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EXHIBIT 10.13
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AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF
JULY 2, 1998
AMONG
SUNRISE TELEVISION CORP.,
STC BROADCASTING, INC.,
AS BORROWER,
THE LENDERS PARTY HERETO,
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT,
AS ISSUING LENDER
AND AS SWINGLINE LENDER,
SALOMON BROTHERS HOLDING COMPANY INC,
AS SYNDICATION AGENT
AND
NATIONSBANK, N.A.,
AS DOCUMENTATION AGENT
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CHASE SECURITIES INC.,
AS ARRANGER
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS..................................................................... 3
1.1 Defined Terms................................................................. 3
1.2 Other Definitional Provisions................................................. 30
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS................................................. 31
2.1 Term Commitments.............................................................. 31
2.2 Procedure for Term Loan Borrowing............................................. 31
2.3 Repayment of Term Loans....................................................... 32
2.4 Revolving Credit Commitments.................................................. 33
2.5 Procedure for Revolving Credit Borrowing...................................... 35
2.6 Commitment Fees, etc.......................................................... 35
2.7 Termination or Reduction of Commitments....................................... 36
2.8 Optional Prepayments.......................................................... 36
2.9 Mandatory Prepayments and Commitment Reductions............................... 37
2.10 Conversion and Continuation Options.......................................... 39
2.11 Minimum Amounts and Maximum Number of Eurodollar Tranches.................... 40
2.12 Interest Rates and Payment Dates............................................. 40
2.13 Computation of Interest and Fees............................................. 41
2.14 Inability to Determine Interest Rate......................................... 41
2.15 Pro Rata Treatment and Payments.............................................. 41
2.16 Requirements of Law.......................................................... 43
2.17 Taxes........................................................................ 45
2.18 Indemnity.................................................................... 46
2.19 Change of Lending Office..................................................... 46
2.20 Replacement of Lenders under Certain Circumstances........................... 47
2.21 Notice of Certain Costs...................................................... 47
SECTION 3. LETTERS OF CREDIT....................................... 48
3.1 L/C Commitment................................................................ 48
3.2 Procedure for Issuance of Letter of Credit.................................... 48
3.3 Commissions, Fees and Other Charges........................................... 48
3.4 L/C Participations............................................................ 49
3.5 Reimbursement Obligation of the Borrower...................................... 50
3.6 Obligations Absolute.......................................................... 50
3.7 Letter of Credit Payments..................................................... 50
3.8 Applications.................................................................. 50
SECTION 4. REPRESENTATIONS AND WARRANTIES ................................ 50
4.1 Financial Condition........................................................... 51
4.2 No Change..................................................................... 51
4.3 Corporate Existence; Compliance with Law...................................... 51
4.4 Corporate Power; Authorization; Enforceable Obligations....................... 51
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4.5 No Legal Bar.................................................................. 52
4.6 No Material Litigation........................................................ 52
4.7 No Default.................................................................... 52
4.8 Ownership of Property; Liens.................................................. 52
4.9 Intellectual Property......................................................... 52
4.10 Taxes........................................................................ 53
4.11 Federal Regulations.......................................................... 53
4.12 Labor Matters................................................................ 53
4.13 ERISA........................................................................ 53
4.14 Investment Company Act; Other Regulations.................................... 54
4.15 Subsidiaries................................................................. 54
4.16 Use of Proceeds.............................................................. 54
4.17 Environmental Matters........................................................ 54
4.18 Accuracy of Information, etc................................................. 55
4.19 Security Documents........................................................... 56
4.20 Solvency..................................................................... 56
4.21 Senior Indebtedness.......................................................... 56
4.22 Station Licenses............................................................. 56
4.23 Year 2000 Matters............................................................ 57
SECTION 5. CONDITIONS PRECEDENT ..................................... 57
5.1 Conditions to Initial Extension of Credit..................................... 57
5.2 Conditions to Each Extension of Credit........................................ 60
SECTION 6. AFFIRMATIVE COVENANTS .................................... 60
6.1 Financial Statements.......................................................... 61
6.2 Certificates; Other Information............................................... 61
6.3 Payment of Obligations........................................................ 63
6.4 Conduct of Business and Maintenance of Existence, etc......................... 63
6.5 Maintenance of Property; Insurance............................................ 63
6.6 Inspection of Property; Books and Records; Discussions........................ 64
6.7 Notices....................................................................... 64
6.8 Environmental Laws............................................................ 65
6.9 Interest Rate Protection...................................................... 65
6.10 Additional Collateral, etc................................................... 65
6.11 Changes in Locations, Name, etc.............................................. 67
6.12 Mortgages.................................................................... 67
SECTION 7. NEGATIVE COVENANTS ...................................... 68
7.1 Financial Condition Covenants................................................. 68
7.2 Limitation on Indebtedness.................................................... 69
7.3 Limitation on Liens........................................................... 70
7.4 Limitation on Fundamental Changes............................................. 72
7.5 Limitation on Sale of Assets.................................................. 73
7.6 Limitation on Dividends....................................................... 74
7.7 Limitation on Investments, Loans and Advances................................. 75
7.8 Limitation on Optional Payments and Modifications of Debt Instruments, etc.... 76
7.9 Limitation on Transactions with Affiliates.................................... 77
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7.10 Limitation on Sales and Leasebacks........................................... 77
7.11 Limitation on Changes in Fiscal Periods...................................... 78
7.12 Limitation on Negative Pledge Clauses........................................ 78
7.13 Limitation on Lines of Business.............................................. 78
7.14 Limitation on Amendments to Constituent and Transaction Documents............ 78
7.15 Limitations on Changes in Holding Company Status............................. 78
7.16 Limitation on Changes in Station Affiliation................................. 78
7.17 Limitation on LMA Stations................................................... 78
SECTION 8. EVENTS OF DEFAULT ...................................... 79
SECTION 9. THE ADMINISTRATIVE AGENT ................................... 83
9.1 Appointment................................................................... 83
9.2 Delegation of Duties.......................................................... 83
9.3 Exculpatory Provisions........................................................ 83
9.4 Reliance by Administrative Agent.............................................. 84
9.5 Notice of Default............................................................. 84
9.6 Non-Reliance on the Administrative Agent and Other Lenders.................... 84
9.7 Indemnification............................................................... 85
9.8 Agent in Its Individual Capacity.............................................. 85
9.9 Successor Administrative Agent................................................ 85
SECTION 10. MISCELLANEOUS ........................................ 86
10.1 Amendments and Waivers....................................................... 86
10.2 Notices...................................................................... 87
10.3 No Waiver; Cumulative Remedies............................................... 88
10.4 Survival of Representations and Warranties................................... 88
10.5 Payment of Expenses and Taxes................................................ 88
10.6 Successors and Assigns; Participations and Assignments....................... 89
10.7 Adjustments; Set-off......................................................... 92
10.8 Counterparts................................................................. 92
10.9 Severability................................................................. 92
10.10 Integration................................................................. 92
10.11 GOVERNING LAW............................................................... 93
10.12 Submission To Jurisdiction; Waivers......................................... 93
10.13 Acknowledgments............................................................. 93
10.14 WAIVERS OF JURY TRIAL....................................................... 94
10.15 Confidentiality............................................................. 94
10.16 FCC Compliance.............................................................. 94
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SCHEDULES:
1.1A Commitments
1.1B Mortgaged Properties
1.1C Network Affiliation Agreements
4.4 Consents, Authorizations, Filings and Notices
4.6 Litigation
4.12 Labor Matters
4.15 Subsidiaries
4.17 Environmental Matters
4.19(a) UCC Filing Jurisdictions
4.19(b) Mortgage Filing Jurisdictions
4.22 Station Licenses
5.1(s) Broadcast Licenses
7.2(d) Existing Indebtedness
7.3(f) Existing Liens
7.7(g) Existing Investments
EXHIBITS:
A-1 Form of Guarantee and Collateral Agreement
A-2 Form of SAC Pledge Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D-1 Form of Mortgage--Borrower
D-2 Form of Mortgage--Subsidiary Guarantor
E Form of Assignment and Acceptance
F Form of Legal Opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP
G Form of Incremental Term Loan Activation Notice
H Form of Swingline Loan Participation Certificate
I-1 Form of Revolving Credit Note
I-2 Form of Term Loan Note
I-3 Form of Swingline Note
J Form of Borrowing Notice
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
July 2, 1998, among SUNRISE TELEVISION CORP., ("Holdings"),
STC BROADCASTING, INC. (the "Borrower"), the several banks and
other financial institutions or entities from time to time
parties to this Agreement (the "Lenders"), THE CHASE MANHATTAN
BANK, as administrative agent (in such capacity, the
"Administrative Agent"), as issuing lender (in such capacity,
the "Issuing Lender"), and as swingline lender (in such
capacity, the "Swingline Lender"), NationsBank, N.A., as
documentation agent (in such capacity, the "Documentation
Agent"), and Salomon Brothers Holding Company Inc, as
syndication agent (in such capacity, the "Syndication Agent").
The Borrower, certain of the Lenders, the Administrative Agent
and the Documentation Agent are parties to the Credit Agreement, dated as of
February 28, 1997 (the "Existing Credit Agreement").
Pursuant to the Asset Purchase Agreement, dated as of February
3, 1998 (the "Purchase Agreement"), by and among Tuscaloosa Broadcasting, Inc.,
WPTZ Licensee, Inc. and WNNE Licensee, Inc. (collectively, the "▇▇▇▇▇▇▇▇ Subs")
and STC Broadcasting of Vermont, Inc. ("STCBV"), the ▇▇▇▇▇▇▇▇ Subs have agreed
to assign, transfer and convey to STCBV (i) all of their right, title and
interest in the assets of television stations WPTZ-TV, Channel 5, North Pole,
New York (the "North Pole Station") and WNNE-TV, Channel 31, Hartford, Vermont
(the "Hartford Station") and (ii) certain assets and rights of television
station WFFF-TV, Channel 44, Burlington, Vermont (the "Burlington Station" and,
collectively with the North Pole Station and the Hartford Station, the "▇▇▇▇▇▇▇▇
Stations") and STCBV has agreed to pay to the ▇▇▇▇▇▇▇▇ Subs $72,000,000 (subject
to certain adjustments) as consideration for the purchase of the assets of the
▇▇▇▇▇▇▇▇ Stations under the Purchase Agreement (all of the foregoing
transactions, collectively, the "Purchase Transactions").
Pursuant to the Assignment and Assumption Agreement, dated as
of April 20, 1998 (the "Assignment and Assumption Agreement"), STCBV has
assigned all of its rights and obligations under the Purchase Agreement to its
wholly-owned subsidiary, STC Broadcasting of Vermont Subsidiary, Inc. ("STCBV
Sub").
The closing of the Purchase Transactions shall take place in
two stages as follows: (i) on April 24, 1998, (A) the ▇▇▇▇▇▇▇▇ Subs transferred
the non-license assets relating to the ▇▇▇▇▇▇▇▇ Stations to STCBV Sub (such
transfer, the "▇▇▇▇▇▇▇▇ Non-License Transfer") in return for consideration from
STCBV Sub of $70,000,000 (subject to certain adjustments) and (B) STCBV Sub
entered into a time brokerage agreement (the "▇▇▇▇▇▇▇▇ Time Brokerage
Agreement") with the ▇▇▇▇▇▇▇▇ Subs, which provides for STCBV Sub to operate the
▇▇▇▇▇▇▇▇ Stations for the ▇▇▇▇▇▇▇▇ Subs and (ii) on and as of the date hereof,
the Federal Communications Commission (the "FCC") has granted initial approval
for the transfer of the licenses relating to the North Pole Station and the
Hartford Station from the ▇▇▇▇▇▇▇▇ Subs to STCBV Sub, and on the date hereof the
licenses relating to those stations will be so transferred and the balance of
the consideration owing under the Purchase Agreement will be paid (the "▇▇▇▇▇▇▇▇
License Transfer").
Pursuant to the Letter Agreement by and between STCBV Sub and
▇▇▇▇▇ Broadcasting of Vermont LLC ("▇▇▇▇▇ VT"), dated as of ▇▇▇▇▇ ▇▇, ▇▇▇▇,
▇▇▇▇▇ Sub has
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transferred to ▇▇▇▇▇ VT all of STCBV Sub's right, title and interest in and to
the Burlington Station.
Pursuant to the Asset Exchange Agreement, dated as of February
18, 1998 (the "Exchange Agreement"), among the Borrower, STCBV, STCBV Sub and
STC License Company ("STC License" and, collectively with the Borrower, STCBV
and STCBV Sub, the "STC Parties") and Hearst-Argyle Stations, Inc. ("Hearst")
(i) the STC Parties have agreed to assign, transfer and convey to Hearst all of
their right, title and interest in the North Pole Station, the Hartford Station
and television station KSBW-TV, Channel 8, Salinas, California (collectively,
the "STC Transferred Assets") and (ii) Hearst has agreed to (x) assign, transfer
and convey to the STC Parties all of its right, title and interest in (A)
television stations WNAC-TV, Channel 64, Providence, Rhode Island (the
"Providence Station") and WDTN-TV, Channel 2, Dayton, Ohio (the "Dayton
Station") and (B) a Joint Marketing and Programming Agreement, dated as of June
10, 1996 (the "Joint Marketing Agreement"), between Clear Channel Television,
Inc. ("Clear Channel") and Hearst and a Reciprocal Right of First Refusal, dated
June 10, 1996 (the "Right of Refusal" and, collectively with the Joint Marketing
Agreement, the Providence Station and the Dayton Station, the "STC Acquired
Assets"), between Clear Channel and Hearst and (y) pay to the STC Parties
$21,366,650 (subject to certain adjustments) (the "Cash Consideration") (all of
the foregoing transactions, collectively, the "Exchange Transactions").
Pursuant to the Assignment and Assumption Agreement by and
between the STC Parties and SAC, dated as of May 29, 1998, the STC Parties have
assigned to SAC all of their rights and obligations under the Exchange Agreement
which relate to (i) the HAT Non-License Assets (as defined in the Exchange
Agreement) for the Providence Station and (ii) the Joint Marketing Agreement and
the Right of Refusal. Pursuant to the Assignment and Assumption Agreement by and
between the STC Parties and ▇▇▇▇▇ Acquisition License Company, dated as of May
29, 1998, the STC Parties have assigned to ▇▇▇▇▇ Acquisition License Company all
of their rights and obligations under the Exchange Agreement which relate to the
HAT License Assets (as defined in the Exchange Agreement) for the Providence
Station.
Upon the consummation of the ▇▇▇▇▇▇▇▇ Non-License Transfer (i)
pursuant to the Exchange Agreement, Hearst made a loan to STCBV Sub on terms set
forth in the credit agreement attached as Exhibit E to the Exchange Agreement
(the "STCBV Sub Credit Agreement") in an aggregate principal amount equal to
$70,000,000, the proceeds of which were used to finance the purchase by STCBV
Sub of the non-license assets of the ▇▇▇▇▇▇▇▇ Stations pursuant to the Purchase
Agreement, which loan (the "Hearst Loan") is secured on a non-recourse basis by
all of STCBV's right, title and interest in the capital stock of STCBV Sub and
(ii) upon the consummation of the Exchange Transactions on the date hereof, the
Hearst Loan is repayable in full pursuant to the terms of the STCBV Sub Credit
Agreement.
In order to finance the repayment of the Hearst Loan less the
Cash Consideration, the Borrower has requested the Lenders, the Administrative
Agent and the Documentation Agent to amend and restate the Existing Credit
Agreement to provide, among other things, for the extension of additional term
loans and an increase in the revolving credit commitments thereunder.
The Lenders, the Administrative Agent and the Documentation
Agent are willing to so amend and restate the Existing Credit Agreement and to
extend such credit to the Borrower on the terms and subject to the conditions
set forth herein.
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The parties hereto hereby agree to amend and restate the
Existing Credit Agreement as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"Abilene Station": television station KRBC-TV, Channel 9,
Abilene, Texas.
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on
such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean
the rate of interest per annum publicly announced from time to time by
Chase as its prime rate in effect at its principal office in New York
City (the Prime Rate not being intended to be the lowest rate of
interest charged by Chase in connection with extensions of credit to
debtors); "Base CD Rate" shall mean the sum of (a) the product of (i)
the Three-Month Secondary CD Rate and (ii) a fraction, the numerator of
which is one and the denominator of which is one minus the C/D Reserve
Percentage and (b) the C/D Assessment Rate; "Three-Month Secondary CD
Rate" shall mean, for any day, the secondary market rate for
three-month certificates of deposit reported as being in effect on such
day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board through the public information telephone
line of the Federal Reserve Bank of New York (which rate will, under
the current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day), or,
if such rate shall not be so reported on such day or such next
preceding Business Day, the average of the secondary market quotations
for three-month certificates of deposit of major money center banks in
New York City received at approximately 10:00 A.M., New York City time,
on such day (or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Administrative Agent from three New York
City negotiable certificate of deposit dealers of recognized standing
selected by it; and "Federal Funds Effective Rate" shall mean, for any
day, 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 on the next succeeding 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 the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it. Any change in the ABR due to a change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate shall
be effective as of the opening of business on the effective day of such
change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is
based upon the ABR.
"Adjustment Date": as defined in the Pricing Grid.
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"Administrative Agent": Chase, together with its affiliates,
as the arranger of the Commitments and as the administrative agent for
the Lenders under this Agreement and the other Loan Documents, together
with any of its successors.
"Affected Eurodollar Loans": as defined in subsection 2.9(f).
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 51% or more of the
securities having ordinary voting power for the election of directors
(or persons performing similar functions) of such Person or (b) direct
or cause the direction of the management and policies of such Person,
whether by contract or otherwise.
"Agreement": this Amended and Restated Credit Agreement, as
amended, supplemented or otherwise modified from time to time.
"Applicable Margin": (a) for all Loans, other than Incremental
Term Loans, the Applicable Margin as determined pursuant to the Pricing
Grid and (b) with respect to Incremental Term Loans, the rate per annum
for Incremental Term Loans agreed to, or the rate per annum determined
pursuant to a pricing grid agreed to, by the Borrower and the
applicable Incremental Lenders in the applicable Incremental Term Loan
Activation Notice.
"Application": an application, in such form (reasonably
acceptable to the Borrower) as the Issuing Lender may specify from time
to time, requesting the Issuing Lender to open a Letter of Credit.
"Approved Fund": with respect to any Lender that is a fund
that invests in bank loans, any other fund that invests in bank loans
and is advised or managed by the same investment advisor as such Lender
or by an affiliate of such investment advisor.
"Asset Sale": any sale, transfer or other disposition
(including any sale and leaseback of assets and any sale of accounts
receivable in connection with a receivable financing transaction) by
the Borrower or any of its Subsidiaries of any property of the Borrower
or any such Subsidiary (including property subject to any Lien under
any Security Document), other than as permitted pursuant to subsection
7.5(a), (b) (provided that, except with respect to the loss or
condemnation of all or substantially all of the assets of the Borrower
and its Subsidiaries, the proceeds from such casualty or condemnation
(including insurance) are used to replace or rebuild the lost or
condemned assets within the time period specified in subsection 2.9(b))
and (c) through (g).
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"Asset Swap Transaction": a substantially concurrent purchase
and sale, or exchange, of a Broadcasting Asset of the Borrower or all
the Capital Stock of, or other equity interests in, a Subsidiary owning
a Broadcasting Asset, for a Broadcast Station or Broadcast Enterprise
of another Person or group of affiliated Persons, or all the Capital
Stock of, or other equity interests in, a Person or group of affiliated
Persons owning a Broadcast Station or Broadcast Enterprise (or such
lesser amount as shall be determined by the Board of Directors of the
Borrower or such Subsidiary as fair consideration), including, without
limitation, the Exchange Transactions, provided that (a) the Borrower
shall receive, in exchange for such Broadcasting Asset, Capital Stock
of, or other equity interests in, such Subsidiary owning a Broadcasting
Asset, a Broadcast Station or Broadcast Enterprise, or Capital Stock
of, or other equity interests in, a Person or group of affiliated
Persons owning a Broadcast Station or Broadcast Enterprise, (b) on a
pro forma basis for the most recently completed four-fiscal-quarter
period for which financial statements are available on the date of such
Asset Swap Transaction, no Default or Event of Default will have
occurred and be continuing (including, without limitation, pursuant to
subsection 7.1), provided that for purposes of calculating Consolidated
EBITDA pursuant to this clause (b), the Consolidated EBITDA of such
Broadcast Station or Broadcast Enterprise being acquired for such
four-fiscal-quarter period shall equal the Consolidated EBITDA of such
Broadcast Station or Broadcast Enterprise, as applicable, for the
12-month period preceding such Asset Swap Transaction, (c) (i) the
Consolidated EBITDA of the Broadcasting Asset being sold or exchanged
plus the Consolidated EBITDA of all Broadcasting Assets that were sold
pursuant to subsection 7.5(h) or exchanged pursuant to subsection
7.5(i) in such fiscal quarter and in the immediately preceding
four-fiscal-quarter period shall not exceed 25% of the Consolidated
EBITDA of the Borrower for such immediately preceding
four-fiscal-quarter period and (ii) the Consolidated EBITDA of the
Broadcasting Asset being sold or exchanged plus the Consolidated EBITDA
of all Broadcasting Assets that were sold pursuant to subsection 7.5(h)
or exchanged pursuant to subsection 7.5(i) in such fiscal quarter and
in the preceding twenty-fiscal-quarter period shall not exceed 60% of
the Consolidated EBITDA of the Borrower for such twenty-fiscal-quarter
period, (d) any Net Cash Proceeds of such Asset Swap Transaction shall
be deemed Net Cash Proceeds of an Asset Sale, and shall be applied
pursuant to subsection 2.9(d) or reinvested pursuant to subsection
2.9(b), (e) the Borrower provides the Administrative Agent with a
certificate showing compliance with all of the covenants contained in
subsection 7.1, (f) the Borrower takes such actions as may be required
or reasonably requested to ensure that the Administrative Agent, for
the ratable benefit of the Lenders, has a perfected first priority
security interest in any assets required to be secured pursuant to
subsection 6.10 or any other Loan Document, subject to Liens permitted
by subsection 7.3, and (g) the Borrower provides the Administrative
Agent with appropriate supporting documentation if reasonably requested
by the Administrative Agent, including, without limitation, any
exchange agreement in connection with such transaction, opinions of
counsel, including FCC counsel, in connection therewith and copies of
an FCC consent on Form 732 (or any comparable form issued by the FCC)
relating to the transfer of control or assignment of the Station
Licenses of the acquired Broadcast Station to the Borrower or its
Subsidiary and, unless the Administrative Agent shall otherwise agree,
such consent shall have become a Final Order.
"Assignee": as defined in subsection 10.6(c).
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"Assignor": as defined in subsection 10.6(c).
"Available Revolving Credit Commitment": as to any Lender at
any time, an amount equal to (a) such Lender's Revolving Credit
Commitment minus (b) such Lender's Revolving Extensions of Credit.
"Benefitted Lender": as defined in subsection 10.7(a).
"Board": the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Borrower": as defined in the introductory paragraph of this
Agreement.
"Borrowing Date": any Business Day specified by the Borrower
as a date on which the Borrower requests the Lenders or Swingline
Lender to make Loans or Swingline Loans hereunder.
"Broadcast Cash Flow": for any period, Consolidated EBITDA for
such period plus Corporate Overhead for such period.
"Broadcast Enterprise": assets used and useful for the
operation of the broadcasting business, or any businesses reasonably
related thereto.
"Broadcast Station": all or substantially all the assets used
and useful for operating a full service commercial television broadcast
station pursuant to a Station License, including without limitation the
rights to use such Station License.
"Broadcasting Assets": collectively, any Stations and any
Non-Station Assets of the Borrower and its Subsidiaries.
"Broadcasting Asset Temporary Repayment": as defined in
subsection 2.8(b).
"Burlington Station": television station WFFF-TV, Channel 44,
Burlington, Vermont.
"Business": as defined in subsection 4.17(b).
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close, provided that when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on
which commercial banks are not open for dealing in Dollar deposits in
the London interbank market.
"Capital Expenditures": for any period, with respect to any
Person, the aggregate of all expenditures (whether paid in cash or
accrued as a liability) by such Person and its Subsidiaries for the
acquisition or leasing (pursuant to a capital lease) of fixed or
capital assets or additions to equipment (including replacements,
capitalized repairs and improvements during such period). For purposes
of this definition, the following items will be excluded from the
definition of "Capital Expenditures": (a) Capital Expenditures
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to the extent funded by insurance proceeds, condemnation awards or
payments pursuant to a deed in lieu thereof, (b) Capital Expenditures
to the extent made through barter transactions, (c) assets acquired
pursuant to (i) Permitted Acquisitions, (ii) Asset Swap Transactions
and (iii) a reinvestment of proceeds received under subsection 7.5(c)
and (d) for purposes of the definition of "Consolidated Fixed Charges"
only, Capital Expenditures made during such period in excess of
$3,700,000, to the extent such excess Capital Expenditures are utilized
for digital television buildout or operations; provided, that the
aggregate amount which may be excluded from the definition of "Capital
Expenditures" pursuant to this clause (d) during the term of this
Agreement shall not exceed $20,000,000.
"Capital Lease Obligations": as to any Person, the obligations
of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to
be classified and accounted for as capital leases on a balance sheet of
such Person under GAAP and, for the purposes of this Agreement, the
amount of such obligations at any time shall be the capitalized amount
thereof at such time determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, rights or options
to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued
by, 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 on or within one year from the
date of acquisition; (b) certificates of deposit, time deposits,
Eurodollar time deposits, bankers' acceptances and repurchase
agreements, or overnight bank deposits having maturities of one year or
less from the date of acquisition issued by any Lender or by any
commercial bank organized under the laws of the United States of
America or any state thereof having combined capital and surplus (or
whose obligations are guaranteed by an affiliated commercial bank which
has capital and surplus) of not less than $500,000,000; (c) commercial
paper of an issuer rated at least A-2 by Standard & Poor's Ratings
Services or P-2 by ▇▇▇▇▇'▇ Investors Service, Inc., or carrying an
equivalent rating by a nationally recognized rating agency, if both of
the two named rating agencies cease publishing ratings of commercial
paper issuers generally; (d) money market accounts or funds with or
issued by Qualified Issuers; (e) repurchase obligations with a term of
not more than 90 days for underlying securities of the types described
in clause (a) above entered into with any bank meeting the
qualifications specified in clause (b) above and (f) demand deposit
accounts maintained in the ordinary course of business with any Lender
or with any bank that is not a Lender not in excess of $100,000 in the
aggregate on deposit with such Lender or any such bank.
"C/D Assessment Rate": for any day as applied to the Base CD
Rate, the net annual assessment rate (rounded upward to the nearest
1/100th of 1%) determined by Chase to be payable on such day to the
Federal Deposit Insurance Corporation or any successor (the "FDIC") for
the FDIC's insuring time deposits made in Dollars at offices of Chase
in the United States.
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"C/D Reserve Percentage": for any day as applied to the Base
CD Rate, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board, for determining the maximum
reserve requirement for a member of the Federal Reserve System in New
York City with deposits exceeding one billion Dollars in respect of new
non-personal time deposits in Dollars having a three month maturity and
in an amount of $100,000 or more.
"Change of Control": the earlier to occur of (a) ▇▇▇▇▇ Muse,
its principals and their Affiliates and management of Holdings and the
Borrower ("HMTF") shall cease to have the power, directly or
indirectly, to vote or direct the voting of securities having a
majority of the ordinary voting power for the election of directors of
Holdings, provided that the occurrence of the foregoing event shall not
be deemed a Change of Control if (i) at any time prior to the
consummation of an Initial Public Offering, and for any reason
whatever, (A) HMTF otherwise has the right to designate (and does so
designate) a majority of the board of directors of Holdings or (B) HMTF
and their employees, directors and officers (the "HMTF Group") own of
record and beneficially an amount of common stock of Holdings equal to
at least 50% of the amount of common stock of Holdings owned by the
HMTF Group of record and beneficially as of the Closing Date and such
ownership by the HMTF Group represents the largest single block of
voting securities of Holdings held by any Person or related group for
purposes of Section 13(d) of the Securities Exchange Act of 1934, as
amended, or (ii) at any time after the consummation of an Initial
Public Offering, and for any reason whatever, (A) no "Person" or
"group" (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended), excluding the HMTF Group,
shall become the "beneficial owner" (as defined in Rules 13(d)-3 and
13(d)-5 under such Act), directly or indirectly, of more than the
greater of (x) 20% of the shares outstanding or (y) the percentage of
the then outstanding voting stock of Holdings owned beneficially by the
HMTF Group and (B) the board of directors of Holdings shall consist of
a majority of Continuing Directors and (b) a Change of Control as
defined in any document pertaining to any Senior Subordinated
Indebtedness.
"Chase": The Chase Manhattan Bank.
"Closing Date": July 2, 1998.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment": as to any Lender, the sum of the Committed Term
Loan Commitments, the Revolving Credit Commitment and the Swingline
Loan Commitment of such Lender and with respect to the Issuing Lender
and L/C Participants, as applicable, their L/C Obligations.
"Commitment Fee Rate": 1/2 of 1% per annum, provided that from
and after the first Adjustment Date, the Commitment Fee Rate will be
determined pursuant to the Pricing Grid.
"Committed Term Loan Commitment": as to any Committed Term
Loan Lender, such Committed Term Loan Lender's Initial Term Loan
Commitment and Delayed Term Loan Commitment.
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"Committed Term Loan Facility": as defined in the definition
of the term "Facility".
"Committed Term Loan Lender": each Lender which has a
Committed Term Loan Commitment or which has made, or acquired pursuant
to an assignment made in accordance with subsection 10.6(c), a
Committed Term Loan.
"Committed Term Loan Percentage": as to any Committed Term
Loan Lender (a) at any time prior to the Closing Date, the percentage
which such Lender's Committed Term Loan Commitment then constitutes of
the aggregate Committed Term Loan Commitments, (b) at any time during
the Delayed Commitment Period, the percentage which the sum of such
Lender's Delayed Term Loan Commitment and the principal amount of such
Lender's Term Loans then outstanding constitutes of the sum of the
aggregate Delayed Term Loan Commitments and the aggregate principal
amount of the Committed Term Loans then outstanding and (c) at any time
after the end of the Delayed Commitment Period, the percentage which
the principal amount of such Lender's Committed Term Loans then
outstanding constitutes of the aggregate principal amount of the
Committed Term Loans then outstanding.
