consummated since the Closing Date for which such
consent was not required under this proviso, is equal to or less than
$15,000,000;
provided that, after giving effect to any of the above, Company is in compliance
--------
(on a Pro Forma Basis) with all of the financial covenants set forth in
subsection 7.6 hereof and no Potential Event of Default or Event of Default
shall have occurred and be continuing or would be caused thereby.
In addition to the foregoing and notwithstanding subsection 7.7(v), it is
understood and agreed that Company shall not issue any additional shares of
Voting Common Stock or any right or option to acquire any such shares, or any
security convertible into any such shares, other than the shares of Voting
Common Stock issued and outstanding on the Closing Date.
7.8 RESTRICTION ON LEASES.
---------------------
Company shall not, and shall not permit any of its Subsidiaries to, become
liable in any way, whether directly or by assignment or as a guarantor or other
surety, for the obligations of the lessee under any Capital Lease (other than
intercompany leases between Company and its wholly-owned Subsidiaries), unless,
immediately after giving effect to the incurrence of liability with respect to
such lease, the aggregate liability of Company and its Subsidiaries under all
Capital Leases at the time in effect during the then current Fiscal Year or any
future period of 12 consecutive calendar months shall not exceed $4,500,000.
7.9 SALES AND LEASE-BACKS.
---------------------
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, become or remain liable as lessee or as a guarantor or
other surety with respect to any lease, whether an Operating Lease or a Capital
Lease, of any property (whether real, personal or mixed), whether now owned or
hereafter acquired, (i) which Company or any of its Subsidiaries has sold or
transferred or is to sell or transfer to any other Person (other
114
than Company or any of its Subsidiaries) or (ii) which Company or any of its
Subsidiaries intends to use for substantially the same purpose as any other
property which has been or is to be sold or transferred by Company or any of its
Subsidiaries to any Person (other than Company or any of its Subsidiaries) in
connection with such lease; provided that Company and its Subsidiaries may
--------
become and remain liable as lessee, guarantor or other surety with respect to
any such lease if and to the extent that Company or any of its Subsidiaries
would be permitted to enter into, and remain liable under, such lease under
subsection 7.8.
7.10 SALE OR DISCOUNT OF RECEIVABLES.
-------------------------------
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, sell with recourse, or discount or otherwise sell for
less than the face value thereof, any of its notes or accounts receivable other
than to the Company or any wholly owned Subsidiaries of Company.
7.11 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
---------------------------------------------
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease or exchange of any
property or the rendering of any service) with any holder of 5% or more of any
class of equity Securities of Company or with any Affiliate of Company or of any
such holder, on terms that are less favorable to Company or that Subsidiary, as
the case may be, than those that might be obtained at the time from Persons who
are not such a holder or Affiliate; provided that the foregoing restriction
--------
shall not apply to (i) any transaction between Company and any of its wholly-
owned Subsidiaries or between any of its wholly-owned Subsidiaries; (ii)
reasonable and customary fees paid to members of the Boards of Directors of
Company and its Subsidiaries; (iii) payments made to W. ▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇
▇. ▇▇▇▇, as applicable, pursuant to the Employment Agreements; (iv) the
participation by Bankers, in its capacities as Agent and a Lender, under this
Agreement and the other Loan Documents; (v) the transactions listed under the
caption ``Certain Transactions'' in the Prospectus; or (vi) the transactions set
forth on Schedule 7.11 hereto.
-------------
7.12 DISPOSAL OF SUBSIDIARY STOCK.
----------------------------
Company shall not:
(i) directly or indirectly sell, assign, pledge or otherwise encumber
or dispose of any shares of capital stock or other equity Securities of any
of its Subsidiaries, except (a) to qualify directors if required by
applicable law, (b) to Lenders pursuant to the terms of the Loan Documents
or (c) as permitted under subsection 7.7(i); or
(ii) permit any of its Subsidiaries directly or indirectly to sell,
assign, pledge or otherwise encumber or dispose of any shares of capital
stock or other equity
115
Securities of any of its Subsidiaries (including such Subsidiary), except
(a) to Company or a wholly-owned Subsidiary of Company, (b) to qualify
directors if required by applicable law or (c) to Lenders pursuant to the
terms of the Loan Documents.
7.13 CONDUCT OF BUSINESS.
-------------------
From and after the Closing Date, Company shall not, and shall not
permit any of its Subsidiaries to, engage in any business other than (i)
the businesses engaged in by Company and its Subsidiaries on the Closing
Date and similar or related businesses and (ii) such other lines of
business as may be consented to by Requisite Lenders. No License Co. shall
engage in any business other than the holding of the FCC Licenses and the
performance of its obligations under any of the Loan Documents to which it
is a party and, except as set forth on Schedule 5.18 annexed hereto, no
-------------
Subsidiary other than License Co. shall own any FCC License.
7.14 AMENDMENTS OF RELATED DOCUMENTS; DOCUMENTS RELATING TO SUBORDINATED
-------------------------------------------------------------------
INDEBTEDNESS; AMENDMENTS OF MATERIAL DOCUMENTS.
----------------------------------------------
A. Company shall not modify, amend, supplement or terminate, or agree to
modify, amend, supplement or terminate any Related Document (other than
Subordinated Indebtedness which is governed by subsection 7.14B below) in any
way which would be materially adverse to the interests of the Lenders, in the
sole opinion of Requisite Lenders.
B. Company shall not, and shall not permit any of its Subsidiaries to,
amend or otherwise change the terms of any Subordinated Indebtedness, or make
any payment consistent with an amendment thereof or change thereto, if the
effect of such amendment or change is to increase the interest rate on such
Subordinated Indebtedness, change (to earlier dates) any dates upon which
payments of principal or interest are due thereon, change any event of default
or condition to an event of default with respect thereto (other than to
eliminate any such event of default), change the redemption, prepayment or
defeasance provisions thereof, change the subordination provisions thereof (or
of any guaranty thereof), or change any collateral therefor (other than to
release such collateral), or if the effect of such amendment or change, together
with all other amendments or changes made, is to increase materially the
obligations of the obligor thereunder or to confer any additional rights on the
holders of such Subordinated Indebtedness (or a trustee or other representative
on their behalf) which would be adverse to Company or Lenders.
C. Company shall not, and shall not permit any of its Subsidiaries to,
amend or otherwise modify the terms of any of the Material Agreements in any way
which would be materially adverse to the interests of the Lenders or which would
materially adversely affect the economic benefits of any such agreement to which
Company or any Subsidiary party hereto is entitled, in each case in the sole
opinion of Requisite Lenders.
116
7.15 FISCAL YEAR.
-----------
Company shall not change its Fiscal Year-end from December 31.
7.16 TRANSACTIONS WITH CERTAIN SUBSIDIARIES.
--------------------------------------
Neither Company nor any Subsidiary of Company shall engage in any
intercompany transfers or other transactions (including with respect to the
incurrence of indebtedness, any capital contribution or otherwise) with Granite
Response Television, Inc. or any Acquisition Subsidiary nor shall Company permit
any such Subsidiary to engage in any business activities whatsoever (other than,
in the case of any License Co. which is an Acquisition Subsidiary, the filing of
an application with the FCC to assign to such License Co. the FCC Licenses of
radio or television stations to be acquired in connection with an Acquisition),
unless and until such Subsidiary shall have entered into a Subsidiary Pledge and
Security Agreement and the Subsidiary Guaranty and otherwise complied with the
provisions of subsection 6.13 as if such Subsidiary were a New Subsidiary.
