1
Exhibit 10.28
PUT AND CALL AGREEMENT
PUT AND CALL AGREEMENT dated as of February 5, 1999 (this
"Agreement") among (i) HICKS, MUSE, XXXX & XXXXX EQUITY FUND III, L.P. (the
"Fund"); (ii) (with respect to Sections 14 and 15 hereof) by HM3/GP PARTNERS,
L.P., XXXXX, MUSE GP PARTNERS III, L.P. and XXXXX, MUSE FUND III INCORPORATED
(such three entities being collectively referred to hereinafter as the "General
Partner"), (iii) THE CHASE MANHATTAN CORPORATION, CREDIT SUISSE FIRST BOSTON
CORPORATION and SALOMON BROTHERS HOLDING COMPANY INC. (each, a "Purchaser" and
collectively, the "Purchasers") and (iv) CHASE SECURITIES, INC., as arranger
(the "Arranger") with respect to the Securities Purchase Agreement referred to
below and the transactions contemplated hereby.
RECITALS:
WHEREAS, STC Broadcasting, Inc., a Delaware corporation
("STC"), the Purchasers and the Arranger are parties to a Securities Purchase
Agreement dated as of the date hereof providing for the commitment (the
"Commitment") by the Purchasers or their assignees to purchase up to $90.0
million of Preferred Stock, Series B, of STC (the "Securities Purchase
Agreement"; except as otherwise defined herein, terms defined in the Securities
Purchase Agreement are used herein as therein defined); and
WHEREAS, it is a condition to the Purchasers' obligation to
purchase Preferred Stock, Series B, under the Securities Purchase Agreement
that the Fund and the General Partner shall have executed and delivered this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
other benefits accruing to the Fund and the General Partner, on the one hand,
and the Purchasers, on the other hand, the receipt and sufficiency of which arc
hereby acknowledged, each of the Fund and the General Partner (with respect to
Sections 14 and 15 hereof) hereby makes the following representations and
warranties to the Purchasers and the Arranger and the Fund, and the General
Partner (with respect to Sections 14 and 15 hereof) hereby covenants and agrees
with the Purchasers and the Arranger as follows:
Section 1. Definitions. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined).
"Enforcement Costs" has the meaning provided in Section 9 of
this Agreement.
"Purchase Price" means an amount in cash equal to the sum of
(i) the full face amount of all shares of Preferred Stock, Series B then
outstanding, plus (ii) all accrued unpaid dividends thereon through the
applicable purchase date, plus (iii) any breakage costs, in each case
determined in accordance with the Preferred Stock, Series B.
"Trigger Event" means the earliest to occur of (i) the
occurrence of an Event of Default under (x) the Indenture dated as of March 25,
1997, as in effect on the date hereof, between STC, on the one hand, and U.S.
Trust Company of Texas, as trustee, on the other hand, (y) the Amended and
Restated Credit Agreement, dated as of July 2, 1998, among the Company, The
Chase Manhattan Bank, as administrative agent, NationsBank, N.A., as
documentation agent, Salomon Brothers Holding Company Inc., as
2
syndication agent, and any other financial institutions from time to time party
thereto, together with the related documents thereto (including, without
limitation, any guarantee agreements and security documents), in each case as
such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including by way of adding Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders (or other
institutions) or (z) the Securities Purchase Agreement; (ii) a failure to
comply (within 5 Business Days after receipt of notice from the Arranger) with
any of the terms of the Certificate of Designation with respect to the
Preferred Stock, Series B or (iii) August 5, 1999.
Section 2. Put Rights and Obligations. At any time and from
time to time after a Trigger Event, any Purchaser may, on behalf of itself and
the then holders of Preferred Stock, Series B, (A) upon written notice to the
Fund, require the Fund (x) to purchase all then outstanding shares of Preferred
Stock, Series B, in cash in an amount equal to the Purchase Price, together
with any other obligations under the Securities Purchase Agreement or
Engagement Letter then due and payable to Purchasers or the Arranger, as the
case may be, or any of their respective affiliates, or payable on their behalf,
including any costs and expenses with respect to the exercise of such put and,
(y) assume (with full release of all obligations of the Arranger and each
Purchaser or any assignee thereof) any remaining Commitment and, (B) each
holder of Preferred Stock, Series B agrees to sell its Preferred Stock, Series
B to the Fund in connection with a sale pursuant to this Section 2. Each such
purchase and assumption shall be made on the Business Day specified in the
written notice to the Fund delivered pursuant to this Section 2, provided that
the date specified shall not be sooner than 15 Business Days after the delivery
of the written notice to the Fund.