"Committed Term Loans": the Initial Term Loans and the Delayed
Term Loans.
"Committed Term Note": any Term Note evidencing Committed Term
Loans.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit B.
"Consolidated Cash Interest Expense": for any period,
Consolidated Interest Expense (including, without limitation, that
attributable to Capital Lease Obligations but excluding capitalized
financing fees), net of cash interest income of the Borrower and its
Subsidiaries, for such period (a) minus, in each case to the extent
included in determining such Consolidated Interest Expense for such
period, the sum of the following: (i) non-cash expenses for interest
payable in kind and (ii) amortization of debt discount and fees and (b)
plus the sum of cash payments made by Holdings or any of its
Subsidiaries during such period in respect of the items referred to in
clause (a)(i) of this definition to the extent previously subtracted
pursuant to clause (a) of this definition (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 Protection Agreements to the extent such
net costs are allocable to such period in accordance with GAAP). If
during any period for which Consolidated Cash Interest Expense is being
determined the Borrower or any of its Subsidiaries shall have made a
Permitted Acquisition or Permitted Disposition, then, for all purposes
of this Agreement, Consolidated Cash Interest Expense shall be adjusted
for the relevant period on a pro
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forma basis as if the relevant Permitted Acquisition or Permitted
Disposition had been made or consummated on the first day of such
period and assuming (i) in the case of a Permitted Acquisition, the
principal amount of any Indebtedness Incurred in connection with such
Permitted Acquisition had been outstanding for the entire duration of
such period at the rate of interest applicable to such Indebtedness at
the time of Incurrence of such Indebtedness or (ii) in the case of a
Permitted Disposition, any Indebtedness which on a pro forma basis has
been repaid or which is no longer an obligation of the Borrower or any
of its Subsidiaries as a result of such Permitted Disposition had been
repaid or was not an obligation of the Borrower or any of its
Subsidiaries as of the first day of such period.
"Consolidated Current Assets": at a particular date, all
amounts (other than cash, Cash Equivalents and the current portion of
programming rights) which would, in conformity with GAAP, be set forth
opposite the caption "total current assets" (or any like caption) on a
consolidated balance sheet of the Borrower and its Subsidiaries at such
date.
"Consolidated Current Liabilities": at a particular date, all
amounts which would, in conformity with GAAP, be set forth opposite the
caption "total current liabilities" (or any like caption) on a
consolidated balance sheet of the Borrower and its Subsidiaries at such
date, but excluding (a) the current portion of any Funded Debt and Film
Obligations of the Borrower and its Subsidiaries and (b) without
duplication of clause (a) above, all Indebtedness consisting of
Revolving Credit Loans to the extent otherwise included therein.
"Consolidated Debt Service": for any period, the sum of
Consolidated Cash Interest Expense plus any scheduled amortization
payments on any Indebtedness made or payable during such period, but
excluding mandatory prepayments on any such Indebtedness.
"Consolidated EBITDA": for any period and as determined on a
consolidated basis, net revenues (defined as gross operating revenue
plus rental income minus the sum of barter and trade revenues, agency
and advertising commissions and sales representative fees) of the
Borrower and its Subsidiaries during such period, minus, with respect
to such period and without duplication (i) operating expenses, (ii)
Corporate Overhead and (iii) Film Cash Payments. For purposes of this
definition "net revenues", "operating expenses", Corporate Overhead and
Film Cash Payments shall each be determined exclusive of (i)
depreciation and amortization (including, without limitation,
amortization of financing fees, film amortization and related write-off
of programming), (ii) Consolidated Interest Expense, (iii) any other
non-cash charges (including, without limitation, non-cash pension
expense and non-cash compensation expense), (iv) income taxes accrued
for such period, restructuring charges incurred for changes in
capitalization, financing fees and closing and restructuring costs
related to Permitted Acquisitions, (v) barter and trade expenses and
(vi) any extraordinary gains or losses, and any gains or losses from
the sale or other disposition of assets plus, to the extent not
included above, Providence Consolidated EBITDA for such period. If
during any period for which Consolidated EBITDA is being determined the
Borrower or any of its Subsidiaries shall have made a Permitted
Acquisition or Permitted Disposition, then, for all purposes of this
Agreement (other than for purposes of the definition of Consolidated
EBITDA as used
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for purposes of making the calculations to determine (x) Excess Cash
Flow or (y) Broadcast Cash Flow, for each of which purposes actual
Consolidated EBITDA for the relevant period shall be used),
Consolidated EBITDA shall be adjusted for the relevant period on a pro
forma basis as if the relevant Permitted Acquisition or Permitted
Disposition had been made or consummated on the first day of such
period by such amount as shall be agreed between the Borrower and the
Required Lenders (or, if the Borrower and the Required Lenders shall
fail to agree to an amount within 30 days after the consummation of the
Permitted Acquisition or Permitted Disposition, the actual amount of
Consolidated EBITDA attributable to the Station or Stations which are
the subject of such Permitted Acquisition or Permitted Disposition).
For all purposes of this Agreement (other than for purposes of
determining Consolidated EBITDA as used in the definition of Excess
Cash Flow), any Film Cash Payments to the extent consisting of an
up-front payment made with respect to a Film Obligation incurred during
such period, shall not be deducted in determining Consolidated EBITDA
for such period but shall instead (x) in the event such contract has a
term of twelve months or less, be amortized over the term of such
contract and (y) in the event such contract has a term of more than
twelve months, be amortized over the term of such contract (or, if
shorter, the pay period of such contract), and in the case of both (x)
and (y), only the portion of such Film Cash Payments so amortized
during such period shall be deducted in determining Consolidated EBITDA
for such period.
"Consolidated Fixed Charge Coverage Ratio": for any period,
the ratio of (a) Consolidated EBITDA for such period to (b)
Consolidated Fixed Charges for such period.
"Consolidated Fixed Charges": for any period, the sum (without
duplication) of (a) Consolidated Debt Service for such period, (b)
Capital Expenditures made by the Borrower or any of its Subsidiaries
during such period, (c) any income taxes paid by the Borrower or any of
its Subsidiaries, and any amounts paid by the Borrower to Holdings for
purposes of paying income taxes, in each case, during such period, (d)
cash dividends paid by the Borrower during such period and (e) any
increases during such period in Consolidated Working Capital (minus any
decreases during such period in Consolidated Working Capital), other
than to the extent of any such increases (or decreases) resulting
directly from a Permitted Acquisition.
"Consolidated Interest Coverage Ratio": for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated
Cash Interest Expense for such period.
"Consolidated Interest Expense": for any period, the amount of
interest expense, both expensed and capitalized, of the Borrower and
its Subsidiaries, determined on a consolidated basis in accordance with
GAAP, for such period on the aggregate principal amount of their
Indebtedness.
"Consolidated Leverage Ratio": as at the last day of any
period, the ratio of (a) Consolidated Total Debt on such day to (b)
Consolidated EBITDA for such period.
"Consolidated Senior Debt": Consolidated Total Debt less any
Senior Subordinated Indebtedness issued in accordance with the terms of
this Agreement.
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"Consolidated Senior Leverage Ratio": as at the last day of
any period, the ratio of (a) Consolidated Senior Debt to (b)
Consolidated EBITDA for such period.
"Consolidated Total Debt": at any date, the difference between
(a) the aggregate principal amount of all Indebtedness of the Borrower
and its Subsidiaries at such date, determined on a consolidated basis
in accordance with GAAP, and (b) the amount of Unencumbered Cash on the
consolidated balance sheet of the Borrower in excess of $2,000,000 at
such date; provided, that the amount of any Unencumbered Cash which may
be deducted at any date pursuant to clause (b) shall not exceed
$5,000,000.
"Consolidated Working Capital": the excess of Consolidated
Current Assets over Consolidated Current Liabilities.
"Continuing Directors": the directors of Holdings on the
Closing Date and each other director, if, in each case, such other
director's nomination for election to the board of directors of
Holdings is recommended by a majority of the then Continuing Directors
or such other director receives the vote of HMTF in his or her election
by the stockholders of Holdings.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking (including, without limitation, any undertaking made
to the FCC) to which such Person is a party or by which it or any of
its property is bound.
"Corporate Overhead: for any period, that amount classified on
an income statement of the Borrower and its Subsidiaries as corporate
overhead for such period (which shall be deemed to include, without
duplication, the management fees of ▇▇▇▇▇ Muse and its Affiliates
contemplated by subsection 7.9 and the compensation of senior
management of Holdings with respect to the management of the Stations
(other than with respect to ▇▇▇▇ ▇▇▇▇▇▇▇)) less any "development"
expenses in conjunction with corporate development activities (such
exclusion in any fiscal year to be limited to the lesser of (i) the
actual amount of such expenses and (ii) $500,000).
"Dayton Station": television station, WDTN-TV, Channel 2,
Dayton, Ohio.
"Default": any of the events specified in Section 8, whether
or not any requirement for the giving of notice, the lapse of time, or
both, unless cured or waived, has been satisfied.
"Delayed Commitment Period": the period from and including the
Closing Date to the Delayed Termination Date.
"Delayed Term Loan Commitment": as to any Committed Term Loan
Lender, the obligation of such Committed Term Loan Lender to make
Delayed Term Loans to the Borrower hereunder in an aggregate principal
amount not to exceed the amount set forth under the heading "Delayed
Term Loan Commitment" opposite such Lender's name on Schedule 1.1A, as
the same may be changed from time to time pursuant to the terms hereof.
The original aggregate amount of the Delayed Term Loan Commitments is
$30,000,000.
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"Delayed Term Loans": as defined in subsection 2.1(a)(i).
"Delayed Termination Date": the earlier of (a) the date that
is seven (7) months after the Closing Date or, if such date is not a
Business Day, the Business Day next succeeding such date and (b) the
date upon which the Delayed Term Loan Commitments shall be earlier
terminated pursuant hereto.
"Documentation Agent": as defined in the introductory
paragraph of this Agreement.
"Dollars" and "$": lawful currency of the United States of
America.
"ECF Percentage": 66_%, provided that the ECF Percentage shall
be deemed to be 50% if, on the applicable Excess Cash Flow Application
Date, the Consolidated Leverage Ratio as of the end of the last fiscal
quarter preceding such Excess Cash Flow Application Date was less than
5.50 to 1.00.
"Environmental Laws": any and all applicable foreign, Federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, legally binding requirements of any
Governmental Authority or other Requirements of Law (including common
law) regulating, relating to or imposing liability or standards of
conduct concerning protection of the environment, as now or may at any
time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board) maintained by a member bank of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
equal to the rate at which Chase is offered Dollar deposits at or about
10:00 A.M., New York City time, two Business Days prior to the
beginning of such Interest Period in the interbank eurodollar market
where the eurodollar and foreign currency and exchange operations in
respect of its Eurodollar Loans are then being conducted for delivery
on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of its
Eurodollar Loans to be outstanding during such Interest Period.
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
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"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar
Loans under the same Facility the then current Interest Periods with
respect to all of which begin on the same date and end on the same
later date (whether or not such Loans shall originally have been made
on the same day).
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the
excess, if any, of (a) Consolidated EBITDA for such fiscal year over
(b) Consolidated Fixed Charges, plus or minus the cash portion of any
extraordinary gains or losses incurred during such fiscal year without
duplication of mandatory prepayments resulting from any transaction
giving rise thereto.
"Excess Cash Flow Application Date": as defined in subsection
2.9(c).
"Exchange Agreement": as defined in the recitals hereto.
"Exchange Transactions": as defined in the recitals hereto.
"Facility": each of (a) the Committed Term Loan Commitments
and the Committed Term Loans made thereunder (the "Committed Term Loan
Facility"), (b) the Incremental Term Loan Amounts and the Incremental
Term Loans related thereto (the "Incremental Term Loan Facility"), (c)
the Swingline Loan Commitments and the Swingline Loans made thereunder
and (d) the Total Revolving Credit Commitments and the Revolving
Extensions of Credit made thereunder (the "Revolving Credit Facility").
"FCC": the Federal Communications Commission or any
Governmental Authority substituted therefor.
"Federal Funds Effective Rate": as defined in the definition
of the term "ABR".
"Film Cash Payments": for any period, the sum (determined on a
consolidated basis in accordance with GAAP) of all scheduled payments
made and to be made by Holdings or any of its Subsidiaries during such
period on Film Obligations which were existing as of, or have been
incurred at any time after, the Closing Date.
"Film Obligations": all obligations in respect of the
purchase, use, license or acquisition of programs, programming
materials, films and similar assets used in connection with the
business and operation of Holdings and its Subsidiaries.
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"Final Order": with respect to the assignment or transfer of
control of the Station Licenses for any Station, an order of the FCC
approving such assignment or transfer that is final (i.e., no longer
subject to further judicial or administrative review), as to which no
requests for judicial or administrative review are pending, and that
has not been reversed, stayed, enjoined, set aside, annulled or
suspended.
"Funded Debt": as to any Person, all Indebtedness of such
Person that matures more than one year from the date of its creation or
matures within one year from such date but is renewable or extendable,
at the option of such Person, to a date more than one year from such
date or arises under a revolving credit or similar agreement that
obligates the lender or lenders to extend credit during a period of
more than one year from such date, including, without limitation, all
current maturities and current sinking fund payments in respect of such
Indebtedness whether or not required to be paid within one year from
the date of its creation and, in the case of the Borrower, Indebtedness
in respect of the Loans.
"GAAP": generally accepted accounting principles in the United
States of America as in effect from time to time set forth in the
opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and the statements
and pronouncements of the Financial Accounting Standards Board and the
rules and regulations of the Securities and Exchange Commission, or in
such other statements by such other entity as may be in general use by
significant segments of the accounting profession, which are applicable
to the circumstances of Holdings and the Borrower as of the date of
determination, except that for purposes of subsection 7.1, GAAP shall
be determined on the basis of such principles in effect on the date
hereof and consistent with those used in the preparation of the audited
financial statements referred to in subsection 4.1(a). In the event
that any "Accounting Change" (as defined below) shall occur and such
change results in a change in the method of calculation of financial
covenants, standards or terms in this Agreement, then the Borrower and
the Administrative Agent agree to enter into negotiations in order to
amend such provisions of this Agreement so as to equitably reflect such
Accounting Changes with the desired result that the criteria for
evaluating the Borrower's financial condition shall be the same after
such Accounting Changes as if such Accounting Changes had not been
made. Until such time as such an amendment shall have been executed and
delivered by the Borrower, the Administrative Agent and the Required
Lenders, all financial covenants, standards and terms in this Agreement
shall continue to be calculated or construed as if such Accounting
Changes had not occurred. The term "Accounting Changes" refers to
changes in accounting principles required by the promulgation of any
rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board or the American Institute of Certified Public
Accountants or, if applicable, the Securities and Exchange Commission
(or successors thereto or agencies with similar functions).
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee and Collateral Agreement": the Amended and Restated
Guarantee and Collateral Agreement to be executed and delivered by
Holdings, the Borrower and
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each Subsidiary Guarantor, substantially in the form of Exhibit A-1, as
the same may be amended, supplemented or otherwise modified from time
to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counter indemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation
of the guaranteeing person, whether or not contingent, (i) to purchase
any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (A) for the
purchase or payment of any such primary obligation or (B) to maintain
working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term "Guarantee Obligation" shall not include endorsements of
instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount equal to the
stated or determinable amount of the primary obligation in respect of
which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of
the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person
may be liable are not stated or determinable, in which case the amount
of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as
determined by such Person in good faith.
"Guarantors": Holdings and the Subsidiary Guarantors.
"Hearst": as defined in the recitals hereto.
"Hearst Loan": as defined in the recitals hereto.
"▇▇▇▇▇ Muse": Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated.
"HMTF": as defined in the definition of the term "Change of
Control".
"Holdings": Sunrise Television Corp., a Delaware corporation.
"Incremental Lenders": (a) on any Incremental Term Loan
Activation Date, the Lenders signatory to the Incremental Term Loan
Activation Notice and (b) thereafter, each Lender which has made, or
acquired pursuant to an assignment made in accordance with subsection
10.6(c), an Incremental Term Loan.
"Incremental Maturity Date": as to the Incremental Term Loans
to be made
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pursuant to any Incremental Term Loan Activation Notice, the maturity
date specified in such Incremental Term Loan Activation Notice, which
date shall be a date at least six months after the Committed Term Loan
Maturity Date.
"Incremental Term Loan Activation Date": each date, which
shall be a Business Day on or before the Incremental Term Loan
Termination Date, on which any Lender shall execute and deliver to the
Administrative Agent an Incremental Term Loan Activation Notice
pursuant to subsection 2.1(b).
"Incremental Term Loan Activation Notice": a notice
substantially in the form of Exhibit G.
"Incremental Term Loan Amount": as to each Incremental Lender,
on and after the effectiveness of any Incremental Term Loan Activation
Notice, the obligation of such Incremental Lender to make Incremental
Term Loans hereunder in a principal amount equal to the amount set
forth under the heading "Incremental Term Loan Amount" opposite such
Incremental Lender's name on such Incremental Term Loan Activation
Notice.
"Incremental Term Loan Closing Date": each date, which shall
be a Business Day on or before the Incremental Term Loan Termination
Date, designated as such in an Incremental Term Loan Activation Notice.
"Incremental Term Loan Facility": as defined in the definition
of the term "Facility".
"Incremental Term Loan Percentage": as to any Incremental
Lender, the percentage which such Lender's Incremental Term Loans then
outstanding constitutes of the aggregate principal amount of the
Incremental Term Loans then outstanding.
"Incremental Term Loans": as defined in subsection 2.1(b).
"Incremental Term Loan Termination Date": December 31, 2000.
"Incremental Term Note": a Term Note evidencing Incremental
Term Loans.
"Incur": as defined in subsection 7.2; and the term
"Incurrence" shall have a correlative meaning.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person for the deferred purchase price of
property or services (other than current trade payables and accrued
expenses incurred in the ordinary course of such Person's business),
(c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created
or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though
the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such
property), (e) all Capital Lease Obligations of such Person, (f) all
obligations of such Person, contingent or otherwise, as an account
party under a bankers' acceptance, letter of credit or similar
facilities, (g) the obligations of such Person under any Interest Rate
Protection Agreement, (h) all Guarantee Obligations of
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such Person in respect of obligations of the kind referred to in
clauses (a) through (g) above and (i) all obligations of the kind
referred to in clauses (a) through (h) above secured by (or for which
the holder of such obligation has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, whether
or not such Person has assumed or become liable for the payment of such
obligation and on which obligations such Person has recourse only to
such property; provided, however, that the amount of such Indebtedness
of any Person described in this clause (i) shall, for the purposes of
this Agreement, be deemed to be equal to the lesser of (i) the
aggregate unpaid amount of such Indebtedness and (ii) the fair market
value of the property or asset encumbered, as determined by such Person
in good faith.
"Initial Public Offering": an underwritten public offering by
Holdings of Capital Stock of Holdings or any Subsidiary or parent
thereof pursuant to a registration statement filed with the Securities
and Exchange Commission in accordance with the Securities Act of 1933,
as amended.
"Initial Term Loan Commitment": as to any Committed Term Loan
Lender, the obligation of such Committed Term Loan Lender to make an
Initial Term Loan to the Borrower hereunder in a principal amount not
to exceed the amount set forth under the heading "Initial Term Loan
Commitment" opposite such Lender's name on Schedule 1.1A. The original
aggregate amount of the Initial Term Loan Commitments is $70,000,000.
"Initial Term Loans": as defined in subsection 2.1(a)(i).
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": as defined in subsection 4.9.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period, (c) as to
any Eurodollar Loan having an Interest Period longer than three months,
each day which is three months, or a whole multiple thereof, after the
first day of such Interest Period and the last day of such Interest
Period and (d) as to any Loan, the date of repayment thereof at final
stated maturity.
"Interest Period": as to any Eurodollar Loan, (a) initially,
the period commencing on the borrowing or conversion date, as the case
may be, with respect to such Eurodollar Loan and ending one, two,
three, six or (if available to all Lenders under the relevant Facility
as determined in good faith by such Lenders) nine or twelve months
thereafter, as selected by the Borrower in its notice of borrowing or
notice of conversion, as the case may be, given with respect thereto;
and (b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending
one, two, three, six or (if available to all Lenders under the relevant
Facility as determined in good faith by such Lenders) nine or twelve
months thereafter, as selected by the Borrower by irrevocable notice to
the Administrative Agent not less than three Business Days prior to the
last day of the then current Interest Period with respect thereto,
provided that all of the foregoing provisions relating to Interest
Periods are subject to the following:
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(i) if any Interest Period would otherwise end
on a day that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another calendar
month in which event such Interest Period shall end on the immediately
preceding Business Day;
(ii) any Interest Period that would otherwise
extend beyond the Revolving Credit Termination Date, in the case of
Revolving Credit Loans, or the date final payment is due, in the case
of Term Loans, shall end on the Revolving Credit Termination Date or
such due date, as applicable;
(iii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the calendar
month at the end of such Interest Period; and
(iv) the Borrower shall select Interest Periods
so as not to require a payment or prepayment of any Eurodollar Loan
during an Interest Period for such Loan.
"Interest Rate Protection Agreement": any interest rate
protection agreement, interest rate futures contract, interest rate
option, interest rate cap or other interest rate hedge arrangement, to
or under which Holdings or any of its Subsidiaries is a party or a
beneficiary on the date hereof or becomes a party or a beneficiary
after the date hereof.
"Investment" as defined in subsection 7.7.
"Investors": as defined in the preamble of this Agreement.
"Issuing Lender": Chase or any of its affiliates, in its
capacity as issuer of any Letter of Credit.
"Johnstown Station": television station, WJAC-TV, Channel 6,
Johnstown, Pennsylvania.
"Joint Marketing Agreement": as defined in the recitals
hereto.
"L/C Commitment": $20,000,000.
"L/C Fee Payment Date": the last day of each March, June,
September and December and the last day of the Revolving Credit
Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of drawings
under Letters of Credit which have not then been reimbursed pursuant to
subsection 3.5.
"L/C Participants": with respect to any Letter of Credit, the
collective reference to all the Revolving Credit Lenders other than the
Issuing Lender that issued such Letter of Credit.
"Lenders": as defined in the introductory paragraph of this
Agreement.
"Letters of Credit": as defined in subsection 3.1(a), provided
that to the extent the Borrower shall have deposited amounts in a cash
collateral account for the benefit of the Lenders, the Letters of
Credit relating thereto shall be deemed not to be Letters of Credit for
purposes of this Agreement.
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"License Subsidiary": (a) STC License Company, (b) in the case
of the Steubenville Station and the Providence Station, ▇▇▇▇▇
Acquisition License Company and (c) in the case of any Station acquired
after the date hereof, the Subsidiary of the Borrower that shall hold
the respective Station Licenses under the authority of which such
Station is operated, provided that each such License Subsidiary shall
be a single purpose entity the sole purpose of which shall be to hold
the Station Licenses and to perform related functions with respect
thereto (except for the Stations acquired pursuant to the ▇▇▇▇▇
Acquisition for which the License Subsidiary shall be STC License
Company).
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any capital lease having substantially the same
economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement, the Security Documents and
the Notes, if any.
"Loan Parties": Holdings, the Borrower and each Subsidiary of
the Borrower which is a party to a Loan Document.
"Majority Committed Term Facility Lenders": the Majority
Facility Lenders in respect of the Committed Term Loan Facility.
"Majority Facility Lenders": with respect to any Facility,
Lenders which collectively are the holders of more than 50% of the
aggregate unpaid principal amount of the Committed Term Loans or the
Incremental Term Loans, or of the Total Revolving Extensions of Credit,
as the case may be, outstanding under such Facility (or, (a) in the
case of the Revolving Credit Facility, prior to any termination of the
Revolving Credit Commitments, Lenders which are collectively the
holders of more than 50% of the aggregate Revolving Credit Commitments
or, (b) in the case of the Committed Term Loan Facility, prior to the
Delayed Termination Date, Lenders which are collectively the holders of
more than 50% of the sum of the Delayed Term Loan Commitments and the
outstanding Committed Term Loans).
"Majority Revolving Credit Facility Lenders": the Majority
Facility Lenders in respect of the Revolving Credit Facility.
"Material Adverse Effect": a material adverse effect on (a) at
the Closing Date, the Exchange Transactions and the other transactions
contemplated by this Agreement, (b) the business, assets, property,
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole (other than, for purposes of the
conditions to the initial funding of Loans on the Closing Date, changes
in general economic conditions or in economic conditions generally
affecting the television broadcasting industry) or (c) the validity or
enforceability of this Agreement or any of the other Loan Documents or
the rights or remedies of the Administrative Agent, the Swingline
Lenders, the Issuing Lenders or the Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or
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wastes, defined or regulated as such in or under any Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"▇▇▇▇▇ Acquisition": the purchase by the Borrower from ▇▇▇▇▇
Broadcasting Company of two television stations and three satellite
television stations in North Dakota, pursuant to the ▇▇▇▇▇ Purchase
Agreement.
"▇▇▇▇▇ Purchase Agreement": the Contract of Sale, dated as of
April 27, 1998, by and between ▇▇▇▇▇ Broadcasting Company and the
Borrower. Pursuant to an Assignment and Assumption Agreement dated as
of May 4, 1998, the Borrower has assigned to STC License Company, and
STC License Company has assumed from the Borrower, all of the
Borrower's right and obligations under the ▇▇▇▇▇ Purchase Agreement
with respect to the FCC Licenses (as defined in the ▇▇▇▇▇ Purchase
Agreement).
"Michigan Station": television station WEYI-TV, Channel 25,
Flint-Saginaw, Michigan.
"Mortgaged Properties": the real properties listed on Schedule
1.1B, as to which the Administrative Agent for the benefit of the
Lenders shall be granted a Lien pursuant to the Mortgages and which
initial Schedule 1.1B shall include only those real properties owned by
the Borrower and its Subsidiaries at the Closing Date with a fair
market value in excess of $1,000,000.
"Mortgages": each of the mortgages and deeds of trust made by
any Loan Party in favor of, or for the benefit of, the Administrative
Agent for the benefit of the Lenders, substantially in the form of
Exhibit D-1 or D-2, as the case may be (with such changes thereto as
shall be advisable under the law of the jurisdiction in which such
mortgage or deed of trust is to be recorded), as the same may be
amended, supplemented or otherwise modified from time to time.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or
any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale or Recovery Event, net of attorneys' fees,
notarial fees, accountants' fees, investment banking fees, appraisal
fees, survey costs, title insurance premiums, amounts to be applied to
the repayment of Indebtedness secured by a Lien expressly permitted
hereunder on any asset which is the subject of such Asset Sale or
Recovery Event (other than any Lien pursuant to a Security Document)
and other customary fees and expenses actually incurred in connection
therewith, net of taxes paid or reasonably estimated to be payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements) and net of purchase price
adjustments reasonably expected to be payable in connection therewith
and (b) in connection with any issuance or sale of equity securities or
debt securities or instruments or the incurrence of loans, the cash
proceeds received from such issuance or Incurrence, net of attorneys'
fees, notarial fees, investment banking fees, accountants' fees,
underwriting discounts and commissions and other customary fees and
expenses actually Incurred in connection therewith.
"Network Affiliation Agreements": each agreement set forth on
Schedule 1.1C and each other agreement entered into by the Borrower or
any of its Subsidiaries (including any such agreement assumed pursuant
to an Asset Swap Transaction or otherwise) pursuant to which a
television network agrees to serve as the primary source within a
designated market area for television programming for any Station.
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"Non-Consenting Lender": as defined in subsection 2.20.
"Non-Excluded Taxes": as defined in subsection 2.17(a).
"Non-Funding Lender": as defined in subsection 2.15(c).
"Non-Station Asset": all of the assets used and useful for the
operation of the Borrower's and its Subsidiaries' broadcasting
business, other than the Stations.
"Non-U.S. Lender": as defined in subsection 2.17(b).
"Notes": the collective reference to the Term Notes, the
Revolving Credit Notes and the Swingline Notes.
"Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the Loans and Reimbursement Obligations and interest accruing after the
filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the
Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Loans, the Reimbursement
Obligations and all other obligations and liabilities of the Borrower
to the Administrative Agent, the Swingline Lender, the Issuing Lender
or to any Lender (or, in the case of Interest Rate Protection
Agreements, any affiliate of any Lender), whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, any Notes, any other Loan Document, the Letters
of Credit, any Interest Rate Protection Agreement entered into with any
Lender or any affiliate of any Lender or any other document made,
delivered or given in connection herewith or therewith, whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation, all fees,
charges and disbursements of counsel to the Administrative Agent, to
the Swingline Lender, to the Issuing Lender or to any Lender that are
required to be paid by the Borrower pursuant hereto) or otherwise.
"Participant": as defined in subsection 10.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Acquisition": the acquisition by the Borrower or
any of its Subsidiaries of one or more Broadcast Stations or Broadcast
Enterprises, or all the capital stock of, or other equity interests in,
any other Person whose primary business is the ownership and operation
of one or more Broadcast Stations or Broadcast Enterprises, in the
United States (or such lesser amount as shall be determined by the
Board of Directors of the Borrower or such Subsidiary as fair
consideration), including, without limitation, the Exchange
Transactions, provided that (a) on a pro forma basis for the most
recently completed four-fiscal-quarter period for which financial
statements are available on the date of such acquisition, no Default or
Event of Default will have occurred and be continuing (including,
without limitation, pursuant to subsection 7.1), provided that for
purposes of calculating Consolidated EBITDA pursuant to this clause
(a), the Consolidated EBITDA of such Broadcast Stations or Broadcast
Enterprises being acquired for such four-fiscal-quarter period shall be
equal to the Consolidated EBITDA of such Broadcast Stations or
Broadcast Enterprises for the 12-month period immediately preceding
such acquisition, (b) the Borrower provides the Administrative Agent
with a certificate showing
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compliance with all of the covenants contained in subsection 7.1 and
showing the aggregate purchase price (including the assumption of any
Indebtedness) for such Permitted Acquisition, (c) the Borrower takes
such actions as may be required or reasonably requested to ensure that
the Administrative Agent, for the ratable benefit of the Lenders, has a
perfected first priority security interest in any assets required to be
secured pursuant to subsection 6.10 or any other Loan Document, subject
to Liens permitted by subsection 7.3, and (d) the Borrower provides the
Administrative Agent with appropriate supporting documentation if
reasonably requested by the Administrative Agent, including, without
limitation, any acquisition documents in connection with such
acquisition, opinions of counsel, including FCC counsel, in connection
therewith and copies of an FCC consent on Form 732 (or any comparable
form issued by the FCC) relating to the transfer of control or
assignment of the Station Licenses of any acquired Broadcast Station to
the Borrower or its Subsidiary and, unless the Administrative Agent
shall otherwise agree, such consent shall have become a Final Order.