SECTION 8.
EVENTS OF DEFAULT
If any of the following conditions or events (``EVENTS OF DEFAULT'') shall
occur:
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
---------------------------------
Failure to pay any installment of principal of any Loan when due, whether
at stated maturity, by acceleration, by notice of prepayment or otherwise;
failure to pay when due any amount payable to an Issuing Lender in reimbursement
of any drawing under a Letter of Credit; or failure to pay any interest on any
Loan or any fee or any other amount due under this Agreement within three days
after the date due; or
8.2 DEFAULT IN OTHER AGREEMENTS.
---------------------------
(i) Failure of Company or any of its Subsidiaries to pay when due (a) any
principal of or interest on any Indebtedness (other than Indebtedness referred
to in subsection 8.1) in an individual principal amount of $1,000,000 or more or
any items of Indebtedness with an aggregate principal amount of $2,000,000 or
more or (b) any Contingent Obligation in an individual principal amount of
$1,000,000 or more or any Contingent Obligations with an aggregate principal
amount of $2,000,000 or more, in each case beyond the end of any grace period
provided therefor; or (ii) breach or default by Company or any of its
Subsidiaries with respect to any other material term of (a) any evidence of any
Indebtedness in an individual principal amount of $1,000,000 or more or any
items of Indebtedness with an aggregate principal amount of $2,000,000 or more
or any Contingent Obligation in an individual principal amount of $1,000,000 or
more or any Contingent Obligations with an aggregate principal amount of
$2,000,000 or more or (b) any
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loan agreement, mortgage, indenture or other agreement relating to such
Indebtedness or Contingent Obligation(s), if the effect of such breach or
default is to cause, or to permit the holder or holders of that Indebtedness or
Contingent Obligation(s) (or a trustee on behalf of such holder or holders) to
cause, that Indebtedness or Contingent Obligation(s) to become or be declared
due and payable prior to its stated maturity or the stated maturity of any
underlying obligation, as the case may be (upon the giving or receiving of
notice, lapse of time, both, or otherwise); or
8.3 BREACH OF CERTAIN COVENANTS.
---------------------------
Failure of Company to perform or comply with any term or condition
contained in subsection 2.4, 2.5 or 6.2 or Section 7 of this Agreement; or
8.4 BREACH OF WARRANTY.
------------------
Any representation, warranty, certification or other statement made by
Company or any of its Subsidiaries in any Loan Document or in any statement or
certificate at any time given by Company or any of its Subsidiaries in writing
pursuant hereto or thereto or in connection herewith or therewith shall be false
in any material respect on the date as of which made; or
8.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
-----------------------------------
Company or any of its Subsidiaries shall default in the performance of or
compliance with any term contained in this Agreement or any of the other Loan
Documents to which it is a party, other than any such term referred to in any
other subsection of this Section 8, and such default shall not have been
remedied or waived within 30 days after the earlier of (i) an officer of Company
or such Credit Party becoming aware of such default or (ii) receipt by Company
or such Credit Party of notice from Agent, Collateral Agent or any Lender of
such default; or
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
-----------------------------------------------------
(i) A court having jurisdiction in the premises shall enter a decree or
order for relief in respect of Company or any of its Subsidiaries in an
involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree
or order is not stayed; or any other similar relief shall be granted under any
applicable federal or state law; or (ii) an involuntary case shall be commenced
against Company or any of its Subsidiaries under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over Company or any of its Subsidiaries, or
over all or a substantial part of its property, shall have been entered; or
there shall have occurred the involuntary appointment of an interim receiver,
trustee or other custodian of Company or any of its Subsidiaries for all or a
118
substantial part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of the
property of Company or any of its Subsidiaries, and any such event described in
this clause (ii) shall continue for 60 days unless dismissed, bonded or
discharged; or
8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
---------------------------------------------------
(i) Company or any of its Subsidiaries shall have an order for relief
entered with respect to it or commence a voluntary case under the Bankruptcy
Code or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property; or Company or any of its Subsidiaries shall make any
assignment for the benefit of creditors; or (ii) Company or any of its
Subsidiaries shall be unable, or shall fail generally, or shall admit in writing
its inability, to pay its debts as such debts become due; or the Board of
Directors of Company or any of its Subsidiaries (or any committee thereof) shall
adopt any resolution or otherwise authorize any action to approve any of the
actions referred to in clause (i) above or this clause (ii); or
8.8 JUDGMENTS AND ATTACHMENTS.
-------------------------
Any money judgment, writ or warrant of attachment or similar process
involving (i) in any individual case an amount in excess of $1,000,000 or (ii)
in the aggregate at any time an amount in excess of $1,500,000 (in either case
not adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage) shall be entered or filed against
Company or any of its Subsidiaries or any of their respective assets and shall
remain undischarged, unvacated, unbonded or unstayed for a period of 60 days (or
in any event later than five days prior to the date of any proposed sale
thereunder); or
8.9 DISSOLUTION.
-----------
Any order, judgment or decree shall be entered against Company or any of
its Subsidiaries decreeing the dissolution or split up of Company or that
Subsidiary and such order shall remain undischarged or unstayed for a period in
excess of 30 days; or
8.10 EMPLOYEE BENEFIT PLANS.
----------------------
There shall occur one or more ERISA Events which individually or in the
aggregate (i) results in liability of Company or any of its ERISA Affiliates in
excess of $1,000,000 during the term of this Agreement and such liability (I) is
not adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage and (II) remains undischarged,
unvacated, unbonded, or unstayed for a period of 60 days or (ii) might
reasonably be expected to result in liability of Company or any of its ERISA
Affiliates in excess of $1,000,000 during the term of this Agreement and (I)
such
119
reasonably expected liability is not adequately covered by insurance as to which
a solvent and unaffiliated insurance company has acknowledged coverage and (II)
the Company or any of its ERISA Affiliates does not, within 60 days of such
ERISA Event, post a bond, set aside an amount in escrow, or take other measures
to secure the payment of the excess of such reasonably anticipated liability
over $1,000,000; or there shall exist an amount of unfunded benefit liabilities
(as defined in Section 4001(a)(18) of ERISA), individually or in the aggregate
for all Pension Plans (excluding for purposes of such computation any Pension
Plans with respect to which assets exceed benefit liabilities), which exceeds
$1,000,000; or
8.11 MATERIAL ADVERSE EFFECT.
-----------------------
Any event or change shall occur that has caused or evidences, either in any
case or in the aggregate, a Material Adverse Effect; or
8.12 CHANGE IN EXECUTIVE OFFICERS OF COMPANY.
---------------------------------------
Either ▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇ shall cease for any reason whatsoever,
including, without limitation, death or disability (as such disability shall be
determined in the sole and absolute judgment of Agent) to be and continuously
perform their present duties of executive officers of Company, or, if such
cessation shall occur as a result of death or such disability, no successor
satisfactory to the Agent and to Requisite Lenders in their sole discretion
shall have become and shall have commenced to perform the duties of such
executive officer of Company within sixty (60) days after such cessation;
provided, however, that if any satisfactory successor shall have been so elected
and shall have commenced performance of such duties within such period, the name
of such successor or successors shall be deemed to have been inserted in place
of ▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇, respectively, in this paragraph; or