Section 3. Call Rights and Obligations. At any time and from
time to time prior to the satisfaction and release of this Agreement pursuant
to Section 22 of this Agreement, the Fund may upon at least 5 Business Days'
prior written notice to Arranger, purchase all outstanding shares of Preferred
Stock, Series B, by paying to the Arranger on behalf of the holders of
Preferred Stock, Series B, in cash in an amount equal to the Purchase Price,
together with all other obligations under the Securities Purchase Agreement or
Engagement Letter then due and payable to any of the Purchasers or the
Arranger, as the case may be, or any of their respective affiliates, or payable
on their behalf, including any costs and expenses with respect to the exercise
of such call (including any breakage costs with respect to any payment made on
a date other than a dividend payment date). The delivery of any such notice by
the Fund shall be deemed to be an immediate assumption with full release of all
Obligations of the Purchasers of any remaining Commitment. Upon the delivery of
any notice pursuant to this Section 3, the obligation of the Fund to make such
purchase described in this Section 3 shall be absolute and irrevocable.
Section 4. Determination of Obligations and Purchase Price
Therefor. Notwithstanding anything to the contrary contained elsewhere in this
Agreement, the Securities Purchase Agreement or the Assignment and Acceptance,
for purposes of determining the purchase price payable from time to time
pursuant to the provisions of this Agreement, accrued dividends shall include,
without limitation, all dividends accruing on the Preferred Stock, Series B,
subsequent to the filing of a petition of bankruptcy at the stated dividend
rate, whether or not such dividends are an allowed claim under applicable law,
shall be calculated without regard to any invalidity, irregularity or
unenforceability of all or any part of an obligation of STC under the
Securities Purchase Agreement or the Preferred Stock, Series B, and shall be
calculated without giving effect to any setoff, counterclaim or other similar
provision.
Section 5. Nature of Purchases, etc. (a) The Fund irrevocably
acknowledges and agrees that all purchases of shares of Preferred Stock, Series
B, by it and any assignment to it of the Commitment (in accordance with Exhibit
1 hereto), in each case pursuant to this Agreement shall be without recourse
to, or representation or warranty by, the Arranger or any Purchaser except as
expressly provided in the Assignment
3
and Acceptance. In connection with purchases and assignments pursuant to this
Agreement, the respective parties may enter into an Assignment and Acceptance
in substantially the form contemplated by Section 8.06 of the Securities
Purchase Agreement, but the failure so to enter into any such Assignment and
Acceptance shall in no way affect the validity of the assignment, purchase
and/or assumption hereunder.
(b) Any amendments, modifications and waivers to the
Securities Purchase Agreement, the Certificate of Designation with respect to
the Preferred Stock, Series B and/or the Engagement Letter that require the
consent of the Arranger or any other party thereto (other than STC) shall also
require the consent of the Fund.
Section 6. Remedies. (a) In the event that the Fund fails to
perform its obligations pursuant to Section 2 or following its giving of the
notice provided in Section 3, any of the Purchasers may bring any action,
proceeding or court action seeking (i) specific performance of the obligations
of the Fund and the General Partner hereunder, including, without limitation,
the obligations of the Fund and the General Partner under Section 15, which the
parties hereto agree shall be available to the maximum extent permitted by
applicable law, (ii) damages as a result of any such failure to perform
pursuant to this Agreement, with the parties hereto agreeing that all damages
(including without limitation the full unpaid amount due hereunder and
consequential damages) to the Purchasers arising as a result of any breach by
the Fund of its obligations hereunder shall be recoverable by them in any such
action and/or (iii) any other remedy available under applicable law, including,
without limitation specific performance or injunctive relief with respect
thereto. Without limiting the foregoing, following any failure by the Fund to
perform any of its obligations pursuant to Sections 2 and/or 3, the Purchasers
shall be permitted (but not obligated) to dispose of the Preferred Stock,
Series B and/or any Commitment, in any commercially reasonable fashion and, in
the event of an such disposition of Preferred Stock, Series B, the Fund shall
be liable to the Purchasers for the amount, if any, by which (x) the amount
which would be required to be paid by the Fund hereunder if the Preferred
Stock, Series B, were purchased by it on the date of the respective disposition
pursuant to Section 2 hereof exceeds (y) the cash amount actually received by
the Purchasers from the disposition of the Preferred Stock, Series B.