"Permitted Disposition: as defined in subsection 7.5(h).
"Permitted Issuance": (a) the issuance by Holdings of shares
of Capital Stock as dividends on issued and outstanding Capital Stock
of the same class of Holdings or pursuant to any dividend reinvestment
plan, (b) the issuance by Holdings of options or other equity
securities of Holdings to outside directors, members of management or
employees of Holdings or any Subsidiary of Holdings, (c) the issuance
of securities as interest or dividends on pay-in-kind debt or preferred
equity securities in accordance with their terms permitted hereunder
and under the other Loan Documents, (d) the issuance to Holdings or any
Subsidiary (or any director, with respect to directors' qualifying
shares) by any of its Subsidiaries of any of their respective Capital
Stock, in each case with respect to this clause (d) to the extent such
Capital Stock issued to Holdings or any Subsidiary is pledged to the
Administrative Agent pursuant to the applicable Loan Document (provided
that (i) only 65% of the voting Capital Stock of any foreign Subsidiary
of the Borrower is required to be so pledged and (ii) no voting Capital
Stock of any foreign Subsidiary of any other foreign Subsidiary is
required to be so pledged), (e) the issuance by Holdings of shares of
its common stock in connection with a Permitted Acquisition, (f) cash
payments made in lieu of issuing fractional shares of Holdings Capital
Stock in an aggregate amount not to exceed $100,000, (g) the issuance
by Holdings of shares of capital stock of Holdings to infuse additional
capital into Holdings in an aggregate amount not to exceed $2,000,000
made within 15 days after the date of borrowing of the Delayed Term
Loans and (h) the issuance by Holdings to the existing holders of the
Preferred Stock of warrants to purchase shares of the common stock of
Holdings in connection with the ultimate redemption of the Preferred
Stock.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pledged Notes": as defined in the Guarantee and Collateral
Agreement.
"Pledged Stock": as defined in the Guarantee and Collateral
Agreement.
"Preferred Stock": the 14% Redeemable Preferred Stock, par
value $.01 per share, liquidation preference $100.00 per share of the
Borrower.
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"Pricing Grid": the pricing grid attached as Annex A hereto.
"Prime Rate": as defined in the definition of the term "ABR".
"Projections": as defined in subsection 6.2(c).
"Properties": as defined in subsection 4.17(a).
"Property": any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible
or intangible, including, without limitation, Capital Stock.
"Providence Consolidated EBITDA": for any period, the
Borrower's or any of its Subsidiary's share of income and other
consideration for such period (without regard for any offsets to such
amounts for the Borrower's or its Subsidiaries' share of Capital
Expenditures) determined in accordance with the Joint Marketing
Agreement with respect to the Providence Station and the rights of
Hearst under the Joint Marketing Agreement assigned to the STC Parties
pursuant to the Asset Exchange Agreement with respect to WPRI, in each
case, to the extent there is no encumbrance or restriction on payment
or other distribution with respect to such income or other
consideration.
"Providence Station": television station WNAC-TV, Channel 64,
Providence, Rhode Island.
"Purchase Agreement": as defined in the recitals hereto.
"Purchase Transactions": as defined in the recitals hereto.
"Qualified Issuer": any commercial bank (a) which has, or
whose obligations are guaranteed by an affiliated commercial bank which
has, capital and surplus in excess of $500,000,000 and (b) the
outstanding long-term debt securities of which are rated at least A-2
by Standard & Poor's Ratings Services or at least P-2 by ▇▇▇▇▇'▇
Investors Service, Inc., or carry an equivalent rating by a nationally
recognized rating agency if both of the two named rating agencies cease
publishing ratings of investments.
"Recovery Event": any settlement of or payment in respect of
any property insurance or casualty insurance claim or any condemnation
proceeding or deed in lieu thereof relating to any Property of Holdings
or any of its Subsidiaries, excluding any such settlement or payment
which, together with any related settlement or payment, yields gross
proceeds to Holdings or any of its Subsidiaries of less than
$2,500,000.
"Refunded Swingline Loans": as defined in subsection
2.4(c)(ii).
"Register": as defined in subsection 10.6(d).
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to subsection 3.5 for amounts
drawn under Letters of Credit.
"Reinvestment Deferred Amount": with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by
Holdings or any of its Subsidiaries in connection
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therewith which are not applied to prepay the Term Loans or reduce the
Revolving Credit Commitments pursuant to subsection 2.9(d) as a result
of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in
respect of which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a
Responsible Officer stating that no Event of Default has occurred and
is continuing and that the Borrower (directly or indirectly through a
Subsidiary) intends and expects to use all or a specified portion of
the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire
assets useful in its business, provided that to the extent the Net Cash
Proceeds of an Asset Sale relate to the sale of a Broadcasting Asset
sold in accordance with subsection 7.5(h) or exchanged in accordance
with subsection 7.5(i) or relate to a Recovery Event with respect to a
Broadcasting Asset, the Borrower may deliver a Reinvestment Notice with
respect to such Net Cash Proceeds only to the extent such Net Cash
Proceeds shall be used to make a Permitted Acquisition pursuant to
subsection 7.5(h) or to pay cash consideration in connection with an
Asset Swap Transaction pursuant to subsection 7.5(i).
"Reinvestment Prepayment Amount": with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto
less any amount expended prior to the relevant Reinvestment Prepayment
Date to acquire assets useful in the Borrower's business.
"Reinvestment Prepayment Date": with respect to any
Reinvestment Event, the earlier of (a) the date occurring one year
after such Reinvestment Event and (b) the date on which the Borrower
shall have determined not to, or shall have otherwise ceased to,
acquire assets useful in the Borrower's business with all or any
portion of the relevant Reinvestment Deferred Amount, provided that if
the Reinvestment Notice with respect to such Reinvestment Event relates
to the acquisition of a new Station by the Borrower or any of its
Subsidiaries (whether as a result of a Permitted Acquisition, an Asset
Swap Transaction or otherwise) and the Borrower or such Subsidiary has
filed within one year of the Reinvestment Event an application with the
FCC for the approval of the transfer of control or assignment of the
Station License of such acquired Station, the period specified in
paragraph (a) shall be extended to a period equal to five Business Days
after the time required for the FCC to issue a Final Order relating to
the transfer of control of such Station License.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under the regulations issued pursuant to
Section 4043(b) of ERISA.
"Required Lenders": Lenders, other than Non-Funding Lenders,
which collectively are the holders of more than 50% of the sum of (i)
the Loans, (ii) the unused Committed Term Loan Commitments and (iii)
the aggregate unused Revolving Credit Commitments (excluding
commitments to issue Letters of Credit or make Swingline Loans) or, if
the Revolving Credit Commitments have been terminated, the Total
Revolving Extensions of Credit (other than Swingline Loans).
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation
(including, without limitation, Environmental Laws or rules,
regulations or orders,
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whether addressed to Holdings, the Borrower or any of its Subsidiaries,
of the FCC) or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its
property is subject.
"Responsible Officer": the chief executive officer, the
president, any vice president or senior vice president, the treasurer
or any assistant treasurer, the secretary or assistant secretary and
the chief financial officer (or officer having comparable duties) of
the Borrower (including, in any event, any person who is an officer of
the Borrower and is named on the closing certificate delivered by the
Borrower on the Closing Date pursuant to subsection 5.1(d) whether or
not such person holds any of the foregoing positions).
"Restricted Payment" as defined in subsection 7.6.
"Revolving Credit Commitment": as to any Revolving Credit
Lender, the obligation of such Revolving Credit Lender, if any, to make
Revolving Credit Loans, and to participate in Swingline Loans and
Letters of Credit, in an aggregate principal and/or face amount not to
exceed the amount set forth under the heading "Revolving Credit
Commitment" opposite such Lender's name on Schedule 1.1A, as the same
may be changed from time to time pursuant to the terms hereof. The
original aggregate amount of the Revolving Credit Commitments is
$40,000,000.
"Revolving Credit Commitment Period": the period from and
including the Closing Date to the Revolving Credit Termination Date.
"Revolving Credit Facility": as defined in the definition of
the term "Facility".
"Revolving Credit Lender": each Lender which has a Revolving
Credit Commitment or which has made, or acquired pursuant to an
assignment made in accordance with subsection 10.6(c), Revolving Credit
Loans or has participations in outstanding Letters of Credit or
Swingline Loans.
"Revolving Credit Loans": as defined in subsection 2.4(a).
"Revolving Credit Note": as defined in subsection 10.6(f).
"Revolving Credit Percentage": as to any Revolving Credit
Lender at any time, the percentage which such Lender's Revolving Credit
Commitment then constitutes of the aggregate Revolving Credit
Commitments (or, at any time after the Revolving Credit Commitments
shall have expired or terminated, the percentage which the aggregate
principal amount of such Lender's Revolving Credit Loans then
outstanding constitutes of the aggregate principal amount of the
Revolving Credit Loans then outstanding).
"Revolving Credit Termination Date": the earlier of (a) the
Scheduled Revolving Credit Termination Date or, if such date is not a
Business Day, the Business Day next preceding such date and (b) the
date upon which the Revolving Credit Commitments shall be earlier
terminated pursuant hereto.
"Revolving Extensions of Credit": as to any Revolving Credit
Lender at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Revolving Credit Loans made by such Lender then
outstanding, (b) such Lender's Revolving Credit Percentage of the L/C
Obligations then outstanding and (c) such Lender's Swingline Exposure
at such time.
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"Rochester Station": television station WROC-TV, Channel 8,
Rochester, New York.
"SAC": ▇▇▇▇▇ Acquisition Company, a Delaware corporation.
"SAC Pledge Agreement": the Amended and Restated Pledge
Agreement to be executed and delivered by SBP with respect to the SBP
Stock, substantially in the form of Exhibit A-2, as the same may be
amended, supplemented or otherwise modified from time to time.
"San ▇▇▇▇▇▇ Station": television station, KACB-TV, Channel 3,
San Angelo, Texas.
"SBP": ▇▇▇▇▇ Broadcasting Partners, L.P., a Delaware limited
partnership.
"SBP Stock": the voting common stock of SAC, which represents
1% of the equity of SAC, but which entitles SBP to 100% of voting power
in the election of the directors of SAC.
"Scheduled Revolving Credit Termination Date": June 30, 2006.
"Security Documents": the collective reference to the
Guarantee and Collateral Agreement, the SAC Pledge Agreement, the
Mortgages and all other security documents hereafter delivered to the
Administrative Agent granting a Lien on any Property of any Person to
secure the obligations and liabilities of any Loan Party under any Loan
Document.
"Senior Subordinated Indebtedness": the Senior Subordinated
Notes and any unsecured senior subordinated Indebtedness of the
Borrower the proceeds of which shall be used to refinance in full all
of the Senior Subordinated Notes, or other Senior Subordinated
Indebtedness outstanding, provided such refinancing Indebtedness has
(a) no maturity, amortization, mandatory redemption or purchase option
(other than with asset sale proceeds, subject to the provisions of this
Agreement, or following a change of control) or sinking fund payment
prior to the tenth anniversary of the Closing Date, (b) no financial
maintenance covenants, (c) such other terms and conditions (including
without limitation, interest rate, events of default, subordination and
covenants) as shall be reasonably satisfactory to the Administrative
Agent and (d) any permanent refinancing shall not be less favorable to
the Borrower and the Lenders as the Senior Subordinated Notes taken as
a whole.
"Senior Subordinated Note Indenture": the Indenture, dated as
of March 25, 1997, entered into by the Borrower and certain of its
Subsidiaries in connection with the issuance of the Senior Subordinated
Notes, and any other indenture entered into by the Borrower in
connection with any other issuance of Senior Subordinated Indebtedness
to the extent permitted hereunder, together with all instruments and
other agreements entered into by the Borrower and such Subsidiaries in
connection therewith, all in form and substance reasonably satisfactory
to the Administrative Agent, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with subsection
7.8.
"Senior Subordinated Notes": the Borrower's 11% Senior
Subordinated Notes due March 15, 2007 issued pursuant to the Senior
Subordinated Note Indenture.
"▇▇▇▇▇▇▇▇ License Transfer": as defined in the recitals
hereto.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
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"Solvent": when used with respect to any Person, means that,
as of any date of determination, (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the
present fair salable value of the assets of such Person is not less
than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured, (c) such
Person does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Person's ability to pay as such debts
and liabilities mature, and (d) such Person is not engaged in business
or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute an
unreasonably small capital.
"Station Licenses": (a) with respect to the Borrower or any of
its Subsidiaries (or, with respect to the Steubenville Station and the
Providence Station, SAC or any of its Subsidiaries), all
authorizations, licenses or permits issued by the FCC and granted or
assigned to the Borrower or any of its Subsidiaries (or, with respect
to the Steubenville Station and the Providence Station, SAC or any of
its Subsidiaries), or under which the Borrower or any of its
Subsidiaries (or, with respect to the Steubenville Station and the
Providence Station, SAC or any of its Subsidiaries) has the right to
operate any Station, together with any extensions or renewals thereof
and (b) with respect to any other Person, all authorizations, licenses
or permits issued by the FCC and granted or assigned to such Person, or
under which such Person has the right to operate any Broadcast Station,
together with any extensions or renewals thereof.
"Stations": collectively, (a) the Michigan Station, (b) the
Steubenville Station, (c) the Rochester Station, (d) the Providence
Station, (e) Dayton Station, (f) the Abilene Station, (g) the San
▇▇▇▇▇▇ Station, (h) the Johnstown Station and (i) any additional
Broadcast Station acquired after the date hereof.
"STCBV": as defined in the recitals hereto.
"STCBV Sub": as defined in the recitals hereto.
"STCBV Sub Credit Agreement": as defined in the recitals
hereto.
"Steubenville Station": television station WTOV-TV, Channel 9,
Steubenville, Ohio.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or
other ownership interests having ordinary voting power (other than
stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation, partnership
or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise qualified,
all references to a "Subsidiary" or to "Subsidiaries" in this Agreement
shall refer to a Subsidiary or Subsidiaries of the Borrower after
giving effect to the Purchase Transactions and the Exchange
Transactions and notwithstanding the foregoing shall be deemed to
include SAC and its Subsidiaries.
"Subsidiary Guarantor": each Subsidiary of the Borrower party
to the Guarantee and Collateral Agreement.
"Swingline Exposure": at any time, the aggregate principal
amount of all outstanding Swingline Loans at such time. The Swingline
Exposure of any Revolving Credit Lender at any time shall mean its
Revolving Credit Percentage of the aggregate Swingline Exposure at such
time.
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"Swingline Lender": as defined in the introductory paragraph
of this Agreement.
"Swingline Loan Participation Certificate": a certificate in
substantially the form of Exhibit H.
"Swingline Loan Commitment": the obligation of the Swingline
Lender to make Swingline Loans to the Borrower hereunder. The original
amount of the Swingline Loan Commitment is $2,500,000.
"Swingline Loans": as defined in subsection 2.4(c)(i).
"Swingline Note": as defined in subsection 10.6(f).
"Syndication Agent": as defined in the introductory paragraph
of this Agreement.
"Term Loans": the Committed Term Loans and the Incremental
Term Loans made by the Lenders to the Borrower pursuant to subsection
2.1.
"Term Notes": as defined in subsection 10.6(f).
"Test Period": any period of four consecutive fiscal quarters
of the Borrower most recently ended.
"Total Revolving Extensions of Credit": at any time, the
aggregate amount of the Revolving Extensions of Credit of the Revolving
Credit Lenders at such time.
"Transaction Documents": the Purchase Agreement, the Exchange
Agreement and the other documents relating to the Purchase Transactions
and the Exchange Transactions.
"Transferee": as defined in subsection 10.6(g).
"Type": as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
"Unencumbered Cash": cash owned and held by or on behalf of
the Borrower or any of its Subsidiaries which is not subject to the
Lien of another Person, it being agreed that any such cash subject to
any depositary bank set-off rights or any depositary agreements with
such bank shall be deemed "Unencumbered Cash" for purposes of this
Agreement.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be revised from time to time.
"Wholly Owned Subsidiary": as to any Person, any other Person
all of the Capital Stock of which (other than directors' qualifying
shares required by law) is owned by such Person directly and/or through
other Wholly Owned Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor
that is a Wholly Owned Subsidiary of the Borrower.
"WPRI": television station WPRI-TV, Channel 12, Providence,
Rhode Island.
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1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the other Loan Documents or any certificate or other
document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to Holdings and its Subsidiaries not defined in
subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Commitments. (a) Subject to the terms and conditions
hereof, each Committed Term Loan Lender severally agrees (A) to make a term loan
(an "Initial Term Loan") to the Borrower on the Closing Date in a principal
amount not to exceed the amount of the Initial Term Loan Commitment of such
Lender and (B) to make a term loan (a "Delayed Term Loan") to the Borrower at
any one time during the Delayed Commitment Period in a principal amount not to
exceed the Delayed Term Loan Commitment of such Lender.
(b) The Borrower and all or certain of the Lenders may, up to
five times during the period from and including the Closing Date to but
excluding the Incremental Term Loan Termination Date, agree that such Lenders
shall become Incremental Lenders or increase the principal amount of their
Incremental Term Loans by executing and delivering to the Administrative Agent
an Incremental Term Loan Activation Notice specifying (i) the respective
Incremental Term Loan Amount of such Incremental Lenders, (ii) the applicable
Incremental Term Loan Closing Date, (iii) the applicable Incremental Maturity
Date, (iv) the amortization schedule for the applicable Incremental Term Loans,
which shall comply with subsection 2.3(b) and (v) the Applicable Margin for the
Incremental Term Loans to be made pursuant to such Incremental Term Loan
Activation Notice, and which shall be otherwise duly completed. Each Incremental
Lender that is a signatory to an Incremental Term Loan Activation Notice
severally agrees, on the terms and conditions of this Agreement, to make a term
loan (an "Incremental Term Loan") to the Borrower on the Incremental Term Loan
Closing Date specified in such Incremental Term Loan Activation Notice in a
principal amount not to exceed the amount of the Incremental Term Loan Amount of
such Incremental Lender specified in such Incremental Term Loan Activation
Notice. Subject to the terms and conditions of this Agreement, the Borrower may
convert Incremental Term Loans of one Type into Incremental Term Loans of
another Type (as provided in subsection 2.10) or continue Incremental Term Loans
of one Type as Incremental Term Loans of the same Type (as provided in
subsection 2.10). Incremental Term Loans that are prepaid may not be reborrowed.
Nothing in this subsection 2.1(b) shall be construed to obligate any Lender to
execute an Incremental Term Loan Activation Notice. Notwithstanding the
foregoing, (a) without the consent of the Required Lenders the Borrower shall
not solicit any Incremental Term Loan Activation Notice after December 31, 2000
and (b) the aggregate amount of Incremental Term Loans shall not exceed
$100,000,000.
(c) The Term Loans may from time to time be Eurodollar Loans
or ABR Loans, as determined by the Borrower and notified to the Administrative
Agent in accordance with subsections 2.2 and 2.10.
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2.2 Procedure for Term Loan Borrowing. (a) The Borrower shall
give the Administrative Agent irrevocable written (or telephonic promptly
confirmed in writing) notice (which notice must be received by the
Administrative Agent prior to 12:00 noon, New York City time, one Business Day
prior to the anticipated Closing Date) requesting that the Committed Term Loan
Lenders make the Initial Term Loans on the Closing Date and specifying the
amount to be borrowed. Each such notice shall be given by the Borrower in the
form of Exhibit J. The Initial Term Loans made on the Closing Date shall
initially be ABR Loans. Upon receipt of such notice the Administrative Agent
shall promptly notify each Committed Term Loan Lender thereof. Not later than
12:00 Noon, New York City time, on the Closing Date each Committed Term Loan
Lender shall make available to the Administrative Agent at its office specified
in subsection 10.2 an amount in immediately available funds equal to the Initial
Term Loans to be made by such Lender. The Administrative Agent shall credit the
account of the Borrower on the books of such office of the Administrative Agent
with the aggregate of the amounts made available to the Administrative Agent by
the Committed Term Loan Lenders in like funds as received by the Administrative
Agent.
(b) The Borrower shall give the Administrative Agent
irrevocable written (or telephonic promptly confirmed in writing) notice of each
borrowing of Delayed Term Loans or Incremental Term Loans (which notice must be
received by the Administrative Agent prior to 12:00 Noon, New York City time,
(i) three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, or (ii) one Business Day prior to the requested Borrowing
Date, in the case of ABR Loans), specifying (A) the amount and Type of Delayed
Term Loans or Incremental Term Loans to be borrowed, (B) the requested Borrowing
Date and (C) in the case of Eurodollar Loans, the respective amounts of each
such Type of Loan and the respective lengths of the initial Interest Period
therefor. Each such notice shall be given by the Borrower in the form of Exhibit
J. There shall be only one borrowing under the Delayed Term Loan Commitment and
no more than five borrowings under the Incremental Term Loan Facility. The
borrowing under the Delayed Term Loan Commitment and each borrowing under the
Incremental Term Loan Facility shall be in an amount equal to (x) in the case of
ABR Loans, $1,000,000 or a whole multiple of $100,000 in excess thereof and (y)
in the case of Eurodollar Loans, $2,000,000 or a whole multiple of $200,000 in
excess thereof. Upon receipt of any such notice with respect to a Delayed Term
Loan or Incremental Term Loan from the Borrower, the Administrative Agent shall
promptly notify each Committed Term Loan Lender or Incremental Lender, as the
case may be, thereof. Each Committed Term Loan Lender will make the amount of
its pro rata share of each borrowing available to, and each Incremental Lender
will make its respective Incremental Term Loan Amount available to, the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in subsection 10.2 prior to 12:00 Noon, New York
City time, on the Borrowing Date requested by the Borrower in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the Borrower by the Administrative Agent crediting the account of
the Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the applicable Lenders and in like
funds as received by the Administrative Agent.
2.3 Repayment of Term Loans. (a) The Committed Term Loans of
each Committed Term Loan Lender shall mature in 28 consecutive quarterly
installments, commencing on September 30, 1999 and ending on June 30, 2006, each
of which installments in any calendar year specified below shall be in an amount
equal to the product of (i) one quarter of the amount set forth opposite such
calendar year (except with respect to 1999 and 2006, during which there will be
two installments (with the installments in the same year being equal in amount)
made on September 30, 1999 and December 31, 1999, and March 31, 2006 and June
30, 2006, respectively, and with respect to the installment due on June 30, 2006
in the lesser of the amount of Committed Term Loans then outstanding and
one-half the amount set forth below opposite the year 2006) and (ii) such
Lender's Committed Term Loan Percentage:
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Year Amount
---- ------
1999 $ 1,500,000
2000 $ 5,000,000
2001 $ 8,000,000
2002 $12,500,000
2003 $17,500,000
2004 $20,000,000
2005 $20,000,000
2006 $15,500,000
(b) The Incremental Term Loans, if any, of each Incremental
Lender shall mature in consecutive quarterly installments as specified in the
Incremental Term Loan Activation Notice pursuant to which such Incremental Term
Loans were made, provided that prior to the date that is six months following
the Committed Term Loan Maturity Date the amounts of such installments for any
four consecutive fiscal quarters shall not exceed 1% of the aggregate principal
amount of such Incremental Term Loans on the date such Loans were first made.
2.4 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans ("Revolving Credit Loans") to the Borrower from time to
time during the Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding which, when added to such Lender's Swingline
Exposure at such time and Revolving Credit Percentage of the L/C Obligations
then outstanding, does not exceed the amount of such Lender's Revolving Credit
Commitment. During the Revolving Credit Commitment Period the Borrower may use
the Revolving Credit Commitments by borrowing, prepaying and reborrowing the
Revolving Credit Loans in whole or in part, all in accordance with the terms and
conditions hereof. The Revolving Credit Loans may from time to time be
Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with subsections 2.5 and 2.10, provided that
no Revolving Credit Loan shall be made as a Eurodollar Loan after the day that
is one month prior to the Scheduled Revolving Credit Termination Date.
(b) The Borrower shall repay all outstanding Revolving Credit
Loans on the Revolving Credit Termination Date and all outstanding Swingline
Loans on the earlier of the Revolving Credit Termination Date and the first date
after such Swingline Loan is made that is the 15th or last day of a calendar
month and is at least two Business Days after such Swingline Loan is made.
(c)(i) Subject to the terms and conditions hereof, the
Swingline Lender agrees to make swingline loans ("Swingline Loans") to the
Borrower from time to time during the Revolving Credit Commitment Period in an
aggregate principal amount at any one time outstanding not to exceed the
Swingline Loan Commitment then in effect, provided that at no time may the Total
Revolving Extensions of Credit exceed the aggregate Revolving Credit
Commitments. During the Revolving Credit Commitment Period, the Borrower may use
the Swingline Loan Commitment by borrowing, prepaying, in whole or in part, and
reborrowing the Swingline Loans, all in accordance with the terms and conditions
hereof. All Swingline Loans shall be ABR Loans. The Borrower shall give the
Swingline Lender irrevocable written (or telephonic promptly confirmed in
writing) notice (which notice must be received by the Swingline Lender prior to
12:00 noon New York City time) on the requested Borrowing Date specifying the
amount of the requested Swingline Loan which shall be in an aggregate minimum
amount of $100,000, or a whole multiple of $25,000 in excess thereof. Each such
notice shall be given by the Borrower in the form of Exhibit J. The proceeds of
the Swingline Loan will be made available by the Swingline Lender to the
Borrower at the office of the Swingline Lender by 2:00 p.m. New York City time
on the Borrowing Date by crediting the account of the Borrower at such office
with such proceeds. The Borrower may, at any time and from time to time, prepay
the Swingline Loans, in whole or in part,
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without premium or penalty, by notifying the Swingline Lender prior to 12:00
noon New York City time on any Business Day of the date and amount of
prepayment. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein. Partial prepayments
shall be in an aggregate principal amount of $100,000, or a whole multiple of
$25,000 in excess thereof.
(ii) The Swingline Lender, at any time in its
sole and absolute discretion, may, on behalf of the Borrower (which hereby
irrevocably directs the Swingline Lender to act on its behalf), and without
regard to the minimum amounts in subsection 2.5, request each Revolving Credit
Lender including the Swingline Lender to make a Revolving Credit Loan in an
amount equal to such Lender's Revolving Credit Percentage of the amount of the
Swingline Loans outstanding on the date such notice is given (the "Refunded
Swingline Loans"). Unless any of the events described in paragraph (f) of
Section 8 shall have occurred with respect to the Borrower (in which event the
procedures of subparagraph (iii) of this subsection 2.4(c) shall apply), each
Revolving Credit Lender shall make the proceeds of its Revolving Credit Loan
available to the Administrative Agent for the account of the Swingline Lender at
the office of the Administrative Agent specified in subsection 10.2 prior to
1:00 p.m. New York City time in immediately available funds on the Business Day
next succeeding the date such notice is given. The proceeds of such Revolving
Credit Loans shall be immediately applied to repay the Refunded Swingline Loans.
Effective on the day such Revolving Credit Loans are made, the portion of such
Loans so paid shall no longer be outstanding as Swingline Loans, shall no longer
be due under any Swingline Note and shall be Revolving Credit Loans made by the
Revolving Credit Lenders in accordance with their respective Revolving Credit
Percentages. The Borrower authorizes the Swingline Lender to charge its accounts
with the Administrative Agent (up to the amount available in each such account)
in order to immediately pay the amount of such Refunded Swingline Loans to the
extent amounts received from the Revolving Credit Lenders are not sufficient to
repay in full such Refunded Swingline Loans.
(iii) If prior to the making of a Revolving Credit
Loan pursuant to subparagraph (ii) of this subsection 2.4(c) one of the events
described in paragraph (f) of Section 8 shall have occurred and be continuing
with respect to the Borrower, each Revolving Credit Lender will, on the date
such Revolving Credit Loan was to have been made pursuant to the notice in
subsection 2.4(c)(ii), purchase an undivided participating interest in the
Refunded Swingline Loan in an amount equal to (i) its Revolving Credit
Percentage times (ii) the Refunded Swingline Loans. Each Revolving Credit Lender
will immediately transfer to the Swingline Lender, in immediately available
funds, the amount of its participation, and upon receipt thereof the Swingline
Lender will deliver to such Revolving Credit Lender a Swingline Loan
Participation Certificate dated the date of receipt of such funds and in such
amount.
(iv) Whenever, at any time after any Revolving
Credit Lender has purchased a participating interest in a Swingline Loan, the
Swingline Lender receives any payment on account thereof, the Swingline Lender
will distribute to such Revolving Credit Lender its participating interest in
such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Revolving Credit Lender's
participating interest was outstanding and funded); provided, however, that in
the event that such payment received by the Swingline Lender is required to be
returned, such Revolving Credit Lender will return to the Swingline Lender any
portion thereof previously distributed by the Swingline Lender to it.
(v) Each Revolving Credit Lender's obligation to
make the Loans referred to in subsection 2.4(c)(ii) and to purchase
participating interests pursuant to subsection 2.4(c)(iii) shall be absolute and
unconditional and shall not be affected by any circumstance, including, without
limitation, (A) any set-off, counterclaim, recoupment, defense or other right
which such Revolving Credit Lender or the Borrower may have against the
Swingline Lender, the Borrower or any other Person for any reason whatsoever;
(B) the occurrence or continuance of a Default or an Event of Default; (C) any
adverse
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change in the condition (financial or otherwise) of the Borrower; (D) any breach
of this Agreement or any other Loan Document by Holdings, the Borrower or any of
its Subsidiaries or any other Lender; or (E) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing.