8.13 CHANGE IN CONTROL.
-----------------
A Change of Control shall have occurred; or
8.14 FCC LICENSES.
------------
Any FCC License owned or held by Company or any of its Subsidiaries or any
other FCC License required for the lawful ownership, lease, control, use,
operation, management or maintenance of any broadcast station or other
broadcasting property of Company or any of its Subsidiaries shall be cancelled,
terminated, rescinded, revoked, suspended, impaired, otherwise finally denied
renewal, or otherwise modified in any material adverse respect, or shall be
renewed on terms that materially and adversely affect the economic or commercial
value or usefulness thereof, the result of which would have a Material Adverse
Effect; or any such FCC License, the loss of which would have a Material Adverse
Effect, shall no longer be in full force and effect; or the grant of any such
FCC License, the loss of which would have a Material Adverse Effect, shall have
been stayed, vacated or reversed, or modified in any material adverse respect,
by judicial or administrative proceedings; or any
120
administrative law judge of the FCC shall have issued an initial decision in any
non-comparative license renewal, license revocation or any comparative (multiple
applicant) proceeding to the effect that any such FCC License, the loss of which
would have a Material Adverse Effect, should be revoked or not be renewed; or
any other proceeding shall have been instituted by or shall have been commenced
before any court, the FCC or any other regulatory body that more likely than not
will result in such cancellation, termination, rescission, revocation,
impairment or suspension of any such FCC License or result in such modification
of any such FCC License that would more likely than not have a Material Adverse
Effect.
THEN (i) upon the occurrence of any Event of Default described in subsection 8.6
or 8.7, each of (a) the unpaid principal amount of and accrued interest on the
Loans, (b) an amount equal to the maximum amount that may at any time be drawn
under all Letters of Credit then outstanding (whether or not any beneficiary
under any such Letter of Credit shall have presented, or shall be entitled at
such time to present, the drafts or other documents or certificates required to
draw under such Letter of Credit), and (c) all other Obligations of the Company
under this Agreement and the Notes shall automatically become immediately due
and payable, without presentment, demand, protest or other requirements of any
kind, all of which are hereby expressly waived by Company, and the obligation of
each Lender to make any Loan, the obligation of Agent to issue any Letter of
Credit and the right of any Lender to issue any Letter of Credit hereunder shall
thereupon terminate, and (ii) upon the occurrence and during the continuation of
any other Event of Default, Agent shall, upon the written request of Requisite
Lenders, by written notice to Company, declare all or any portion of the amounts
described in clauses (a) through (c) above to be, and the same shall forthwith
become, immediately due and payable, and the obligation of each Lender to make
any Loan, the obligation of Agent to issue any Letter of Credit and the right of
any Lender to issue any Letter of Credit hereunder shall thereupon terminate;
provided that the foregoing shall not affect in any way the obligations of
--------
Lenders under subsection 3.3C(i).
Any amounts described in clause (b) above, when received by Agent, shall be
held by Agent pursuant to such documentation as the Agent or Requisite Lenders
shall request, as cash collateral for Company's reimbursement obligations in
respect of any drawing under any Letters of Credit and the payment of the
Obligations.
Notwithstanding anything contained in the second preceding paragraph, if at
any time within 60 days after an acceleration of the Loans pursuant to such
paragraph Company shall pay all arrears of interest and all payments on account
of principal which shall have become due otherwise than as a result of such
acceleration (with interest on principal and, to the extent permitted by law, on
overdue interest, at the rates specified in this Agreement) and all Events of
Default and Potential Events of Default (other than non-payment of the principal
of and accrued interest on the Loans, in each case which is due and payable
solely by virtue of acceleration) shall be remedied or waived pursuant to
subsection 10.6, then Requisite Lenders, by written notice to Company, may at
their option rescind and annul such acceleration and its consequences; but such
action shall not affect any subsequent
121
Event of Default or Potential Event of Default or impair any right consequent
thereon. The provisions of this paragraph are intended merely to bind Lenders
to a decision which may be made at the election of Requisite Lenders and are not
intended to benefit Company and do not grant Company the right to require
Lenders to rescind or annul any acceleration hereunder, even if the conditions
set forth herein are met.
SECTION 9.
AGENT
9.1 APPOINTMENT.
-----------
Bankers is hereby appointed Agent hereunder and under the other Loan
Documents, as successor to the ``Administrative Agent'' and the ``Collateral
Agent'' as each such term is defined in the Existing Agreement, and each Lender
hereby authorizes Agent to act as its agent in accordance with the terms of this
Agreement and the other Loan Documents. Agent agrees to act upon the express
conditions contained in this Agreement and the other Loan Documents, as
applicable. The provisions of this Section 9 are solely for the benefit of
Agent and Lenders and Company shall have no rights as a third party beneficiary
of any of the provisions thereof. In performing its functions and duties under
this Agreement, Agent shall act solely as an agent of Lenders and does not
assume and shall not be deemed to have assumed any obligation towards or
relationship of agency or trust with or for Company or any of its Subsidiaries.
Agent reserves the right to employ the services of its Affiliates, including BT
Securities Corporation (``BTSC''), in providing the services of Agent
contemplated by this Agreement and the other Loan Documents. Company
acknowledges and agrees that Agent may share with any of its Affiliates
(including BTSC) any information relating to Company and its Subsidiaries and
the transactions contemplated by this Agreement.
9.2 POWERS; GENERAL IMMUNITY.
------------------------
A. DUTIES SPECIFIED. Each Lender irrevocably authorizes Agent to take
such action on such Lender's behalf and to exercise such powers hereunder and
under the other Loan Documents as are specifically delegated to Agent by the
terms hereof and thereof, together with such powers as are reasonably incidental
thereto. Agent shall have only those duties and responsibilities that are
expressly specified in this Agreement and the other Loan Documents and it may
perform such duties by or through its agents or employees. Agent shall not
have, by reason of this Agreement or any of the other Loan Documents, a
fiduciary relationship in respect of any Lender; and nothing in this Agreement
or any of the other Loan Documents, expressed or implied, is intended to or
shall be so construed as to impose upon Agent any obligations in respect of this
Agreement or any of the other Loan Documents except as expressly set forth
herein or therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. Agent shall not be responsible
to any Lender for the execution, effectiveness, genuineness, validity,
enforceability, collectibility or
122
sufficiency of this Agreement or any other Loan Document or for any
representations, warranties, recitals or statements made herein or therein or
made in any written or oral statement or in any financial or other statements,
instruments, reports or certificates or any other documents furnished or made by
Agent to Lenders or by or on behalf of Company to Agent or any Lender in
connection with the Loan Documents and the transactions contemplated thereby or
for the financial condition or business affairs of Company or any other Person
liable for the payment of any Obligations, nor shall Agent be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Loan
Documents or as to the use of the proceeds of the Loans or the use of the
Letters of Credit or as to the existence or possible existence of any Event of
Default or Potential Event of Default. Anything contained in this Agreement to
the contrary notwithstanding, Agent shall not have any liability arising from
confirmations of the amount of outstanding Loans or the Letter of Credit Usage
or the component amounts thereof.
C. EXCULPATORY PROVISIONS. Neither Agent nor any of its officers,
directors, employees or agents shall be liable to Lenders for any action taken
or omitted hereunder or in connection herewith except to the extent caused by
Agent's gross negligence or willful misconduct. If Agent shall request
instructions from Lenders with respect to any act or action (including the
failure to take an action) in connection with this Agreement or any of the other
Loan Documents, Agent shall be entitled to refrain from such act or taking such
action unless and until Agent shall have received instructions from Requisite
Lenders. Without prejudice to the generality of the foregoing, (i) Agent shall
be entitled to rely, and shall be fully protected in relying, upon any
communication, instrument or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and shall be
entitled to rely and shall be protected in relying on opinions and judgments of
attorneys (who may be attorneys for Company and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and (ii) no Lender shall
have any right of action whatsoever against Agent as a result of Agent acting or
(where so instructed) refraining from acting under this Agreement or any of the
other Loan Documents in accordance with the instructions of Requisite Lenders.