(b) To the maximum extent permitted by applicable law, all of
the remedies set forth herein or in the Securities Purchase Agreement or at law
or in equity shall be equally available to the Purchasers and the Arrangers and
the choice by any of the Purchasers or the Arranger, as the case may be, of one
such alternative over another shall not be subject to question or challenge by
the Fund, the General Partner or any other Person, nor shall any such choice be
asserted as a defense, setoff or failure to mitigate damages in any action,
proceeding, or court action by the Purchasers or the Arranger, as the case may
be, to recover or seeking any other remedy under this Agreement, nor shall any
such choice preclude the Arranger from subsequently electing to exercise a
different remedy.
Section 7. Waiver. The Fund and the General Partner hereby
irrevocably waive (i) notice of acceptance of this Agreement by the Purchasers
and the Arranger and, except as otherwise expressly required by Section 2
hereof, any and all notices and demands of every kind which may be required to
be given by any statute, rule or law, (ii) any defense, right of set-off or
other claim which the Fund or General Partner may have against STC, or which
the Fund, the General Partner or STC may have against the Purchasers or the
Arranger and (iii) any failure by the Purchasers or the Arranger to inform the
Fund or General Partner of any facts the Purchasers or the Arranger may now or
hereafter know about STC, the Fund, the General Partner, or the transactions
contemplated by the Securities Purchase Agreement, it being understood and
agreed that the neither Arranger nor the Purchasers have any duty to so inform
and that the Fund and the General Partner are fully responsible for being and
remaining informed of all circumstances bearing on the existence or creation or
the risk of nonperformance by STC under the Securities Purchase
4
Agreement or the Preferred Stock, Series B. Neither the Purchasers nor the
Arranger shall have an obligation to disclose or discuss with the Fund their
assessment of the financial condition of STC. The Fund and the General Partner
acknowledge that no representations of any kind whatsoever have been, or will
be, made by the Purchasers or the Arranger to the Fund or General Partner,
except as expressly provided in the Assignment and Acceptance when delivered by
the Arranger to the Fund. No modification or waiver of any of the provisions
of this Agreement shall be binding upon the Purchasers and the Arranger except
as expressly set forth in a writing duly signed and delivered by the Purchasers
and the Arranger. The Fund and the General Partner further agree that any
exculpatory or exoneration language contained in any document evidencing the
Preferred Stock, Series B, or any Commitment shall in no event apply to this
Agreement, and will not prevent the Purchasers or the Arranger from proceeding
against the Fund to enforce this Agreement.
Section 8. Nature of Liability; Independent Obligation. (a)
Each of the Fund and the General Partner agrees this Agreement may be enforced
by any of the Purchasers or the Arranger without the necessity at any time of
resorting to or exhausting any proceedings or actions under the Securities
Purchase Agreement the Preferred Stock, Series B, or otherwise, or resorting to
any other guaranties or attempting first to collect thereunder (or to enforce
the performance thereof) by STC. The Fund and the General Partner hereby waive
the right to require any Purchaser or the Arranger to join STC in any action
brought hereunder or to commence any action against or obtain any judgment
against STC or to pursue any other remedy or enforce any other right. To the
extent permitted by applicable law, the Fund and the General Partner further
agree that nothing contained herein or otherwise shall prevent any Purchaser or
the Arranger from pursuing concurrently or successively all rights and remedies
available to the Arranger at law and/or in equity or under the Securities
Purchase Agreement, and the exercise of any of its rights or the completion of
any of its remedies shall not constitute a discharge of any of the Fund's
obligations hereunder, it being the purpose and intent of the Fund and the
General Partner that its obligations hereunder shall be absolute, independent
and unconditional under any and all circumstances whatsoever without regard to
the validity, regularity or enforceability of the Securities Purchase
Agreement. Neither the obligations of the Fund nor the General Partner under
this Agreement nor any remedy for the enforcement thereof shall be impaired,
modified, changed or released in any manner whatsoever by any impairment
modification, change, release or limitation of the liability of STC under the
Securities Purchase Agreement or by reason of the Fund's, the General Partner's
or STC's bankruptcy or by reason of any creditor or bankruptcy proceeding
instituted by or against the Fund or STC.