2.5 Procedure for Revolving Credit Borrowing. Subject to
subsection 2.8(b), the Borrower may borrow under the Revolving Credit
Commitments during the Revolving Credit Commitment Period on any Business Day,
provided that the Borrower shall give the Administrative Agent irrevocable
written (or telephonic promptly confirmed in writing) notice (which notice must
be received by the Administrative Agent prior to 12:00 Noon, New York City time,
(a) three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, or (b) one Business Day prior to the requested Borrowing Date,
in the case of ABR Loans), specifying (i) the amount and Type of Revolving
Credit Loans to be borrowed, (ii) the requested Borrowing Date and (iii) in the
case of Eurodollar Loans, the respective amounts of each such Type of Loan and
the respective lengths of the initial Interest Period therefor. Each such notice
shall be given by the Borrower in the form of Exhibit J. Each borrowing under
the Revolving Credit Commitments shall be in an amount equal to (A) in the case
of ABR Loans, $1,000,000 or a whole multiple of $100,000 in excess thereof (or,
if the then aggregate Available Revolving Credit Commitments are less than
$1,000,000, such lesser amount) and (B) in the case of Eurodollar Loans,
$2,000,000 or a whole multiple of $200,000 in excess thereof. Upon receipt of
any such notice from the Borrower, the Administrative Agent shall promptly
notify each Revolving Credit Lender thereof. Each Revolving Credit Lender will
make the amount of its pro rata share of each borrowing available to the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in subsection 10.2 prior to 12:00 Noon, New York
City time, on the Borrowing Date requested by the Borrower in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the Borrower by the Administrative Agent crediting the account of
the Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Revolving Credit Lenders and in
like funds as received by the Administrative Agent.
2.6 Commitment Fees, etc. (a) The Borrower agrees to pay to
the Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the Closing Date to the last
day of the Revolving Credit Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment of
such Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and December and on the
Revolving Credit Termination Date, commencing on the first of such dates to
occur after the date hereof. For purposes of calculating commitment fees under
this subsection 2.6(a) only, no portion of the Revolving Credit Commitments
shall be deemed utilized as a result of outstanding Swingline Loans.
(b) The Borrower agrees to pay to the Administrative Agent for
the account of each Committed Term Loan Lender a commitment fee for the period
from and including the Closing Date to the Delayed Termination Date, computed at
the Commitment Fee Rate on the average daily amount of the Delayed Term Loan
Commitment of such Lender during the period for which payment is made, payable
quarterly in arrears on the last day of each March, June, September and December
and on the Delayed Termination Date, commencing on the first of such dates to
occur after the date hereof.
(c) The Borrower agrees to pay to the Administrative Agent the
fees in the amounts and on the dates set forth in the Fee Letter dated July 1,
1998, in writing among the Borrower, the Administrative Agent, the Documentation
Agent, the Syndication Agent and Chase Securities Inc.
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2.7 Termination or Reduction of Commitments.
(a) The Initial Term Loan Commitments shall be automatically
and permanently terminated at 5:00 p.m., New York City time, on the Closing
Date. The Delayed Term Loan Commitments shall be automatically and permanently
terminated at 5:00 p.m., New York City time, on the Delayed Termination Date.
(b) Notwithstanding any other provision of this Agreement,
each Revolving Credit Lender's Revolving Credit Commitment shall automatically
be permanently reduced on September 30 of each calendar year (except with
respect to 2006, during which there will be one reduction on Revolving Credit
Termination Date in an amount equal to the lesser of the amount set forth below
opposite the year 2006 and the Revolving Credit Commitments in effect at such
time) by the product of (x) the amount set forth opposite such calendar year and
(y) such Lender's Revolving Credit Percentage:
Year Amount
---- ------
2001 $ 2,000,000
2002 $ 2,000,000
2003 $ 4,000,000
2004 $ 4,000,000
2005 $ 8,000,000
2006 $20,000,000
If at the time of any mandatory reduction of the Revolving Credit Commitments
pursuant to this subsection 2.7(b), the aggregate principal amount of the
Revolving Credit Loans, Swingline Loans and Letters of Credit then outstanding
exceeds the Revolving Credit Commitments as so reduced on such date, the
Borrower shall on such date prepay the Revolving Credit Loans and Swingline
Lines (and to the extent necessary cash collateralize any outstanding Letters of
Credit) in the amount of such excess, together with accrued interest thereon to
the date of payment.
(c) The Borrower shall have the right, upon not less than
three Business Days' notice to the Administrative Agent, to terminate the
Revolving Credit Commitments or the Delayed Term Loan Commitments or, from time
to time, to reduce the amount of the Revolving Credit Commitments or the Delayed
Term Loan Commitments, provided that no such termination or reduction with
respect to Revolving Credit Commitments shall be permitted if, after giving
effect thereto and to any prepayments of the Swingline Loans and the Revolving
Credit Loans made on the effective date thereof, the Total Revolving Extensions
of Credit would exceed the Revolving Credit Commitments then in effect. Any
reduction pursuant to this subsection 2.7(c) shall be in an amount equal to
$1,000,000, or a whole multiple of $500,000 in excess thereof, and shall reduce
permanently the Revolving Credit Commitments or the Delayed Term Loan
Commitments, as applicable, then in effect. Upon receipt of any notice pursuant
to this subsection 2.7(c), the Administrative Agent shall promptly notify each
Committed Term Loan Lender or each Revolving Credit Lender and the Swingline
Lender, as applicable, of the contents thereof).
2.8 Optional Prepayments. (a) The Borrower may at any time and
from time to time prepay the Loans, in whole or in part, without premium or
penalty, upon irrevocable written (or telephonic promptly confirmed in writing)
notice delivered to the Administrative Agent at least three Business Days prior
thereto in the case of Eurodollar Loans and at least one Business Day prior
thereto in the case of ABR Loans, which notice shall specify the date and amount
of prepayment and whether the prepayment is of Eurodollar Loans, ABR Loans or a
combination thereof, and, if of a combination thereof, the amount allocable to
each, provided that if a Eurodollar Loan is prepaid on any day other than
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the last day of the Interest Period applicable thereto, the Borrower shall also
pay any amounts owing pursuant to subsection 2.18. Upon receipt of any such
notice the Administrative Agent shall promptly notify each relevant Lender
thereof. If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein. Amounts prepaid on account of
the Term Loans may not be reborrowed. Partial prepayments (other than as
contemplated in subsection 2.8(b)) of Eurodollar Loans shall be in an aggregate
principal amount of $2,000,000 or a whole multiple of $200,000 in excess
thereof. Partial prepayments (other than of a Swingline Loan or as contemplated
by subsection 2.8(b)) of ABR Loans shall be in an aggregate principal amount of
$1,000,000 or a whole multiple of $100,000 thereof. At the election of the
Borrower, the first $15,000,000 in aggregate amount of optional prepayments on
account of the Term Loans shall be applied to the then remaining installments
thereof as the Borrower elects and thereafter optional prepayments of the Term
Loans shall be allocated among the Term Loans under the Committed Term Loan
Facility and the Incremental Term Loan Facility ratably based on the outstanding
principal amount of the Term Loans under each such Facility and applied to the
then remaining installments of the Term Loans under each such Facility ratably
based on the number of then remaining installments under such Facility (i.e.
each then remaining installment of the applicable Term Loans shall be reduced by
an amount equal to the aggregate amount to be applied to such Term Loan divided
by the number of the then remaining installments for such Term Loans), provided
that if the amount to be applied to any installment required by this Agreement
would exceed the then remaining amount of such installment, then an amount equal
to such excess shall be applied to the remaining installments in the order of
maturity after giving effect to all prior reductions thereto (including the
amount of prepayments theretofore allocated pursuant to the preceding portion of
this sentence).
(b) In the event that the Borrower specifies in the
Reinvestment Notice with respect to the sale of any Broadcasting Asset that the
Borrower will apply the Net Cash Proceeds of such sale to the temporary
repayment of Revolving Credit Loans pursuant to this subsection 2.8(b), the
Borrower shall apply such Net Cash Proceeds to the repayment of Revolving Credit
Loans as provided in subsection 2.8(a), without giving effect to any minimum
repayment amounts set forth therein. Any such repayment is referred to herein as
a "Broadcasting Asset Temporary Repayment". The Borrower may from time to time
up to the date which is one year after the date of such prepayment reborrow all
or a portion of the amount prepaid pursuant to any Broadcasting Asset Temporary
Repayment if (i) such borrowing complies with all the procedures for borrowing
set forth in subsection 2.5 and (ii) promptly upon the receipt of the proceeds
of such borrowing, the Borrower (A) applies such proceeds to make a Permitted
Acquisition, (B) deposits such proceeds in a cash collateral account with the
Administrative Agent as contemplated by subsection 2.9(b) or (C) applies such
proceeds to the prepayment of Term Loans and the permanent reduction of
Revolving Credit Commitments in the manner specified in such subsection 2.9(d).
So long as any portion of any Broadcasting Asset Temporary Repayment has not
been reborrowed, the Borrower shall not be entitled to borrow, and no Lender
shall be entitled to make, Revolving Credit Loans or Swingline Loans if after
giving effect thereto the aggregate amount of outstanding Revolving Extensions
of Credit at such time would exceed an amount equal to (i) the aggregate amount
of the Revolving Credit Commitments at such time minus (ii) the aggregate amount
of all Broadcasting Asset Temporary Repayments that have not been reborrowed at
such time.
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2.9 Mandatory Prepayments and Commitment Reductions. (a) If
any Capital Stock (other than a Permitted Issuance) or Indebtedness shall be
issued or Incurred by Holdings, the Borrower or any of its Subsidiaries
(excluding any Incurrence of Indebtedness in accordance with subsection 7.2), an
amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the
date of such issuance or Incurrence toward the prepayment of the Term Loans and
to the extent of any excess to the reduction of the Revolving Credit Commitments
as set forth in subsection 2.9(d), provided that if, at the time of such
issuance or Incurrence, the Consolidated Leverage Ratio as of the last day of
the most recent Test Period is (i) less than 5.00 to 1.00 and greater than or
equal to 4.00 to 1.00, an amount equal to 50% of the Net Cash Proceeds thereof
shall be applied on the date of such issuance or Incurrence first, toward the
prepayment of the Term Loans, and second, to the reduction of the Revolving
Credit Commitments as set forth in subsection 2.9(d) and (ii) less than 4.00 to
1.00, no such prepayment or reduction shall be required in respect of such
issuance or Incurrence.
(b) If on any date Holdings, the Borrower or any of its
Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery
Event then, unless a Reinvestment Notice shall be delivered in respect thereof,
such Net Cash Proceeds shall be applied, within five Business Days after such
date, toward the prepayment of the Term Loans and the reduction of the Revolving
Credit Commitments as set forth in subsection 2.9(d), provided that if a
Reinvestment Notice shall be delivered in respect thereof (i) on each
Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment
Amount with respect to the relevant Reinvestment Event shall be applied toward
the prepayment of the Term Loans and the reduction of the Revolving Credit
Commitments as set forth in subsection 2.9(d) and (ii) if such Net Cash Proceeds
relate to an Asset Sale pursuant to subsection 7.5(h) or an Asset Swap
Transaction pursuant to subsection 7.5(i) and a Reinvestment Notice has been
delivered in connection therewith, pending such Reinvestment Prepayment Date,
such Net Cash Proceeds shall be (A) applied to the repayment of Revolving Credit
Loans pursuant to subsection 2.8(b) to be reborrowed by the Borrower, subject to
compliance by the Borrower at the time of such reborrowing with the terms and
conditions of this Agreement, to make a Permitted Acquisition or as cash
consideration in connection with an Asset Swap Transaction or (B) deposited in a
cash collateral account with the Administrative Agent (the proceeds of which
will be invested by the Administrative Agent in Cash Equivalents at the request
of the Borrower) to be released by the Administrative Agent at the request of
the Borrower, subject to compliance by the Borrower at the time of such release
with the terms and conditions of this Agreement, to make a Permitted Acquisition
or as cash consideration in connection with an Asset Swap Transaction, provided
further, that, notwithstanding subsection 2.9(d), if, at the time of receipt of
such Net Cash Proceeds, the Consolidated Leverage Ratio as of the last day of
the most recent Test Period is (i) less than 5.00 to 1.00 and greater than or
equal to 4.00 to 1.00, an amount equal to 50% of the Net Cash Proceeds thereof
shall be applied as set forth in subsection 2.9(d) and (ii) less than 4.00 to
1.00, no such prepayment or reduction shall be required in respect of such Net
Cash Proceeds.
(c) If, for any fiscal year of the Borrower commencing with
the fiscal year ending December 31, 1999, there shall be Excess Cash Flow, the
Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF
Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and
the reduction of the Revolving Credit Commitments as set forth in subsection
2.9(d). Each such prepayment shall be made on a date (an "Excess Cash Flow
Application Date") no later than five days after the earlier of (i) the date on
which the financial statements of the Borrower referred to in subsection 6.1(a),
for the fiscal year with respect to which such prepayment is made, are required
to be delivered to the Lenders and (ii) the date such financial statements are
delivered.
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(d) Subject to the other provisions of this subsection 2.9,
(i) 100% of the Net Cash Proceeds of the issuance of any Capital Stock (other
than a Permitted Issuance) or the issuance or Incurrence of any Indebtedness as
provided in subsection 2.9(a), (ii) 100% of the Net Cash Proceeds of any Asset
Sale or Recovery Event, unless a Reinvestment Notice shall be delivered in
respect of any Asset Sale or Recovery Event (in which case the terms of
subsection 2.9(b) shall apply) as provided in subsection 2.9(b) and (iii) the
Excess Cash Flow to be applied pursuant to subsection 2.9(c) shall be applied
first, to the prepayment of the Term Loans, and second, to the permanent
reduction of the Revolving Credit Commitments. Any such reduction of the
Revolving Credit Commitments shall be accompanied by prepayment of first, the
Swingline Loans, and second, the Revolving Credit Loans, to the extent, if any,
that the Total Revolving Extensions of Credit exceed the amount of the aggregate
Revolving Credit Commitments as so reduced, provided that if the aggregate
principal amount of the Swingline Loans and Revolving Credit Loans then
outstanding is less than the amount of such excess (because L/C Obligations
constitute a portion thereof), the Borrower shall, to the extent of the balance
of such excess, deposit an amount in cash in a cash collateral account
established with the Administrative Agent for the benefit of the Lenders on
terms and conditions reasonably satisfactory to the Administrative Agent. The
application of any prepayment pursuant to this subsection 2.9 shall be made
first to ABR Loans and second to Eurodollar Loans. Subject to subsection 2.9(e),
amounts prepaid on account of the Term Loans (i) shall be allocated among the
Term Loans under the Committed Term Loan Facility and the Incremental Term Loan
Facility ratably based on the outstanding principal amount of the Term Loans
under each such Facility and applied to the then remaining installments of the
Term Loans under each such Facility ratably based on the number of such
installments under such Facility and (ii) may not be reborrowed.
(e) Any Lender holding Incremental Term Loans may, to the
extent Committed Term Loans are outstanding, elect on not less than one Business
Day's prior written notice to the Administrative Agent with respect to any
mandatory prepayment made pursuant to this subsection 2.9, not to have such
prepayment applied to such Lender's Incremental Term Loans, as applicable, until
all Committed Term Loans shall have been paid in full, in which case the amount
not so applied shall be applied to prepay Committed Term Loans and shall reduce
the then remaining installments of the Committed Term Loans ratably based on the
number of such installments.
(f) Notwithstanding the foregoing provisions of this
subsection 2.9, if at any time the mandatory prepayment of any Loans pursuant to
this Agreement would result, after giving effect to the procedures set forth in
this Agreement, in the Borrower incurring costs under subsection 2.16, 2.17 or
2.18 as a result of Eurodollar Loans ("Affected Eurodollar Loans") being prepaid
other than on the last day of an Interest Period applicable thereto, which costs
are required to be paid pursuant to subsection 2.18, then, the Borrower may, in
its sole discretion, initially deposit a portion (up to 100%) of the amounts
that otherwise would have been paid in respect of the Affected Eurodollar Loans
with the Administrative Agent (which deposit must be equal in amount to the
amount of the Affected Eurodollar Loans not immediately prepaid) to be held as
security for the obligations of the Borrower to make such mandatory prepayment
pursuant to a cash collateral agreement to be entered into in form and substance
reasonably satisfactory to the Administrative Agent, with such cash collateral
to be directly applied upon the first occurrence (or occurrences) thereafter of
the last day of an Interest Period applicable to the relevant Loan that is a
Eurodollar Loan (or such earlier date or dates as shall be requested by the
Borrower), to repay an aggregate principal amount of such Loan equal to the
Affected Eurodollar Loans not initially repaid pursuant to this sentence.
2.10 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least one Business Day's prior irrevocable written (or
telephonic promptly confirmed in writing) notice of such election (but no later
than 12:00 Noon, New York City time on the Business Day immediately prior to
such election), provided that unless the Borrower elects to deposit with the
Administrative Agent the
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amount of any breakage costs and other Eurodollar Loans related costs to be
incurred by the Borrower under this Agreement with respect to any prepayment or
conversion of such Eurodollar Loans prior to the end of an Interest Period, any
such conversion of Eurodollar Loans may only be made on the last day of an
Interest Period with respect thereto. The Borrower may elect from time to time
to convert ABR Loans to Eurodollar Loans by giving the Administrative Agent at
least three Business Days' prior irrevocable written (or telephonic promptly
confirmed in writing) notice of such election by 12:00 Noon, New York City time
(which notice shall specify the length of the initial Interest Period therefor),
provided that no ABR Loan may be converted into a Eurodollar Loan (i) when any
Event of Default has occurred and is continuing and the Administrative Agent or
the Required Lenders have determined that such a conversion is not appropriate
or (ii) after the date that is one month prior to the final scheduled
termination or maturity date of such Facility. Upon receipt of any such notice
the Administrative Agent shall promptly notify each relevant Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
subsection 1.1, of the length of the next Interest Period to be applicable to
such Loans, provided that no Eurodollar Loan may be continued as such (i) when
any Event of Default has occurred and is continuing and the Administrative Agent
has or the Required Lenders have determined that such a continuation is not
appropriate or (ii) after the date that is one month prior to the final
scheduled termination or maturity date of any Facility, and provided further
that if the Borrower shall fail to give any required notice as described above
in this paragraph or if such continuation is not permitted pursuant to the
preceding proviso such Eurodollar Loans shall be automatically converted to ABR
Loans on the last day of such then expiring Interest Period. Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant Lender
thereof.
2.11 Minimum Amounts and Maximum Number of Eurodollar
Tranches. Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations and optional prepayments of Eurodollar
Loans hereunder and all selections of Interest Periods hereunder shall be in
such amounts and be made pursuant to such elections so that, after giving effect
thereto, (a) the aggregate principal amount of the Eurodollar Loans comprising
each Eurodollar Tranche shall be equal to $2,000,000 or a whole multiple of
$200,000 in excess thereof, (b) no more than six Eurodollar Tranches under a
particular Facility shall be outstanding at any one time and (c) no more than
ten Eurodollar Tranches in the aggregate shall be outstanding at any one time.
2.12 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR plus the Applicable Margin.
(c) Upon the occurrence and during the continuance of an Event
of Default under subsection 8(a), (i) all outstanding Loans and any overdue
amounts hereunder shall bear interest at a rate per annum which is (A) in the
case of the Loans, the rate that would otherwise be applicable thereto pursuant
to the foregoing provisions of this subsection 2.12 plus 2% or (B) in the case
of Reimbursement Obligations, overdue interest, commitment fee or other amount
payable at a rate per annum equal to the rate applicable to ABR Loans under the
relevant Facility plus 2% (or, in the case of any such other amounts that do not
relate to a particular Facility, the rate applicable to ABR Loans under the
Revolving Credit Facility plus 2%), in each case, with respect to clauses (i)
and (ii) above, from the date of such non-payment until such amount is paid in
full (after judgment as well as before judgment).
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(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
subsection 2.12 shall be payable from time to time on demand.
2.13 Computation of Interest and Fees. (a) Interest, fees and
other amounts payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to ABR Loans
the rate of interest on which is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower and the relevant Lenders of
each determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the ABR or the Eurocurrency Reserve Requirements
shall become effective as of the opening of business on the day on which such
change becomes effective. The Administrative Agent shall as soon as practicable
notify the Borrower and the relevant Lenders of the effective date and the
amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to subsections
2.12.
2.14 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination, absent manifest error, shall be conclusive and binding
upon the Borrower) that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Required Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such
Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans requested to be made on the first day
of such Interest Period shall be made as ABR Loans, (y) any Loans that were to
have been converted on the first day of such Interest Period to Eurodollar Loans
shall be continued as ABR Loans and (z) any outstanding Eurodollar Loans shall
be converted to ABR Loans on the last day of the Interest Period applicable
thereto. Until such notice has been withdrawn by the Administrative Agent (which
the Administrative Agent agrees to do when the circumstances that prompted
delivery of such notice no longer exist), no further Eurodollar Loans under the
relevant Facility shall be made or continued as such, nor shall the Borrower
have the right to convert Loans under the relevant Facility to Eurodollar Loans.
2.15 Pro Rata Treatment and Payments. (a) Each borrowing by
the Borrower from the Lenders hereunder, each payment by the Borrower on account
of any commitment fee and any reduction of the Commitments of the Lenders shall
be made, with regard to the applicable Facility, pro rata according to the
respective Committed Term Loan Percentages, Incremental Term Loan Percentages or
Revolving Credit Percentages, as the case may be, of the relevant Lenders.
(b) Whenever (i) any payment received by the Administrative
Agent under this Agreement or any Note or (ii) any other amounts received by the
Administrative Agent for or on behalf
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of the Borrower (including, without limitation, proceeds of collateral or
payments under any guarantee) is insufficient to pay in full all amounts then
due and payable to the Administrative Agent and the Lenders under this Agreement
and any Note, such payment shall be distributed by the Administrative Agent and
applied by the Administrative Agent and the Lenders in the following order:
first, to the payment of fees and expenses due and payable to the Administrative
Agent under and in connection with this Agreement; second, to the payment of all
expenses due and payable under subsection 10.5, ratably among the Administrative
Agent and the Lenders in accordance with the aggregate amount of such payments
owed to the Administrative Agent and each such Lender; third, to the payment of
fees due and payable under subsections 2.6 and 3.3, ratably among the Revolving
Credit Lenders in accordance with the Revolving Credit Commitment of each
Revolving Credit Lender, the Committed Term Loan Lenders in accordance with the
Delayed Term Loan Commitments of each Committed Term Loan Lender, if applicable,
and, in the case of the Issuing Lender, the amount retained by the Issuing
Lender for its own account pursuant to subsection 3.3(a); fourth, to the payment
of interest then due and payable under the Loans, ratably in accordance with the
aggregate amount of interest owed to each such Lender; and fifth, to the payment
of the principal amount of the Loans and the L/C Obligations then due and
payable and, in the case of proceeds of collateral or payments under any
guarantee, to the payment of any other obligations to any Lender not covered in
first through fourth above ratably secured by such collateral or ratably
guaranteed under any such guarantee, ratably among the Lenders in accordance
with the aggregate principal amount and, in the case of proceeds of collateral
or payments under any guarantee, the obligations secured or guaranteed thereby
owed to each such Lender.
(c) If any Revolving Credit Lender or Committed Term Loan
Lender (each, a "Non-Funding Lender") has (x) failed to make a Revolving Credit
Loan or Delayed Term Loan, as applicable, required to be made by it hereunder,
and the Administrative Agent has determined that such Revolving Credit Lender or
Committed Term Loan Lender, as applicable, is not likely to make such Revolving
Credit Loan or Delayed Term Loan, as applicable, or (y) given notice to the
Borrower or the Administrative Agent that it will not make, or that it has
disaffirmed or repudiated any obligation to make, any Revolving Credit Loans or
Delayed Term Loans, as applicable, in each case by reason of the provisions of
the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as
amended, or otherwise, any payment made on account of the principal of the
Revolving Credit Loans or Committed Term Loans, as applicable, outstanding shall
be made as follows:
(i) with respect to Revolving Credit Loans, in the case
of any such payment made on any date when and to the extent that, in
the determination of the Administrative Agent, the Borrower would be
able, under the terms and conditions hereof, to reborrow the amount of
such payment under the Revolving Credit Commitments and to satisfy any
applicable conditions precedent set forth in subsection 5.2 to such
reborrowing, such payment shall be made on account of the outstanding
Revolving Credit Loans held by the Revolving Credit Lenders other than
the Non-Funding Lender pro rata according to the respective outstanding
principal amounts of the Revolving Credit Loans of such Revolving
Credit Lenders;
(ii) otherwise, such payment shall be made on account of
the outstanding Revolving Credit Loans or Committed Term Loans, as
applicable, held by the Revolving Credit Lenders or Committed Term Loan
Lenders, as applicable, pro rata according to the respective
outstanding principal amounts of such Revolving Credit Loans or
Committed Term Loans, as applicable; and
(iii) any payment made on account of interest on the
Revolving Credit Loans or Committed Term Loans, as applicable, shall be
made pro rata according to the respective amounts of accrued and unpaid
interest due and payable on the Revolving Credit Loans or Committed
Term Loans, as applicable, with respect to which such payment is being
made.
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The Borrower agrees to give the Administrative Agent such assistance in making
any determination pursuant to this paragraph as the Administrative Agent may
reasonably request. Any such determination by the Administrative Agent shall be
conclusive and binding on the Lenders.
(d) Subject to subsection 2.15(c) and subsection 2.9(e), each
payment (including each prepayment) by the Borrower on account of principal of
and interest on the Committed Term Loans and the Incremental Term Loans shall be
made pro rata according to the respective outstanding principal amounts of the
applicable Term Loans then held by the applicable Term Loan Lenders.
(e) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on the Loans (other than the Term Loans)
shall be made first to the Swingline Loans and then pro rata according to the
respective outstanding principal amounts of the Revolving Credit Loans then held
by the Revolving Credit Lenders.
(f) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Administrative Agent's office
specified in subsection 10.2, in Dollars and in immediately available funds.
Payments received by the Administrative Agent after such time shall be deemed to
have been received on the next Business Day. The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business Day
(except, in the case of Eurodollar Loans, as otherwise provided in clause (i) of
the definition of "Interest Period"). In the case of any extension of any
payment of principal pursuant to the preceding sentence, interest thereon shall
be payable at the then applicable rate during such extension.
(g) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a Borrowing Date that such Lender will not
make the amount that would constitute its share of such borrowing available to
the Administrative Agent, the Administrative Agent may assume that such Lender
is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the greater of the daily average Federal
Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this subsection 2.15(g) shall be conclusive
in the absence of manifest error. If such Lender's share of such borrowing is
not made available to the Administrative Agent by such Lender within three
Business Days of such Borrowing Date, the Administrative Agent shall also be
entitled to recover such amount with interest thereon at the rate per annum
applicable to ABR Loans under the relevant Facility, on demand, from the
Borrower. The failure of any Lender to make any Loan to be made by it shall not
relieve any other Lender of its obligation, if any, hereunder to make its Loan
on such Borrowing Date, but no Lender shall be responsible for the failure of
any other Lender to make the Loan to be made by such other Lender on such
Borrowing Date.
2.16 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
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(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
Application or any Eurodollar Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by subsection 2.17 and the establishment of
a tax based on the net income of such Lender and changes in the rate of
tax on the net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable, provided that before making
any such demand, each Lender agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions and so long as such
efforts would not be disadvantageous to it, in its reasonable discretion, in any
legal, economic or regulatory manner) to designate a different Eurodollar
lending office if the making of such designation would allow the Lender or its
Eurodollar lending office to continue to perform its obligations to make
Eurodollar Loans or to continue to fund or maintain Eurodollar Loans and avoid
the need for, or materially reduce the amount of, such increased cost. If any
Lender becomes entitled to claim any additional amounts pursuant to this
subsection 2.16, it shall promptly notify the Borrower, through the
Administrative Agent, of the event by reason of which it has become so entitled.
If the Borrower notifies the Administrative Agent within five Business Days
after any Lender notifies the Borrower of any increased cost pursuant to the
foregoing provisions of this subsection 2.16(a), the Borrower may convert all
Eurodollar Loans of such Lender then outstanding into ABR Loans in accordance
with subsection 2.10 and shall, additionally, reimburse such Lender for any cost
in accordance with subsection 2.18.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender, to the Borrower, through the Administrative Agent, of
a written request therefor, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such corporation
for such reduction.
(c) A certificate as to any additional amounts payable
pursuant to this subsection 2.16, showing in reasonable detail the calculation
thereof and certifying that it is generally charging such costs to other
similarly situated borrowers under similar credit facilities, submitted by any
Lender through the Administrative Agent shall be conclusive in the absence of
manifest error, provided that the determination of such amounts shall be made in
good faith in a manner generally consistent with such Lender's standard
practices. The obligations of the Borrower pursuant to this subsection 2.16
shall
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survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder for a period of nine months thereafter.
2.17 Taxes. (a) Except as provided below in this subsection,
all payments made by the Borrower under this Agreement shall be made free and
clear of, and without deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding net income taxes
and franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or any Lender as a result of a present or former connection
between the Administrative Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
the Administrative Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement or any
other Loan Document). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes") are required to
be withheld from any amounts payable to the Administrative Agent or any Lender
hereunder, the amounts so payable to the Administrative Agent or such Lender
shall be increased to the extent necessary to yield to the Administrative Agent
or such Lender (after payment of all Non-Excluded Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts specified in this
Agreement; provided, however, that the Borrower shall be entitled to deduct and
withhold any Non-Excluded Taxes and shall not be required to increase any such
amounts payable to any Lender that is not organized under the laws of the United
States of America or a state thereof to the extent such Lender's compliance with
the requirements of subsection 2.17(b) at the time such Lender becomes a party
to this Agreement fails to establish a complete exemption from such withholding
or to the extent such failure to establish a complete exemption from such
withholding thereafter is attributable to the actions of such Lender. Whenever
any Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this subsection 2.17
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder for a period of nine months thereafter.
(b) Each Lender (or Transferee) that is not a United States
person within the meaning of Section 7701(a)(30) of the Code (a "Non-U.S.
Lender") shall deliver to the Borrower and the Administrative Agent (or, in the
case of a Participant, to the Lender from which the related participation shall
have been purchased) two copies of either U.S. Internal Revenue Service Form
1001 or Form 4224, or, in the case of a Non-U.S. Lender claiming exemption from
U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of "portfolio interest", a Form W-8, or any subsequent
versions thereof or successors thereto (and, if such Non-U.S. Lender delivers a
Form W-8, an annual certificate representing, under penalty of perjury, that
such Non-U.S. Lender is not a "bank" for purposes of Section 881(c) of the Code,
is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of
the Code) of the Borrower and is not a controlled foreign corporation related to
the Borrower (within the meaning of Section 864(d)(4) of the Code)), properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
from, or a reduced rate of, U.S. federal withholding tax on all payments by the
Borrower under this Agreement and the other Loan Documents. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a party to
this Agreement (or, in the case of any Participant, on or before the date such
Participant purchases the related participation). In addition, each Non-U.S.
Lender shall deliver such forms on or before the expiration or obsolescence and
promptly upon the invalidity of any form previously delivered by such Non-U.S.
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Lender and after the occurrence of any event requiring a change in the most
recently provided form and, if necessary, obtain any extensions of time
reasonably requested by the Borrower or the Administrative Agent for filing and
completing such forms. Each Non-U.S. Lender (and, if applicable, any other
Lender or Transferee) agrees, to the extent legally entitled to do so, upon
reasonable request by the Borrower, to provide to the Borrower (for the benefit
of the Borrower and the Administrative Agent) such other forms as may be
reasonably required in order to establish the legal entitlement of such Lender
to an exemption from withholding with respect to payments of interest under this
Agreement or the other Loan Documents, provided that in determining the
reasonableness of such a request, such Lender shall be entitled to consider the
cost of complying with such request (to the extent unreimbursed by the Borrower)
that would be imposed on such Lender. Each Non-U.S. Lender shall promptly notify
the Borrower at any time it determines that it is no longer in a position to
provide any previously delivered certificate to the Borrower (or any other form
of certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this subsection 2.17(b), a Non-U.S.
Lender shall not be required to deliver any form pursuant to this subsection
2.17(b) that such Non-U.S. Lender is not legally able to deliver. If the
Administrative Agent or any Lender (or Transferee) receives a refund in respect
of Non-Excluded Taxes paid by the Borrower, it shall promptly pay such refund,
together with any other amounts paid by the Borrower in connection with such
refunded Non-Excluded Taxes, to the Borrower, net of all out-of-pocket expenses
of such Lender incurred in obtaining such refund, provided that the Borrower
agrees to promptly return such refund to the Administrative Agent or the
applicable Lender if it receives notices from the Administrative Agent or
applicable Lender that such Administrative Agent or Lender is required to repay
such refund.
2.18 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss (excluding loss of profit) or
expense which such Lender actually incurs as a consequence of (a) withdrawal of
notice given by the Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (b)
failure by the Borrower to make any prepayment after the Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (c) the
making of a prepayment of Eurodollar Loans on a day which is not the last day of
an Interest Period with respect thereto. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest which would
have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate
of interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) which would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. A certificate as to any
amounts payable pursuant to this subsection 2.18, showing in reasonable detail
the calculation thereof, submitted to the Borrower by any Lender shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder for a period of nine months thereafter.
2.19 Change of Lending Office. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of subsection 2.16 or
2.17(a) with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event, provided that such
designation is made on terms that in the reasonable judgment of such Lender,
cause such Lender and its lending office(s) to suffer no economic, legal or
regulatory disadvantage, and provided further that nothing in this subsection
2.19 shall affect or postpone any of the obligations of any Borrower or the
rights of any Lender pursuant to subsection 2.16 or 2.17(a).
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2.20 Replacement of Lenders under Certain Circumstances. If at
any time (a) the Borrower becomes obligated to pay additional amounts described
in subsection 2.16 or 2.17 as a result of any condition described in such
subsections or any Lender ceases to make Eurodollar Loans pursuant to subsection
2.16, (b) any Lender becomes insolvent and its assets become subject to a
receiver, liquidator, trustee, custodian or other Person having similar powers,
(c) any Lender becomes a "Non-Consenting Lender" (as defined below in this
subsection 2.20) or (d) any Lender becomes a "Non-Funding Lender", then the
Borrower may, on ten Business Days' prior written notice to the Administrative
Agent and such Lender, replace such Lender by causing such Lender to (and such
Lender shall be obligated to) assign pursuant to subsection 10.6(c) all of its
rights and obligations under this Agreement to a Lender or other entity selected
by the Borrower and reasonably acceptable to the Administrative Agent (and in
the case of Revolving Credit Commitments or Revolving Loans, reasonably
acceptable to the Issuing Lender and the Swingline Lender) for a purchase price
equal to the outstanding principal amount of such Lender's Loans and all accrued
interest and fees and other amounts payable hereunder (including amounts payable
under subsection 2.18 as though such Loans were being paid instead of being
purchased), provided that (i) neither the Administrative Agent nor any Lender
shall have any obligation to the Borrower to find a replacement Lender or other
such entity, (ii) in the event of a replacement of a Non-Consenting Lender or a
Lender to which the Borrower becomes obligated to pay additional amounts
pursuant to clause (a) of this subsection 2.20, in order for the Borrower to be
entitled to replace such a Lender, such replacement must take place no later
than 180 days after (A) the date the Non-Consenting Lender shall have notified
the Borrower and the Administrative Agent of its failure to agree to any
requested consent, waiver or amendment or (B) the Lender shall have demanded
payment of additional amounts under one of the subsections described in clause
(a) of this subsection 2.20, as the case may be, and (iii) in no event shall the
Lender hereby replaced be required to pay or surrender to such replacement
Lender or other entity any of the fees received by such Lender hereby replaced
pursuant to this Agreement. In the case of a replacement of a Lender to which
the Borrower becomes obligated to pay additional amounts pursuant to clause (a)
of this subsection 2.20, the Borrower shall pay such additional amounts to such
Lender prior to such Lender being replaced and the payment of such additional
amounts shall be a condition to the replacement of such Lender. In the event
that (x) the Borrower or the Administrative Agent has requested the Lenders to
consent to a departure or waiver of any provisions of the Loan Documents or to
agree to any amendment thereto, (y) the consent, waiver or amendment in question
requires the agreement of all Lenders in accordance with the terms of subsection
10.1 or all the Lenders with respect to a certain class of the Loans and (z)
Required Lenders or more than 50% of the class of such Lenders have agreed to
such consent, waiver or amendment, then any Lender who does not agree to such
consent, waiver or amendment shall be deemed a "Non-Consenting Lender". The
Borrower's right to replace a Non-Funding Lender pursuant to this subsection
2.20 is, and shall be, in addition to, and not in lieu of, all other rights and
remedies available to the Borrower against such Non-Funding Lender under this
Agreement, at law, in equity, or by statute.
2.21 Notice of Certain Costs. Notwithstanding anything in this
Agreement to the contrary, to the extent any notice required by subsection 2.15
through and including subsection 2.18 is given by any Lender more than 90 days
after such Lender has knowledge (or should have had knowledge) of the occurrence
of the event giving rise to the additional cost, reduction in amounts, loss, tax
or other additional amounts described in such subsections, such Lender shall not
be entitled to compensation under such subsections for any such amounts incurred
or accruing prior to the giving of such notice to the Borrower.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other Revolving
Credit Lenders set forth in
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subsection 3.4(a), agrees to issue letters of credit ("Letters of Credit") for
the account of the Borrower on any Business Day during the Revolving Credit
Commitment Period in such form as may be approved from time to time by the
Issuing Lender, provided that the Issuing Lender shall not have any obligation
to issue any Letter of Credit if, after giving effect to such issuance, (i) the
L/C Obligations would exceed the L/C Commitment or (ii) the aggregate amount of
the Available Revolving Credit Commitments would be less than zero. Each Letter
of Credit shall (i) be denominated in Dollars and (ii) expire no later than the
earlier of (x) the first anniversary of its date of issuance and (y) the date
which is five Business Days prior to the Scheduled Revolving Credit Termination
Date, provided that any Letter of Credit with a one-year term may provide for
the renewal thereof for additional one-year periods (which shall in no event
extend beyond the date referred to in clause (y) above).
(b) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York.
(c) The Issuing Lender shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any L/C Participant to exceed any limits imposed by,
any applicable Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. The Borrower
may from time to time request that the Issuing Lender issue a Letter of Credit
by delivering to the Issuing Lender at its address for notices specified herein
an Application therefor, completed to the satisfaction of the Issuing Lender,
and such other certificates, documents and other papers and information as the
Issuing Lender may reasonably request. Upon receipt of any Application, the
Issuing Lender will process such Application and the certificates, documents and
other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Letter of
Credit requested thereby (but in no event shall the Issuing Lender be required
to issue any Letter of Credit earlier than three Business Days after its receipt
of the Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed to by the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such
Letter of Credit to the Borrower promptly following the issuance thereof. The
Issuing Lender shall promptly furnish to the Administrative Agent notice of the
issuance of each Letter of Credit (including the amount thereof). The
Administrative Agent will furnish to the Revolving Credit Lenders (a) prompt
notice of the issuance of each standby Letter of Credit and (b) a monthly report
setting forth for the relevant month the total aggregate daily amount available
to be drawn under commercial Letters of Credit that were outstanding during such
month.
3.3 Commissions, Fees and Other Charges. (a) The Borrower will
pay to the Administrative Agent, for the account of each Revolving Credit
Lender, a commission on the average daily face amount of each Letter of Credit
at a per annum rate equal to the Applicable Margin then in effect with respect
to Eurodollar Loans under the Revolving Credit Facility minus the fronting fee
referred to below, shared ratably among the Revolving Credit Lenders and payable
quarterly in arrears on each L/C Fee Payment Date after the issuance date. In
addition, the Borrower shall pay to the Issuing Lender for its own account a
fronting fee of 1/4 of 1% per annum of the average daily face amount of each
Letter of Credit issued by the Issuing Lender, payable quarterly in arrears on
each L/C Fee Payment Date after the issuance date.
(b) In addition to the foregoing fees and commissions, the
Borrower shall pay or reimburse the Issuing Lender for such normal and customary
costs and expenses as are incurred or charged by the Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.
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3.4 L/C Participations. (a) The Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
the Issuing Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Percentage in the Issuing Lender's obligations
and rights under each Letter of Credit issued by the Issuing Lender and the
amount of each draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit issued by the Issuing Lender for which the
Issuing Lender is not reimbursed in full by the Borrower in accordance with the
terms of this Agreement, such L/C Participant shall pay to the Issuing Lender
upon demand an amount equal to such L/C Participant's Revolving Credit
Percentage of the amount of such draft or any part thereof, which is not so
reimbursed.
(b) If any amount required to be paid by any L/C Participant
to the Issuing Lender pursuant to subsection 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit is paid to the Issuing Lender within three Business Days after the
date such payment is due, such L/C Participant shall pay to the Issuing Lender
on demand an amount equal to the product of (i) such amount, times (ii) the
greater of the daily average Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation during the period from and including the date such
payment is required to the date on which such payment is immediately available
to the Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
subsection 3.4(a) is not made available to the Issuing Lender by such L/C
Participant within three Business Days after the date such payment is due, the
Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to ABR Loans under the Revolving Credit Facility. A
certificate of the Issuing Lender submitted to any L/C Participant with respect
to any amounts owing under this subsection shall be conclusive in the absence of
manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with subsection 3.4(a), the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by the Issuing Lender), or any payment of interest on account thereof, the
Issuing Lender will distribute to such L/C Participant its pro rata share
thereof; provided, however, that in the event that any such payment received by
the Issuing Lender shall be required to be returned by the Issuing Lender, such
L/C Participant shall return to the Issuing Lender the portion thereof
previously distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. The Borrower
agrees to reimburse the Issuing Lender on each date on which the Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by the Issuing Lender for the amount of (a) such draft
so paid and (b) any taxes, fees, charges or other costs or expenses incurred by
the Issuing Lender in connection with such payment. Each such payment shall be
made to the Issuing Lender in Dollars and in immediately available funds.
Interest shall be payable on any and all amounts remaining unpaid by the
Borrower under this subsection from the date such amounts become payable
(whether at stated maturity, by acceleration or otherwise) until payment in full
at the rate set forth in subsection 2.12(c).
3.6 Obligations Absolute. The Borrower's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Issuing Lender (except to
the extent resulting from the gross negligence or willful misconduct of the
Issuing Lender), any beneficiary of a Letter of Credit or any other Person. The
Borrower also agrees with the Issuing Lender
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that, subject to the last sentence of this subsection 3.6, the Issuing Lender
shall not be responsible for, and the Borrower's Reimbursement Obligations under
subsection 3.5 shall not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even though such
documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among the Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
any claims whatsoever of the Borrower against any beneficiary of such Letter of
Credit or any such transferee. The Issuing Lender shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter of
Credit, except for errors, omissions or delays in transmission found by a final
and nonappealable decision of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the Issuing Lender. The
Borrower agrees that any action taken or omitted by the Issuing Lender under or
in connection with any Letter of Credit or the related drafts or documents, if
done in the absence of gross negligence or willful misconduct and in accordance
with the standards or care specified in the Uniform Commercial Code of the State
of New York, shall be binding on the Borrower and shall not result in any
liability of the Issuing Lender to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the Issuing Lender shall promptly notify
the Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit issued by it shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that
the documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent, the Lenders, the Swingline
Lender and the Issuing Lender to enter into this Agreement and to make the Loans
and issue or participate in the Letters of Credit, Holdings and the Borrower
hereby represent and warrant to the Administrative Agent, the Swingline Lender,
the Issuing Lender and each Lender that:
4.1 Financial Condition. (a) The audited consolidated
financial statements of the Borrower as of and for the fiscal year ending
December 31, 1997, reported on by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, present fairly the
consolidated financial condition of the Borrower and the results of operations
and cash flows as of such date and for such period. All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the period
involved (except as approved by the relevant firm of accountants and disclosed
therein). The balance sheet contained in the financial statements referred to
above reflects, as required by GAAP, any material Guarantee Obligations,
contingent liabilities and liabilities for taxes, and any long-term leases and
unusual forward or long-term commitments, including, without limitation, any
interest rate or foreign currency swap or exchange transaction or other
obligation in respect of derivatives, in each case as of the date of such
balance sheet.
(b) The unaudited projected pro forma consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at April 30, 1998
(including the notes thereto) (the "Pro Forma Balance Sheet"), copies of which
have heretofore been furnished to each Lender, have each been prepared giving
effect (as if such events had occurred on such date) to (i) the consummation of
the Purchase Transactions and the Exchange Transactions, (ii) the Loans to be
made hereunder on the Closing Date and the use of
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proceeds thereof and (iii) the payment of fees and expenses in connection with
the foregoing. The Pro Forma Balance Sheet presents fairly on a pro forma basis
the financial position of Holdings and its consolidated Subsidiaries, as at
April 30, 1998 and is based upon good faith estimates and assumptions believed
by management of Holdings and the Borrower to be reasonable at the time made,
assuming that the events specified in the preceding sentence had actually
occurred at such date.
4.2 No Change. Since December 31, 1997, there has been no (a)
development or event which has had or could reasonably be expected to have a
Material Adverse Effect or (b) sale, transfer or other disposition by the
Borrower or any of its Subsidiaries of any material part of its business or
property, other than as contemplated in the Exchange Transactions.
4.3 Corporate Existence; Compliance with Law. Each of Holdings
and its Subsidiaries (a) is duly organized or formed, as the case may be,
validly existing and in good standing under the laws of the jurisdiction of its
organization or formation, (b) has the requisite power and authority, and the
legal right, to own and operate its property, to lease the property it operates
as lessee and to conduct the business in which it is currently engaged, (c) is
duly qualified as a foreign corporation and in good standing under the laws of
each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification except to the extent that
the failure to so qualify could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect and (d) is in compliance with all Requirements of
Law except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations.
Each Loan Party has (or had) the requisite power and authority, and the legal
right, to make, deliver and perform the Loan Documents, the Purchase Agreement
and the Exchange Agreement to the extent a party thereto and, in the case of the
Borrower, to borrow and obtain other extensions of credit hereunder. Each Loan
Party has taken all necessary corporate or other action to authorize the
execution, delivery and performance of the Loan Documents and the Transaction
Documents to which it is a party and, in the case of the Borrower, to authorize
the borrowings and other extensions of credit on the terms and conditions of
this Agreement. Other than consents from the FCC as required pursuant to the
Purchase Agreement and the Exchange Agreement, no consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the Purchase
Transactions and the Exchange Transactions and the borrowings and other
extensions of credit hereunder or with the execution, delivery, performance,
validity or enforceability of this Agreement, any of the other Loan Documents or
the Transaction Documents, except (i) consents, authorizations, filings and
notices described in Schedule 4.4, which consents, authorizations, filings and
notices have been obtained or made and are in full force and effect, (ii)
consents under immaterial Contractual Obligations and (iii) the filings referred
to in subsection 4.19. Each Loan Document and each Transaction Document has been
duly executed and delivered on behalf of each Loan Party thereto. This Agreement
and each Transaction Document constitutes, and each Loan Document upon execution
will constitute, a legal, valid and binding obligation of each Loan party
thereto, enforceable against each such Loan Party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of
this Agreement, the Transaction Documents and the Loan Documents, the issuance
of Letters of Credit, the borrowings hereunder and the use of the proceeds
thereof will not violate any Requirement of Law or any material Contractual
Obligation of any of the Loan Parties and will not result in, or require, the
creation or imposition of any Lien on any of their respective properties or
revenues pursuant to any Requirement of Law or any such material Contractual
Obligation (other than the Liens created by the Security Documents).
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4.6 No Material Litigation. Except as set forth in Schedule
4.6, no litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of Holdings or the
Borrower, threatened by or against any of the Loan Parties or against any of
their respective properties or revenues (a) with respect to any of the Loan
Documents or any of the transactions contemplated hereby or thereby, (b) as of
the Closing Date, with respect to the Transaction Documents or any of the
transactions contemplated thereby or (c) which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect.
4.7 No Default. None of the Loan Parties is in default under
or with respect to any of its Contractual Obligations (including the Transaction
Documents) in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of the Loan Parties has
title in fee simple to, or a valid leasehold interest in, all its material real
property, and good title to, or a valid leasehold interest in, all its other
material property, and none of such property is subject to any Lien except as
permitted by subsection 7.3.
4.9 Intellectual Property. Each of the Borrower and each of
its Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
service marks, copyrights, technology, know-how and processes ("Intellectual
Property") necessary for the conduct of its business as currently conducted,
except for those the failure to own or license which could not reasonably be
expected to have a Material Adverse Effect. Except as, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect and to the
knowledge of Holdings and the Borrower (a) no claim has been asserted and is
pending by any Person challenging or questioning the use of any Intellectual
Property or the validity of any Intellectual Property (nor does Holdings or the
Borrower know of any valid basis for any such claim) and (b) the use of
Intellectual Property by the Borrower and its Subsidiaries does not infringe on
the rights of, and no Intellectual Property of the Borrower or any of its
Subsidiaries is being infringed upon by, any Person.
4.10 Taxes. Each of the Loan Parties has filed or caused to be
filed all Federal and all other material tax returns which are required to be
filed and has paid all taxes shown to be due and payable on said returns or on
any material assessments made against it or any of its property and all other
material taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than (a) any taxes, fees or other charges the
amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the applicable Loan Party, and (b)
taxes, assessments, fees or other charges imposed by any Governmental Authority,
other than income taxes imposed by the United States of America, with respect to
which the failure to make payments could not, by reason of the amount thereof or
of remedies available to such Governmental Authorities, reasonably be expected
to have a Material Adverse Effect); and no tax Lien has been filed, and, to the
knowledge of Holdings and the Borrower, no material claim is being asserted,
with respect to any such material tax, fee or other charge, other than those
being contested in good faith by appropriate proceedings and with respect to
which reserves in conformity with GAAP have been provided on the books of the
Loan Parties.
4.11 Federal Regulations. No Letters of Credit and no part of
the proceeds of any Loans will be used for "buying" or "carrying" any "margin
stock" within the respective meanings of each of the quoted terms under
Regulation G or Regulation U of the Board as now and from time to time hereafter
in effect or for any purpose which violates the provisions of the Regulations of
the Board. If requested by any Lender or the Administrative Agent, the Borrower
will furnish to the Administrative Agent and each Lender a statement to the
foregoing effect in conformity with the requirements of FR Form G-3 or FR Form
U-1 referred to in said Regulation G or Regulation U, as the case may be.
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4.12 Labor Matters. Except as set forth on Schedule 4.12,
there are no strikes or other labor disputes against the Borrower or any of its
Subsidiaries pending or, to the knowledge of Holdings and the Borrower,
threatened that (individually or in the aggregate) could reasonably be expected
to have a Material Adverse Effect. Hours worked by and payments made to
employees of the Borrower and its Subsidiaries have not been in violation of the
Fair Labor Standards Act or any other applicable Requirement of Law dealing with
such matters that (individually or in the aggregate) could reasonably be
expected to have a Material Adverse Effect. To the knowledge of Holdings and the
Borrower, all payments due from the Borrower or any of its Subsidiaries on
account of employee health and welfare insurance that (individually or in the
aggregate) could reasonably be expected to have a Material Adverse Effect if not
paid have been paid or accrued as a liability on the books of the Borrower or
the relevant Subsidiary.
4.13 ERISA. Except where the liability, individually or in the
aggregate, which could reasonably be expected to result has not had or could not
reasonably be expected to have a Material Adverse Effect: (a) neither a
Reportable Event nor an "accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Single Employer Plan; (b) each Plan (other than
a Multiemployer Plan) has complied in all material respects with the applicable
provisions of ERISA and the Code; (c) no termination of a Single Employer Plan
has occurred, and no Lien in favor of the PBGC or a Single Employer Plan has
arisen and remains outstanding, during such five-year period; (d) the present
value of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
in an amount that could reasonably be expected to have a Material Adverse
Effect; (e) none of the Loan Parties nor any Commonly Controlled Entity has had
a complete or partial withdrawal from any Multiemployer Plan, and, to the
knowledge of the Loan Parties, none of the Loan Parties nor any Commonly
Controlled Entity would become subject to any liability under ERISA if the Loan
Parties or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding the date
on which this representation is made or deemed made; (f) no such Multiemployer
Plan is in Reorganization or Insolvent; (g) the present value (determined using
actuarial and other assumptions which are reasonable in respect of the benefits
provided and the employees participating) of the liability of the Borrower and
each Commonly Controlled Entity for post retirement benefits to be provided to
their current and former employees under Plans which are welfare benefit plans
(as defined in Section 3(l) of ERISA) does not, in the aggregate, exceed the
assets under all such Plans allocable to such benefits.
4.14 Investment Company Act; Other Regulations. No Loan Party
is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness.
4.15 Subsidiaries. The Subsidiaries listed on Schedule 4.15
constitute after the completion of the Purchase Transactions and the Exchange
Transactions all the Subsidiaries of the Borrower at the date hereof. Holdings
has no Subsidiaries other than the Borrower.
4.16 Use of Proceeds. The proceeds of the Loans and the
issuances of Letters of Credit shall be used solely for the purposes specified
in the preamble of this Agreement.
4.17 Environmental Matters. Except as set forth on Schedule
4.17:
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(a) The facilities and properties owned, leased or operated by
the Borrower or any of its Subsidiaries (the "Properties") do not contain, and
have not previously contained, any Materials of Environmental Concern in amounts
or concentrations or under such conditions which (i) constitute or constituted a
violation of, or could reasonably be expected to give rise to liability under,
any Environmental Law in effect at the time of the making of this
representation, or (ii) could materially and adversely interfere with the
continued operation of the Properties, or (iii) materially impair the fair
saleable value thereof except in each case insofar as such violation, liability,
interference, or reduction in fair market value, or any aggregation thereof, is
not reasonably likely to result in a Material Adverse Effect.
(b) The business operated by the Borrower or any of its
Subsidiaries (the "Business"), the Properties and all operations at the
Properties are, and to the knowledge of Holdings and the Borrower have been, in
compliance in all respects with all applicable Environmental Laws except for
noncompliance which is not reasonably likely to result in a Material Adverse
Effect.
(c) Neither Holdings, the Borrower nor any of its Subsidiaries
has received any written notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or compliance
with Environmental Laws with regard to any of the Properties or the Business,
nor does Holdings or the Borrower have knowledge or reason to believe that any
such notice will be received or is being threatened except insofar as such
notice or threatened notice, or any aggregation thereof, does not involve a
matter or matters that is or are reasonably likely to result in a Material
Adverse Effect.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in a manner
or to a location which could reasonably be expected to result in the Borrower or
any of its Subsidiaries incurring liability under, any Environmental Law in
effect at the time of the making of this representation, nor have any Materials
of Environmental Concern been generated, treated, stored or disposed of at, on
or under any of the Properties in violation of, or in a manner that could
reasonably be expected to result in the Borrower or any of its Subsidiaries
incurring liability under, any applicable Environmental Law in effect at the
time of the making of this representation except insofar as any such violation
or liability referred to in this paragraph, or any aggregation thereof, is not
reasonably likely to result in a Material Adverse Effect.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of Holdings or the Borrower, threatened,
under any Environmental Law to which Holdings, the Borrower or any of its
Subsidiaries is or will be named as a party with respect to the Properties or
the Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect to
the Properties or the Business except insofar as such proceeding, action,
decree, order or other requirement, or any aggregation thereof, is not
reasonably likely to result in a Material Adverse Effect.
(f) There has been no release or, to the best knowledge of
Holdings or the Borrower, threat of release of Materials of Environmental
Concern at or from the Properties, or arising from or related to the operations
of Holdings or any of its Subsidiaries in connection with the Properties or
otherwise in connection with the Business, in violation of or in amounts or in a
manner that could reasonably give rise to liability under Environmental Laws in
effect at the time of making this representation except insofar as any such
violation or liability referred to in this paragraph, or any aggregation
thereof, is not reasonably likely to result in a Material Adverse Effect.
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4.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document or any other document,
certificate or statement furnished to the Administrative Agent or the Lenders,
or any of them, by or on behalf of any Loan Party for use in connection with the
transactions contemplated by this Agreement or the other Loan Documents (but
excluding all projections and pro forma financial information and other
estimates covered by the next sentence), contained as of the date such
statement, information, document or certificate was so furnished, any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements contained herein or therein not misleading. The
projections and pro forma financial information and other estimates and opinions
contained in the materials referenced above are based upon good faith estimates
and assumptions believed by management of the Borrower to be reasonable at the
time made, it being recognized by the Administrative Agent and the Lenders that
such financial information as it relates to future events is not to be viewed as
fact and that actual results during the period or periods covered by such
financial information may differ from the projected results set forth therein by
a material amount. As of the date hereof, the representations and warranties (a)
of STCBV in the Purchase Agreement are true and correct in all material
respects, (b) of the STC Parties in the Exchange Agreement are true and correct
in all material respects and (c) of all other parties to the Purchase Agreement
and the Exchange Agreement, to the knowledge of Holdings and the Borrower, are
true and correct in all material respects. As of the Closing Date, there is no
fact known to any Loan Party (other than general economic conditions, which
conditions are commonly known and affect businesses generally) that could
reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Loan Documents or in any other
documents, certificates and statements furnished to the Administrative Agent and
the Lenders for use in connection with the transactions contemplated hereby and
by the other Loan Documents.
4.19 Security Documents. (a) Except as described in subsection
10.16, the Guarantee and Collateral Agreement is effective to create in favor of
the Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable security interest in the collateral described therein and proceeds
thereof. In the case of the Pledged Stock and the Pledged Notes, when stock
certificates representing such Pledged Stock or certificates representing such
Pledged Notes are delivered to the Administrative Agent, or when financing
statements in appropriate form are filed in the offices specified on Schedule
4.19(a), and in the case of the other collateral described in the Guarantee and
Collateral Agreement, when financing statements in appropriate form are filed in
the offices specified on Schedule 4.19(a), the Guarantee and Collateral
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the Loan Parties in such collateral and the
proceeds thereof, as security for the Obligations (as defined in the Guarantee
and Collateral Agreement), in each case prior and superior in right to any other
Person subject, except in the case of such Pledged Stock and the Pledged Notes,
to Liens permitted by subsection 7.3.
(b) Each of the Mortgages when executed and delivered will be
effective to create in favor of the Administrative Agent, for the benefit of the
Lenders, a legal, valid and enforceable Lien on the Mortgaged Properties
described therein and proceeds thereof, and when the Mortgages are filed in the
offices specified on Schedule 4.19(b), each Mortgage shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in the Mortgaged Properties and the proceeds thereof, as
security for the Obligations (as defined in the relevant Mortgage), in each case
prior and superior in right to any other Person, subject to Liens permitted by
subsection 7.3.
4.20 Solvency. Each Loan Party is, and after giving effect to
the Purchase Transactions and the Exchange Transactions and the incurrence of
all Indebtedness and obligations being incurred in connection herewith and
therewith will be, Solvent.
4.21 Senior Indebtedness. The Obligations will constitute
"Senior Indebtedness" of the Borrower under and as defined in the Senior
Subordinated Note Indenture. The obligations of each Subsidiary Guarantor and
Holdings under the Guarantee and Collateral Agreement will constitute
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"Guarantor Senior Indebtedness" of such Subsidiary Guarantor or Holdings under
and as defined in the Senior Subordinated Note Indenture.
4.22 Station Licenses. Schedule 4.22 accurately and completely
lists as of the date hereof (after giving effect to the Purchase Transactions
and the Exchange Transactions), for each Station, all Station Licenses granted
or assigned to the Borrower or any of its Subsidiaries (or, in the case of the
Steubenville Station and the Providence Station, to SAC or any of its
Subsidiaries), or under which the Borrower and its Subsidiaries (or, in the case
of the Steubenville Station and the Providence Station, to SAC or any of its
Subsidiaries), have the right to operate such Station. As of the Closing Date,
the Station Licenses listed on Schedule 4.22 with respect to any Station include
all material authorizations, licenses and permits issued by the FCC that are
required or necessary for the operation of such Station, and the conduct of the
business of the Borrower and its Subsidiaries (or SAC and its Subsidiaries) with
respect to such Station, as now conducted or proposed to be conducted. The
Station Licenses listed on Schedule 4.22 will be, as of the Closing Date, issued
in the name of, or validly assigned to the respective License Subsidiary for the
Station being operated under authority of such Station Licenses and validly
issued and in full force and effect, and the Borrower and its Subsidiaries will
have fulfilled and performed in all material respects their obligations with
respect thereto and have full power and authority to operate thereunder, and,
except as described in Schedule 4.22 hereto, all consents to the transfer of
control of the principal broadcasting licenses and any other material Station
Licenses in connection with the transactions contemplated hereby and in the
Transaction Documents shall have been granted by the FCC, provided that such
consents will not be required to have become Final Orders.