Agent shall be entitled to refrain from exercising any power, discretion or
authority vested in it under this Agreement or any of the other Loan Documents
unless and until it has obtained the instructions of Requisite Lenders.
D. AGENT ENTITLED TO ACT AS LENDER. The agency hereby created shall in
no way impair or affect any of the rights and powers of, or impose any duties or
obligations upon, Agent in its individual capacity as a Lender hereunder. With
respect to its participation in the Loans and the Letters of Credit, Agent shall
have the same rights and powers hereunder as any other Lender and may exercise
the same as though it were not performing the duties and functions delegated to
it hereunder, and the term ``Lender'' or ``Lenders'' or any similar term shall,
unless the context clearly otherwise indicates, include Agent in its individual
capacity. Agent and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of banking, trust, financial advisory or other
business with Company or any of its Affiliates as if it were not performing the
duties specified herein, and may accept
123
fees and other consideration from Company for services in connection with this
Agreement and otherwise without having to account for the same to Lenders.
9.3 REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY FOR APPRAISAL OF
------------------------------------------------------------------
CREDITWORTHINESS.
----------------
Each Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of Company and its
Subsidiaries in connection with the making of the Loans and the issuance of
Letters of Credit hereunder and that it has made and shall continue to make its
own appraisal of the creditworthiness of Company. Agent shall not have any duty
or responsibility, either initially or on a continuing basis, to make any such
investigation or any such appraisal on behalf of Lenders or to provide any
Lender with any credit or other information with respect thereto, whether coming
into its possession before the making of the Loans or at any time or times
thereafter, and Agent shall not have any responsibility with respect to the
accuracy of or the completeness of any information provided to Lenders.
9.4 RIGHT TO INDEMNITY.
------------------
Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify Agent, to the extent that Agent shall not have been reimbursed by
Company, for and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including, without
limitation, counsel fees and disbursements) or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against Agent
in performing its duties hereunder or under the other Loan Documents or
otherwise in any way relating to or arising out of this Agreement or the other
Loan Documents; provided that no Lender shall be liable for any portion of such
--------
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from Agent's gross negligence or
willful misconduct. If any indemnity furnished to Agent for any purpose shall,
in the opinion of Agent, be insufficient or become impaired, Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished.
9.5 PAYEE OF NOTE TREATED AS OWNER.
------------------------------
Agent may deem and treat the payee of any Note as the owner thereof for all
purposes hereof unless and until an Assignment and Acceptance effecting the
assignment or transfer thereof shall have been accepted by Agent as provided in
subsection 10.1B(iii). Any request, authority or consent of any person or
entity who, at the time of making such request or giving such authority or
consent, is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee or assignee of that Note or of any Note or Notes
issued in exchange therefor.
124
9.6 SUCCESSOR AGENT.
---------------
Agent may resign at any time by giving 30 days' prior written notice
thereof to Lenders and Company, and Agent may be removed at any time with or
without cause by an instrument or concurrent instruments in writing delivered to
Company and Agent and signed by Requisite Lenders. Upon any such notice of
resignation or any such removal, Requisite Lenders shall have the right, upon
receiving Company's consent (provided that such consent shall not be required
during the continuance of an Event of Default if such successor Agent is a
Lender, and shall not otherwise be unreasonably withheld), to appoint a
successor Agent. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent that successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring or
removed Agent and the retiring or removed Agent shall be discharged from its
duties and obligations under this Agreement. After any retiring or removed
Agent's resignation or removal hereunder, the provisions of this Section 9 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement.
9.7 APPOINTMENT OF COLLATERAL AGENT.
-------------------------------
Each Lender hereby appoints Bankers to serve as Collateral Agent and to act
as such under the Collateral Documents. Each Lender hereby further authorizes
Collateral Agent to enter into the Collateral Documents on behalf of and for the
benefit of Lenders and agrees to be bound by the terms of the Collateral
Documents; provided that Collateral Agent shall not enter into or consent to any
--------
amendment, modification, termination or waiver of any provision contained in the
Collateral Documents without the prior consent of the Requisite Lenders or the
Lenders, as may be required by subsection 10.6 of this Agreement. Each Lender
agrees that no Lender shall have any right individually to realize upon the
security granted by the Collateral Documents, it being understood and agreed
that such rights and remedies may be exercised by Agent or Collateral Agent for
the benefit of Lenders in accordance with the terms of such agreements.
SECTION 10.
MISCELLANEOUS
10.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS AND LETTERS OF CREDIT.
-------------------------------------------------------------
A. GENERAL. Subject to subsection 10.1B, each Lender shall have the
right at any time to (i) sell, assign, transfer or negotiate to any Eligible
Assignee, or (ii) sell participations to any Person in, all or any part of its
Commitments or any Loan or Loans made by it or its Letters of Credit or
participations therein or any other interest herein or in any other Obligations
owed to it; provided that no such assignment or participation shall, without the
--------
consent of Company, require Company to file a registration statement with the
Securities and Exchange Commission or apply to qualify such assignment or
participation under the securities laws of any state. Except as otherwise
provided in this subsection 10.1,
125
no Lender shall, as between Company and such Lender, be relieved of any of its
obligations hereunder as a result of any sale, assignment, transfer or
negotiation of, or any granting of participations in, all or any part of its
Commitments or the Loans, the Letters of Credit or participations therein or the
other Obligations owed to such Lender; provided, further that no such sale,
-------- -------
assignment, transfer or participation of any Letter of Credit or any
participation therein may be made separately from a sale, assignment, transfer
or participation of a corresponding interest in the Revolving Loan Commitment
and the Revolving Loans of the Lender effecting such sale, assignment, transfer
or participation.
B. ASSIGNMENTS.
(i) Amounts and Terms of Assignments. Each Commitment, Loan, Letter
--------------------------------
of Credit or participation therein or other Obligation may (a) be assigned
in any amount to another Lender, or to an Affiliate of the assigning Lender
or another Lender, with the giving of notice to Company and Agent or (b) be
assigned in an aggregate amount of not less than $5,000,000 (or such lesser
amount as shall constitute the aggregate amount of the Commitments, Loans,
Letters of Credit and participations therein and other Obligations of the
assigning Lender) to any other Eligible Assignee with the giving of notice
to Company and with the consent of Agent (which consent shall not be
unreasonably withheld). To the extent of any such assignment in accordance
with either clause (a) or (b) above, the assigning Lender shall be relieved
of its obligations with respect to its Commitments, Loans, Letters of
Credit or participations therein or other Obligations or the portion
thereof so assigned. The parties to each such assignment shall execute and
deliver to Agent, for its acceptance, an Assignment and Acceptance,
together with a processing fee of $3,500, in the case of assignments to any
Eligible Assignee that is not a Lender, or $2,500, in the case of
assignments to any other Lender (provided, however, that no such processing
-------- -------
fees shall be payable in the case of assignments pursuant to this
subsection 10.1 effected during the first five Business Days immediately
following of the Closing Date) and such certificates, documents or other
evidence, if any, with respect to United States federal income tax
withholding matters as the assignee under such Assignment and Acceptance
may be required to deliver to Agent pursuant to subsection 2.7B(iii). Upon
such execution, delivery and acceptance, from and after the effective date
specified in such Assignment and Acceptance, (y) the assignee thereunder
shall be a party hereto and, to the extent that rights (other than any
rights which survive the termination of this Agreement under subsection
10.9B) and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of a
Lender hereunder and (z) the assigning Lender thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto; provided that, anything contained in any
--------
of the Loan Documents to the contrary notwithstanding, if such Lender is
the Issuing Lender with
126
respect to any outstanding Letters of Credit such Lender shall continue to
have all rights and obligations of an Issuing Lender with respect to such
Letters of Credit until the cancellation or expiration of such Letters of
Credit and the reimbursement of any amounts drawn thereunder). The
Commitments hereunder shall be modified to reflect the Commitment of such
assignee and any remaining Commitment of such assigning Lender and, if any
such assignment occurs after the issuance of the Notes hereunder, new Notes
shall, upon surrender of the assigning Lender's Notes, be issued (at the
expense of Company) to the assignee and to the assigning Lender,
substantially in the form of Exhibit IV or Exhibit V annexed hereto, as the
---------- ---------
case may be, with appropriate insertions, to reflect the new Commitments
and/or outstanding Additional Credit Loans, as the case may be, of the
assignee and the assigning Lender.