(b) Subject to applicable law, this Agreement shall continue
to be effective, or be reinstated, as the case may be, if at any time payment
on or with respect to the Preferred Stock, Series B, or any part thereof in
cash in an amount equal to the Purchase Price, together with any other
obligations under the Securities Purchase agreement or Engagement Letter then
due and payable to any Purchaser or the Arranger, as the case may be, or any of
their respective affiliates, or payable on their behalf, including any costs
and expenses with respect tot he exercise of such put, is rescinded or must
otherwise be restored or returned by any Purchaser or the Arranger, as the case
may be, upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Fund, the General Partner or STC, or upon or as result of
the appointment of a receiver, intervenor, custodian or conservator of, or
trustee or similar officer for, the Fund or STC or any substantial part of any
such person's property, or otherwise, all as though such payments had not been
made regardless of whether any Purchaser or the Arranger contested the order
requiring the return of such payment.
Section 9. Enforcement Costs. If: (i) this Agreement is
placed with an attorney or law firm for enforcement or is enforced through any
legal proceeding; (ii) an attorney or law firm is retained to represent the
Arranger or any Purchaser in any bankruptcy, reorganization, receivership, or
other proceedings initiated by or against the Fund affecting creditors' rights
and involving a claim under this Agreement;
5
or (iii) an attorney or law firm is retained to represent the Arranger or any
Purchaser in any other proceedings whatsoever in connection with the
enforcement of this Agreement or to provide advice or other representation with
respect to the enforcement of this Agreement, then the Fund agrees to pay to
the Arranger or any Purchaser, as applicable, upon demand all costs and
expenses, including, without limitation, court costs, filing fees, and all
other reasonable costs and expenses incurred in connection therewith,
including, without limitation, reasonable attorneys' fees and expenses (all of
which costs, expenses, and fees are referred to herein as "Enforcement Costs"),
in addition to all other amounts due hereunder. regardless of whether all or a
portion of such Enforcement Costs are incurred in a single proceeding brought
to enforce this Agreement.
Section 10. Severability. If any provisions of this Agreement
are found by a court of law to be in violation of any applicable local, state
or federal ordinance, statute, law, administrative or judicial decision, or
public policy and if such court should declare any provisions of this Agreement
to be illegal, invalid. unlawful, void or unenforceable as written, then it is
the intent of the parties that such provisions shall be given force to the
fullest possible extent that they are legal, valid and enforceable, that the
remainder of this Agreement shall be construed as if such illegal, invalid,
unlawful, void or unenforceable provisions were not contained therein, and that
the rights, obligations and interest of the Arranger and the Purchasers under
the remainder of this Agreement shall continue in full force and effect.
Section 11. Execution of Assignment and Acceptance. Upon the
exercise by any Purchaser on behalf of all the Purchasers of its rights under
Section 2 hereof or the exercise by the Fund of its rights under Section 3
hereof (but before the fulfillment by the Purchasers of all of their
Commitments under the Securities Purchase Agreement), the Arranger and the Fund
agree promptly to execute and deliver an Assignment and Acceptance as set forth
in Exhibit 1 hereto.
Section 12. Liability Absolute. The liability of the Fund and
the General Partner to the Purchasers and the Arranger under this Agreement
shall be fixed and absolute, and it shall not constitute a defense,
counterclaim, setoff, or recoupment thereto that any of the Purchasers or the
Arranger has not made any demand or protest or instituted any action or
proceeding against STC or against any other Person who may be liable or
otherwise responsible for all or any of the Preferred Stock, Series B, nor
shall any Purchaser or the Arranger be required to perform any of the above
acts against STC as a condition of enforcing any of their respective rights
against the Fund in accordance with the terms of this Agreement.
Section 13. Notices. Except as otherwise specified herein,
all notices, requests, demands or other communications to or upon the Fund, the
General Partner or any of the Purchasers or the Arranger shall be deemed to
have been duly given or made when received by the party to which such notice,
request demand or other communication is required or permitted to be given or
made under this Agreement, addressed as follows:
(a) if to the Fund or the General Partner, at:
c/o Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx, Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
6
with copies to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or
(b) if to the Arranger or any Purchaser, as provided in the
Securities Purchase Agreement; with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx,
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
Section 14. Representations. In order to induce the Arranger
and the Purchasers to enter into the Securities Purchase Agreement and to
purchase the Preferred Stock, Series B, as provided therein, the Fund (as to
itself) and the General Partner (as to the Fund and itself) make the following
representations, warranties and agreements, all of which shall survive the
execution and delivery of this Agreement and the purchase of the Preferred
Stock, Series B.