4.23 Year 2000 Matters. Any reprogramming required to permit
the proper functioning (but only to the extent that such proper functioning
would otherwise be impaired by the occurrence of the year 2000) in and following
the year 2000 of computer systems and other equipment containing embedded
microchips, in either case owned or operated by Holdings, the Borrower or any of
its Subsidiaries or used or relied upon in the conduct of their business
(including any such systems and other equipment supplied by others or with which
the computer systems of Holdings, the Borrower or any of its Subsidiaries
interface) and the testing of all such systems and other equipment as so
reprogrammed, will be completed in sufficient time for Holdings, the Borrower
and its Subsidiaries to be year 2000 compliant. The costs to Holdings, the
Borrower and its Subsidiaries that have not been incurred as of the date hereof
for such reprogramming and testing and for the other reasonably foreseeable
consequences to them of any improper functioning of other computer systems and
equipment containing embedded microchips due to the occurrence of the year 2000
could not reasonably be expected to result in a Default or Event of Default or
to have a Material Adverse Effect.
4.24 Regulation H. No Mortgage encumbers improved real
property which is located in an area that has been identified by the Secretary
of Housing and Urban Development as an area having special flood hazards and in
which flood insurance has been made available under the National Flood Insurance
Act of 1968.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The agreement
of each Lender to make the initial extension of credit requested to be made by
it is subject to the satisfaction, prior to or concurrently with the making of
such extension of credit on the Closing Date, of the following conditions
precedent:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a Responsible
Officer of the Borrower and Holdings, (ii) the Guarantee and Collateral
Agreement, executed and delivered by a Responsible Officer of
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Holdings, the Borrower and each Subsidiary Guarantor, (iii) the SAC
Pledge Agreement, executed and delivered by a duly authorized officer
of the parties thereto, and (iv) a notice of borrowing pursuant to
subsection 2.2 and subsection 2.5 of this Agreement.
(b) Lien Searches. The Administrative Agent shall have
received the results of a recent lien, tax and judgment search in each
of the jurisdictions and offices where assets of the Loan Parties are
located or recorded, and such search shall reveal no Liens on any of
the assets of Holdings or its Subsidiaries except for Liens permitted
by subsection 7.3 and Liens that will be removed prior to the Closing
Date.
(c) Closing Certificate. The Administrative Agent shall have
received, with a copy for each Lender, a certificate of each Loan
Party, dated the Closing Date, substantially in the form of Exhibit C,
with appropriate insertions and attachments.
(d) Legal Opinions. The Administrative Agent shall have
received the following executed legal opinions:
(i) the legal opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP,
counsel to the Loan Parties, substantially in the form of
Exhibit F; and
(ii) the legal opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
special FCC counsel to the Loan Parties.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement and the Transaction
Documents as the Administrative Agent may reasonably require.
(e) Pledged Stock, Stock Powers. The Administrative Agent
shall have received the certificates representing the shares of Capital
Stock pledged pursuant to the Guarantee and Collateral Agreement,
together with an undated stock power for each such certificate executed
in blank by a Responsible Officer of the pledgor thereof and the
Pledged Notes pledged pursuant to the Guarantee and Collateral
Agreement endorsed in blank by a Responsible Officer of the pledgor
thereof.
(f) Filings, Registrations and Recordings. Each document
(including, without limitation, any Uniform Commercial Code financing
statement and any filings with the FCC or the United States Patent and
Trademark Office) required by the Security Documents or under law or
reasonably requested by the Administrative Agent to be filed,
registered or recorded in order to create in favor of the
Administrative Agent, for the benefit of the Lenders, a perfected Lien
on the collateral described therein, prior and superior in right to any
other Person (other than with respect to Liens expressly permitted by
subsection 7.3), shall be in proper form for filing, registration or
recordation.
(g) Insurance. The Administrative Agent shall have received
insurance certificates satisfying the requirements of subsection 6.5 of
this Agreement.
(h) Fees and Expenses of Lenders. The Administrative Agent and
the Lenders (and their Affiliates) shall have received all fees and
expenses required to be paid by the Borrower on or before the Closing
Date, or provision for payment with proceeds of the initial extensions
of credit hereunder shall have been made by the Borrower.
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(i) The Transactions. The ▇▇▇▇▇▇▇▇ License Transfer and the
Exchange Transactions shall have been consummated or shall be
consummated substantially simultaneously with the initial borrowing of
Loans under this Agreement in accordance with all applicable
Requirements of Law and the terms of the Purchase Agreement and the
Exchange Agreement, respectively, (without giving effect to any
amendments or waivers to the Transaction Documents that could
reasonably be expected adversely to impact the Facilities and are not
reasonably satisfactory to the Lenders).
(j) Repayment of Hearst Loan and Release of Pledge. The Hearst
Loan shall have been repaid in full substantially simultaneously with
the initial borrowing of Loans under this Agreement in accordance with
all applicable Requirements of Law and the terms of the STCBV Sub
Credit Agreement and Hearst shall have released the pledge by STCBV of
all of its right, title and interest in the capital stock of STCBV Sub.
(k) Equity Contribution. The Borrower shall have received cash
proceeds from the issuance of its Capital Stock in an amount sufficient
to remain in compliance with all of the covenants contained in
subsection 7.1 after giving effect to the Purchase Transactions, the
Exchange Transactions and the borrowings made on the Closing Date and
the Borrower shall provide the Lenders with satisfactory evidence of
such compliance (including supporting calculations).
(l) Pro Forma Financial Information and Reconciliation. The
Lenders shall have received (i) a projected pro forma consolidated
balance sheet of Holdings and its Subsidiaries as of April 30, 1998,
after giving effect to the Exchange Transactions and (ii) a
reconciliation of pro forma Consolidated EBITDA on a last 12-month
basis, and such balance sheet and reconciliation shall not, in the
reasonable judgment of the Lenders, reflect any material adverse change
in the consolidated financial condition of the Borrower as reflected in
the financial statements or projections previously furnished to the
Lenders.
(m) Capital Structure. The capital structure of each Loan
Party, after giving effect to the Acquisitions shall be reasonably
satisfactory to the Administrative Agent.
(n) Judicial Actions. (i) There shall be in effect no
temporary restraining order, preliminary or permanent injunction or
other order issued by any court of competent jurisdiction or other
legal restraint or prohibition preventing the consummation of the
Purchase Transactions, the Exchange Transactions or the borrowings and
other transactions contemplated by the Loan Documents, nor shall any
proceeding by any Governmental Authority seeking any of the foregoing
be pending.
(ii) There shall not be any action taken, or any statute,
rule, regulation or order enacted, entered, enforced or deemed
applicable to the Purchase Transactions, the Exchange Transactions or
the borrowings and other transactions contemplated by the Loan
Documents, that makes the consummation of such transactions illegal.
(o) Solvency Opinion. The Lenders shall have received a
solvency certificate in form and substance reasonably satisfactory to
the Lenders from the Chief Financial Officer of Holdings, which shall
certify as to the solvency of Holdings and its Subsidiaries, taken as a
whole, after giving effect to the Purchase Transactions, the Exchange
Transactions, the borrowings hereunder and the other transactions
contemplated hereby.
(p) Consummation of the Transactions. The consummation of the
Purchase Transactions, the Exchange Transactions, the borrowings
hereunder and the other transactions contemplated hereby and by the
other Loan Documents shall not (i) violate any material
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Requirement of Law or (ii) conflict with, or result in a default or
event of default under, any material Contractual Obligation of Holdings
or any of its Subsidiaries.
(q) Governmental Approvals. All requisite Governmental
Authorities and third parties shall have approved or consented to the
Purchase Transactions, the Exchange Transactions, the borrowings
hereunder and the other transactions contemplated by the Loan Documents
to the extent required (including the grant of all required consents of
the FCC (which shall not be required to have become Final Orders) and
other applicable material consents including with respect to the
Network Affiliation Agreements and local marketing agreements of
Holdings and its Subsidiaries, but excluding approvals or consents that
reasonably could not be expected to have a Material Adverse Effect),
all applicable appeal periods shall have expired and there shall be no
action, actual or threatened, of any Governmental Authority that could
reasonably be expected to restrain, prevent or impose materially
burdensome conditions on the Purchase Transactions, the Exchange
Transactions, the borrowings hereunder or the other transactions
contemplated by the Loan Documents.
(r) Certificate as to Network Affiliation Agreements. The
Administrative Agent shall have received a certificate of the chief
executive, chief operating or chief financial officer (or any officer
having comparable duties) of the Borrower to the effect that such
officer has no reason to believe either (i) that the Network
Affiliation Agreements and local marketing agreements of the Borrower
and its Subsidiaries will not remain in full force and effect for the
remaining stated term thereof (other than, with respect to the local
marketing agreements, as a result of any action by any Governmental
Authority affecting the television industry as a whole) or (ii) that
any such Network Affiliation Agreement of the Borrower and its
Subsidiaries will not be renewed upon expiration thereof (it being
understood that such statement shall not relate to the terms of such
renewal).
(s) Station Licenses, etc. The Administrative Agent shall have
received evidence that all of the principal broadcasting licenses
appearing in Schedule 5.1(s) hereto for each of the Stations shall have
been validly issued in the name of, or will be validly assigned to, the
relevant License Subsidiary, and shall be in full force and effect, and
the Borrower and its Subsidiaries will have fulfilled and performed in
all material respects their obligations with respect thereto and have
full power and authority to operate thereunder, and all consents to
such assignments will have been approved by orders of the FCC (which
shall not be required to have become Final Orders).
5.2 Conditions to Each Extension of Credit. The agreement of
each Lender and the Swingline Lender to make any extension of credit requested
to be made by it on any date (including, without limitation, its initial
extension of credit) is subject to the satisfaction of the following conditions
precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by any Loan Party in or pursuant to
the Loan Documents shall be true and correct in all material respects
on and as of such date as if made on and as of such date except for any
representation and warranty which is expressly made as of an earlier
date, which representation and warranty shall have been true and
correct in all material respects as of such earlier date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
(c) Delayed Term Loans. In the case of any Delayed Term Loans
(i) the consummation of the ▇▇▇▇▇ Acquisition simultaneously with such
borrowing in accordance with all applicable
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Requirements of Law and the terms of the ▇▇▇▇▇ Purchase Agreement, (ii)
the Borrower having received cash proceeds from the issuance of its
capital stock in an amount sufficient to remain in compliance with the
covenants contained in subsection 7.1 after giving effect to the
Delayed Term Loans and (iii) the Borrower having provided satisfactory
evidence (including supporting calculations) that on a pro forma basis
as of the date of borrowing of and after giving effect to the Delayed
Term Loans and the ▇▇▇▇▇ Acquisition the Borrower is in compliance with
the covenants contained in subsection 7.1.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
subsection 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
Each of Holdings and the Borrower hereby agree that, so long
as the Commitments remain in effect, any Letter of Credit remains outstanding or
any Loan or other amount is owing to any Lender, the Swingline Lender, the
Issuing Lender or the Administrative Agent hereunder, each of Holdings and the
Borrower shall and (except in the case of delivery of financial information
reports and notices) shall cause each of its Subsidiaries to:
6.1 Financial Statements. Furnish to the Administrative Agent
which shall in turn be promptly distributed by the Administrative Agent to the
Lenders or, in the case of clause (c) hereof, upon the request of any Lender):
(a) as soon as available but in any event within 90 days after
the end of each fiscal year of Holdings and the Borrower, as
applicable, (i) a copy of the audited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such year
and the related audited consolidated statements of operations and of
cash flows for such year, and (ii) the annual operating statements of
each Station, in each case setting forth in comparative form the
figures for the previous year, and, in the case of clause (i), reported
on without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by independent
certified public accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower (i) the unaudited consolidated balance
sheet of each of the Borrower and its consolidated Subsidiaries as at
the end of such quarter and the related unaudited consolidated
statements of income and of cash flows for such quarter and the portion
of the fiscal year through the end of such quarter, and (ii) the
quarterly operating statements of each Station, in each case setting
forth in comparative form the figures for the corresponding period in
the previous year, certified by a Responsible Officer as being fairly
stated in all material respects (subject to normal year-end audit
adjustments); and
(c) as soon as available, but in any event not later than 30
days after the end of each month occurring during each fiscal year of
the Borrower, the unaudited consolidated and consolidating balance
sheet of the Borrower and its consolidated Subsidiaries as at the end
of such month and the related unaudited consolidated and consolidating
(or combined and combining) statements of income and of cash flows for
such month and the portion of the fiscal year through the end of such
month, setting forth in each case in comparative form the figures for
the corresponding period in the previous year (for the first twelve
months from the Closing Date, such previous year's figures shall be on
a pro forma combined and combining Station by Station basis), certified
by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments).
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All such financial statements shall fairly present in all material respects the
financial position of Holdings and its Subsidiaries or the Borrower and its
Subsidiaries, as applicable, as of such date and shall be prepared in reasonable
detail and in accordance with GAAP applied consistently throughout the periods
reflected therein and with prior periods (except as approved by such accountants
or officer, as the case may be, and disclosed therein).
6.2 Certificates; Other Information. Furnish to the
Administrative Agent (which shall in turn be promptly distributed by the
Administrative Agent to the Lenders) or, in the case of clause (g), to the
relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a)(i), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default relating to the
covenants contained in subsections 7.1, except as specified in such
certificate;
(b) concurrently with the delivery of any financial statements
pursuant to subsection 6.1(a) and 6.1(b),(i) a certificate of a
Responsible Officer stating that, to such Responsible Officer's
knowledge, each Loan Party during such period has observed or performed
all of its covenants and other agreements, and satisfied every
condition, contained in this Agreement and the other Loan Documents to
which it is a party to be observed, performed or satisfied by it, in
all material respects, and that such Responsible Officer has obtained
no knowledge of any Default or Event of Default except as specified in
such certificate, (ii) (A) a Compliance Certificate containing all
information necessary for determining compliance by Holdings and its
Subsidiaries with the provisions of this Agreement referred to therein
as of the last day of the relevant fiscal quarter or fiscal year and
(B) to the extent not previously disclosed to the Administrative Agent,
a listing of any state within the United States where any Loan Party
keeps inventory or equipment and of any Intellectual Property arising
under the laws of the United States (or any jurisdiction therein)
acquired by any Loan Party since the date of the most recent list
delivered pursuant to this clause (B) (or, in the case of the first
such list so delivered, since the Closing Date) and (iii) any final
accountants' management letters delivered by the independent certified
public accountants reporting on such financial statements to Holdings
or any of its Subsidiaries;
(c) as soon as available, and in any event no later than 45
days after the end of each fiscal year of Holdings, a detailed
consolidated budget for (i) Holdings and its consolidated Subsidiaries
and (ii) each Station, in each case for such fiscal year (including a
projected consolidated balance sheet of Holdings and its Subsidiaries,
as applicable, as of the end of such fiscal year, and the related
consolidated statements of projected cash flow, projected changes in
financial position and projected income), and, as soon as available,
significant revisions, if any, of such budget and projections with
respect to such fiscal year (collectively, the "Projections"), which
Projections shall in each case be accompanied by a certificate of a
Responsible Officer stating that such Projections are based upon good
faith estimates and assumptions believed by management of Holdings to
be reasonable at the time made, it being recognized by the Lenders that
such financial information as it relates to future events is not to be
viewed as fact and that actual results during the period or periods
covered by such financial information may differ from the projected
results set forth therein by a material amount;
(d) within five days after the same are sent, copies of all
financial statements and reports which Holdings or the Borrower sends
to the holders of any class of its debt securities or public
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equity securities and within five days after the same are filed, copies
of all financial statements and reports which Holdings or the Borrower
may make to, or file with, the Securities and Exchange Commission or
any successor or analogous Governmental Authority;
(e) promptly, at the request of the Administrative Agent or
the Required Lenders, a schedule setting forth, for each Station on a
program-by-program basis, the respective Film Cash Payments for each
fiscal year requested by the Administrative Agent or the Required
Lenders, as the case may be;
(f) promptly following their submission with the FCC or any
other Federal, state or local Governmental Authority, copies of any and
all periodic or special reports filed by Holdings or any of its
Subsidiaries (or, with respect to the Steubenville Station and the
Providence Station, SBP), if such reports are publicly available and
indicate any material adverse change in the business, operations or
financial condition of Holdings or any of its Subsidiaries or if copies
thereof are requested by any Lender or the Administrative Agent (but
only to the extent such reports are publicly available), and copies of
any and all material notices and other material communications from the
FCC or from any other Federal, state or local Governmental Authority
with respect to Holdings or any of its Subsidiaries or any Station; and
(g) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of Holdings or its Subsidiaries, as the case may be,
provided that notwithstanding the foregoing, Holdings and each of its
Subsidiaries shall have the right to pay any such obligation and in good faith
contest, by proper legal actions or proceedings, the validity or amount of such
claims.
6.4 Conduct of Business and Maintenance of Existence, etc. (a)
Except as contemplated by subsection 7.4, (i) continue to engage in business of
the same general type as now conducted by it, (ii) preserve, renew and keep in
full force and effect its existence and (iii) take all reasonable action to
preserve and maintain all rights, privileges, licenses and franchises necessary
or desirable in the normal conduct of its business, except (other than with
respect to the Station Licenses), in the case of this clause (iii), to the
extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect and except if (A) in the reasonable business judgment of
Holdings, the Borrower or such Subsidiary, as the case may be, it is in its best
economic interest not to preserve and maintain such privileges, rights or
franchises (other than the Station Licenses), and (B) such failure to preserve
and maintain such privileges, rights or franchises (other than the Station
Licenses) would not materially adversely affect the rights of the Lenders
hereunder or the value of the collateral security for the Loans; (b) comply with
all Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect and (c) comply in all material respects with
the terms of all Station Licenses.
6.5 Maintenance of Property; Insurance. (a) Keep all property
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted, and maintain with financially sound and
reputable insurance companies insurance on all its property in at least such
amounts and against at least such risks (but including in any event public
liability, product liability and business interruption) as are usually insured
against in the same general area by companies engaged in the same or a similar
business or as otherwise reasonably requested by the Administrative Agent; and
furnish to the Administrative Agent, upon written request, information in
reasonable detail as to the
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insurance carried except to the extent that the failure to do any of
the foregoing with respect to any such property could not reasonably be
expected to materially adversely affect the value or usefulness of such
property.
(b) All such insurance shall (i) provide that no cancellation,
material reduction in amount or material change in coverage thereof shall be
effective until at least thirty (30) days after receipt by the Administrative
Agent of written notice thereof, (ii) name the Administrative Agent as insured
party or loss payee and (iii) if reasonably requested by the Administrative
Agent, include a breach of warranty clause.
6.6 Inspection of Property; Books and Records; Discussions.
(a) Keep proper books of records and accounts in accordance with sound business
practices and (b) upon reasonable prior notice and at any reasonable time,
permit representatives of the Administrative Agent or any Lender to visit and
inspect any of its properties and examine and, if reasonably requested, make
copies of its contracts, books and records and to discuss the business,
operations, properties and financial and other condition of Holdings and its
Subsidiaries with officers and employees of Holdings and its Subsidiaries and
with its independent certified public accountants, provided that the
Administrative Agent or such Lender shall notify Holdings and the Borrower prior
to any contact with such accountants and give Holdings and the Borrower the
opportunity to participate in such discussions.
6.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of Holdings or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between
Holdings or any of its Subsidiaries and any Governmental Authority and
which has a reasonable likelihood of being adversely determined, which
in either case, if not cured or if adversely determined, as the case
may be, could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting Holdings or any of
its Subsidiaries in which the amount involved is $1,000,000 or more and
not covered by insurance or in which injunctive or similar relief is
sought;
(d) the following events, as soon as possible and in any event
within 30 days after Holdings or the Borrower knows or has reason to
know thereof and if, individually or in the aggregate, the liability
that could reasonably be expected to result would be material to
Holdings and its Subsidiaries taken as a whole: (i) the occurrence of
any Reportable Event with respect to any Plan (other than a
Multiemployer Plan), a failure to make any required contribution to a
Plan, the creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of,
any Multiemployer Plan or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the termination, Reorganization or Insolvency of,
any Plan;
(e) any development or event which has had or could reasonably
be expected to have a Material Adverse Effect; and
(f) the receipt by Holdings or any of its Subsidiaries of any
complaint, order, citation, notice or other written communication from
any Person with respect to the existence or alleged existence of a
violation of any Environmental Laws or Materials of Environmental
Concern or
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any other environmental matter including the occurrence of any spill,
discharge or release in a quantity that is reportable under any
Environmental Laws on any Mortgaged Properties or any other property
owned, leased or utilized by Holdings or any of its Subsidiaries but
only to the extent that such complaint, order, citation, notice or
written communication individually could reasonably be expected to
result in liability or an obligation under any Environmental Law that
could reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this subsection 6.7 shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action Holdings or the relevant Subsidiary proposes to
take with respect thereto.
6.8 Environmental Laws. (a) Except as could not reasonably be
expected to have a Material Adverse Effect, comply with, and use reasonable
efforts to ensure compliance by all tenants and subtenants, if any, with all
applicable Environmental Laws, and obtain and comply with and maintain, and use
reasonable efforts to ensure that all tenants and subtenants obtain and comply
with and maintain, any and all licenses, approvals, notifications, registrations
or permits required by applicable Environmental Laws.
(b) Conduct and complete (or cause to be conducted and
completed) in all material respects all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and in a timely fashion comply in all material respects with
all lawful orders and directives of all Governmental Authorities regarding
Environmental Laws, except to the extent that the failure to do so could not be
reasonably expected to have a Material Adverse Effect.
6.9 Interest Rate Protection. In the case of the Borrower,
within 60 days after the making of the Delayed Term Loan, enter into Interest
Rate Protection Agreements to the extent necessary to provide that at least 50%
of the aggregate principal amount of Indebtedness of the Borrower and its
Subsidiaries outstanding on the date of entering into such Interest Rate
Protection Agreements is subject to either a fixed interest rate or interest
rate protection for a period of not less than two years (provided, that in the
event that the term thereof shall be less than two years, such Interest Rate
Protection Agreements shall be extended or replaced no later than the expiration
of such term, with the term of such extended or replacement Interest Rate
Protection Agreements ending no earlier than the second anniversary of the date
on which the original Interest Rate Protection Agreements were entered into),
which Interest Rate Protection Agreements shall in each case have terms and
conditions reasonably satisfactory to the Administrative Agent. Borrower shall
use its best efforts to maintain in full force and effect Interest Rate
Protection Agreements reasonably satisfactory to the Administrative Agent in
order to ensure compliance with the terms of this subsection 6.9 and shall not
default (beyond any applicable grace period) in the performance of any of its
material obligations thereunder.
6.10 Additional Collateral, etc. (a) If at any time following
the Closing Date the aggregate monetary value (as determined by aggregating the
monetary value of each item or items of property so acquired on the date of the
acquisition thereof) of all property (to the extent not already secured) of any
nature whatsoever acquired by the Borrower or any Subsidiary after the Closing
Date is in excess of $500,000 (other than (i) any Property described in
paragraph (b), (c) or (d) below and (ii) any Property subject to a Lien
expressly permitted by subsection 7.3(g)) as to which the Administrative Agent,
for the benefit of the Lenders, does not have a perfected Lien, promptly (i)
execute and deliver to the Administrative Agent such amendments to the Guarantee
and Collateral Agreement or such other documents as the Administrative Agent
deems necessary or advisable in order to grant to the Administrative Agent, for
the benefit of the Lenders, a security interest in such Property and (ii) take
all actions necessary or advisable to grant to the Administrative Agent, for the
benefit of the Lenders, a perfected first priority security interest in such
Property, including without limitation, the filing of Uniform Commercial Code
financing statements and filings with the United States Patent and
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Trademark Office and in such jurisdictions as may be required by the Guarantee
and Collateral Agreement or by law or as may be reasonably requested by the
Administrative Agent.
(b) With respect to any fee interest in any real estate
acquired after the Closing Date by the Borrower or any of its Subsidiaries
(other than any such real estate subject to a Lien expressly permitted by
subsection 7.3(g), (j) or (q) (but in the case of clause (q), only to the extent
of such Lien)), promptly (i) execute and deliver a first priority Mortgage
(subject only to Liens permitted by subsection 7.3) in favor of the
Administrative Agent, for the benefit of the Lenders, covering such real estate,
(ii) if reasonably requested by the Administrative Agent, provide the Lenders
with a title report as well as a current ALTA survey thereof, together with a
surveyor's certificate, in each case in form and substance reasonably
satisfactory to the Administrative Agent. Notwithstanding the foregoing, the
Borrower and its Subsidiaries shall only be required to execute and deliver
Mortgages and/or provide title reports and current ALTA surveys covering fee
properties acquired after the Closing Date by the Borrower or its Subsidiaries
with a fair market value at the time of such acquisition in excess of
$1,000,000.
(c) With respect to any new Subsidiary created or acquired
after the Closing Date by the Borrower or any of its Subsidiaries, promptly (i)
execute and deliver to the Administrative Agent such amendments to the Guarantee
and Collateral Agreement as the Administrative Agent deems necessary or
advisable in order to grant to the Administrative Agent, for the benefit of the
Lenders, a perfected first priority security interest in the Capital Stock and
debt securities of such new Subsidiary which are owned by the Borrower or any of
its Subsidiaries and required to be pledged pursuant to the Guarantee and
Collateral Agreement, (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock and debt securities, together with (A) in the
case of such Capital Stock, undated stock powers endorsed in blank, and (B) in
the case of such debt securities, endorsed in blank, in each case executed and
delivered by a Responsible Officer of the Borrower or such Subsidiary, as the
case may be, (iii) cause such new Subsidiary (A) to become a party to the
Guarantee and Collateral Agreement and (B) to take such actions necessary or
advisable to grant to the Administrative Agent for the benefit of the Lenders a
perfected first priority security interest in the collateral described in the
Guarantee and Collateral Agreement with respect to such new Subsidiary,
including, without limitation, the filing of Uniform Commercial Code financing
statements in such jurisdictions as may be required by the Guarantee and
Collateral Agreement or by law or as may be reasonably requested by the
Administrative Agent and (iv) if reasonably requested by the Administrative
Agent, deliver to the Administrative Agent legal opinions relating to the
matters described above, which opinion shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent, provided that
notwithstanding the foregoing, only 65% of the voting Capital Stock of any
direct foreign Subsidiary of Holdings, the Borrower or any domestic Subsidiary
need be pledged under this clause (c), no voting Capital Stock of any foreign
Subsidiary of any other foreign Subsidiary need be pledged under this clause (c)
and no direct or indirect foreign Subsidiary shall become a Guarantor hereunder
or shall be required to pledge any of its assets.
(d) Upon the request of the Administrative Agent, to the
extent permitted by applicable Requirements of Law at the time of such request,
grant or cause its Subsidiaries to grant, to the Administrative Agent, a direct
security interest in the Station Licenses within 30 days after receipt of such
request, provided that to the extent FCC consent shall be required in connection
with granting such security interest, such consent shall be requested within 30
days after receipt of such request and upon receipt of such FCC consent, such
security interest shall be granted within 10 Business Days thereof.
(e) Upon the occurrence and during the continuance of (i) any
Event of Default or (ii) any payment default with respect to any Senior
Subordinated Indebtedness, promptly, but in any event not more than 30 Business
Days (subject to necessary approvals by the FCC), following the request of the
Administrative Agent, (A) cause the assets relating to each Station (other than
the Station License
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with respect to such Station) held by the Borrower or any of its Subsidiaries to
be transferred to a separate Subsidiary which shall have no other assets or
liabilities other than those associated with the transferred assets, (B) cause
each Station License for each Station to be transferred to a separate License
Subsidiary which shall have no other assets other than the individual Station
License and no liabilities and (C) with respect to each such newly-formed
Subsidiary, comply with the provisions of subsection 6.10(c).
6.11 Changes in Locations, Name, etc. The Borrower shall not,
except upon not less than 15 days' prior written notice to the Administrative
Agent and delivery to the Administrative Agent of all additional executed
financing statements and other documents reasonably requested by the
Administrative Agent to maintain the validity, perfection and priority of the
security interests provided for in the Guarantee and Collateral Agreement:
(a) permit any of the Inventory or Equipment (each as defined
in the Guarantee and Collateral Agreement) (other than (i) immaterial Inventory
and Equipment and (ii) Inventory and Equipment in transit in the ordinary course
of business) to be kept at a location other than those listed on Schedule 5 of
the Guarantee and Collateral Agreement;
(b) change the location of its chief executive office or sole
place of business from that referred to in Section 4.4 of the Guarantee and
Collateral Agreement; or
(c) change its name, identity or corporate structure to such
an extent that any financing statement filed by the Administrative Agent in
connection with the Guarantee and Collateral Agreement would become misleading.
6.12 Mortgages, etc. Within 30 days after the Closing Date
(which period may be extended by the Administrative Agent for up to an
additional 30 days):
(i) The Administrative Agent shall have received
a Mortgage with respect to each Mortgaged Property, executed and
delivered by a Responsible Officer of each party thereto.
(ii) The Administrative Agent shall have received
maps or plats of an as-built survey of the sites of the Mortgaged
Properties certified to the Administrative Agent in a manner reasonably
satisfactory to them, dated a recent date by an independent
professional licensed land surveyor reasonably satisfactory to the
Administrative Agent, which maps or plats and the surveys on which they
are based shall be made in accordance with the Minimum Standard Detail
Requirements for Land Title Surveys jointly established and adopted by
the American Land Title Association and the American Congress on
Surveying and Mapping in 1992, and, without limiting the generality of
the foregoing, there shall be surveyed and shown on such maps, plats or
surveys the following: (A) the locations on such sites of all the
buildings, structures and other improvements and the established
building setback lines; (B) the lines of streets abutting the sites and
width thereof; (C) all access and other easements appurtenant to the
sites; (D) all roadways, paths, driveways, easements, encroachments and
overhanging projections and similar encumbrances affecting the site,
whether recorded, apparent from a physical inspection of the sites or
otherwise known to the surveyor, (E) any encroachments on any adjoining
property by the building structures and improvements on the sites; and
(F) if the site is described as being on a filed map, a legend relating
the survey to said map.
(iii) The Administrative Agent shall have received
in respect of each Mortgaged Property a title report in form and
substance reasonably satisfactory to the Administrative Agent.
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(iv) The Administrative Agent shall have received
a copy of all recorded documents referred to, or listed as exceptions
to title, in the title report referred to in subsection 6.12(iii).
SECTION 7. NEGATIVE COVENANTS
Each of Holdings and the Borrower hereby agrees that, so long
as the Commitments remain in effect, any Letter of Credit remains outstanding or
any Loan or other amount is owing to any Lender or the Administrative Agent
hereunder, neither Holdings nor the Borrower shall, or shall permit (except with
respect to subsection 7.1) any of its Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants.
(a) Consolidated Leverage Ratio. Permit the
Consolidated Leverage Ratio as of the last day of any Test Period set
forth below to exceed the ratio set forth below opposite such period:
Period Consolidated Leverage Ratio
------ ---------------------------
Closing Date to 6/30/00 7.00x
7/01/00 to 6/30/01 6.75x
7/01/01 to 6/30/02 6.25x
7/01/02 to 6/30/03 6.00x
7/01/03 and thereafter 5.75x
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(b) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio as of the last day of any Test
Period set forth below to be less than the ratio set forth below
opposite such period:
Period Consolidated Interest
------ ---------------------
Coverage Ratio
--------------
Closing Date to 12/31/99 1.35x
1/01/00 to 12/31/00 1.50x
1/01/01 to 12/31/01 1.75x
1/01/02 and thereafter 2.00x
(c) Consolidated Fixed Charge Coverage Ratio. Permit
the Consolidated Fixed Charge Coverage Ratio as at the completion of
any Test Period to be less than 1.05x.
(d) Consolidated Senior Leverage Ratio. Permit the
Consolidated Senior Leverage Ratio as of the last day of any Test
Period set forth below to exceed the ratio set forth below opposite
such period:
Period Consolidated Senior
------ -------------------
Leverage Ratio
--------------
Closing Date to 12/31/01 5.00x
1/01/02 and thereafter 4.75x
(e) Corporate Overhead. Permit Corporate Overhead for
any fiscal year to exceed 10% of Broadcast Cash Flow for such fiscal
year.
7.2 Limitation on Indebtedness.7.2 Limitation on
Indebtedness. Create, incur, assume or suffer to exist (in each case,
to "Incur") any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any
Loan Document;
(b) Indebtedness among the Loan Parties (other than
Holdings) arising as a result of intercompany loans;
(c) purchase money Indebtedness and Capital Lease
Obligations, provided that the aggregate principal amount of
Indebtedness and Capital Lease Obligations incurred pursuant
to this subsection 7.2(c) shall not exceed $10,000,000 at any
one time outstanding;
(d) Indebtedness (other than the Senior Subordinated
Notes) outstanding on the date hereof and listed on Schedule
7.2(d) and any refinancings, refundings, renewals or
extensions thereof (without any increase in the principal
amount thereof other than pursuant to the instrument creating
such Lien without any modification thereof after the date
hereof);
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(e) (i) indemnities and guarantees (including
guarantees of Indebtedness if such Indebtedness is otherwise
permitted hereunder) made in the ordinary course of business
by the Borrower or any of its Subsidiaries, provided that such
indemnities and guarantees could not individually or in the
aggregate have a Material Adverse Effect, (ii) guarantees by
Holdings or any of its Subsidiaries of (A) real property
leases and (B) personal property operating leases, in each
case entered into in the ordinary course of business by the
Borrower or any of its Subsidiaries and (iii) indemnities in
favor of the Persons issuing title insurance policies insuring
the title to any property;
(f) (i) Indebtedness of the Borrower in respect of
the Senior Subordinated Notes in an aggregate principal amount
not to exceed $100,000,000 and (ii) Guarantee Obligations of
any Subsidiary Guarantor in respect of such Indebtedness;
(g) Indebtedness resulting from the endorsement of
negotiable instruments in the ordinary course of business;
(h) Indebtedness in respect of any Interest Rate
Protection Agreements entered into for legitimate hedging
purposes;
(i) Indebtedness (i) of the Borrower or any of its
Subsidiaries to the seller on an unsecured basis representing
the purchase price in a Permitted Acquisition or any Asset
Swap Transaction in an aggregate amount for all Permitted
Acquisitions and Asset Swap Transactions not to exceed
$15,000,000 and (ii) of the Borrower or any of its
Subsidiaries that is not subordinated to the Obligations,
assumed in connection with any Permitted Acquisition or any
Asset Swap Transaction in an aggregate amount for all
Permitted Acquisitions and Asset Swap Transactions not to
exceed $10,000,000;
(j) Indebtedness of any Loan Party (other than
Holdings) to any other Loan Party from intercompany transfers
of assets made in the ordinary course of business or to the
extent permitted under subsections 7.5 and 7.8;
(k) Indebtedness subject to Liens permitted under
subsections 7.3(a), (b), (c) and (d);
(l) indemnities made in (i) the Loan Documents, the
Transaction Documents or in any of the agreements contemplated
hereby and thereby and (ii) the monitoring and oversight
agreement and financial advisory agreement described in
subsection 7.6(a)(iv), and in the corporate charter and/or
bylaws or other comparable constituent documents of Holdings
and its Subsidiaries; and
(m) additional Indebtedness of the Borrower or any of
its Subsidiaries in an aggregate principal amount (for the
Borrower and all Subsidiaries) not to exceed $18,000,000 at
any one time outstanding.
7.3 Limitation on Liens.7.3 Limitation on Liens.
Create, incur, assume or suffer to exist any Lien upon any of its
Property or revenues, whether now owned or hereafter acquired, except
for:
(a) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings, provided
that adequate reserves with respect to contested taxes are
maintained on the books of Holdings or one of its
Subsidiaries, as the case may be, in conformity with GAAP;
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(b) carriers', landlord's, warehousemen's,
mechanics', materialmen's, repairmen's or other like Liens
arising in the ordinary course of business which are not
overdue for a period of more than 60 days or which are being
contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, insurance contracts, surety and appeal bonds,
performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions,
covenants, minor exceptions to title and other similar
encumbrances (i) previously or hereinafter incurred in the
ordinary course of business which, in the aggregate, are not
material in amount and which, in the case of such encumbrances
on any of the Mortgaged Properties, do not in the aggregate
materially detract from the value of the Property subject
thereto or, in the case of such encumbrances on other
property, materially interfere with the ordinary conduct of
the business of the Borrower or any of its Subsidiaries or
(ii) which are set forth in the title reports delivered to the
Administrative Agent on or prior to the Closing Date pursuant
to subsection 5.1(g)(iii) or after the Closing Date pursuant
to subsection 6.10(b);
(f) Liens in existence on the date hereof listed on
Schedule 7.3(f), securing Indebtedness permitted by subsection
7.2(d) (including refinancings, refundings, renewals and
extensions of such Indebtedness as permitted by subsection
7.2(d)), provided that no such Lien is spread to cover any
additional property (other than after acquired title in or on
such property and proceeds of the existing collateral in
accordance with the instrument creating such Lien) after the
Closing Date and that the amount of Indebtedness secured
thereby is not increased except pursuant to the instrument
creating such Lien (without any modification thereof after the
date hereof);
(g) (i) Liens securing Indebtedness of the Borrower
or any of its Subsidiaries permitted pursuant to subsections
7.2(c) (provided that (A) such Liens shall be created
substantially simultaneously with the acquisition of such
fixed or capital assets, (B) such Liens do not at any time
encumber any property other than the property financed by such
Indebtedness and (C) the amount of Indebtedness secured
thereby is not increased except pursuant to the instrument
creating such Lien (without any modification thereof after the
date hereof)) and (ii) Liens existing on any property or asset
at the time of acquisition thereof by the Borrower or any
Subsidiary or existing on any property or asset of any Person
that becomes a Subsidiary after the date hereof at the time
such Person becomes a Subsidiary (provided that (x) such Lien
is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case
may be, (y) such Lien shall not apply to any other property or
assets of the Borrower or any of its Subsidiaries and (z) such
Lien shall secure only those obligations which it secures on
the date of such acquisition or the date such Person becomes a
Subsidiary, as the case may be);
(h) Liens created pursuant to the Security
Documents;
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(i) any interest or title of a lessor under any lease
entered into by the Borrower or any of its Subsidiaries in the
ordinary course of its business and covering only the assets
so leased;
(j) any obligations or duties affecting any of the
Property of the Borrower or its Subsidiaries to any
municipality or public authority with respect to any
franchise, grant, license or permit which do not materially
impair the use of such Property for the purposes for which it
is held;
(k) Liens imposed by operation of law with respect to
any judgments or orders not constituting an Event of Default;
(l) attachment or judgment Liens (other than judgment
Liens paid or fully covered by insurance which are not
outstanding for more than 60 days) in an aggregate amount
outstanding at any one time not in excess of $1,000,000;
(m) Liens arising from precautionary Uniform
Commercial Code financing statement filings with respect to
operating leases or consignment arrangements entered into by
the Borrower or any of its Subsidiaries in the ordinary course
of business;
(n) Liens in favor of a banking institution arising
by operation of law encumbering deposits (including the right
of set-off) held by such banking institution incurred in the
ordinary course of business and which are within the general
parameters customary in the banking industry;
(o) licenses (other than Station Licenses), leases or
subleases permitted hereunder granted to others not
interfering in any material respect with the business of
Holdings or any of its Subsidiaries;
(p) Liens on property of the Borrower or any of its
Subsidiaries in favor of landlords securing licenses (other
than Station Licenses), subleases and leases permitted
hereunder and granted to others and not interfering in any
material respect in the business of Holdings or any of its
Subsidiaries; and
(q) Liens not otherwise permitted by this subsection
7.3 so long as the aggregate outstanding principal amount of
the obligations secured thereby does not exceed $5,000,000 at
any one time.
7.4 Limitation on Fundamental Changes. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or convey,
sell, lease, assign, transfer or otherwise dispose of, all or
substantially all of its property, business or assets, or make any
material change in its present method of conducting business, except:
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(a) any Subsidiary of the Borrower (other than,
except as set forth below, any License Subsidiary or, at any
time after any of the conditions set forth in subsection
6.10(e)(i) or (ii) shall have occurred, any Subsidiary holding
the assets and liabilities of any Station) may be merged or
consolidated with or into the Borrower (provided that the
Borrower shall be the continuing or surviving corporation) or
with or into any Wholly Owned Subsidiary Guarantor (other
than, except as set forth below, any License Subsidiary or, at
any time after any of the conditions set forth in subsection
6.10(e) (i) or (ii) shall have occurred, any Subsidiary
holding the assets and liabilities of any Station) (provided
that the Wholly Owned Subsidiary Guarantor shall be the
continuing or surviving corporation); provided, however, that
(i) a License Subsidiary and any Subsidiary holding the assets
and liabilities of any Station may take any actions otherwise
prohibited by this clause (a) to the extent such merger or
consolidation occurs in contemplation of, and immediately
preceding, a sale, transfer or other disposition (including an
Asset Swap Transaction) of such License Subsidiary or other
Subsidiary and (ii) any Subsidiary may take any actions
otherwise prohibited by this clause (a) to the extent
necessary to comply with the requirements of subsection
6.10(e);
(b) any Subsidiary of the Borrower (other than,
except as set forth below, any License Subsidiary or, at any
time after any of the conditions set forth in subsection
6.10(e)(i) or (ii) shall have occurred, any Subsidiary holding
the assets and liabilities of any Station) may sell, lease,
transfer or otherwise dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or
any Wholly Owned Subsidiary Guarantor; provided, however, that
(i) a License Subsidiary and any Subsidiary holding the assets
and liabilities of any Station may take any actions otherwise
prohibited by this clause (b) to the extent any sale, transfer
or other disposition occurs in contemplation of, and
immediately preceding, a sale, transfer or other disposition
(including an Asset Swap Transaction) of such License
Subsidiary or other Subsidiary and (ii) any Subsidiary may
take any actions otherwise prohibited by this clause (b) to
the extent necessary to comply with the requirements of
subsection 6.10(e); and
(c) the Borrower may be merged or consolidated with
or into a newly formed limited liability company with no
assets or liabilities that is a Subsidiary of Holdings solely
for the purposes of realizing certain tax benefits so long as
Holdings shall take such actions as would be required under
subsection 6.10(c) if such limited liability company were a
Subsidiary of the Borrower.
7.5 Limitation on Sale of Assets. Convey, sell,
lease, assign, transfer or otherwise dispose of any of its property,
business or assets (including, without limitation, receivables and
leasehold interests), whether now owned or hereafter acquired, except:
(a) obsolete or worn out property disposed of in the
ordinary course of business or property that is no longer
useful in the conduct of the Borrower's business disposed of
in the ordinary course of business;
(b) transfers resulting from any casualty or
condemnation of property or assets;
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(c) any sale or other transfer at fair market value
of any property or assets constituting fixed assets for at
least 75% cash, provided that the aggregate net cash proceeds
of the sales and transfers made pursuant to this paragraph (c)
in the aggregate do not exceed $3,000,000 in any fiscal year;
(d) intercompany sales or transfers of assets made in
the ordinary course of business;
(e) the sale or discount of overdue accounts
receivable arising in the ordinary course of business, but
only in connection with the compromise or collection thereof;
(f) licenses or sublicenses of intellectual property
and general intangibles (other than any Station Licenses) and
licenses, leases or subleases of other property (other than
any Station Licenses) in each case in the ordinary course of
business and which do not materially interfere with the
business of the Borrower and its Subsidiaries;
(g) dispositions permitted by subsection 7.4;
(h) the sale of any Broadcasting Asset for aggregate
consideration equal to the fair market value of such
Broadcasting Asset (as determined in good faith by the board
of directors of the Borrower or the applicable Subsidiary),
provided that (i) after giving effect to such sale, no Default
or Event of Default exists or shall be continuing, (ii) at
least 75% of such consideration received by the Borrower in
respect thereof shall be in the form of cash and Cash
Equivalents, (iii) the Net Cash Proceeds of such sale shall be
applied in the manner prescribed by subsection 2.9(d) and (iv)
(A) the Consolidated EBITDA of the Broadcasting Asset being
sold plus the Consolidated EBITDA of all Broadcasting Assets
that were sold pursuant to this subsection 7.5(h) or exchanged
pursuant to subsection 7.5(i) in such fiscal quarter and in
the immediately preceding four-fiscal-quarter period shall not
exceed 25% of the Consolidated EBITDA of the Borrower for such
immediately preceding four-fiscal-quarter period and (B) the
Consolidated EBITDA of the Broadcasting Assets being sold plus
the Consolidated EBITDA of all Broadcasting Assets that were
sold pursuant to this subsection 7.5(h) or exchanged pursuant
to subsection 7.5(i) in such fiscal quarter and in the
preceding twenty-fiscal-quarter period shall not exceed 60% of
the Consolidated EBITDA of the Borrower for such
twenty-fiscal-quarter period (a "Permitted Disposition"); and
(i) Asset Swap Transactions.
7.6 Limitation on Dividends. Declare or pay any
dividend (other than dividends payable solely in common stock) on, or
make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of Capital
Stock of Holdings or any of its Subsidiaries or any warrants or options
to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or in obligations
of Holdings or any of its Subsidiaries (such declarations, payments,
setting apart, purchases, redemptions, defeasance, retirements,
acquisitions and distributions being herein called "Restricted
Payments"), except that:
(a) the Borrower may make Restricted Payments to
Holdings, so long as no Event of Default (or with respect to
clause (vi) below, any interest payment Default) has occurred
and is continuing or would be continuing after giving effect
to such
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Restricted Payment, provided that the Borrower shall be
permitted to make the Restricted Payments in clauses (iii) and
(iv) below notwithstanding any such Event of Default, unless,
in the case of clause (iv), such Event of Default relates to a
payment Default under subsection 8(a):
(i) the proceeds of which shall be applied
by Holdings directly to pay out of pocket expenses,
for administrative, legal and accounting services
provided by third parties that are reasonable and
customary and incurred in the ordinary course of
business for such professional services, or to pay
franchise fees and similar costs; provided, however,
any such administrative expenses shall not exceed an
aggregate amount of $1,000,000 per fiscal year;
(ii) payments, the proceeds of which will be
used to repurchase the Capital Stock or other
securities of Holdings from outside directors,
employees or members of the management of Holdings, or
any Subsidiary of Holdings, at a price not in excess
of fair market value, in an aggregate amount not in
excess of $7,500,000, net of the proceeds received by
Holdings as a result of any resales of any such
Capital Stock or other securities;
(iii) payments, the proceeds of which will
be used to pay taxes of Holdings, the Borrower and its
Subsidiaries as part of a consolidated, combined or
unitary tax filing group or of the separate operations
of Holdings; and
(iv) payments, the proceeds of which will be
used to pay management fees to ▇▇▇▇▇ Muse in
accordance with the terms of its monitoring and
oversight agreement and the financial advisory
agreement contemplated by subsection 7.9(b)(ii).
(b) any Subsidiary may make Restricted Payments to
the Borrower or any Wholly Owned Subsidiary Guarantor; and
(c) Permitted Issuances may be made.
7.7 Limitation on Investments, Loans and Advances.
Make any advance, loan, extension of credit (by way of guaranty or
otherwise) or capital contribution to, or purchase any stock, bonds,
notes, debentures or other securities of or any assets constituting a
business unit of, or make any other investment in, any Person
("Investments"), except:
(a) extensions of trade credit in the ordinary course
of business;
(b) Investments in Cash Equivalents;
(c) Guarantee Obligations permitted by subsection
7.2(e);
(d) the Exchange Transactions and, subject to the
proviso set forth in the definition of the term "Permitted
Acquisition", the ▇▇▇▇▇ Acquisition in accordance with all
material applicable Requirements of Law and the terms of the
▇▇▇▇▇ Purchase Agreement;
(e) Investments (other than Permitted Acquisitions)
by Holdings and its Subsidiaries in any of the Loan Parties,
including any new Subsidiary which becomes a Loan Party;
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(f) loans and advances by Holdings or its
Subsidiaries to their respective directors, officers and
employees in an aggregate principal amount not exceeding
$1,000,000 at any one time outstanding;
(g) loans, advances or Investments in existence on
the Closing Date and listed on Schedule 7.7(g), and
extensions, renewals, modifications or restatements or
replacements thereof, provided that no such extension,
renewal, modification or restatement shall (i) increase the
amount of the original loan, advance or Investment or (ii)
adversely affect the interests of the Lenders with respect to
such original loan, advance or Investment or the interests of
the Lenders under this Agreement or any other Loan Document in
any material respect;
(h) Investments permitted by subsections 7.2(b), (e)
and (k) and subsections 7.4 and 7.6;
(i) promissory notes and other similar non-cash
consideration received by the Subsidiaries of Holdings in
connection with the dispositions permitted by subsection 7.5,
including equity interests received in connection with Asset
Swap Transactions permitted by subsection 7.5(i);
(j) Investments in Interest Rate Protection
Agreements in the ordinary course of the business of the
Borrower or any of its Subsidiaries and not for purposes of
speculation;
(k) Investments (including debt obligations and
Capital Stock) received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business;
(l) in addition to the foregoing, Investments by the
Borrower and its Subsidiaries in an aggregate amount not
exceeding $15,000,000 (valued at cost, without regard to any
write down or write up thereof) at any one time outstanding,
so long as, after giving pro forma effect thereto, no Default
or Event of Default shall have occurred and be continuing
(including, without limitation, pursuant to subsection 7.1);
(m) Investments after the Closing Date by the
Borrower and its Subsidiaries constituting Permitted
Acquisitions or Asset Swap Transactions;
(n) in addition to the foregoing, the Subsidiaries of
Holdings may make additional Investments (which shall not be
counted in the limitations set forth above) as follows: (i)
Investments consisting of the Investment of Net Cash Proceeds
not required to be applied pursuant to subsection 2.9,
including (A) with respect to the Investment of proceeds of
the insurance and condemnation proceeds not required to be
applied pursuant to subsection 2.9 and (B) with respect to the
Investment of proceeds of the sale of assets which are
permitted pursuant to subsection 7.5; and (ii) Investments
consisting of the Investment of Excess Cash Flow generated
during prior fiscal years (beginning with Excess Cash Flow
generated in the fiscal year ended in December 1998 but, in
each case, including the retained portion of the respective
Excess Cash Flow for only those periods where the respective
Excess Cash Flow payment has theretofore occurred) and not
required to be applied pursuant to subsection 2.9(c).
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7.8 Limitation on Optional Payments and Modifications
of Debt Instruments, etc. (a) Make or offer to make any optional
payment or prepayment on or redemption of or any payments in
redemption, defeasance or repurchase of any Senior Subordinated
Indebtedness (except pursuant to a permanent refinancing of Senior
Subordinated Indebtedness);
(b) amend, supplement, waive or otherwise modify any
of the provisions of any Senior Subordinated Indebtedness, the Senior
Subordinated Note Indenture or the monitoring and oversight agreement
and financial advisory agreement described in subsection 7.6(a)(iv)
(other than changes to such agreements that do not increase the amount
or affect the timing of payments by Holdings, the Borrower or any of
their Subsidiaries thereunder):
(i) which amends or modifies any subordination
provisions contained therein;
(ii) which shortens the fixed maturity, or increases
the rate or shortens the time of payment of interest on, or
increases the amount or shortens the time of payment of any
principal or premium payable whether at maturity, at a date
fixed for prepayment or by acceleration or otherwise of such
Indebtedness, or increases the amount of, or accelerates the
time of payment of, any fees payable in connection therewith;
(iii) which relates to the affirmative or negative
covenants, events of default or remedies under the documents
or instruments evidencing such Indebtedness and the effect of
which is to subject Holdings or any of its Subsidiaries to any
more onerous or more restrictive provisions; or
(iv) which otherwise adversely affects the interests
of the Lenders as senior creditors or the interests of the
Lenders under this Agreement or any other Loan Document in any
respect;
(c) make any payment in cash on any equity or debt
security that may be made under the terms thereof by the issuance of
any security of the same nature; or
(d) designate any Indebtedness (other than the Loans)
as "Designated Senior Indebtedness" under any Senior Subordinated
Indebtedness (including, without limitation, under the Senior
Subordinated Note Indenture).
7.9 Limitation on Transactions with Affiliates. (a)
Enter into any transaction, including, without limitation, any
purchase, sale, lease or exchange of Property or the rendering of any
service, with any Affiliate unless such transaction is (i) otherwise
permitted under this Agreement, (ii) in the ordinary course of business
of Holdings or the relevant Subsidiary of Holdings, as the case may be,
and (iii) upon fair and reasonable terms no less favorable to Holdings
or such Subsidiary, as the case may be, than it would obtain in a
comparable arm's length transaction with a Person which is not an
Affiliate.
(b) In addition, notwithstanding the foregoing,
Holdings and its Subsidiaries shall be entitled to make the following
payments and/or to enter into the following transactions:
(i) the payment of reasonable and customary fees and
reimbursement of expenses payable to directors of Holdings;
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(ii) the payment to ▇▇▇▇▇ Muse of fees and expenses
pursuant to a monitoring and oversight agreement and a
financial advisory agreement approved by the board of
directors of Holdings; provided that such agreements may not
be amended to increase the amount of such fees above those set
forth in such agreements as of the Closing Date without the
consent of the Administrative Agent; and
(iii) the employment arrangements with respect to the
procurement of services of directors, officers and employees
in the ordinary course of business and the payment of
reasonable fees in connection therewith.
7.10 Limitation on Sales and Leasebacks. Enter into
any arrangement with any Person providing for the leasing by the
Borrower or any Subsidiary of real or personal, immovable or movable,
property which has been or is to be sold or transferred by the Borrower
or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such
property or rental obligations of the Borrower or such Subsidiary,
provided that this subsection 7.10 shall not prohibit any sale and
leaseback resulting from the incurrence of any lease in respect of any
capital asset entered into within 120 days of the acquisition of such
capital asset for the purpose of providing permanent financing of such
capital asset.
7.11 Limitation on Changes in Fiscal Periods. Permit
the fiscal year of Holdings or the Borrower to end on a day other than
December 31, provided that Holdings and the Borrower may change such
fiscal year upon the approval of the Administrative Agent or change
Holdings's or the Borrower's method of determining fiscal quarters.
7.12 Limitation on Negative Pledge Clauses. Enter
into with any Person, or suffer to exist, any agreement, other than (a)
this Agreement and the other Loan Documents, (b) the Senior
Subordinated Note Indenture and any other agreement evidencing Senior
Subordinated Indebtedness, and (c) in the case of clause (i) below
only, any agreements governing any purchase money Liens Capital Lease
Obligations, Liens permitted under subsection 7.3(j) or any other
similar agreement or transaction otherwise permitted hereby (in which
case, any prohibition or limitation shall only be effective against the
assets financed thereby), which prohibits or limits the ability of
Holdings, the Borrower or any of its Subsidiaries to (i) create, incur,
assume or suffer to exist any Lien upon any of its Property or
revenues, whether now owned or hereafter acquired, or (ii) pay
dividends or make other distributions, or pay any Indebtedness owed, to
Holdings, the Borrower or any of its Subsidiaries.
7.13 Limitation on Lines of Business. Enter into any
business, either directly or through any Subsidiary, except for those
businesses in which the Borrower and its Subsidiaries are engaged on
the date of this Agreement or which are reasonably related thereto
(including, without limitation, in connection with any Permitted
Acquisition, Asset Swap Transaction or otherwise).
7.14 Limitation on Amendments to Constituent and
Transaction Documents. (a) Amend, supplement or otherwise modify its
certificate of incorporation or by-laws unless such amendment,
supplement or other modification does not adversely affect the
interests of any Lender in any material respect or (b) amend,
supplement or otherwise modify (pursuant to a waiver or otherwise) the
Network Affiliation Agreements.
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7.15 Limitations on Changes in Holding Company
Status. Permit Holdings to engage in any activities or incur any
Indebtedness or Guarantee Obligations other than (i) owning the stock
of the Borrower, (ii) its activities incident to the performance of the
Loan Documents, including its guarantee thereunder and (iii)
transactions pursuant to or expressly permitted by this Agreement.
7.16 Limitation on Changes in Station Affiliation.
Permit any Station to change its network affiliation if the percentage
represented by such Station of Consolidated EBITDA for the twelve month
period preceding the date of the proposed change (giving pro forma
effect to any acquisitions or dispositions that have occurred since the
beginning of such twelve month period as if such acquisitions or
dispositions had occurred at the beginning of such twelve month
period), together with the percentage represented by each such other
Station that previously changed its network affiliation after the date
hereof of the Consolidated EBITDA for the twelve month period preceding
the date of such previous change (determined on a pro forma basis as
aforesaid), would exceed 40%.
7.17 Limitation on LMA Stations. Other than the
Providence Station, permit any Station owned by the Borrower or any of
its Subsidiaries to be operated by any other Person other than the
Borrower or any other Subsidiary pursuant to local marketing agreements
(or similar arrangements).
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be
continuing:
(a) The Borrower shall fail to pay any principal of
any Loan or Reimbursement Obligation when due in accordance
with the terms hereof; or the Borrower shall fail to pay any
interest on any Loan or Reimbursement Obligation, or any other
amount payable hereunder or under any other Loan Document,
within five days after any such interest or other amount
becomes due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed
made by any Loan Party herein or in any other Loan Document or
which is contained in any certificate, document or financial
or other statement furnished by it at any time under or in
connection with this Agreement or any such other Loan Document
shall prove to have been inaccurate in any material respect on
or as of the date made or deemed made; or
(c) (i) Holdings, the Borrower or any of their
Subsidiaries shall default in the observance or performance of
any agreement contained in subsection 6.4(a)(ii) (with respect
to Holdings, the Borrower or any License Subsidiary),
subsection 6.7(a), subsection 6.10(d) or (e), subsection 6.11,
subsection 6.12 or Section 7 of this Agreement; or
(d) Holdings, the Borrower or any Subsidiary shall
default in the observance or performance of any other
agreement contained in this Agreement or any other Loan
Document (other than as provided in paragraphs (a) through (c)
of this subsection), and such default shall continue
unremedied for a period of 30 days after notice thereof from
the Administrative Agent to the Borrower (which notice will be
given at the request of any Lender); or
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(e) Holdings, the Borrower or any of its Subsidiaries
shall (i) default in making any payment of any principal of or
interest on any Indebtedness (other than pursuant to the Loan
Documents) beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was
created; or (ii) default in the observance or performance of
any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder
or beneficiary of such Indebtedness (or a trustee or agent on
behalf of such holder or beneficiary) to cause, with the
giving of notice if required, such Indebtedness to become due
prior to its stated maturity or (in the case of any such
Indebtedness constituting a Guarantee Obligation) to become
payable, provided that a default, event or condition described
in clause (i) or (ii) of this paragraph (e) shall not at any
time constitute an Event of Default under this Agreement
unless, at such time, one or more defaults, events or
conditions (without duplication as to the same item of
Indebtedness) of the type described in clauses (i) and (ii) of
this paragraph (e) shall have occurred and be continuing with
respect to Indebtedness the outstanding amount of which
exceeds in the aggregate $5,000,000; or
(f) (i) Holdings, the Borrower or any of its
Subsidiaries shall commence any case, proceeding or other
action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any
substantial part of its assets, or Holdings, the Borrower or
any of its Subsidiaries shall make a general assignment for
the benefit of its creditors; or (ii) there shall be commenced
against Holdings, the Borrower or any of its Subsidiaries any
case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order
for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of
60 days; or (iii) there shall be commenced against Holdings,
the Borrower or any of its Subsidiaries any case, proceeding
or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of
an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within
60 days from the entry thereof, or (iv) Holdings, the Borrower
or any of its Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i),
(ii), or (iii) above; or (v) Holdings, the Borrower or any of
its Subsidiaries shall generally not, or shall be unable to,
or shall admit in writing its inability to, pay its debts
(other than intercompany debt) as they become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section
4975 of the Code) involving any Plan, (ii) any "accumulated
funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the
assets of the Borrower or any Commonly Controlled Entity,
(iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed (or a
trustee shall be appointed) to administer, or to terminate,
any Single Employer Plan, which Reportable Event or
commencement of proceedings
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or appointment of a trustee is, in the reasonable opinion of
the Required Lenders, likely to result in the termination of
such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) the Borrower or any Commonly Controlled Entity
shall, or in the reasonable opinion of the Required Lenders is
likely to, incur any liability in connection with a withdrawal
from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist
with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all
other such events or conditions, if any, could reasonably be
expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered
against Holdings, the Borrower or any of its Subsidiaries
involving in the aggregate a liability (not paid or fully
covered by insurance) of $1,000,000 or more, and all such
judgments or decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within 60 days from the entry
thereof; or
(i) Any Loan Document shall, at any time, cease to be
in full force and effect (unless released by the
Administrative Agent at the direction of the Required Lenders
or all Lenders (to the extent required by subsection 10.1) or
as otherwise permitted under this Agreement or the other Loan
Documents) or shall be declared null and void (and, if such
invalidity is such so as to be amenable to cure without
materially disadvantaging the position of the Administrative
Agent and the Lenders thereunder, the relevant Loan Party
shall have failed to cure such invalidity within 30 days after
notice from the Administrative Agent or such shorter time
period as is specified by the Administrative Agent in such
notice and is reasonable in the circumstances), or the
validity or enforceability thereof shall be contested by any
Loan Party, or any of the Liens intended to be created by any
Security Document (including, without limitation, any Mortgage
filed pursuant to subsection 10.17) shall cease to be or shall
not be a valid and perfected Lien having the priority
contemplated thereby (and, if such invalidity is such so as to
be amenable to cure without materially disadvantaging the
position of the Administrative Agent and the Lenders as
secured parties thereunder, the relevant Loan Party shall have
failed to cure such invalidity within 30 days after notice
from the Administrative Agent or such shorter time period as
specified by the Administrative Agent in such notice and is
reasonable in the circumstances); or
(j) A Change of Control shall occur or Holdings shall
fail to own directly or indirectly, beneficially and of
record, 100% of the Capital Stock of the Borrower free and
clear of all Liens other than Liens in favor of the Lenders
pursuant to the Loan Documents; or
(k) (i) The Senior Subordinated Notes or the
guarantees thereof shall cease, for any reason, to be validly
subordinated to the Obligations or the obligations of the
Subsidiary Guarantors or Holdings under the Guarantee and
Collateral Agreement, as the case may be, as provided in the
Senior Subordinated Note Indenture, or any Loan Party, any
Affiliate of any Loan Party, the trustee in respect of the
Senior Subordinated Notes or the holders of at least 25% in
aggregate principal amount of the Senior Subordinated Notes
shall so assert or (ii) an event of default shall occur with
respect to the Senior Subordinated Notes or any event shall
occur which does or with the giving of notice or passage of
time would require the Borrower to prepay, purchase, redeem,
retire, defease or otherwise acquire, or to make any payment
on account of any principal of or premium payable in
connection with the prepayment, purchase,
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redemption, retirement, defeasance or other acquisition of,
any of the Senior Subordinated Notes; or
(l) Holdings, the Borrower or any Subsidiary shall
incur any liability (not paid or fully covered by insurance)
under any Environmental Law in an amount which would result in
a Material Adverse Effect; or
(m) The principal broadcasting licenses of any
Station, or any other material authorizations, licenses or
permits issued by the FCC, shall be revoked or canceled or
expire by its terms and not be renewed, or shall be modified
in each case in a manner which would have a Material Adverse
Effect; or
(n) The Borrower or any of its Subsidiaries (or, with
respect to the Steubenville Station and the Providence
Station, SAC) shall have received a notice of termination with
respect to any Network Affiliation Agreements (or any
alternative network affiliation agreement in compliance with
this clause (n)) if the percentage represented by such Network
Affiliation Agreement (for the Station in question) of
Consolidated EBITDA for the 12-month period preceding the date
of the termination (giving pro forma effect to any
acquisitions or dispositions that have occurred since the
beginning of such 12-month period as if such acquisitions or
dispositions had occurred at the beginning of such 12-month
period), would exceed 15%, unless, within 30 days after
receipt of such termination notice, an alternative network
affiliation agreement in form and substance reasonably
satisfactory to the Required Lenders shall have been executed
and delivered and come into effect prior to or concurrently
with the termination date of such Network Affiliation
Agreement; or any such Network Affiliation Agreement shall
otherwise for any reason be terminated or cease to be in full
force and effect; or
(o) The Borrower or any of its Subsidiaries shall
default in the payment when due of any Film Obligations in an
aggregate amount in excess of $1,000,000 and such default
shall continue unremedied for a period of 90 or more days,
except to the extent the same shall be contested in good faith
and by proper proceedings and against which adequate reserves
are being maintained; or
(p) Holdings shall conduct, transact or otherwise
engage in any business or operations, incur, create, assume or
suffer to exist any Indebtedness or other liabilities or
obligations or Liens (other than pursuant to any of the Loan
Documents), or own, lease, manage or otherwise operate any
properties or assets, other than (1) incident to the ownership
of all of the Capital Stock of the Borrower or (2) as
otherwise permitted by this Agreement.
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above with respect to
Holdings or the Borrower, automatically the Commitments shall
immediately terminate and the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the other
Loan Documents (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding
Letters of Credit shall have presented the documents required
thereunder) shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or any of the following
actions may be taken: (i) with the consent of the Majority Revolving
Credit Facility Lenders, the Administrative Agent may, or upon the
request of the Majority Revolving Credit Facility Lenders, the
Administrative Agent shall, by notice to the Borrower declare the
Revolving Credit Commitments to be terminated forthwith, whereupon the
Revolving Credit Commitments shall immediately terminate; (ii) with the
consent of the Majority Committed Term Facility Lenders, the
Administrative Agent may, or upon the request of the Majority Committed
Term Facility Lenders, the Administrative Agent shall, by notice to the
Borrower declare the Delayed Term Loan Commitments to be terminated
forthwith,
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whereupon the Delayed Term Loan Commitments shall immediately terminate
and (iii) with the consent of the Required Lenders, the Administrative
Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the
Loans hereunder (with accrued interest thereon) and all other amounts
owing under this Agreement and the other Loan Documents (including,
without limitation, all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) to be due and payable
forthwith, whereupon the same shall immediately become due and payable.
With respect to all Letters of Credit with respect to which presentment
for honor shall not have occurred at the time of an acceleration
pursuant to this paragraph, the Borrower shall at such time deposit in
a cash collateral account opened by the Administrative Agent an amount
equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit. Amounts held in such cash collateral account shall
be applied by the Administrative Agent to the payment of drafts drawn
under such Letters of Credit, and the unused portion thereof after all
such Letters of Credit shall have expired or been fully drawn upon, if
any, shall be applied to repay other obligations of the Borrower
hereunder and under the other Loan Documents. After all such Letters of
Credit shall have expired or been fully drawn upon, all Reimbursement
Obligations shall have been satisfied and all other obligations of the
Borrower hereunder and under the other Loan Documents shall have been
paid in full, the balance, if any, in such cash collateral account
shall be returned to the Borrower (or such other Person as may be
lawfully entitled thereto). Except as otherwise expressly provided
above in this Section 8, the Borrower waives presentment, demand,
protest or other notice of any kind.
SECTION 9. THE ADMINISTRATIVE AGENT
9.1 Appointment. Each Lender hereby irrevocably
designates and appoints the Administrative Agent as the agent of such
Lender under this Agreement and the other Loan Documents, and each
Lender irrevocably authorizes the Administrative Agent, in such
capacity, to take such action on its behalf under the provisions of
this Agreement and the other Loan Documents and to exercise such powers
and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental
thereto to the extent permitted by applicable law. Notwithstanding any
provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or
any other Loan Document or otherwise exist against the Administrative
Agent.
9.2 Delegation of Duties. The Administrative Agent
may execute any of its duties under this Agreement and the other Loan
Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by
it with reasonable care.
9.3 Exculpatory Provisions. Neither the
Administrative Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (a) liable for any
action lawfully taken or omitted to be taken by it or such Person under
or in connection with
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this Agreement or any other Loan Document (except to the extent that
any of the foregoing are found by a final and nonappealable decision of
a court of competent jurisdiction to have resulted from its or such
Person's own gross negligence or willful misconduct) or (b) responsible
in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Loan Party or any officer
thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document or for the
value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document or for any
failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Administrative Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of any Loan Party.
9.4 Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any instrument, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by
the proper Person or Persons and upon advice and statements of legal
counsel (including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall
have been filed with the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action
under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders (or, if so
specified by this Agreement, all Lenders) as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders (or, if so specified
by this Agreement, all Lenders), and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
9.5 Notice of Default. The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default hereunder unless the Administrative Agent
has received notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent
shall give notice thereof to the Lenders. The Administrative Agent
shall take such action with respect to such Default or Event of Default
as shall be reasonably directed by the Required Lenders (or, if so
specified by this Agreement, all Lenders), provided that unless and
until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
9.6 Non-Reliance on the Administrative Agent and
Other Lenders. Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its respective officers, directors,
employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by the
Administrative Agent hereafter taken,
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including any review of the affairs of a Loan Party or any affiliate of
a Loan Party, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender
represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and
based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business,
operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates and made its
own decision to make its Loans hereunder and enter into this Agreement.
Each Lender also represents that it will, independently and without
reliance upon the Administrative Agent or any other Lender, and based
on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement and the
other Loan Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties
and their affiliates. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Administrative
Agent hereunder, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of any Loan
Party or any affiliate of a Loan Party which may come into the
possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
9.7 Indemnification. The Lenders agree to indemnify
the Administrative Agent in its capacity as such (to the extent not
reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their pro rata share of the
aggregate Revolving Credit Exposure, Term Loans outstanding and unused
Commitments in effect on the date on which indemnification is sought
under this subsection 9.7 (or, if indemnification is sought after the
date upon which the Commitments shall have terminated and the Loans
shall have been paid in full, ratably in accordance with such share
immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any
time following the payment of the Loans) be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or
arising out of, the Commitments, this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing, provided that no Lender shall be
liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements which are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from the
Administrative Agent's gross negligence or willful misconduct. The
agreements in this subsection 9.7 shall survive the payment of the
Loans and all other amounts payable hereunder.
9.8 Agent in Its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with any
Loan Party as though the Administrative Agent were not an Agent. With
respect to its Loans made or renewed by it and with respect to any
Letter of Credit issued or participated in by it, the Administrative
Agent shall have the same rights and powers under this Agreement and
the other Loan Documents as any Lender and may exercise the same as
though it were not an Agent, and the terms "Lender" and "Lenders" shall
include the Administrative Agent in its individual capacity.
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9.9 Successor Administrative Agent. The
Administrative Agent may resign as Administrative Agent upon 30 days'
notice to the Lenders. If the Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Loan Documents,
then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders, which successor agent shall be
approved by the Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to
the rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon
such appointment and approval, and the former Administrative Agent's
rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any retiring Administrative Agent's
resignation as Administrative Agent, 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 Administrative Agent under this Agreement and
the other Loan Documents.
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SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement,
any other Loan Document, nor any terms hereof or thereof may be
amended, supplemented or modified except in accordance with the
provisions of this subsection 10.1. The Required Lenders and each Loan
Party to the relevant Loan Documents may, or, with the written consent
of the Required Lenders, the Administrative Agent and each Loan Party
to the relevant Loan Document may, from time to time, (a) enter into
written amendments, supplements or modifications hereto and to the
other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the
rights of the Lenders or of the Loan Parties hereunder or thereunder or
(b) waive, on such terms and conditions as the Required Lenders or the
Administrative Agent, as the case may be, may specify in such
instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) forgive the principal amount or
extend the final scheduled date of maturity of any Loan, extend the
scheduled date of any amortization payment in respect of any Term Loan,
reduce the stated rate of any interest, fee or letter of credit
commission payable hereunder or extend the scheduled date of any
payment thereof, or increase the amount or extend the expiration date
of any Lender's Revolving Credit Commitment or Delayed Term Loan
Commitment, in each case without the consent of each Lender directly
affected thereby; (ii) amend, modify or waive any provision of this
subsection 10.1 or reduce any percentage specified in the definition of
Required Lenders, consent to the assignment or transfer by Holdings or
the Borrower of any of its rights and obligations under this Agreement
and the other Loan Documents, release all or substantially all of the
collateral or release all or substantially all of the Subsidiary
Guarantors or Holdings from their obligations under the Guarantee and
Collateral Agreement other than pursuant to a transaction permitted by
this Agreement, in each case without the written consent of all
Lenders; (iii) amend, modify or waive any condition precedent to any
extension of credit under the Revolving Credit Facility set forth in
subsection 5.2 without the written consent of the Majority Revolving
Credit Facility Lenders; (iv) change the allocation of payments among
the Committed Term Loan Facility and the Incremental Term Loan
Facility, as applicable, specified in subsection 2.15(b) or the
allocation of payments between the Facilities pursuant to subsection
2.9(d), in each case without the consent of the Majority Facility
Lenders in respect of each Facility adversely affected thereby; (v)
amend the definition of the term "Majority Facility Lenders", "Majority
Revolving Credit Facility Lenders" or "Majority Committed Term Facility
Lenders" or modify in any other manner the number, percentages or class
of Lenders required to make any determinations or waive any rights
hereunder or to modify any provision hereof without the consent of each
Lender directly affected thereby; (vi) amend, modify or waive any
provision of Section 9 without the written consent of the
Administrative Agent; (vii) amend, modify or waive any provision of
Section 3 without the written consent of the Issuing Lender or (viii)
amend, modify or waive any provision of subsection 2.4(c) without the
written consent of the Swingline Lender. In furtherance of clause (iii)
of this subsection 10.1, no amendment to or waiver of any
representation or warranty or any covenant contained in this Agreement
or any other Loan Document, or of any Default or Event of Default,
shall be deemed to be effective for purposes of determining whether the
conditions precedent set forth in subsection 5.2 to the making of any
Revolving Credit Loan have been satisfied unless the Majority Revolving
Credit Facility Lenders shall have consented to such amendment or
waiver. Any waiver and any amendment, supplement or modification in
accordance with this subsection 10.1 shall apply equally to each of the
Lenders and shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Loans. In the case
of any waiver, the Loan Parties, the Lenders and the Administrative
Agent shall be restored to their former position and rights hereunder
and under the other Loan Documents, and any Default or Event of Default
waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.
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10.2 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in writing
(including by telecopy), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered,
or three Business Days after being deposited in the mail, postage
prepaid, or, in the case of telecopy notice, when received, addressed
as follows in the case of the Borrower, Holdings and the Administrative
Agent, and as set forth on the signature pages hereto or in any
Assignment and Acceptance in the case of the Lenders, or to such other
address as may be hereafter notified by the respective parties hereto:
The Borrower: STC Broadcasting, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with copies to: Hicks, Muse, ▇▇▇▇
& ▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
and: Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Holdings: Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
The Administrative
Agent: Chase Agency Services
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: 212-552-7953
with a copy to: The Chase Manhattan Bank
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
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provided that any notice, request or demand to or upon the
Administrative Agent or the Lenders shall not be effective until
received.
10.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Administrative
Agent or any Lender, any right, remedy, power or privilege hereunder or
under the other Loan Documents shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are cumulative
and not exclusive of any rights, remedies, powers and privileges
provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan
Documents and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the making of the Loans hereunder.
10.5 Payment of Expenses and Taxes. The Borrower
agrees (a) to pay or reimburse the Administrative Agent for all its
reasonable out-of-pocket costs and expenses incurred in connection with
the development, preparation and execution of, and any amendment,
supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative
Agent, (b) to pay or reimburse each Lender and the Administrative Agent
for all its reasonable costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement, the
other Loan Documents and any such other documents, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent and, at any time after and during the continuance
of an Event of Default, of one counsel of all the Lenders, (c) to pay,
indemnify, and hold harmless each Lender and the Administrative Agent
from and against any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other similar taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery
of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or
any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify
and hold harmless each Lender and the Administrative Agent and their
respective officers, directors, trustees, professional advisors,
employees, affiliates, agents and controlling persons (each, an
"indemnitee") from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such
other documents, including, without limitation, any of the foregoing
relating to the use of proceeds of the Loans or the violation of,
noncompliance with or liability under, any Environmental Law applicable
to the operations of the Borrower, any of its Subsidiaries or any of
the Properties (all the foregoing in this clause (d), collectively, the
"indemnified liabilities"), provided that the Borrower shall have no
obligation hereunder to any indemnitee with respect
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to indemnified liabilities to the extent such indemnified liabilities
are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful
misconduct of such indemnitee or, in the case of indemnified
liabilities arising under this Agreement, any Notes and the other
documents, from material breach by the indemnitee of this Agreement,
any Notes or the other Loan Documents, as the case may be. The
agreements in this subsection 10.5 shall survive repayment of the Loans
and all other amounts payable hereunder.
10.6 Successors and Assigns; Participations and
Assignments. (a) This Agreement shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Administrative Agent, all
future holders of the Loans and their respective successors and
assigns, except that the Borrower may not assign or transfer any of its
rights or obligations under this Agreement without the prior written
consent of each Lender.
(b) Any Lender may in the ordinary course of its
business and in accordance with applicable law, at any time sell to one
or more banks, financial institutions or other entities (each, a
"Participant") participating interests in any Loan owing to such
Lender, any Commitment of such Lender or any other interest of such
Lender hereunder and under the other Loan Documents. In the event of
any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to
this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the
holder of any such Loan for all purposes under this Agreement and the
other Loan Documents, and the Borrower and the Administrative Agent
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. No Lender shall permit any
Participant to have (and no participant shall have) the right to
approve any amendment or waiver of any provision of any Loan Document,
or any consent to any departure by any Loan Party therefrom, except to
the extent that such amendment, waiver or consent would reduce the
principal of, or interest on, the Loans or any fees payable hereunder,
or postpone the date of the final maturity of the Loans, in each case
to the extent subject to such participation. The Borrower agrees that
if amounts outstanding under this Agreement and the Loans are due or
unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant
shall, to the maximum extent permitted by applicable law, be deemed to
have the right of setoff in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the amount
of its participating interest were owing directly to it as a Lender
under this Agreement, provided that in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with
the Lenders the proceeds thereof as provided in subsection 10.7(a) as
fully as if it were a Lender hereunder. The Borrower also agrees that
each Participant shall be entitled to the benefits of subsections 2.16,
2.17 and 2.18 with respect to its participation in the Commitments and
the Loans outstanding from time to time as if it were a Lender,
provided that in the case of subsection 2.17, such Participant shall
have complied with the requirements of said subsection and provided
further that no Participant shall be entitled to receive any greater
amount pursuant to any such subsection than the transferor Lender would
have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary
course of its business and in accordance with applicable law, at any
time and from time to time assign to any Lender, affiliate or Approved
Fund thereof or, with the consent of the Borrower and the
Administrative Agent (which, in each case, shall not be unreasonably
withheld or delayed), to an additional bank, financial institution or
other entity (an "Assignee") all or any part of its rights and
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obligations under this Agreement pursuant to an Assignment and
Acceptance, substantially in the form of Exhibit E, executed by such
Assignee and such Assignor (and, in the case of an Assignee that is not
then a Lender, an affiliate thereof or an Approved Fund, by the
Borrower and the Administrative Agent) and delivered to the
Administrative Agent for its acceptance and recording in the Register,
provided, that no such assignment to an Assignee (other than any Lender
or any affiliate thereof or an Approved Fund) shall be in an aggregate
principal amount of less than $2,500,000 (other than in the case of an
assignment of all of a Lender's interests under this Agreement), unless
otherwise agreed by the Borrower and the Administrative Agent. Any such
assignment need not be ratable as among the Facilities. Upon such
execution, delivery, acceptance and recording, from and after the
effective date determined pursuant to such Assignment and Acceptance,
(A) the Assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with a Commitment and/or Loans as set
forth therein, and (B) the Assignor thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of an Assignor's rights and obligations under
this Agreement, such assigning Lender shall cease to be a party
hereto). Notwithstanding any provision of this subsection 10.6, the
consent of the Borrower shall not be required, and, unless requested by
the Assignee and/or the Assignor, Notes shall not be required to be
executed and delivered by the Borrower, for any assignment which occurs
at any time when any of the events described in Section 8(f) shall have
occurred and be continuing.
(d) The Administrative Agent shall maintain at its
address referred to in subsection 10.2 a copy of each Assignment and
Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the
Commitments of, and the principal amount of the Loans owing to, each
Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, each
other Loan Party, the Administrative Agent and the Lenders shall treat
each Person whose name is recorded in the Register as the owner of the
Loan recorded therein for all purposes of this Agreement. Any
assignment of any Loan or other obligation hereunder (whether or not
evidenced by a Note) shall be effective only upon appropriate entries
with respect thereto being made in the Register. The Register shall be
available for inspection by the Borrower of any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance
executed by an Assignor and an Assignee (and, in the case of an
Assignee that is not then a Lender, an affiliate thereof or an Approved
Fund, by the Borrower and the Administrative Agent) together with
payment to the Administrative Agent of a registration and processing
fee of $3,500, the Administrative Agent shall (i) promptly accept such
Assignment and Acceptance and (ii) record the information contained
therein in the Register on the effective date determined pursuant
thereto and give notice of such acceptance and recordation to the
Borrower.
On or prior to such effective date, upon request the
Borrower, at its own expense, shall execute and deliver to the
Administrative Agent (in exchange for any Revolving Credit Note, Term
Note or Swingline Note of the assigning Lender) a new Revolving Credit
Note, Term Note or Swingline Note, as the case may be, to the order of
such Assignee in an amount equal to the Revolving Credit Commitment,
Delayed Term Loan Commitment or portion of the Committed Term Loans or
Incremental Term Loans, as the case may be, assumed by it pursuant to
such Assignment and Acceptance and, if the assigning Lender has
retained a Revolving Credit Commitment or Delayed Term Loan Commitment
or portion of a Committed Term Loan or Incremental Term Loan hereunder,
a new Revolving Credit Note,
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Committed Term Note or Incremental Term Note, as the case may be, to
the order of the assigning Lender in an amount equal to the Revolving
Credit Commitment or Delayed Term Loan Commitment or Committed Term
Loan or Incremental Term Loan, as the case may be, retained by it
hereunder. Such new Notes shall be in the form of the Note replaced
thereby.
(f) The Borrower agrees that, upon request to the
Administrative Agent by any Lender, the Borrower will execute and
deliver to such Lender (i) a promissory note of the Borrower evidencing
the Revolving Credit Loans of such Lender, substantially in the form of
Exhibit I-1 (each as amended, supplemented, replaced or otherwise
modified from time to time, a "Revolving Credit Note"), and/or (ii) a
promissory note of the Borrower evidencing the applicable Term Loan of
such Lender, substantially in the form of Exhibit I-2 (each as amended,
supplemented, replaced or otherwise modified from time to time, a "Term
Note"), and/or (iii) a promissory note of the Borrower evidencing the
Swingline Loans of the Swingline Lender, substantially in the form of
Exhibit I-3) (as amended, supplemented, replaced or otherwise modified
from time to time, the "Swingline Note").
(g) The Borrower authorizes each Lender to disclose
to any Participant or Assignee (each, a "Transferee") and any
prospective Transferee any and all financial information concerning the
Loan Parties and their respective affiliates which has been delivered
to such Lender by or on behalf of any Loan Party pursuant to this
Agreement or any other Loan Document or which has been delivered to
such Lender by or on behalf any Loan Party in connection with such
Lender's credit evaluation of the Loan Parties and their respective
affiliates, under the condition that such Transferee or prospective
Transferee shall previously have agreed to be bound by the provisions
of subsection 10.15.
(h) For avoidance of doubt, the parties to this
Agreement acknowledge that the provisions of this subsection 10.6
concerning assignments of Loans and Notes relate only to absolute
assignments and that such provisions do not prohibit assignments
creating security interests, including, without limitation, any pledge
or assignment by a Lender of any Loan or Note to any Federal Reserve
Bank in accordance with applicable law, provided that no such pledge or
assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or assignee
for such lender as a party hereunder.
10.7 Adjustments; Set-off. (a) Except to the extent
that this Agreement provides for payments to be allocated to the
Lenders under a particular Facility, if any Lender (a "Benefitted
Lender") shall at any time receive any payment of all or part of its
Loans or the Reimbursement Obligations owing to it, or interest
thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 8(f), or otherwise),
in a greater proportion than any such payment to or collateral received
by any other Lender, if any, in respect of such other Lender's Loans or
the Reimbursement Obligations owing to such other Lender, or interest
thereon, such Benefitted Lender shall purchase for cash from the other
Lenders a participating interest in such portion of each such other
Lender's Loans and/or of the Reimbursement Obligations owing to each
such other Lender, or shall provide such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefitted Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such Benefitted
Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without
interest.
(b) In addition to any rights and remedies of the
Lenders provided by law, each Lender shall have the right, without
prior notice to the Borrower, any such notice being
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expressly waived by the Borrower to the extent permitted by applicable
law, upon any amount becoming due and payable by the Borrower hereunder
(whether at the stated maturity, by acceleration or otherwise) to set
off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such
Lender or any branch or agency thereof to or for the credit or the
account of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such setoff and
application made by such Lender, provided that the failure to give such
notice shall not affect the validity of such setoff and application.
10.8 Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement on any number of separate
counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
10.9 Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
10.10 Integration. This Agreement and the other Loan
Documents represent the entire agreement of Holdings, the Borrower, the
Administrative Agent and the Lenders with respect to the subject matter
hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Lender
relative to subject matter hereof or thereof not expressly set forth or
referred to herein or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers. Each of
Holdings and the Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the other
Loan Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State
of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may
be brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead
or claim the same;
(c) agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially
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similar form of mail), postage prepaid, to the Borrower at its
address set forth in subsection 10.2 or at such other address
of which the Administrative Agent shall have been notified
pursuant thereto;
(d) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted by
law or shall limit the right to ▇▇▇ in any other jurisdiction;
and
(e) waives, to the maximum extent not prohibited by
law, any right it may have to claim or recover in any legal
action or proceeding referred to in this subsection 10.12 any
special, exemplary, punitive or consequential damages.
10.13 Acknowledgments. Each of Holdings and the
Borrower hereby acknowledges that:
(a) it has been advised by counsel in the
negotiation, execution and delivery of this Agreement and the
other Loan Documents;
(b) neither the Administrative Agent nor any Lender
has any fiduciary relationship with or duty to the Borrower
arising out of or in connection with this Agreement or any of
the other Loan Documents, and the relationship between
Administrative Agent and Lenders, on one hand, and Holdings
and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the
other Loan Documents or otherwise exists by virtue of the
transactions contemplated hereby among the Lenders or among
Holdings and the Borrower and the Lenders.
10.14 WAIVERS OF JURY TRIAL. HOLDINGS, THE BORROWER,
THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
10.15 Confidentiality. Each Lender agrees to keep
information obtained by it pursuant hereto and the other Loan Documents
identified as confidential in writing at the time of delivery
confidential in accordance with such Lender's customary practices and
agrees that it will only use such information in connection with the
transactions contemplated by this Agreement and not disclose any of
such information other than (a) to such Lender's employees,
representatives, directors, attorneys, auditors, agents, professional
advisors, trustees or affiliates who are advised of the confidential
nature of such information or to any direct or indirect contractual
counterparty in swap agreements or such contractual counterparty's
professional advisor (so long as such contractual counterparty or
professional advisor to such contractual counterparty agrees to be
bound by the provision of this Section 10.15), (b) to the extent such
information presently is or hereafter becomes available to such Lender
on a non-confidential basis from any source or such information that is
in the public domain at the time of disclosure, (c) to the extent
disclosure is required by law (including applicable securities laws),
regulation, subpoena or judicial order or process (provided that notice
of such requirement or order shall be promptly furnished to the
Borrower unless such notice is legally prohibited) or requested or
required by bank, securities, insurance or investment company
regulations or auditors or any administrative body or commission
(including the Securities
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Valuation Office of the National Association of Insurance
Commissioners) to whose jurisdiction such Lender may be subject, (d) to
any rating agency to the extent required in connection with any rating
to be assigned to such Lender, (e) to Transferees or prospective
Transferees who agree to be bound by the provisions of this subsection
10.15, (f) to the extent required in connection with any litigation
between any Loan Party and any Lender with respect to the Loans or this
Agreement and the other Loan Documents or (g) with the Borrower's prior
written consent. The agreements in this subsection 10.15 shall survive
repayment of the Loans and all other amounts payable hereunder.
10.16 FCC Compliance. Notwithstanding anything to the
contrary contained herein or in any other agreement, instrument or
document executed in connection herewith, no party hereto shall take
any actions hereunder that would constitute or result in a transfer or
assignment of any Station License, permit or authorization or a change
of control over such Station License, permit or authorization requiring
the prior approval of the FCC without first obtaining such prior
approval of the FCC.
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IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above written.
SUNRISE TELEVISION CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: CFO
STC BROADCASTING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: CFO
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
----------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
NATIONSBANK, N.A., as Documentation Agent
and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SALOMON BROTHERS HOLDING COMPANY INC, as
Syndication Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
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SCHEDULE 1.1A
REVOLVING CREDIT COMMITMENTS
Lender Revolving Credit Commitment
------ ---------------------------
The Chase Manhattan Bank $20,000,000
NationsBank, N.A. $10,000,000
Salomon Brothers Holding Company Inc $10,000,000
TERM LOAN COMMITMENTS
Initial Term Delayed Term
Lender Loan Commitment Loan Commitment
------ --------------- ---------------
The Chase Manhattan Bank $35,000,000 $15,000,000
NationsBank, N.A. $17,500,000 $ 7,500,000
Salomon Brothers Holding $17,500,000 $ 7,500,000
Company Inc
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Annex A
PRICING GRID FOR LOANS
Applicable Margin Applicable
Consolidated Leverage Ratio for Eurodollar Loans Margin for ABR Commitment Fee
Loans Rate
Greater than or equal to 6.50 to 1.0 2.125% 0.875% 0.50%
Greater than or equal to 6.00 to 1.0 and 1.875% 0.625% 0.375%
less than 6.50 to 1.0
Greater than or equal to 5.50 to 1.0 and 1.625% 0.375% 0.375%
less than 6.00 to 1.0
Greater than or equal to 5.00 to 1.0 and 1.375% 0.125% 0.375%
less than 5.50 to 1.0
Greater than or equal to 4.50 to 1.0 and 1.125% 0% 0.25%
less than 5.00 to 1.0
Less than 4.50 to 1.0 0.875% 0% 0.25%
Changes in the Applicable Margin or in the Commitment Fee Rate resulting from
changes in the Consolidated Leverage Ratio shall become effective on the first
day (the "Adjustment Date") of the month following the month in which financial
statements are delivered to the Lenders pursuant to subsection 6.1 (but in any
event not later than the 45th day after the end of each of the first three
quarterly periods of each fiscal year or the 90th day after the end of each
fiscal year, as the case may be) and shall remain in effect until the next
change to be effected pursuant to this paragraph. If any financial statements
referred to above are not delivered within the time periods specified above,
then, until such financial statements are delivered, the Consolidated Leverage
Ratio as at the end of the fiscal period that would have been covered thereby
shall for the purposes of this definition be deemed to be greater than 6.50 to
1. Each determination of the Consolidated Leverage Ratio pursuant to this
paragraph shall be made with respect to the period of four consecutive fiscal
quarters of the Borrower ending at the end of the period covered by the relevant
financial statements.