(ii) Acceptance by Agent. Upon its receipt of an Assignment and
-------------------
Acceptance executed by an assigning Lender and an assignee representing
that it is an Eligible Assignee, together with the processing fee referred
to in subsection 10.1B(i) and any certificates, documents or other evidence
with respect to United States federal income tax withholding matters that
such assignee may be required to deliver to Agent pursuant to subsection
2.7B(iii), Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit X hereto and if Agent
---------
has consented to the assignment evidenced thereby (to the extent such
consent is required pursuant to subsection 10.1B(i)), (a) accept such
Assignment and Acceptance by executing a counterpart thereof as provided
therein (which acceptance shall evidence any required consent of Agent to
such assignment) and (b) give prompt notice thereof to Company. Agent
shall maintain a copy of each Assignment and Acceptance delivered to and
accepted by it as provided in this subsection 10.1B(ii).
C. PARTICIPATIONS. The holder of any participation, other than an
Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except action
directly affecting (i) the extension of the scheduled final maturity date of the
principal amount of or interest on any Loan allocated to such participation or
(ii) a reduction of the principal amount of or the rate of interest payable on
any Loan allocated to such participation, and all amounts payable by Company
hereunder (including without limitation amounts payable to such Lender pursuant
to subsections 2.6D, 2.7 and 3.6) shall be determined as if such Lender had not
sold such participation. Company and each Lender hereby acknowledge and agree
that, solely for purposes of subsections 10.4 and 10.5, (a) any participation
will give rise to a direct obligation of Company to the participant and (b) the
participant shall be considered to be a ``Lender''.
D. ASSIGNMENTS TO FEDERAL RESERVE BANKS. In addition to the assignments
and participations permitted under the foregoing provisions of this subsection
10.1, any Lender may assign and pledge all or any portion of its Loans, the
other Obligations owed to such Lender and its Notes to any Federal Reserve Bank
as collateral security pursuant to
127
Regulation A of the Board of Governors of the Federal Reserve System and any
operating circular issued by such Federal Reserve Bank. No Lender shall, as
between Company and such Lender, be relieved of any of its obligations hereunder
as a result of any such assignment and pledge.
E. INFORMATION. Each Lender may furnish any information concerning
Company and its Subsidiaries in the possession of that Lender from time to time
to assignees and participants (including prospective assignees and
participants), subject to subsection 10.19.
10.2 EXPENSES.
--------
Whether or not the transactions contemplated hereby shall be consummated,
Company agrees to pay promptly (i) all the actual and reasonable costs and
expenses of preparation of the Loan Documents; (ii) all the costs of furnishing
all opinions by counsel for Company and the other Credit Parties (including
without limitation any opinions requested by Lenders as to any legal matters
arising hereunder) and of Company's performance of and compliance with all
agreements and conditions on its part to be performed or complied with under
this Agreement and the other Loan Documents including, without limitation, with
respect to confirming compliance with environmental and insurance requirements;
(iii) the reasonable fees, expenses and disbursements of counsel to Agent and
Collateral Agent (including allocated costs of internal counsel) in connection
with the negotiation, preparation, execution and administration of the Loan
Documents and the Loans and any consents, amendments, waivers or other
modifications hereto or thereto and any other documents or matters requested by
Company; (iv) all other actual and reasonable costs and expenses incurred by
Agent in connection with the syndication of the Commitments, the negotiation,
preparation execution and administration of the Loan Documents and the
transactions contemplated hereby and thereby; (v) all the actual costs and
expenses of creating and perfecting Liens in favor of Collateral Agent for the
benefit of Lenders pursuant to any Loan Document, including filing and recording
fees and expenses, title insurance, fees and expenses of counsel for providing
such opinions as Lenders may reasonably request and reasonable fees and expenses
of legal counsel to Agent and Collateral Agent; and (vi) after the occurrence of
an Event of Default, all costs and expenses, including reasonable attorneys'
fees (including allocated costs of internal counsel) and costs of settlement,
incurred by Agent, Collateral Agent and Lenders in enforcing any Obligations of
or in collecting any payments due from Company hereunder or under the other Loan
Documents by reason of such Event of Default or in connection with any
refinancing or restructuring of the credit arrangements provided under this
Agreement in the nature of a ``work-out'' or pursuant to any insolvency or
bankruptcy proceedings.
10.3 INDEMNITY.
---------
In addition to the payment of expenses pursuant to subsection 10.2, whether
or not the transactions contemplated hereby shall be consummated, Company agrees
to defend, indemnify, pay and hold harmless Agent, Collateral Agent, Co-Agents
and Lenders, and the officers, directors, partners, shareholders, employees,
agents and affiliates of Agent,
128
Collateral Agent, Co-Agents and Lenders (collectively called the
``INDEMNITEES'') from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, costs, expenses
and disbursements of any kind or nature whatsoever (including without limitation
the reasonable fees and disbursements of counsel for such Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto), whether direct, indirect
or consequential and whether based on any federal, state or foreign laws,
statutes, rules or regulations (including without limitation securities and
commercial laws, statutes, rules or regulations and Environmental Laws), on
common law or equitable cause or on contract or otherwise, that may be imposed
on, incurred by, or asserted against any such Indemnitee, in any manner relating
to or arising out of the Commitment Letter, this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby (including without
limitation Lenders' agreement to make the Loans hereunder or the use or intended
use of the proceeds of any of the Loans or the issuance of Letters of Credit
hereunder or the use or intended use of any of the Letters of Credit) or the
statements contained in the commitment letter delivered by any Lender to Company
with respect thereto (collectively called the ``INDEMNIFIED LIABILITIES'');
provided that Company shall not have any obligation to any Indemnitee hereunder
--------
(i) with respect to any Indemnified Liabilities to the extent such Indemnified
Liabilities arise solely from the gross negligence or willful misconduct of that
Indemnitee as determined by a final judgment of a court of competent
jurisdiction, (ii) with respect to judicial proceedings commenced against such
Indemnitee by any holder of the debt or equity securities of such Indemnitee
based solely on the rights afforded such holder in its capacity as such, and
(iii) with respect to judicial proceedings commenced solely against such
Indemnitee by another Indemnitee. To the extent that the undertaking to defend,
indemnify, pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, Company shall
contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by the Indemnitees or any of them. The provisions of this subsection
10.3 shall supersede the indemnification provisions contained in the Commitment
Letter.