(1) Partnership Status. The Fund and each General Partner (i)
is a duty organized and validly existing partnership or corporation,
as the case may be, in good standing under the laws of the
jurisdiction of its organization, (ii) has the partnership or
corporate, as the case may be, power and authority to own its property
and assets and to transact the business in which it is engaged and
presently proposes to engage and (iii) is duly qualified and is
authorized to do business and is in good standing in each jurisdiction
where the ownership, leasing or operation of its property or the
conduct of its business requires such qualifications.
(2) Power and Authority. The Fund and each General Partner
has the partnership or corporate, as the case may be, power and
authority to execute, deliver and perform the terms and provisions of
this Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement. The Fund
and each General Partner has duly executed and delivered this
Agreement, and this Agreement constitutes its legal, valid and binding
obligation enforceable in accordance with its terms.
(3) No Violation. Neither the execution, delivery or
performance by the Fund or any General Partner of this Agreement, nor
compliance by it with the terms and provisions hereof, (i) will
contravene any provision of any law, statute, rule or regulation or
any order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict with or result in any breach of
any of the terms, covenants, conditions or provisions of or constitute
a default under, or result in the creation or imposition of (or the
obligation to create or impose) any lien upon any of the property or
assets of the Fund or any General Partner pursuant to the terms of any
indenture,
7
mortgage, deed of trust, Securities Purchase Agreement or any other
agreement, contract or instrument, to which the Fund is a party or by
which it or any of its property or assets is bound or to which it may
be subject or (iii) will violate any provision of the partnership
agreement of the Fund or the partnership agreement or charter or by
laws of any General Partner.
(4) Governmental Approvals. No order, consent, approval,
license, authorization or validation of, or filing, recording or
registration with, or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize, or is
required in connection with, (i) the execution, delivery and
performance of this Agreement or (ii) the legality, validity, binding
effect or enforceability of this Agreement.
(5) Litigation. There are no actions, suits or proceedings
pending or, to the best knowledge of the Fund or any General Partner
threatened (i) with respect to this Agreement, or (ii) that could
reasonably be expected to materially and adversely affect the
business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Fund or any General
Partner or their ability to fully and timely perform their obligations
hereunder.
(6) Compliance with Statutes, etc. The Fund and each General
Partner is in compliance in all material respects with all applicable
statutes, regulations and orders of, and all applicable restrictions
imposed by, all governmental bodies, domestic or foreign, in respect
of the conduct of its business and the ownership of its property
(including applicable statutes, regulations, orders and restrictions
relating to environmental standards and controls).
(7) Capital Contributions. The General Partner has the sole
and unilateral right under the partnership agreement of the Fund to
call cash capital contributions from the partners to the Fund and to
make any capital contributions to STC and Sunrise Television Corp., a
Delaware corporation and the parent of STC ("Holdco"), which
contributions may be used to fund the Fund's obligations hereunder.
The aggregate amount of unfunded capital commitments of the partners
to the Fund (after subtracting therefrom the sum of (x) the
commitments of any partner who has defaulted in any of its obligations
to the Fund and (y) the maximum amount of "Other Obligations") are in
an amount at least equal to $124.3 million. Other Obligations shall
mean the amount of all other obligations of the Fund with respect to
the payment of money, including, without limitation, with respect to
contractual or other obligations to purchase securities, including
under any letters of intent, other put/call agreements or other
agreements similar to this Agreement, any agreement to guaranty or
otherwise provide financial support with respect to any other
obligations and any other capital commitments made by or on behalf of
the Fund.