10.4 SET-OFF.
-------
In addition to any rights now or hereafter granted under applicable law and
not by way of limitation of any such rights, upon the occurrence of any Event of
Default each Lender is hereby authorized by Company at any time or from time to
time, with prior written consent of Agent, but without notice to Company or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and to apply any and all deposits (general or special, including,
but not limited to, Indebtedness evidenced by certificates of deposit, whether
matured or unmatured, but not including trust accounts) and any other
Indebtedness at any time held or owing by that Lender to or for the credit or
the account of Company against and on account of the obligations and liabilities
of Company to that Lender under this Agreement, the Notes, the Letters of Credit
and participations therein, including, but not limited to, all claims of any
nature or description arising out of
129
or connected with this Agreement, the Notes, the Letters of Credit and
participations therein or any other Loan Document, irrespective of whether or
not (i) that Lender shall have made any demand hereunder or (ii) the principal
of or the interest on the Loans or any amounts in respect of the Letters of
Credit or any other amounts due hereunder shall have become due and payable
pursuant to Section 8 and although said obligations and liabilities, or any of
them, may be contingent or unmatured.
10.5 RATABLE SHARING.
---------------
Lenders hereby agree among themselves that if any of them shall, whether by
voluntary payment, by realization upon security, through the exercise of any
right of set-off or banker's lien, by counterclaim or cross action or by the
enforcement of any right under the Loan Documents or otherwise, or as adequate
protection of a deposit treated as cash collateral under the Bankruptcy Code,
receive payment or reduction of a proportion of the aggregate amount of
principal, interest, amounts payable in respect of Letters of Credit, fees and
other amounts then due and owing to that Lender hereunder or under the other
Loan Documents (collectively, the ``AGGREGATE AMOUNTS DUE'' to such Lender)
which is greater than the proportion received by any other Lender in respect of
the Aggregate Amounts Due to such other Lender, then the Lender receiving such
proportionately greater payment shall (i) notify Agent and each other Lender of
the receipt of such payment and (ii) apply a portion of such payment to purchase
participations (which it shall be deemed to have purchased from each seller of a
participation simultaneously upon the receipt by such seller of its portion of
such payment) in the Aggregate Amounts Due to the other Lenders so that all such
recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion
to the Aggregate Amounts Due to them; provided that if all or part of such
--------
proportionately greater payment received by such purchasing Lender is thereafter
recovered from such Lender upon the bankruptcy or reorganization of Company or
otherwise, those purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to such purchasing Lender ratably to the
extent of such recovery, but without interest. Company expressly consents to
the foregoing arrangement and agrees that any holder of a participation so
purchased may exercise any and all rights of banker's lien, set-off or
counterclaim with respect to any and all monies owing by Company to that holder
with respect thereto as fully as if that holder were owed the amount of the
participation held by that holder.
10.6 AMENDMENTS AND WAIVERS.
----------------------
A. No amendment, modification, termination or waiver of any provision of
this Agreement, the Notes, the Borrower Pledge and Security Agreement, the
Subsidiary Guaranty, the Subsidiary Pledge and Security Agreement or the
Mortgages, or consent to any departure by Company or any other Credit Party
therefrom, shall in any event be effective without the written concurrence of
Requisite Lenders; provided that any such amendment, modification, termination,
--------
waiver or consent which: increases the amount of any of the Commitments or
reduces the principal amount of any of the Loans; increases the maximum amount
of Letters of Credit; changes any Lender's Pro Rata Share; changes in
130
any manner the definition of ``REQUISITE LENDERS''; postpones the scheduled
final maturity date (or the date of any scheduled installment of principal) of
any of the Loans or reduces the amount of any scheduled payment (but not
prepayment) or reduction of Commitments thereof; postpones the date on which any
interest or any fees are payable; decreases the interest rate borne by any of
the Loans (other than any waiver of any increase in the interest rate applicable
to any of the Loans pursuant to subsection 2.2E) or the amount of any fees
payable hereunder; changes in any manner the provisions contained in subsection
8.1 or this subsection 10.6; increases the maximum duration of Interest Periods
permitted hereunder; reduces the amount or postpones the due date of any amount
payable in respect of, or extends the required expiration date of, any Letter of
Credit; changes in any manner the obligations of Lenders relating to the
purchase of participations in Letters of Credit; changes in any manner any
provision of this Agreement which, by its terms, expressly requires the approval
or concurrence of all Lenders; releases all or substantially all of the
Collateral; or releases any Credit Party from its obligations under the
Subsidiary Guaranty (other than in connection with an Asset Sale permitted
hereunder) shall be effective only if evidenced by a writing signed by or on
behalf of all Lenders. In addition, (i) any amendment, modification,
termination or waiver of any of the provisions contained in Section 4 shall be
effective only if evidenced by a writing signed by or on behalf of Agent and
Requisite Lenders, (ii) no amendment, modification, termination or waiver of any
provision of any Note shall be effective without the written concurrence of the
Lender which is the holder of that Note, and (iii) no amendment, modification,
termination or waiver of any provision of Section 9 or of any other provision of
this Agreement which, by its terms, expressly requires the approval or
concurrence of Agent shall be effective without the written concurrence of
Agent.
B. If, in connection with any proposed amendment, modification,
termination or waiver to any of the provisions of this Agreement, the Notes, the
Borrower Pledge and Security Agreement, the Subsidiary Guaranty, the Subsidiary
Pledge and Security Agreement or the Mortgages as contemplated by the first
proviso of subsection 10.6A, the consent of the Requisite Lenders is obtained
but the consent of one or more of such other Lenders whose consent is required
is not obtained, then Company shall have the right, so long as all non-
consenting Lenders whose individual consent is required are treated as described
in either clause (i) or (ii) below, to either (i) replace each such non-
consenting Lender or Lenders with one or more Replacement Lenders pursuant to
subsection 2.10 so long as at the time of such replacement, each such
Replacement Lender consents to the proposed amendment, modification, termination
or waiver, or (ii) terminate such non-consenting Lender's Commitments and repay
in full its outstanding Loans in accordance with subsections 2.4B(i)(b) and
2.4B(ii)(c); provided that unless the Commitments that are terminated and the
--------
Loans that are repaid pursuant to the preceding clause (ii) are immediately
replaced in full at such time through the addition of new Lenders or the
increase of the Commitments and/or outstanding Loans of existing Lenders (who in
each case must specifically consent thereto), then in the case of any action
pursuant to the preceding clause (ii), the Requisite Lenders (determined before
giving effect to the proposed action) shall specifically consent thereto;
provided further that Company shall not have the right to terminate such non-
-------- -------
consenting Lender's Commitments and repay in full
131
its outstanding Loans pursuant to clause (ii) of this subsection 10.6B if,
immediately after the termination of such Lender's Commitments in accordance
with subsection 2.4B(ii)(c), the Revolving Loan Exposure of all Lenders would
exceed the Revolving Loan Commitments of all Lenders or the Additional Credit
Loan Exposure of all Lenders party to any Additional Credit Facility Supplement
would exceed the Additional Credit Commitments of all Lenders party to such
Additional Credit Facility Supplement; provided still further that Company shall
-------- ----- -------
not have the right to replace a Lender solely as a result of the exercise of
such Lender's rights (and the withholding of any required consent by such
Lender) pursuant to the second sentence of subsection 10.6A.
C. Agent may, but shall have no obligation to, with the concurrence of any
Lender, execute amendments, modifications, waivers or consents on behalf of that
Lender. Any waiver or consent shall be effective only in the specific instance
and for the specific purpose for which it was given. No notice to or demand on
Company in any case shall entitle Company to any other or further notice or
demand in similar or other circumstances. Any amendment, modification,
termination, waiver or consent effected in accordance with this subsection 10.6
shall be binding upon each Lender at the time outstanding, each future Lender
and, if signed by Company, on Company.
10.7 INDEPENDENCE OF COVENANTS.
-------------------------
All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or would otherwise be within
the limitations of, another covenant shall not avoid the occurrence of an Event
of Default or Potential Event of Default if such action is taken or condition
exists.
10.8 NOTICES.
-------
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telecopied, telexed or sent by United States mail or
courier service and shall be deemed to have been given when delivered in person
or by courier service, upon receipt of telecopy or telex, or four Business Days
after depositing it in the United States mail, registered or certified, with
postage prepaid and properly addressed; provided that notices to Agent shall not
--------
be effective until received. For the purposes hereof, the address of each party
hereto shall be as set forth under such party's name on the signature pages
hereof or (i) as to Company and Agent, such other address as shall be designated
by such Person in a written notice delivered to the other parties hereto and
(ii) as to each other party, such other address as shall be designated by such
party in a written notice delivered to Agent.
132
10.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
------------------------------------------------------
A. All representations, warranties and agreements made herein shall
survive the execution and delivery of this Agreement and the making of the Loans
and the issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of Company set forth in subsections 2.6D, 2.7, 3.5,
3.6, 5.12, 10.2, 10.3 and 10.4 and the agreements of Lenders set forth in
subsections 9.2C, 9.4 and 10.5 shall survive the payment of the Loans, the
cancellation or expiration of the Letters of Credit and the reimbursement of any
amounts drawn thereunder, and the termination of this Agreement.
10.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
-----------------------------------------------------
No failure or delay on the part of Agent, Collateral Agent or any Lender in
the exercise of any power, right or privilege hereunder or under any other Loan
Document shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
10.11 MARSHALLING; PAYMENTS SET ASIDE.
-------------------------------
None of Agent, Collateral Agent or any Lender shall be under any obligation
to marshal any assets in favor of Company or any other party or against or in
payment of any or all of the Obligations. To the extent that Company makes a
payment or payments to Agent or Collateral Agent or Lenders (or to Agent or
Collateral Agent for the benefit of Lenders), or Agent or Collateral Agent or
Lenders enforce any security interests or exercise their rights of setoff, and
such payment or payments or the proceeds of such enforcement or setoff or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, any other state or federal law, common
law or any equitable cause, then, to the extent of such recovery, the obligation
or part thereof originally intended to be satisfied, and all Liens, rights and
remedies therefor or related thereto, shall be revived and continued in full
force and effect as if such payment or payments had not been made or such
enforcement or setoff had not occurred.
10.12 SEVERABILITY.
------------
In case any provision in or obligation under this Agreement or the Notes
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
133
10.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS.
----------------------------------------------------------
The obligations of Lenders hereunder are several and no Lender shall be
responsible for the obligations or Commitments of any other Lender hereunder.
Nothing contained herein or in any other Loan Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement and it shall not be necessary for any other
Lender to be joined as an additional party in any proceeding for such purpose.
10.14 HEADINGS.
--------
Section and subsection headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.
10.15 APPLICABLE LAW.
--------------
THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES. Each Letter of Credit shall be governed by, and
shall be construed and enforced in accordance with, the laws or rules designated
in such Letter of Credit, or if no such laws or rules are designated, the
Uniform Customs and Practices for Documentary Credits (1993 Revision),
International Chamber of Commerce, Publication No. 500 (the ``UNIFORM CUSTOMS'')
and, as to matters not governed by the Uniform Customs, the laws of the State of
New York.
10.16 SUCCESSORS AND ASSIGNS.
----------------------
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders (it being understood that
Lenders' rights of assignment are subject to subsection 10.1). Neither
Company's rights or obligations hereunder nor any interest therein may be
assigned or delegated by Company without the prior written consent of all
Lenders.
10.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
----------------------------------------------
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY OBLIGATION MAY BE BROUGHT IN
ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK,
AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT COMPANY ACCEPTS FOR ITSELF AND
IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY,
134
THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH THIS AGREEMENT, SUCH OTHER LOAN DOCUMENT OR SUCH
OBLIGATION. Company designates and appoints CT Corporation Systems, and such
other Persons as may hereafter be selected by Company irrevocably agreeing in
writing to so serve, as its agent to receive on its behalf service of all
process in any such proceedings in any such court, such service being hereby
acknowledged by Company to be effective and binding service in every respect. A
copy of any such process so served shall be mailed by registered mail to Company
at its address provided in subsection 10.8; provided that, unless otherwise
--------
provided by applicable law, any failure to mail such copy shall not affect the
validity of service of such process. If any agent appointed by Company refuses
to accept service, Company hereby agrees that service of process sufficient for
personal jurisdiction in any action against Company in the State of New York may
be made by registered or certified mail, return receipt requested, to Company at
its address provided in subsection 10.8, and Company hereby acknowledges that
such service shall be effective and binding in every respect. Nothing herein
shall affect the right to serve process in any other manner permitted by law or
shall limit the right of any Lender to bring proceedings against Company in the
courts of any other jurisdiction.
10.18 WAIVER OF JURY TRIAL.
--------------------
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN
THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this
waiver is intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this transaction,
including without limitation contract claims, tort claims, breach of duty claims
and all other common law and statutory claims. Each party hereto acknowledges
that this waiver is a material inducement to enter into a business relationship,
that each has already relied on this waiver in entering into this Agreement, and
that each will continue to rely on this waiver in their related future dealings.
Each party hereto further warrants and represents that it has reviewed this
waiver with its legal counsel and that it knowingly and voluntarily waives its
jury trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the
event of litigation, this Agreement may be filed as a written consent to a trial
by the court.
135
10.19 CONFIDENTIALITY.
---------------
Each Lender shall hold all non-public information obtained pursuant to the
requirements of this Agreement which has been identified as confidential by
Company in accordance with such Lender's customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices, it being understood and agreed by Company that in any event a
Lender may make disclosures reasonably required by any bona fide assignee,
transferee or participant in connection with the contemplated assignment or
transfer by such Lender of any Loans or any participation therein (provided that
such Person agrees to be bound by the provisions of this subsection 10.19) or as
required or requested by any governmental agency or representative thereof or
pursuant to legal process; provided that, unless specifically prohibited by
--------
applicable law or court order, each Lender shall notify Company of any request
by any governmental agency or representative thereof (other than any such
request in connection with any examination of the financial condition of such
Lender by such governmental agency) for disclosure of any such non-public
information prior to disclosure of such information; and provided, further that
-------- -------
in no event shall any Lender be obligated or required to return any materials
furnished by Company or any of its Subsidiaries.
10.20 COUNTERPARTS; EFFECTIVENESS.
---------------------------
This Agreement and any amendments, waivers, consents or supplements hereto
or in connection herewith may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. It is the intention of each of the parties hereto that the Existing
Agreement be amended and restated to preserve the perfection and priority of all
security interests securing indebtedness under the Existing Agreement, the other
Loan Documents and the Notes and that all indebtedness and obligations of the
Company and its Subsidiaries hereunder and thereunder shall be secured by the
Mortgages and the Collateral Documents. This Agreement constitutes an amendment
of the Existing Agreement made under the terms of subsection 10.6. This
Agreement shall become effective upon the execution of a counterpart hereof by
each of the parties hereto and receipt by Company and Agent of written or
telephonic notification of such execution and authorization of delivery thereof;
provided, that unless and until all the conditions set forth in Section 4.1 have
--------
been satisfied or waived by Agent or Lenders then the Existing Agreement shall
remain in full force and effect without giving effect to the amendments set
forth herein, as if this Third Amended and Restated Credit Agreement shall have
never been executed and delivered. Any references in the Loan Documents to
specific section numbers of the 1993 Agreement , the First Restated Agreement or
the Existing Agreement, as the case may be, or to specific Schedules or Exhibits
thereof shall be deemed to refer to the appropriate section numbers of this
Agreement (however numbered) corresponding to the specific numbered sections of
the 1993 Agreement, the First Restated Agreement or the Existing Agreement, as
the case
136
may be, or to the appropriate Schedules or Exhibits hereof (however identified)
corresponding to the specific Schedules or Exhibits of the 1993 Agreement, the
First Restated Agreement or the Existing Agreement, as applicable.
10.21 MAXIMUM AMOUNT.
--------------
A. It is the intention of Company and Lenders to conform strictly to the
usury and similar laws relating to interest from time to time in force, and all
agreements between Company and Lenders, whether now existing or hereafter
arising and whether oral or written, are hereby expressly limited so that in no
contingency or event whatsoever, whether by acceleration of maturity hereof or
otherwise, shall the amount paid or agreed to be paid in the aggregate to
Lenders or to Agent on behalf of Lenders as interest hereunder or under the
other Loan Documents or in any other security agreement given to secure the
Obligations, or in any other document evidencing, securing or pertaining to the
indebtedness evidenced hereby or thereby, exceed the maximum amount permissible
under applicable usury or such other laws (the ``MAXIMUM AMOUNT''). If under
any circumstances whatsoever fulfillment of any provision hereof, or any of the
other Loan Documents, at the time performance of such provision shall be due,
shall involve exceeding the Maximum Amount, then, ipso facto, the obligation to
---- -----
be fulfilled shall be reduced to the Maximum Amount. For the purposes of
calculating the actual amount of interest paid and/or payable hereunder, in
respect of laws pertaining to usury or such other laws, all sums paid or agreed
to be paid to the holder hereof for the use, forbearance or detention of the
indebtedness of Company evidenced hereby, outstanding from time to time shall,
to the extent permitted by applicable law, be amortized, pro-rated, allocated
and spread from the date of disbursement of the proceeds of the Loans until
payment in full of all of such indebtedness, so that the actual rate of interest
on account of such indebtedness is uniform through the term hereof. The terms
and provisions of this subsection shall control and supersede every other
provision of all agreements between Company, the Agent and the Lenders.
B. If under any circumstances Lenders shall ever receive an amount which
would exceed the Maximum Amount, such amount shall be deemed a payment in
reduction of the principal amount of the Loans and shall be treated as a
voluntary prepayment under subsection 2.4B(i), and shall be so applied in
accordance with subsection 2.4B(iv) hereof, or if such excessive interest
exceeds the unpaid balance of the Loan and any other indebtedness of Company in
favor of Lender, the excess shall be deemed to have been a payment made by
mistake and shall be refunded to Company.
[Remainder of page intentionally left blank.]
137
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY:
GRANITE BROADCASTING CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
LENDERS:
BANKERS TRUST COMPANY,
individually and as Agent
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
S-1
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
as a Co-Agent and a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Title: Authorized Signer
Notice Address:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P.
c/o Goldman, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
▇-▇
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA,
as a Co-Agent and a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Vice President
----------------------------
Notice Address:
First Union National Bank of North
Carolina
Capital Markets Group
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇
S-3
THE BANK OF NEW YORK,
as a Co-Agent and a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
Title: Assistant Vice President
Notice Address:
The Bank of New York
Communications, Entertainment and
Publishing
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇-▇
UNION BANK OF CALIFORNIA, N.A.,
as a Co-Agent and a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Vice President
Notice Address:
Union Bank of California
17th Floor
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
Union Bank of California
7th Floor
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
S-5
THE BANK OF TOKYO -
MITSUBISHI TRUST COMPANY,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Title: SVP & Manager
----------------------------
Notice Address:
The Bank of Tokyo -
Mitsubishi Trust Company
US Corporate Banking Division
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
S-6
BANQUE FRANCAISE DU
COMMERCE EXTERIEUR,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: VP-Group Manager
--------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------
Title: Assistant Treasurer
--------------------------
Notice Address:
Banque Francaise Du Commerce
Exterieur
Corporate Finance Department
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
S-7
THE SUMITOMO BANK, LIMITED,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
----------------------------
Title: VP President
----------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Title: Vice President & Manager
----------------------------
Notice Address:
The Sumitomo Bank, Limited
US Commercial Banking Department
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▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇
S-8
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Assistant Vice President
----------------------------
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Vice President
----------------------------
Notice Address:
Dresdner Bank AG,
New York and Grand Cayman Branches
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
S-9
ABN AMRO BANK N.V., NEW YORK BRANCH,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Vice President
----------------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Title: Vice President
----------------------------
Notice Address:
ABN AMRO Bank N.V.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
S-10
▇▇▇▇▇▇ FINANCIAL, INC.,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Assistant Vice President
----------------------------
Notice Address:
▇▇▇▇▇▇ Financial, Inc.
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
S-11
MICHIGAN NATIONAL BANK,
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Title: Vice President
----------------------------
Notice Address:
Michigan National Bank
Specialty Industries (10-36)
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▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
S-12
BANQUE PARIBAS,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: Group Vice President
----------------------------------------
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Title: Vice President
----------------------------------------
Notice Address:
Banque Paribas
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Philippe Vuarchex
▇-▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
Title: Assistant Vice President
Notice Address:
The Bank of Nova Scotia
New York Agency
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
S-14
BANQUE NATIONALE DE PARIS,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Title: Vice President, Team Leader
------------------------------
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Title: Assistant Treasurer
------------------------------
Notice Address:
Banque Nationale de Paris
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
S-15
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE,
as a Lender
By: /s/ ▇▇▇▇▇ ▇' ▇▇▇▇▇
----------------------------
Title: Vice President
----------------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Title: First Vice President
----------------------------
Notice Address:
Compagnie Financiere de CIC et de
L'Union Europeenne
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
S-16
SUBSIDIARIES:
GRANITE RESPONSE TELEVISION, INC.
KBVO, INC.
KBVO LICENSE, INC.
KNTV, INC.
KNTV LICENSE, INC.
RJR COMMUNICATIONS, INC.
KBJR LICENSE, INC.
SAN ▇▇▇▇▇▇▇ COMMUNICATIONS
CORPORATION
KSEE LICENSE, INC.,
WPTA-TV, INC.
WPTA-TV LICENSE, INC.
WTVH, INC.
WTVH LICENSE, INC.
WWMT-TV, INC.
WWMT-TV LICENSE, INC.
WKBW-TV, INC.
WKBW-TV LICENSE, INC.
QUEEN CITY BROADCASTING, INC.
QUEEN CITY BROADCASTING
OF NEW YORK, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Vice President
QUEEN CITY III LIMITED PARTNERSHIP
BY: WKBW-TV, INC.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Vice President
S-17
ACKNOWLEDGED AND AGREED:
BANKERS TRUST COMPANY,
as Collateral Agent
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Vice President
S-18