(8) Financial Statements. The (i) unaudited balance sheet of
the Fund for the nine-month period ended September 30, 1998 and the
related statements of income and cash flows and (ii) the audited
balance sheet of the Fund for the year ended December 31, 1997 and the
related statements of income and cash flows provided to the Arranger,
fairly present the financial condition, changes in net assets and
receipts and disbursements of the Fund at the dates and for the period
to which they relate and have been prepared in accordance with
generally accepted accounting principles ("GAAP") applied on a
consistent basis (except as otherwise stated therein and except that
they do not contain full footnote disclosures in accordance with
GAAP). All of the financial statements referred to in clause (i) above
have been prepared on a basis substantially consistent with that of
the audited financial statements referred to in clause (ii) above
(except as otherwise stated therein). All such financial statements
and information are complete and correct and have been previously
delivered to the Arranger prior to the execution and delivery of this
Agreement. The aggregate amount of unfunded capital commitments of the
Fund, excluding the commitments of any partner who has defaulted in
any of its obligations to the Fund, available to be called for
investment, including with respect to the Fund's obligations
hereunder, as of the date hereof, is $222,250,850.
8
(9) The Fund and the General Partner represent and warrant
that, as of the date hereof, the Fund owns no less than 75% of the
economic interest in Holdco on a fully diluted basis.
Section 15. Covenants. (a) Each of the Fund and the General
Partner agree to take all action as may be necessary so that, at all times
prior to the satisfaction and release of all obligations of the Fund under this
Agreement pursuant to Section 22 of this Agreement, the General Partner shall
have the right to call cash capital contributions from the limited partners of
the Fund in amounts, and at times, sufficient to fund in a timely manner all
obligations of the Fund under this Agreement. Without limitation of the
foregoing, each of the Fund and the General Partner shall perform and observe
all the terms and provisions of the partnership agreement of the Fund to be
performed or observed by it in respect of such cash capital contribution;
maintain such partnership agreement in full force and effect; enforce such
partnership agreement in respect of such cash capital contributions in
accordance with its terms; give notice to the limited partners to make payments
of their cash capital contributions in such aggregate amount, and at such
times, as shall be necessary to pay in full the obligations of the Fund under
this Agreement when due; and take such action as may be necessary to collect or
otherwise enforce the payment of such cash capital contributions, in each case
to the extent necessary for the Fund to comply in a timely manner with its
obligations under this Agreement.
(b) Until all Obligations of the Fund and the General Partner
shall have been satisfied and discharged pursuant to Section 22 hereof, each of
the Fund and the General Partner hereby covenant that: (i) the Fund (or one or
more of its affiliates) shall, at all times, own, both legally and
beneficially, 100% of the voting stock of Holdco, (ii) the Fund will not
Transfer any of its interests in Holdco in any way which would reduce its
economic interest in Holdco below the percentage set forth in Section 14(9)
hereof, and (iii) the Fund will cause Holdco to own all of the outstanding
common equity securities of STC. "Transfer" means the direct or indirect offer,
sale, donation, assignment (as collateral or otherwise) pledge, hypothecation,
encumbrance, transfer, bequest or disposition of or solicitation of an offer to
buy or purchase any of the legal, economic or beneficial rights of, or
interests in, any equity securities.
(c) The Fund shall at all times maintain compliance with
Section 14(7) so that such representation and warranty will be accurate at all
times. The General Partner will cause the Fund to be in compliance with the
first sentence of this Section 15(d).
(d) Until all Obligations of the Fund and the General Partner
shall have been satisfied and discharged pursuant to Section 22 hereof, each of
the Fund and the General Partner hereby covenant that (i) it will comply with
Section 5.12 of the Second Amended and Restated Partnership Agreement of Hicks,
Muse, Xxxx & Xxxxx Equity Fund III, L.P. as in effect on the date hereof and
(ii) maintain net assets (valued at the lesser of book value or fair value), at
least equal to the sum of (x) $124.3 million, plus (y) the maximum amount of
Other Obligations (as defined in Section 14(7) hereof).
Section 16. Indemnity. The Fund hereby agrees to indemnify
and hold the Arranger and each Purchaser free and harmless from and against all
loss, cost, damage, and expense, including attorney's fees and costs, which the
Arranger or any Purchaser shall at any time have actually sustained by reason
of the inaccuracy or breach of any of the foregoing representations and
warranties as of the date of the foregoing representations and warranties are
made or are deemed remade.
Section 17. Receipt of Credit Documents. The Fund by its
execution hereof acknowledges receipt of true copies of the Securities Purchase
Agreement.
Section 18. Successors; Assigns. This Agreement shall be
binding upon the Fund and its successors and assigns.
9
Section 19. Reliance on Requests for Advances. The Arranger
shall be entitled to honor any request for purchase of Preferred Stock, Series
B, made by STC under the Securities Purchase Agreement and shall have no
obligation to see to the proper disposition of the proceeds of any such
purchase or the drawings thereunder. The Fund agrees that its obligations
hereunder shall not be released or affected by reason of (x) the failure to
satisfy any conditions precedent to any such purchase and the issuance of the
Preferred Stock, Series B at the time of the making thereof or (y) any improper
disposition by STC of the proceeds of any such purchase.
Section 20. Appointment as Agent for STC. The Fund, at its
office in New York City hereby accepts its appointment by STC as agent for
service of process and agrees to promptly forward any and all process received
by the Fund in respect of STC and/or its property to STC via facsimile,
followed by overnight courier, to STC's address as follows:
c/o Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx. Jr.
Telephone: (000) 000-0000
Telefax: (000) 000-0000
Section 21. Third-Party Beneficiaries. This Agreement shall
be for the benefit of the Purchasers, the Arranger and their respective
successors and assigns. The holders, from time to time, of the Preferred Stock,
Series B, and the persons making the Commitment shall be express third party
beneficiaries hereof.
Section 22. Satisfaction and Release of this Agreement. Upon
the occurrence of (i) the purchase of all shares of Preferred Stock, Series B,
in accordance with Sections 2 and/or 3 and the expiration or termination or
assignment of the Commitment or (ii) the indefeasible redemption in full in
cash or cash equivalents of all outstanding shares of Preferred Stock, Series
B, under the Securities Purchase Agreement and the expiration or termination of
the Commitment, then, subject to the provisions of Section 8(b), all
obligations of the Fund under this Agreement shall be deemed satisfied and
discharged and this Agreement shall be released.
Section 23. Counterparts. This Agreement may be executed in
several counterparts, each of which is an original, but all of which together
constitute one and the same agreement Delivery of an executed counterpart of a
signature page to this Agreement by telecopier shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 24. GOVERNING LAW; SUBMISSION TO JURISDICTION: VENUE;
WAIVER OF JURY TRIAL. (1) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE FUND AND EACH GENERAL PARTNER HEREBY
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE FUND AND EACH
GENERAL PARTNER HEREBY IRREVOCABLY AGREES TO ACCEPT AT ITS OFFICE AT 1325
AVENUE OF THE AMERICAS, 00XX XXXXX, XXX XXXX, XXX XXXX 00000 SERVICE OF
10
ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED
IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH OFFICE SHALL CEASE TO
BE AVAILABLE TO ACT AS SUCH IN NEW YORK, NEW YORK, THE FUND AND EACH GENERAL
PARTNER AGREES TO DESIGNATE A NEW AGENT FOR SERVICE OF PROCESS IN NEW YORK, NEW
YORK ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE
ARRANGER. THE FUND AND EACH GENERAL PARTNER FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION
OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE FUND AND EACH GENERAL PARTNER AT ITS ADDRESS SET FORTH
IN SECTION 13 ABOVE, SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH
MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ARRANGER TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE FUND AND EACH GENERAL PARTNER IN ANY OTHER
JURISDICTION.
(2) THE FUND AND EACH GENERAL PARTNER HEREBY IRREVOCABLY
WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (1) ABOVE AND
HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH
COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
(3) EACH OF THE FUND AND EACH GENERAL PARTNER, THE PURCHASERS
AND THE ARRANGER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE).
11
IN WITNESS WHEREOF, the fund has executed this Agreement as
of the date first above written.
HICKS, MUSE, XXXX & XXXXX EQUITY
FUND III, L.P., as Assignee
By: HM3/GP PARTNERS, L.P.,
a Texas limited partnership,
its General Partner
By: XXXXX, MUSE GP PARTNERS III, L.P.,
a Texas limited partnership,
its General Partner
By: XXXXX, MUSE FUND III
INCORPORATED,
a Texas corporation,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx, Vice President
(as to Sections 14 and 15 only)
HM3/GP PARTNERS, L.P.,
a Texas limited partnership,
its General Partner
By: XXXXX, MUSE GP PARTNERS III, L.P.,
a Texas limited partnership,
its General Partner
By: XXXXX, MUSE FUND III
INCORPORATED,
a Texas corporation,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx, Vice President
(as to Sections 14 and 15 only)
XXXXX, MUSE GP PARTNERS III, L.P.,
a Texas limited partnership, its
General Partner
12
By: XXXXX, MUSE FUND III
INCORPORATED,
a Texas corporation,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx, Vice President
(as to Sections 14 and 15 only)
XXXXX, MUSE FUND III
INCORPORATED,
a Texas corporation,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx, Vice President
13
Accepted and Agreed to
as of the date first above written:
CHASE SECURITIES INC., as Arranger
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
THE CHASE MANHATTAN CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Managing Director
SALOMON BROTHERS HOLDING COMPANY INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Attorney-In-Fact
14
STC hereby acknowledges that the Arranger and each Purchaser, and any of their
Assignees of the Commitment (as defined above) shall be fully and irrevocably
released from its Commitment to purchase shares of Preferred Stock, Series B,
upon the exercise of any put right under Section 2 of this Agreement.
STC BROADCASTING INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Secretary
15
EXHIBIT 1 TO PUT/CALL AGREEMENT
FORM OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
Dated: ___________, 199__
Reference is made to the Put and Call Agreement dated as of
February 5, 1999 (as restated, amended, modified, supplemented and in effect
from time to time, the "Put and Call Agreement"), among Hicks, Muse, Xxxx &
Xxxxx Equity Fund III, L.P. (the "Fund"), Chase Securities, Inc., as advisor
and arranger (the "Arranger") and certain other persons named therein.
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned to such terms in the Securities Purchase Agreement dated as of
February 5, 1999 by and among the Chase Manhattan Bank, STC Broadcasting, a
Delaware Corporation and Chase Securities, Inc. and certain other persons named
therein This Assignment and Assumption Agreement between [ ], as assignor on
behalf of itself and the other persons indicated on the signature page hereto
(the "Assignor"), and [ ], as assignee (the "Assignee"), is dated as of the
Effective Date (as set forth on Schedule I hereto and made a part hereof).
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date, (x) all the Assignor's rights and obligations under the
Securities Purchase Agreement with respect to the [ ] shares of Preferred
Stock, Series B and (y) all of the Assignor's obligations under the Securities
Purchase Agreement to purchase additional shares of Preferred Stock (the
"Assigned Obligations").
2. The Assignor (i) represents and warrants that it owns the
Assigned Obligations free and clear from any lien or adverse claim made by the
Assignor; (ii) other than the representation and warranty set forth in clause
(i) above, makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with the Securities Purchase Agreement or any other instrument,
document or agreement delivered in connection therewith, or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Securities Purchase Agreement, or any other instrument or document furnished
pursuant thereto, other than that it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and
clear of any adverse claim; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of STC or the
performance or observance by STC of any of its obligations under the Securities
Purchase Agreement, or any other instrument or document furnished pursuant
thereto.
3. The Assignee (i) represents and warrants that it is
legally authorized to enter into this Assignment and Assumption Agreement; (ii)
agrees that it will, independently and without reliance upon Assignor and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Securities Purchase Agreement; and (iii) agrees that it will be bound by
the provisions of the Securities Purchase Agreement and will perform in
accordance with its terms all the obligations which by the terms of the
Securities Purchase Agreement are required to be performed by it as the
Purchaser.
4. After the Effective Date, all payments under the
Securities Purchase Agreement in respect of the Assigned Obligations
(including, without limitation, all payments of principal, interest and
16
fees with respect thereto) for the period from and after the Effective Date
shall be made to the Assignee. The Assignor and the Assignee hereby agree that
if the Assignor receives any of the payments referred to in the preceding
sentence which should have been made to the Assignee, such payments shall
promptly be paid by the Assignor to the Assignee in full. The Assignee hereby
agrees to indemnify Assignor with respect to the Assigned Obligations.
5. From and after the Effective Date, to the extent, and only
to the extent, of the Assigned Obligations, (i) the Assignee shall be a party
to the Securities Purchase Agreement and have the rights and obligations of the
Purchaser thereunder, and (ii) the Assignor shall relinquish its rights and be
released from its obligations under the Securities Purchase Agreement.
6. THIS ASSIGNMENT AND ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
17
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Assumption Agreement to be executed by their respective duly
authorized officers on Schedule I hereto.
[ ], as Assignor
By:
--------------------------------------
Name:
Title:
on behalf of:
Holder Number of Shares of
Preferred Stock Outstanding:
[ ], as Assignee
By:
--------------------------------------
Name:
Title:
ACCEPTED:
ARRANGER
By:
----------------------------
Name:
Title:
