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EXHIBIT 10.12.5
CREDIT AGREEMENT
among
UNIVISION COMMUNICATIONS INC.
THE LENDERS PARTIES HERETO,
BNP PARIBAS
as Joint Advisor, Joint Lead Arranger and Joint Book Manager
THE CHASE MANHATTAN BANK
as Joint Advisor, Joint Lead Arranger and Joint Book Manager
BNP PARIBAS
THE CHASE MANHATTAN BANK
as Arrangers
and
THE CHASE MANHATTAN BANK
as Administrative Agent
Dated as of October 13, 2000
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS..........................................................................................1
1.1 Defined Terms.................................................................................1
1.2 Other Definitional Provisions................................................................18
SECTION 2. AMOUNT AND TERMS OF LOANS; COMMITMENT AMOUNTS.......................................................19
2.1 Loans; Commitment Amounts....................................................................19
2.2 Optional Prepayments.........................................................................21
2.3 Mandatory Prepayments........................................................................21
2.4 Conversion and Continuation Options..........................................................22
2.5 Minimum Amounts of Tranches..................................................................22
2.6 Interest Rates and Payment Dates.............................................................22
2.7 Computation of Interest and Fees.............................................................23
2.8 Inability to Determine Interest Rate.........................................................24
2.9 Pro Rata Treatment and Payments..............................................................24
2.10 Illegality...................................................................................25
2.11 Increased Costs..............................................................................25
2.12 Taxes........................................................................................26
2.13 Indemnity....................................................................................27
2.14 Unused Commitment Fees.......................................................................27
2.15 Mitigation of Costs..........................................................................28
SECTION 3. REPRESENTATIONS AND WARRANTIES......................................................................28
3.1 Financial Condition..........................................................................28
3.2 No Change....................................................................................28
3.3 Corporate Existence; Compliance with Law.....................................................28
3.4 Corporate/Partnership Power; Authorization; Enforceable Obligations..........................29
3.5 No Legal Bar.................................................................................29
3.6 No Material Litigation.......................................................................29
3.7 Ownership of Property; Liens.................................................................29
3.8 Intellectual Property........................................................................30
3.9 Taxes........................................................................................30
3.10 Federal Regulations..........................................................................30
3.11 ERISA........................................................................................31
3.12 Investment Company Act; Other Regulations....................................................31
3.13 Material Agreements..........................................................................31
3.14 Subsidiaries.................................................................................31
3.15 Purpose of Loans.............................................................................31
3.16 Environmental Matters........................................................................32
3.17 Accuracy and Completeness of Information.....................................................32
3.18 Permits, Etc.................................................................................32
3.19 Copyright Act Requirements...................................................................33
3.20 Nature of Business...........................................................................33
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3.21 FCC Matters; Media Licenses..................................................................33
3.22 Ranking of Loans.............................................................................34
3.23 Insolvency...................................................................................34
3.24 Labor Matters................................................................................34
3.25 Condemnation.................................................................................34
3.26 Leases, Licenses, Permits, Site Use Agreements and Other Occupancy Agreements................34
3.27 Corporate Organization.......................................................................34
SECTION 4. CONDITIONS PRECEDENT................................................................................34
4.1 Conditions to Closing Date...................................................................34
4.2 Conditions to Each Loan......................................................................37
SECTION 5. AFFIRMATIVE COVENANTS...............................................................................38
5.1 Financial Statements.........................................................................38
5.2 Certificates; Other Information..............................................................39
5.3 Payment of Obligations.......................................................................41
5.4 Conduct of Business and Maintenance of Existence.............................................41
5.5 Maintenance of Property; Insurance...........................................................42
5.6 Inspection of Property; Books and Records; Discussions.......................................42
5.7 Environmental Laws...........................................................................43
5.8 Use of Proceeds..............................................................................43
5.9 Compliance With Laws, Etc....................................................................43
5.10 Media Licenses...............................................................................44
5.11 Leases and Licenses..........................................................................44
5.12 Notices......................................................................................44
SECTION 6. NEGATIVE COVENANTS..................................................................................44
6.1 Financial Condition Covenants................................................................44
6.2 Limitation on Indebtedness...................................................................45
6.3 Limitation on Liens..........................................................................46
6.4 Limitation on Fundamental Changes............................................................47
6.5 Limitation on Sale of Assets.................................................................47
6.6 Limitation on Dividends......................................................................47
6.7 Limitation on Investments, Loans and Advances................................................48
6.8 Limitation on Modifications of Debt Instruments; Repurchase of Junior Subordinated
Notes; Etc...................................................................................50
6.9 Transactions with Affiliates.................................................................50
6.10 Fiscal Year..................................................................................50
6.11 Restrictions Affecting Subsidiaries..........................................................50
6.12 Lease Obligations............................................................................50
6.13 Unfunded Liabilities.........................................................................51
6.14 Management Fees..............................................................................51
6.15 Material Agreements..........................................................................51
6.16 Limitation on Equity Offerings...............................................................51
SECTION 7. EVENTS OF DEFAULT...................................................................................51
SECTION 8. THE ADMINISTRATIVE AGENT AND THE ARRANGERS..........................................................54
8.1 Appointment..................................................................................54
8.2 Delegation of Duties.........................................................................55
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8.3 Exculpatory Provisions.......................................................................55
8.4 Reliance by Administrative Agent and Arrangers...............................................55
8.5 Notice of Default............................................................................56
8.6 Non-Reliance on Administrative Agent, Arrangers and Other Lenders............................56
8.7 Indemnification..............................................................................56
8.8 Administrative Agent and Arrangers in Their Individual Capacities............................57
8.9 Successor Administrative Agent or Arrangers..................................................57
8.10 Arrangers....................................................................................58
SECTION 9. MISCELLANEOUS.......................................................................................58
9.1 Amendments and Waivers.......................................................................58
9.2 Notices......................................................................................59
9.3 No Waiver; Cumulative Remedies...............................................................60
9.4 Survival of Representations and Warranties...................................................60
9.5 Payment of Expenses and Taxes................................................................60
9.6 Successors and Assigns; Participations; Purchasing Lenders...................................61
9.7 Adjustments; Set-Off.........................................................................64
9.8 Counterparts.................................................................................64
9.9 Severability.................................................................................64
9.10 Integration..................................................................................65
9.11 GOVERNING LAW................................................................................65
9.12 Submission to Jurisdiction; Waivers; Appointment of Process Agent............................65
9.13 Acknowledgements.............................................................................65
9.14 WAIVERS OF JURY TRIAL........................................................................66
9.15 Headings.....................................................................................66
9.16 Conflict of Terms............................................................................66
9.17 Copies of Certificates, Etc..................................................................66
9.18 Confidentiality..............................................................................66
9.19 Publicity....................................................................................66
9.20 Margin Stock.................................................................................67
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EXHIBITS
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A Form of Note
B Form of Assignment and Acceptance
C Form of No Default/Representation Certificate
D Form of Covenant Compliance Certificate
E Form of Continuation Notice
SCHEDULES
---------
1 Commitments
2 Lender Notice Addresses
3 Borrower Subsidiaries
4 [Intentionally Omitted]
5 Borrower Stations/Media Licenses
6 Borrowers' and Subsidiaries' Investments
7 Corporate Organization of Borrower
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of October 13, 2000, among (1) UNIVISION
COMMUNICATIONS INC., a Delaware corporation (the "BORROWER"), (2) the several
banks and other financial institutions from time to time parties to this
Agreement (the "LENDERS"), (3) BNP PARIBAS, as Joint Advisor, Joint Lead
Arranger and Joint Book Manager, (4) THE CHASE MANHATTAN BANK, a New York
banking corporation ("CHASE"), as Joint Advisor, Joint Lead Arranger and Joint
Book Manager, (5) BNP Paribas and Chase, as arrangers for the lenders hereunder
(in such capacity, the "ARRANGERS") and (6) Chase, as administrative agent for
the Lenders hereunder (in such capacity, the "ADMINISTRATIVE AGENT").
W I T N E S S E T H:
WHEREAS, the Borrower has entered into that certain Credit Agreement dated
as of September 26, 1996 with BNP Paribas and Chase, as Managing Agents, Chase,
as Administrative Agent, and the banks and other financial institutions parties
thereto, as lenders, as amended by the First Amendment to Credit Agreement dated
as of April 10, 1997, the Second Amendment to Credit Agreement dated as of
November 6, 1998 and the Third Amendment to Credit Agreement dated as of
December 20, 1999 (the "EXISTING CREDIT AGREEMENT"), pursuant to which a credit
facility in the maximum amount of $600,000,000 was made available to the
Borrower;
WHEREAS, the Borrower has commenced negotiations for the refinancing of the
Existing Credit Agreement to, among other changes, increase the availability
thereunder;
WHEREAS, pending such refinancing and increase, the Borrower has requested
that the Lenders extend to it a multiple-draw term loan facility for use by it
in making certain investments and acquisitions, and for general corporate
purposes of the Borrower and its subsidiaries, in each case on the terms and
conditions set forth below;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the following terms shall
have the following meanings:
"ACCOUNTANTS": Xxxxxx Xxxxxxxx LLP or such other firm of independent
certified public accountants of recognized national standing as shall be
selected by the Borrower and satisfactory to the Arrangers.
"ACQUISITIONS": (i) the acquisition by, or investment in, any
Media/Communications Business by the Borrower or its Subsidiaries or (ii) the
entering into by the Borrower or its
Subsidiaries of any Program Services Agreement, in each case as permitted by
Section 6.7(g), (k) or (l).
"ADDITIONAL ENTRAVISION INVESTMENT": the Borrower's $110,000,000 equity
investment in Entravision existing on the Closing Date (which shall be in
addition to (i) the Borrower's $10,000,000 equity investment permitted by
Section 6.7(j) and (ii) additional investments by the Borrower in Entravision
permitted by Section 6.7(k)).
"ADMINISTRATIVE AGENT": as defined in the preamble hereto.
"AFFILIATE": as to any Person, (a) 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 or (b) any Person who is a
director, officer, shareholder or partner (i) of such Person, (ii) of any
Subsidiary of such Person or (iii) of any Person described in the preceding
clause (a). For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (i) vote securities having 10% or more
of the ordinary voting power for the election of directors of such Person or
(ii) direct or cause the direction of the management and policies of such Person
whether by contract or otherwise; provided, however, that Perenchio, his
Permitted Transferees and each of their respective Affiliates shall be deemed to
be Affiliates of the Borrower and each other Loan Party.
"AFFILIATED STATIONS": those television stations and cable television
systems with which Network from time to time has Affiliation Agreements.
"AFFILIATION AGREEMENTS": the Affiliation Agreements between Network and
the Affiliated Stations, as such agreements may be amended or otherwise modified
from time to time.
"AGGREGATE AVAILABLE COMMITMENT": the sum of the Available Commitments of
each Lender.
"AGGREGATE COMMITMENT": the sum of the Commitments of each Lender.
"AGREEMENT": this Credit Agreement, as amended, waived, supplemented or
otherwise modified from time to time.
"ALTERNATE BASE RATE": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime
Commercial Lending Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. "PRIME COMMERCIAL LENDING
RATE" shall mean the rate of interest per annum publicly announced from time to
time by Chase as its prime commercial lending rate in effect at its principal
office in New York City. "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. If, for any reason, the Administrative Agent shall have
determined (which determination shall be
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conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including, without limitation, the
inability or failure of the Administrative Agent to obtain sufficient quotations
in accordance with the terms hereof, the Alternate Base Rate shall be determined
without regard to clause (b) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Prime Commercial Lending Rate or the
Federal Funds Effective Rate shall be effective on the effective date of such
change in the Prime Commercial Lending Rate or the Federal Funds Effective Rate,
respectively.
"ALTERNATE BASE RATE LOANS": Loans the rate of interest applicable to which
is based upon the Alternate Base Rate.
"APPLICABLE LENDING OFFICE": for any Lender, its offices for LIBOR Loans
and Alternate Base Rate Loans specified in Schedule 2 or in the Assignment and
Acceptance pursuant to which it became a party hereto, as the case may be, any
of which offices may, upon 10 days' prior written notice to the Administrative
Agent and the Borrower, be changed by such Lender.
"APPLICABLE MARGIN": for each LIBOR Loan, 1.500% per annum, and for each
Alternate Base Rate Loan, 0.250% per annum.
"ARRANGERS": as defined in the preamble hereto.
"ASK JEEVES JV INVESTMENT": the investment by the Borrower in a 50/50 joint
venture between Ask Jeeves, Inc. and the Borrower to create "Ask Jeeves en
Espanol" to service Spanish-speaking internet users.
"ASSET DISPOSITION": the sale, sale and leaseback, transfer, conveyance,
exchange, long-term lease accorded sales treatment under GAAP or similar
disposition (including by means of a merger, consolidation, amalgamation, joint
venture or other substantive combination) of any of the Properties, business or
assets (other than marketable securities, including "margin stock" within the
meaning of Regulation U, liquid investments and other financial instruments but,
including, without limitation, the assignment of any lease, license or permit
relating to the Properties) of the Borrower or any of its Subsidiaries to any
Person or Persons other than to the Borrower or any of its Subsidiaries;
provided that Asset Dispositions shall not include (i) the sale in the ordinary
course of business of equipment and vehicles, the proceeds of sale of which are
used within 90 days after the sale date to refinance Indebtedness (including the
Loans) incurred to purchase or to commit to purchase replacement equipment and
vehicles to be used in the ordinary course of business and (ii) other sales of
assets in the ordinary course of business which do not have a fair market value
exceeding $5,000,000 in the aggregate in any fiscal year.
"ASSIGNMENT AND ACCEPTANCE": an Assignment and Acceptance in the form of
Exhibit B.
"AVAILABLE COMMITMENT": with respect to each Lender, the amount by which
(a) the Commitment of such Lender on such date exceeds (b) the principal sum of
such Lender's Loans outstanding.
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"XXXXXX INVESTMENT": investment by the Borrower or one of its Subsidiaries
in a construction permit for a new television station in Blanco, Texas, pending
final FCC approval, in an amount not exceeding $19,000,000.
"BORROWER": as defined in the preamble hereto.
"BORROWER STOCK PURCHASE": the purchase by the Borrower, from time to time,
of shares of its common stock in accordance with the terms of this Agreement.
"BUSINESS DAY": a day other than a Saturday, Sunday or other day on which
commercial banks in New York City or the State of California are authorized or
required by law to close and which, in the case of a LIBOR Loan, is a Eurodollar
Business Day.
"CAPITAL EXPENDITURES": for any period, collectively, for any Person, the
aggregate of all expenditures which are made during such period (whether paid in
cash or accrued as liabilities), and all contractual commitments for such
expenditures which are entered into during such period (provided that if any
such commitment is included in one fiscal year, the actual payment in a later
fiscal year shall not be included in such later fiscal year), by such Person,
for property, plant or equipment and which would be reflected as additions to
property, plant or equipment on a balance sheet of such Person prepared in
accordance with GAAP (including, without limitation, all such property held
under capital leases); provided, however, that Capital Expenditures shall
exclude (i) any expenditures which arise from Program Rights Obligations and
(ii) any expenditures permitted hereunder with respect to Transponder Leases.
"CAPITALIZED LEASE OBLIGATIONS": obligations for the payment of rent for
any real or personal property under leases or agreements to lease that, in
accordance with GAAP, have been or should be capitalized on the books of the
lessee and, for purposes hereof, the amount of any such obligation shall be the
capitalized amount thereof determined in accordance with GAAP; provided, that
"Capitalized Lease Obligations" shall not include any such obligations relating
to Transponder Leases.
"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), any and
all warrants, options or rights to purchase or any other securities convertible
into any of the foregoing.
"CASH INCOME TAXES": cash income taxes paid by the Borrower and its
consolidated Subsidiaries during the fiscal quarter most recently ended and the
immediately preceding three fiscal quarters.
"CHANGE IN CONTROL": (a) any "person" or "group" (as such terms are used
for purposes of Sections 13(d) and 14(d) of the Securities Exchange Act of 1934
(as in effect from time to time), whether or not applicable), other than
Perenchio and any Person or group of Persons that are Permitted Transferees of
Perenchio or are as of the date hereof Affiliates of Perenchio, is or becomes
the beneficial owner, directly or indirectly, of more than 50% of the total
Voting Power of the Borrower or (b) the Borrower shall cease to be the
beneficial owner, directly or indirectly, of 100% of the total Voting Power of
Network and each other Subsidiary set forth on Schedule 3 attached hereto.
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"CHASE": as defined in the preamble hereto.
"CLOSING DATE": the date on which the conditions precedent set forth in
Section 4.1 have been satisfied.
"CODE": the Internal Revenue Code of 1986, as amended from time to time.
"COMMITMENT": the commitment of each Lender listed on Schedule 1 to make
Loans hereunder through its Applicable Lending Office as set forth in Schedule
2, as the same may be adjusted pursuant to the provisions hereof.
"COMMITMENT EXPIRATION DATE": December 29, 2000 or such earlier date as the
Aggregate Commitment shall expire (whether by acceleration, reduction to zero or
otherwise).
"COMMITMENT FEE": as defined in Section 2.14.
"COMMITMENT PERCENTAGE": with respect to each Lender, the percentage
equivalent of the ratio which such Lender's Commitment bears to the Aggregate
Commitment.
"COMMONLY CONTROLLED ENTITY": as to any Person, an entity, whether or not
incorporated, which is under common control with such Person within the meaning
of Section 4001 of ERISA or is part of a group which includes such Person and
which is treated as a single employer under Section 414 of the Code.
"COMMUNICATIONS ACT": the Communications Act of 1934, as amended, and the
rules and regulations issued thereunder, as from time to time in effect.
"CONSIDERATION": with respect to any Acquisition, the aggregate
consideration, in whatever form (including, without limitation, cash payments,
the principal amount of promissory notes and Indebtedness assumed, the aggregate
amounts payable to acquire, extend and exercise any option, the aggregate amount
payable under Non-Compete Agreements and management agreements, and the fair
market value of other property delivered) paid, delivered or assumed by the
Borrower and its Subsidiaries for such Acquisition and the expenses associated
therewith, including all brokerage commissions, legal fees and similar expenses.
Notwithstanding anything herein to the contrary, no Acquisition involving the
assumption of debt by the Borrower or its Subsidiaries shall be permitted if
such assumption would violate the terms of this Agreement.
"CONTINUATION NOTICE": a request for continuation or conversion of a Loan
as set forth in Section 2.4, substantially in the form of Exhibit E.
"CONTRACTUAL OBLIGATION": as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
"COVENANT COMPLIANCE CERTIFICATE": a certificate of the Chief Financial
Officer of the Borrower substantially in the form of Exhibit D.
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"DEFAULT": any of the events specified in Section 7, whether or not any
requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.
"DENNEVAR B.V.": Dennevar B.V., a Dutch corporation wholly-owned indirectly
by Venevision.
"DOLLARS" and "$": lawful currency of the United States.
"EBITDA": for any period, for the fiscal quarter most recently ended and
the immediately preceding three fiscal quarters, Net Income after eliminating
extraordinary gains and losses, PLUS (i) provisions for taxes, (ii) depreciation
and amortization (including amortization of Program Rights Payments), (iii)
Interest Expense, (iv) permitted termination payments owing by the Borrower or
its Subsidiaries resulting from early termination of a time brokerage agreement,
local marketing agreement or similar agreement, (v) payments made pursuant to
Non-Compete Agreements and (vi) other non-cash charges, all to the extent
deducted in computing Net Income, but after deducting (A) Program Rights
Payments made or scheduled to be made, (B) non-cash revenues (to the extent
included in the calculation of Net Income) and (C) principal payments for
Transponder Leases. For purposes of pro forma calculations hereunder,
calculations shall be made after giving effect to acquisitions, exchanges and
dispositions of assets during such period as if such acquisition, exchange or
disposition had occurred on the first day of such period.
"ENTRAVISION": Entravision Communications Corporation, a Delaware
corporation.
"ENVIRONMENTAL LAWS": any and all foreign, federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or at any time hereafter in effect.
"EQUITY OFFERING": all public offerings of the Capital Stock of the
Borrower or any Subsidiary from time to time.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"ERISA AFFILIATE": as to any Person, each trade or business including such
Person, whether or not incorporated, which together with such Person would be
treated as a single employer under Section 4001(a)(14) of ERISA.
"EVENT OF DEFAULT": any of the events specified in Section 7, provided that
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"EURODOLLAR BUSINESS DAY": shall mean any day on which banks are open for
dealings in Dollar deposits in the London Interbank Market.
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"EXCLUDED TAXES": all taxes imposed on or by reference to the net income of
the Administrative Agent, each Arranger or any Lender or its Applicable Lending
Office and all franchise taxes, taxes on doing business or taxes measured by
capital or net worth imposed on any Lender or its Applicable Lending Office, in
each case, imposed:
(i) by the jurisdiction in which the Applicable Lending Office or
other branch of such Person is located or in which such Person is organized
or has its principal or registered office;
(ii) by reason of any connection between the jurisdiction imposing
such tax and such Lender other than a connection arising solely from this
Agreement or any transaction contemplated hereby;
(iii) by the United States or any political subdivision thereof or
therein including without limitation, branch profits taxes imposed by the
United States or similar taxes imposed by any subdivision thereof; or
(iv) by reason of the failure of any Lender to provide accurate
documentation required to be provided by such Lender pursuant to Section
2.12(b) or Section 9.6.
"EXISTING CREDIT AGREEMENT": as defined in the recitals hereto, it being
understood that as used herein, such term shall refer to such Agreement as in
existence on the Closing Date without giving effect to any amendments thereto
made on or after the Closing Date unless consented to by the Majority Lenders in
writing.
"EXISTING CREDIT AGREEMENT CLOSING DATE": September 30, 1996.
"FCC": the Federal Communications Commission or any successor thereto.
"FEDERAL FUNDS EFFECTIVE RATE": as defined in the definition of "ALTERNATE
BASE RATE" contained in this Section 1.1.
"FINANCIAL STATEMENTS": as defined in Section 3.1(a).
"FIXED CHARGE COVERAGE RATIO": for the Borrower and its Subsidiaries on a
consolidated basis, the ratio of EBITDA for the fiscal quarter most recently
ended and the immediately preceding three fiscal quarters to the sum of (i)
Total Debt Service for the fiscal quarter most recently ended and the
immediately preceding three fiscal quarters (excluding the effect of any
redemption of Modesto Station Purchase Preferred Stock to the extent made with
the proceeds of Loans (as defined in the Existing Agreement)), (ii) Capital
Expenditures for the fiscal quarter most recently ended and the immediately
preceding three fiscal quarters, (iii) Cash Income Taxes for the fiscal quarter
most recently ended and the immediately preceding three fiscal quarters and (iv)
Restricted Payments permitted under Section 6.6(ii) (other than those made by
the Borrower to effect a Borrower Stock Purchase) paid by the Borrower or any
Subsidiary for the fiscal quarter most recently ended and the immediately
preceding three fiscal quarters.
"FUNDED DEBT": the sum of (x) the outstanding principal balance of all
Capitalized Lease Obligations, (y) the aggregate Redemption Value of all
outstanding Modesto Station Purchase
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Preferred Stock and (z) all Indebtedness of the Borrower and its Subsidiaries
OTHER THAN Indebtedness described in clauses (f), (h), (i), (j) and (k) of
Section 6.2.
"GAAP": generally accepted accounting principles in the United States in
effect from time to time. If, at any time, GAAP changes in a manner which will
materially affect the calculations determining compliance by the Borrower with
any of its covenants in Section 6.1, such covenants shall continue to be
calculated in accordance with GAAP in effect prior to such changes in GAAP.
"GOVERNMENTAL AUTHORITY": any nation or government, any federal, state or
other political subdivision thereof and any federal, state or local entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"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, counterindemnity 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 for the purchase or payment of any such primary
obligation or 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 lesser 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 the Borrower in good faith.
"INDEBTEDNESS": of any Person at any date, without duplication, (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than (i) current trade liabilities incurred
in the ordinary course of business and payable in accordance with customary
practices and (ii) current income taxes) or which is evidenced by a note, bond,
debenture or similar instrument, excluding Program Rights Obligations, (b) all
obligations of such Person under Capitalized Lease Obligations, (c) all
obligations of such Person in respect of acceptances issued or created for the
account of such Person, (d) all liabilities secured by any Lien on any property
owned by such Person even though such Person has not assumed or otherwise become
liable for the payment thereof, (e) all obligations of such
-8-
Person, whether absolute or contingent, in respect of letters of credit opened
for the account of such Person (other than any letters of credit opened for the
purpose of facilitating the purchase of goods and services in the ordinary
course of business and having a term of not more than 360 days), (f) all
obligations of such Person under Non-Compete Agreements and Interest Rate
Agreements and (g) all Guarantee Obligations of such Person in respect of any
indebtedness, obligations or liabilities of any other Person of the type
referred to in clauses (a) through (f) of this definition; provided that
"Indebtedness" shall not include payments (to the extent included above) to be
made by Network pursuant to the Program License Agreements or payments made to
Affiliated Stations under the Affiliation Agreements.
"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 Section 3.8.
"INTEREST EXPENSE": as of any date, for the fiscal quarter most recently
ended and the immediately preceding three fiscal quarters, (A) the sum of (i)
the amount of all interest on Funded Debt (or, with respect to clause (y) of the
definition of Funded Debt, dividends) which was paid, payable and/or accrued for
such period (without duplication of previous amounts), (ii) all commitment,
letter of credit or line of credit fees paid, payable and/or accrued for such
period (without duplication of previous amounts) to any lender in exchange for
such lender's commitment to lend or otherwise extend credit and (iii) net
amounts payable (or receivable) under all Interest Rate Agreements, LESS (B) all
interest income.
"INTEREST PAYMENT DATE": (a) as to any Alternate Base Rate Loan, the last
day of each March, June, September and December to occur while the Loans are
outstanding, (b) as to any LIBOR Loan having an Interest Period of three months
or less, the last day of such Interest Period, (c) as to any LIBOR Loan having
an Interest Period longer than three months, each day which is at the end of
each three month-period within such Interest Period after the first day of such
Interest Period and the last day of such Interest Period and (d) for each of
(a), (b) and (c) above, the day on which the Loans become due and payable in
full and are paid or prepaid in full.
"INTEREST PERIOD": with respect to any LIBOR Loan:
(a) initially, the period commencing on the borrowing or conversion date,
as the case may be, with respect to such LIBOR Loan and ending one, two, three
or six months (or, if reasonably available to all Lenders, nine or twelve
months) thereafter, as selected by the Borrower in its notice of borrowing or
its Continuation Notice, 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 LIBOR Loan and ending one, two,
three or six months (or, if reasonably available to all Lenders, nine or twelve
months) thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Eurodollar Business Days prior to the
last day of the then current Interest Period with respect thereto;
-9-
provided that, all of the foregoing provisions relating to Interest Periods are
subject to the following:
(i) if any Interest Period pertaining to a LIBOR Loan 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 date
final payment is due on the Loans shall end on the date of such final
payment;
(iii) any Interest Period pertaining to a LIBOR Loan that begins on
the last Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar month;
and
(iv) the Borrower shall select Interest Periods so as not to require a
payment or prepayment of any LIBOR Loan during an Interest Period for the
Loans.
"INTEREST RATE AGREEMENT": any interest rate protection agreement, interest
rate future, interest rate option, interest rate swap, interest rate cap or
other interest rate hedge or arrangement under which the Borrower is a party or
a beneficiary.
"INTERNATIONAL PROGRAM RIGHTS AGREEMENT": the International Program Rights
Agreement dated as of October 2, 1996 among the Borrower, Televisa and
Venevision, as such agreement may be amended or otherwise modified from time to
time in accordance with the terms hereof.
"INVESTMENT COMPANY ACT": as defined in Section 3.12.
"JUNIOR SUBORDINATED NOTES": collectively, (i) those certain Subordinated
Ten Year Notes due 2002 issued by Network Holding in an aggregate original
amount of $61,094,000 pursuant to an Indenture dated as of December 17, 1992
executed by Network Holding to First Trust National Association, as Trustee, the
obligations under which have been assumed by the Borrower and (ii) those certain
Subordinated Ten Year Notes due 2002 issued by PTI Holdings in an original
aggregate amount of $10,306,000 pursuant to an Indenture dated as of December
17, 1992 executed by PTI Holdings to First Trust National Association, as
Trustee, as such notes and/or such Indentures may be amended or otherwise
modified from time to time in accordance with the terms hereof.
"LENDERS": as defined in the preamble hereto and Section 8.8.
"LIBOR": with respect to each day during each Interest Period pertaining to
a LIBOR Loan, the rate per annum equal to the average (rounded upward to the
nearest 1/16th of 1%) of the respective rates notified to the Administrative
Agent by each of the Reference Banks as the rate at which such Reference Bank is
offered Dollar deposits at or about 11:00 A.M., London time, two Eurodollar
Business Days prior to the beginning of such Interest Period in the London
Interbank Market for delivery on the first day of such Interest Period for the
number of days
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comprised therein and in an amount comparable to the amount of its LIBOR Loan to
be outstanding during such Interest Period.
"LIBOR ADJUSTED RATE": with respect to each day during each Interest Period
pertaining to a LIBOR Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward to the nearest 1/100th of
1%):
LIBOR
---------------------------------
1.00 - LIBOR Reserve Requirements
"LIBOR LOANS": Loans the rate of interest applicable to which is based upon
LIBOR.
"LIBOR RESERVE REQUIREMENTS": for any day as applied to a LIBOR Loan, the
aggregate (without duplication) of the maximum 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 of Governors of the Federal Reserve System 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 such Board) maintained by a
member bank of such Federal Reserve System. As at the Closing Date, there are no
such reserve requirements.
"LICENSE FEE GUARANTIES": collectively, (i) the Guaranty dated as of
October 1, 1996 executed by the Borrower in favor of Univisa with respect to
Network's obligations under the Program License Agreement with Univisa and (ii)
the Guaranty dated as of October 1, 1996 executed by the Borrower in favor of
Dennevar B.V. with respect to Network's obligations under the Program License
Agreement with Dennevar B.V., as such Guaranties may be amended or otherwise
modified from time to time in accordance with the terms of the Loan Documents,
and which Guaranties shall be unsecured.
"LIEN": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or 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, any Capitalized Lease Obligation having substantially the
same economic effect as any of the foregoing, and the filing of any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction in respect of any of the foregoing).
"LOAN": as defined in Section 2.1(a).
"LOAN DOCUMENTS": this Agreement, the Notes, the sideletter entered into
between the Borrower and the Arrangers relating to syndication of the Loans and
the Commitments, and any other agreement executed by a Loan Party in connection
therewith and herewith, as such agreements and documents may be amended,
supplemented and otherwise modified from time to time in accordance with the
terms hereof.
"LOAN PARTIES": the Borrower and its Subsidiaries.
-11-
"MAJORITY LENDERS": Lenders having Commitments equal to or more than 51% of
the Aggregate Commitment, or, if any Commitment has terminated, with respect to
such Commitment, Lenders with outstanding Loans having an unpaid principal
balance equal to or more than 51% of the unpaid principal balance of all Loans
outstanding, excluding from such calculation Lenders which have failed or
refused to fund a Loan when required to do so.
"MARGIN STOCK": as defined in Regulation U.
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a) the business,
operations, property, condition or prospects (financial or otherwise) of the
Borrower and its Subsidiaries taken as a whole, (b) the ability of the Borrower
to perform its obligations under the Loan Documents, or (c) the validity or
enforceability of the Loan Documents or the rights or remedies of the
Administrative Agent, the Arrangers or the Lenders hereunder or thereunder.
"MATERIAL AGREEMENTS": the Program License Agreements, the Participation
Agreement and the International Program Rights Agreement.
"MATERIAL MEDIA LICENSES": all FCC licenses necessary to operate broadcast
television or radio stations, including all FCC broadcast auxiliary licenses,
all licenses for radio and television translators and all low-power FCC
television licenses.
"MATURITY DATE": the earlier of (i) October 12, 2001 or such earlier date
as the Loans shall become due and payable (whether by acceleration or otherwise)
and (ii) the date on which the Indebtedness under the Existing Credit Agreement
is refinanced or repaid in full.
"MEDIA/COMMUNICATIONS BUSINESS": the ownership and operation of radio and
television stations, cable networks, cable programming, television programming
and syndication, interactive television, direct broadcast satellite,
pay-per-view television, sports promotion and sports team ownership, home
shopping, print and on-line publishing or broadcasting, billboards and recorded
music and music publishing; PROVIDED THAT to the extent any of the foregoing
involve assets located, or businesses operating, outside of the United States,
aggregate EBITDA derived from such assets or businesses shall not exceed 20% of
EBITDA (based on the most recently ended twelve month period) for the Borrower
and its Subsidiaries on a consolidated basis; and PROVIDED, FURTHER, THAT,
acquisition of, or investment in, recorded music and/or music publishing shall
not exceed $100,000,000 in the aggregate during the term of this Agreement. With
respect to an investment made by the Borrower or its Subsidiaries in the form of
an equity or debt investment (such as through the purchase of stock, partnership
interests or otherwise), as opposed to acquisition of such assets or businesses
directly, the calculation of EBITDA for purposes of the first proviso of this
definition shall be made as if such assets and businesses were owned directly by
the Borrower or its Subsidiaries.
"MEDIA LICENSES": any franchise, license, permit, certificate, ordinance,
approval or other authorization, or any renewal or extension thereof, from any
federal, state or local government or governmental agency, department or body
that is necessary for the broadcast or other operations of the Borrower or any
of its Subsidiaries.
-12-
"MEXICAN LEAGUE SOCCER ACQUISITION": a payment by the Borrower to Televisa
(or an affiliate of Televisa) to acquire U.S. broadcast rights to soccer games
of certain Mexican League soccer teams.
"MODESTO STATION": full power television station KUVS(TV) (formerly
KCSO-TV) in Modesto, California.
"MODESTO STATION PURCHASE PREFERRED STOCK": 12,000 shares of the Borrower's
Series A Cumulative Convertible Preferred Stock having an aggregate liquidation
preference of $12,000,000 (plus accrued and unpaid dividends paid quarterly at a
rate per annum equal to 6%) issued by the Borrower in payment of a portion of
the purchase price of the Modesto Station, the terms of which shall not be
amended without the consent of the Majority Lenders.
"MULTIEMPLOYER PLAN": a plan which is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"NET INCOME": for the Borrower and its Subsidiaries on a consolidated
basis, net income as determined in accordance with GAAP and in a manner
consistent with the calculation of net income as set forth in the Financial
Statements.
"NET PROCEEDS": (A) with respect to any Asset Disposition, the net amount
equal to the aggregate amount received in cash (including any cash received by
way of deferred payment pursuant to a note receivable, other non-cash
consideration or otherwise, but only as and when such cash is so received) in
connection with such Asset Disposition MINUS the sum of (a) the reasonable fees,
commissions and other out-of-pocket expenses incurred by the Borrower or any of
its Subsidiaries in connection with such Asset Disposition (other than amounts
payable to Affiliates of the Person making such disposition), (b) Indebtedness,
other than the Loans, required to be paid as a result of such Asset Disposition
and (c) federal, state and local taxes incurred and paid in connection with such
Asset Disposition; and (B) with respect to any Equity Offering, the net amount
equal to the aggregate amount received in cash (including any cash received by
way of deferred payment pursuant to a note receivable, other non-cash
consideration or otherwise, but only as and when such cash is so received) in
connection with such Equity Offering MINUS the reasonable fees, commissions and
other out-of-pocket expenses incurred by the Borrower in connection with such
Equity Offering (other than amounts payable to Affiliates of the Person making
such Equity Offering).
"NETWORK": The Univision Network Limited Partnership, a Delaware limited
partnership.
"NETWORK HOLDING": The Univision Network Holding Limited Partnership, a
Delaware limited partnership.
"NET WORKING INVESTMENT": for the Borrower on a consolidated basis, (i)
current assets (excluding cash and investments permitted under Section 6.7(b))
less (ii) current liabilities (excluding the current portion of Funded Debt).
"NEW INVESTMENTS": collectively, the Additional Entravision Investment and
Other Media/Communications Investments, and `New Investment' means any one of
the foregoing.
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"NON-COMPETE AGREEMENTS": all agreements pursuant to which the Borrower,
any of its Subsidiaries or any Station has agreed to make payments (whether in
cash or in kind) to another Person for the agreement of such Person not to
compete with the Borrower, such Subsidiary or such Station in a given area.
"NOTE": as defined in Section 2.1(c).
"OBLIGATIONS": the unpaid principal of and interest on (including, without
limitation, interest accruing after the maturity of the Loans and interest
accruing on or 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 and whether or not at a default rate) the Notes
and all other obligations and liabilities of the Borrower to the Administrative
Agent, the Arrangers and the Lenders, 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, the Notes, any
other Loan Document and 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 reasonable fees and disbursements of counsel, and the
allocated reasonable cost of internal counsel, to the Administrative Agent, the
Arrangers or the Lenders that are required to be paid by the Borrower pursuant
to the terms of this Agreement) or otherwise.
"OCCUPANCY AGREEMENTS": as defined in Section 5.11.
"OTHER MEDIA/COMMUNICATIONS INVESTMENTS": investments of the Borrower or
its Subsidiaries made after December 20, 1999 in businesses in the
Media/Communications Business in an aggregate amount not exceeding $400,000,000.
"PARTICIPATION AGREEMENT": the Participation Agreement dated as of October
2, 1996 among the Borrower, Perenchio, Televisa, Xxxxxxx X. Xxxxxxxx, Xxxxxxx X.
Xxxxxxxx and Venevision, as such agreement may be amended or otherwise modified
from time to time in accordance with the terms hereof.
"PARTICIPANT": as defined in Section 9.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA or any successor thereto.
"PERENCHIO": A. Xxxxxxx Xxxxxxxxx.
"PERMITTED TRANSFEREES": (i) Perenchio's spouse and lineal descendants,
(ii) Perenchio's personal representatives and heirs, (iii) any trustee of any
trust created primarily for the benefit of any, some or all of such spouse and
lineal descendants or of any revocable trust created by Perenchio, (iv)
following the death of Perenchio, all beneficiaries under any such trust, (v)
Perenchio, in the case of a transfer from any transferee back to Perenchio and
(vi) any entity, all of the equity of which is directly or indirectly owned by
any of the foregoing which is not an Affiliate of any other Person.
-14-
"PERSON": any individual, firm, partnership, limited liability company,
joint venture, corporation, association, business enterprise trust,
unincorporated organization, government or department or agency thereof or other
entity, whether acting in an individual, fiduciary or other capacity.
"PIK INTEREST": with respect to any Funded Debt of the Borrower, all
interest on such Funded Debt which interest is paid by the issuance of
additional Funded Debt (and not paid in cash) having no principal payable
thereon on or before December 31, 2003.
"PLAN": as to any Person, any plan (other than a Multiemployer Plan)
subject to Title IV of ERISA maintained for employees of such Person or any
ERISA Affiliate of such Person (and any such plan no longer maintained by such
Person or any of such Person's ERISA Affiliates to which such Person or any of
such Person's ERISA Affiliates has made or was required to make any
contributions within any of the five preceding years).
"PREFERRED STOCK DEFAULT": the occurrence and continuance of an Event of
Default described in Section 7(a), Section 7(c) (by reason of a failure to
comply with the requirements of Section 6.1) or Section 7(f).
"PRIMARY STATION": any full power television station now or hereafter
owned, leased or operated by the Borrower or any of its Subsidiaries; provided
such term shall not include any Station, any translator or other television
station owned, leased or operated by Entravision so long as Entravision is not a
Subsidiary.
"PROGRAM LICENSE AGREEMENTS": collectively, (i) that certain Amended and
Restated Program License Agreement dated as of October 1, 1996, between Univisa
and Network, pursuant to which Univisa makes certain current and library
programming available to Network, and the Guaranty dated as of October 1, 1996
by Televisa in favor of Network, guaranteeing the obligations of Univisa
thereunder and (ii) that certain Amended and Restated Program License Agreement
dated as of October 1, 1996, between Dennevar and Network, pursuant to which
Dennevar makes certain current and library programming available to Network, and
the Guaranty dated as of October 2, 1996 by Venevision in favor of Network,
guaranteeing the obligations of Dennevar thereunder, as such Agreements and
Guaranties may be amended or modified from time to time in accordance with the
terms hereof.
"PROGRAM RIGHTS OBLIGATIONS": all obligations, whether fixed or contingent,
of the Borrower and its Subsidiaries in respect of the right to broadcast
programs and films produced or supplied by any Person (other than a Loan Party,
Televisa, Venevision or their respective Affiliates pursuant to Program License
Agreements).
"PROGRAM RIGHTS PAYMENTS": for any period, the sum (determined on a
consolidated basis and without duplication) of all payments by the Borrower and
its Subsidiaries made or scheduled to be made during such period in respect of
Program Rights Obligations; provided that (a) if the payment schedule for a
Program Rights Obligation is modified at no cost (including, but not limited to,
interest costs) to the Borrower or any of its Subsidiaries, then the payments
with respect to such Program Rights Obligation shall be deemed to be scheduled
to be made pursuant to such modified schedule and (b) any down payment on a
Program Rights Obligation shall be
-15-
equally allocated over the term of the payment period for such Program Rights
Obligation in an amount per month during such payment period equal to the amount
of such down payment divided by the number of months during such payment period.
"PROGRAM SERVICES AGREEMENTS": any local marketing agreement, time
brokerage agreement, program services agreement or similar agreement providing
for the Borrower or any of its Subsidiaries to program or sell advertising on
all or any portion of the broadcast time of any television or radio station.
"PROPERTIES": the collective reference to the real and personal property
owned, leased, used, occupied or operated, under license or permit, by the
Borrower or any of its Subsidiaries.
"PTI HOLDINGS": PTI Holdings, Inc., a Delaware corporation.
"PURCHASING LENDERS": as defined in Section 9.6(c).
"REDEMPTION VALUE": with respect to each share of Modesto Station Purchase
Preferred Stock, $1,000.
"REFERENCE BANKS": Chase and BNP Paribas.
"REFERENCE BANKS RATE": a rate per annum equal to the average (rounded
upward to the nearest 1/16th of 1%) of the respective rates notified to the
Administrative Agent by each of the Reference Banks as the cost of funds at
which such Reference Bank is able to fund an amount comparable to the amount of
its LIBOR Loan to be converted to this rate, plus the Applicable Margin for
LIBOR Loans.
"REGISTER": as defined in Section 9.6(d).
"REGULATION D": Regulation D of the Board of Governors of the Federal
Reserve System, as the same is from time to time in effect, and all official
rulings and interpretations thereunder or thereof and any successor regulation
thereto.
"REGULATION U": Regulation U of the Board of Governors of the Federal
Reserve System, as the same is from time to time in effect, and all official
rulings and interpretations thereunder or thereof and any successor regulation
thereto.
"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 PBGC regulations.
"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, determination or policy statement or
interpretation 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.
-16-
"RESPONSIBLE OFFICER": the chief executive officer, the president, any
executive vice president, any senior vice president or any vice president of the
Borrower or, with respect to financial matters, the chief financial officer,
treasurer or controller of the Borrower.
"RESTRICTED PAYMENTS": as defined in Section 6.6.
"SECONDARY STATION": any Station other than a Primary Station.
"SENIOR DEBT": Funded Debt other than (i) Subordinated Indebtedness and
(ii) Modesto Station Purchase Preferred Stock.
"SINGLE EMPLOYER PLAN": any Plan which is covered by Title IV of ERISA, but
which is not a Multiemployer Plan.
"SOLVENT": when used with respect to any Person, that:
(i) the present fair salable value of such Person's assets is in
excess of the total amount of the probable liability on such Person's
liabilities;
(ii) such Person is able to pay its debts as they become due; and
(iii) such Person does not have unreasonably small capital to carry on
such Person's business as theretofore operated and all businesses in which
such Person is about to engage.
"STATION": any full power television station, any low power television
station and any translator now or hereafter owned or operated by the Borrower or
any of its Subsidiaries; provided such term shall not include any Station, any
translator or other television station owned or operated by Entravision (or any
subsidiary of Entravision) so long as Entravision is not a Subsidiary.
"SUBORDINATED INDEBTEDNESS": the Junior Subordinated Notes referred to in
clause (i) of the definition thereof contained in Section 1.1.
"SUBSIDIARY": as to any Person at any time of determination, a corporation,
partnership 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 Subsidiaries, 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.
"TAXES": as defined in Section 2.12(a).
"TELEVISA": Grupo Televisa S.A. de C.V.
-17-
"TERMINATION EVENT": (i) a Reportable Event, (ii) the institution of
proceedings to terminate a Single Employer Plan by the PBGC under Section 4042
of ERISA, (iii) the appointment by the PBGC of a trustee to administer any
Single Employer Plan or (iv) the existence of any other event or condition that
would reasonably be expected to constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment by the PBGC of a trustee to
administer, any Single Employer Plan.
"TOTAL DEBT RATIO": for the Borrower and its Subsidiaries on a consolidated
basis, the ratio of Funded Debt outstanding at such time to EBITDA for the
fiscal quarter most recently ended and the immediately preceding three fiscal
quarters.
"TOTAL DEBT SERVICE": as of any date, for the fiscal quarter most recently
ended and the immediately preceding three fiscal quarters, the sum of (i) all
Interest Expense and (ii) all regularly scheduled principal payments due on
Funded Debt (which result in permanent reductions in availability) (other than
payments made pursuant to Section 2.2 and 2.3, or Section 2.5 and 2.6 of the
Existing Credit Agreement) or, with respect to Modesto Station Purchase
Preferred Stock, the amount paid for any redemption thereof (excluding the
effect of any redemption of Modesto Station Purchase Preferred Stock to the
extent made with the proceeds of Loans (as defined in the Existing Credit
Agreement)).
"TOTAL INTEREST COVERAGE RATIO": the ratio of EBITDA to Interest Expense
for the fiscal quarter most recently ended and the immediately preceding three
fiscal quarters.
"TRANCHE": the collective reference to LIBOR Loans the Interest Periods
with respect to all of which begin on the same date and end on the same later
date (whether or not such LIBOR Loans shall originally have been made on the
same day).
"TRANSFEREE": as defined in Section 9.6(f).
"TRANSPONDER LEASES": collectively, the long-term capital leases for
Network of satellite transponders for the distribution of programming.
"TYPE": as to any Loan, its nature as an Alternate Base Rate Loan or a
LIBOR Loan.
"UNIVISA": Univisa, Inc., a Delaware corporation.
"VENEVISION": Corporacion Venezolana de Television (Venevision) C.A., a
Venezuelan corporation.
"VOTING POWER": the aggregate number of votes of all classes of Capital
Stock of such Person which ordinarily has voting power for the election of
directors of such Person.
1.2 OTHER DEFINITIONAL PROVISIONS(a) . (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Notes, any other Loan Document or any certificate or other
document made or delivered pursuant hereto or thereto.
-18-
(b) As used herein, in the Notes, in any other Loan Document, and in any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms not defined in Section 1.1 and accounting terms partly defined
in Section 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, subsection,
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 LOANS; COMMITMENT AMOUNTS
2.1 LOANS; COMMITMENT AMOUNTS. (a) Subject to the terms and conditions
hereof, each Lender severally agrees to make term loans (each a "LOAN" and,
collectively, the "LOANS") through its Applicable Lending Office to the
Borrower from time to time from and including the Closing Date to but
excluding the Commitment Expiration Date in accordance with the provisions of
this Agreement; provided, however, that the aggregate principal amount of all
Loans outstanding shall not exceed the Aggregate Commitment at any time; and
provided, further, that (i) the initial borrowing of Loans hereunder shall be
in a minimum aggregate principal amount of $20,000,000 and (ii) each
subsequent borrowing hereunder shall be in a minimum aggregate principal
amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof.
The principal amount of each Lender's Loan shall be in an amount equal to
the product of (i) such Lender's Commitment Percentage (expressed as a fraction)
and (ii) the total amount of the Loans requested; provided that in no event
shall any Lender be obligated to make a Loan if after giving effect to such Loan
such Lender's Loans outstanding would exceed its Commitment or if the amount of
such requested Loan is in excess of such Lender's Available Commitment.
(b) Subject to Sections 2.8 and 2.10, the Loans may from time to time be
(i) LIBOR Loans, (ii) Alternate Base Rate Loans or (iii) a combination thereof,
as determined by the Borrower and notified to the Administrative Agent in
accordance with either Section 2.1(d) or 2.7. Notwithstanding the foregoing, the
initial Loans made on or after the Closing Date shall be made as Alternate Base
Rate Loans and shall be subject to conversion to LIBOR Loans pursuant to Section
2.7. Each Lender may make or maintain its Loans to or for the account of the
Borrower by or through any Applicable Lending Office.
(c) The Loans made by each Lender to the Borrower shall be evidenced by a
promissory note of the Borrower, substantially in the form of Exhibit A (a
"NOTE"), with appropriate insertions therein as to payee, date and principal
amount, payable to the order of such Lender and representing the obligation of
the Borrower to pay the aggregate unpaid principal amount of all Loans made by
such Lender to the Borrower pursuant to Section 2.1(a), with interest thereon as
prescribed in Sections 2.6 and 2.7. Each Lender is hereby authorized (but not
required) to record the date and amount of each payment or prepayment of
principal of its Loans
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made to the Borrower, each continuation thereof, each conversion of all or a
portion thereof to another Type and, in the case of LIBOR Loans, the length of
each Interest Period with respect thereto, in the books and records of such
Lender, and any such recordation shall constitute PRIMA FACIE evidence of the
accuracy of the information so recorded. The failure of any Lender to make any
such recordation or notation in the books and records of the Lender (or any
error in such recordation or notation) shall not affect the obligations of the
Borrower hereunder or under the Notes. Each Note shall (i) be dated the Closing
Date, (ii) provide for the payment of interest in accordance with Sections 2.6
and 2.7 and (iii) be stated to be payable on the Maturity Date.
(d) The Borrower shall give the Administrative Agent irrevocable written
notice (which notice must be received by the Administrative Agent prior to 10:00
A.M., New York City time, one Business Day prior to each proposed borrowing date
or, if all or any part of the Loans are requested to be made as LIBOR Loans,
three Eurodollar Business Days prior to each proposed borrowing date) requesting
that the Lenders make the Loans on the proposed borrowing date and specifying
(i) subject to Section 2.1(a), the aggregate amount of Loans requested to be
made, (ii) subject to Section 2.1(b), whether the Loans are to be LIBOR Loans,
Alternate Base Rate Loans or a combination thereof and (iii) if the Loans are to
be entirely or partly LIBOR Loans, the respective amounts of each such Type of
Loan and the respective lengths of the initial Interest Periods therefor. If all
or any part of the requested Loans are to be used by the Borrower for a Borrower
Stock Purchase, such notice shall further (i) specify (A) the amount of
requested Loans to be used for such Borrower Stock Purchase, (B) the aggregate
amount of Loans used for Borrower Stock Purchases since the Existing Credit
Agreement Closing Date, (C) the aggregate consideration paid for Borrower Stock
Purchases since the Existing Credit Agreement Closing Date, (D) the aggregate
number of shares of the Borrower purchased by the Borrower since the Existing
Credit Agreement Closing Date and (E) the total number of issued and outstanding
shares of the Borrower of any class, and (ii) include a representation that the
use of the requested Loans for such Borrower Stock Purchase shall not cause the
aggregate consideration paid for Borrower Stock Purchases to exceed $150,000,000
or cause the aggregate percentage of such purchased stock to exceed 10% of
issued common stock of the Borrower. On receipt of such notice, the
Administrative Agent shall promptly notify each Lender thereof not later than
11:00 A.M., New York City time on the date of receipt of such notice. On the
proposed borrowing date, not later than 12:00 noon, New York City time, each
Lender shall make available to the Administrative Agent at its office specified
in Section 9.2 the amount of such Lender's pro rata share of the aggregate
borrowing amount (as determined in accordance with the second paragraph of
Section 2.1(a)) in immediately available funds. The Administrative Agent may, in
the absence of notification from any Lender that such Lender has not made its
pro rata share available to the Administrative Agent, on such date, credit the
account of the Borrower on the books of such office of the Administrative Agent
with the aggregate amount of Loans.
(e) At the Borrower's option and upon at least one Business Day's prior
irrevocable written notice to the Administrative Agent, with such notice
specifying the amount and the date of such reduction, the Borrower may
permanently reduce the Aggregate Commitment in whole at any time or in part from
time to time; provided, however, that each partial reduction of the Aggregate
Commitment shall be in an aggregate amount equal to at least $5,000,000 or an
integral multiple of $1,000,000. The Administrative Agent shall promptly notify
each Lender (by telecopy or by telephone) of such requested Aggregate Commitment
reduction.
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(f) Reductions of the Aggregate Commitment pursuant to this Section 2.1
shall automatically effect a reduction of the Commitment of each Lender to an
amount equal to the product of (i) the Aggregate Commitment of all Lenders, as
reduced pursuant to this Section 2.1 and (ii) the Commitment Percentage of such
Lender, in each case determined immediately prior to such reduction of the
Aggregate Commitment on such date.
(g) Upon each reduction of the Aggregate Commitment, the Borrower shall
(i) pay the unused commitment fee, payable pursuant to Section 2.14, accrued on
the amount of the Aggregate Commitment so reduced through the date of such
reduction, (ii) prepay the amount, if any, by which the aggregate unpaid
principal amount of the Loans exceeds the amount of the Aggregate Commitment as
so reduced, together with accrued interest on the amount being prepaid to the
date of such prepayment and (iii) compensate the Lenders for their funding
costs, if any, in accordance with Section 2.13.
(h) Neither the Administrative Agent, the Arrangers nor any Lender shall
be responsible for the obligation or Available Commitment of any other Lender
hereunder, nor will the failure of any Lender to comply with the terms of this
Agreement relieve any other Lender or the Borrower of its obligations under this
Agreement and the Notes. Nothing herein shall be deemed to relieve any Lender
from its obligation to fulfill its Commitment hereunder or to prejudice any
rights which the Borrower may have against any Lender as a result of any default
by such Lender hereunder.
(i) The Commitment of each Lender and the Aggregate Commitment shall
terminate on the Commitment Expiration Date.
2.2 OPTIONAL PREPAYMENTS. The Borrower may on the last day of any Interest
Period with respect thereto, in the case of LIBOR Loans, or at any time and from
time to time, in the case of Alternate Base Rate Loans, prepay the Loans, in
whole or in part, without premium or penalty, upon at least three Business Days'
irrevocable written notice, in the case of LIBOR Loans, and upon at least one
Business Day's irrevocable written notice, in the case of Alternate Base Rate
Loans, from the Borrower to the Administrative Agent, specifying the date and
amount of prepayment and whether the prepayment is of LIBOR Loans, Alternate
Base Rate Loans or a combination thereof, and, if of a combination thereof, the
amount allocable to each. Upon receipt of any such notice from the Borrower, the
Administrative Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable by
the Borrower on the date specified therein, together with accrued interest to
such date on the amount prepaid and amounts payable pursuant to Section 2.13.
Amounts prepaid on account of the Loans may not be reborrowed. Partial
prepayments of Loans shall be in an aggregate principal amount of $5,000,000 or
an integral multiple of $1,000,000.
2.3 MANDATORY PREPAYMENTS. (a) In the event that the Borrower or any of
its Subsidiaries makes an Equity Offering not all of the Net Proceeds of
which are applied towards an Acquisition permitted by Section 6.7(g), the
Borrower shall, within ten Business Days of such Equity Offering, prepay the
Loans in an amount equal to the Net Proceeds thereof remaining after
application of the prepayment required by Section 2.6(d) of the Existing
Credit Agreement.
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(b) Amounts prepaid on account of the Loans may not be reborrowed. Each
prepayment shall be accompanied by payment in full of all accrued interest and
accrued commitment fees thereon to and including the date of such prepayment,
together with any additional amounts owing pursuant to Section 2.13.
2.4 CONVERSION AND CONTINUATION OPTIONS. (a) The Borrower may elect from
time to time to convert LIBOR Loans to Alternate Base Rate Loans, by the
Borrower giving the Administrative Agent at least two Business Days' prior
irrevocable written notice of such election pursuant to a Continuation Notice,
provided that any such conversion of LIBOR 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 Alternate Base Rate Loans to LIBOR Loans by the Borrower
giving the Administrative Agent at least three Eurodollar Business Days' prior
irrevocable written notice of such election pursuant to a Continuation Notice.
Any such notice of conversion to LIBOR Loans shall specify the length of the
initial Interest Period or Interest Periods therefor. Upon receipt of any such
notice the Administrative Agent shall promptly notify each Lender thereof. All
or any part of outstanding LIBOR Loans and Alternate Base Rate Loans may be
converted as provided herein, provided that (i) any such conversion may only be
made if, after giving effect thereto, Section 2.5 shall not have been
contravened, (ii) no Loan may be converted into a LIBOR Loan after the date that
is one month prior to the Maturity Date and (iii) the Borrower shall not have
the right to elect to continue at the end of the applicable Interest Period, or
to convert to, a LIBOR Loan if a Default shall have occurred and be continuing.
(b) Any LIBOR Loan may be continued as such upon the expiration of the
then current Interest Period with respect thereto by the Borrower giving notice
to the Administrative Agent, in accordance with the applicable provisions of the
term "Interest Period" set forth in Section 1.1, of the length of the next
Interest Period to be applicable to such LIBOR Loan, provided that no LIBOR Loan
may be continued as such (i) if, after giving effect thereto, Section 2.5 would
be contravened, (ii) after the date that is one month prior to the Maturity Date
or (iii) if a Default shall have occurred and be continuing and provided,
further, that if the Borrower shall fail to give any required notice as
described above in this Section or if such continuation is not permitted
pursuant to the preceding proviso, such Loans shall be automatically converted
to Alternate Base Rate Loans on the last day of such then-expiring Interest
Period.
2.5 MINIMUM AMOUNTS OF TRANCHES. All borrowings, conversions and
continuations of 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, the aggregate principal amount of the Loans
comprising each Tranche shall be equal to $1,000,000 or a whole multiple of
$1,000,000 in excess thereof and, in any case, there shall not be more than 12
Tranches.
2.6 INTEREST RATES AND PAYMENT DATES. (a) Each LIBOR Loan shall bear
interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the LIBOR Adjusted Rate plus the Applicable Margin.
(b) Each Alternate Base Rate Loan shall bear interest at a rate per annum
equal to the Alternate Base Rate plus the Applicable Margin.
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(c) (i) If all or a portion of the principal amount of any Loan or any
interest payable on the Loans shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), all amounts outstanding
shall bear interest at a rate per annum which is the rate described in
paragraph (b) of this Section plus 2% from the date of such non-payment
until such amount is paid in full (after as well as before judgment).
(ii) If any Default (other than a Default described in clause (i) of
this Section 2.6(c)) shall have occurred and be continuing, all amounts
outstanding shall bear interest at a rate per annum which is the rate
described in paragraph (b) of this Section plus 1% from the date which is
45 days after the occurrence of such Default until such Default is no
longer continuing (after as well as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date,
provided that interest accruing pursuant to paragraph (c) of this Section shall
be payable on demand.
2.7 COMPUTATION OF INTEREST AND FEES. (a) Interest on Alternate Base
Rate Loans (other than Alternate Base Rate Loans based on the Federal Funds
Effective Rate) shall be calculated on the basis of a 365- (or 366-, as the
case may be), day year for the actual days elapsed and interest on LIBOR
Loans, unused commitment fees and all other Obligations of the Borrower shall
be calculated on the basis of a 360-day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of each determination of a LIBOR Adjusted Rate. Any change in the
interest rate on a Loan resulting from a change in the Alternate Base Rate or
the LIBOR Reserve Requirements shall become effective as of the opening of
business on the day on which such change in the Alternate Base Rate is
announced or such change in the LIBOR Reserve Requirements becomes effective,
as the case may be. The Administrative Agent shall as soon as practicable
notify the Borrower and the 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.
(c) If any Reference Bank's Commitment shall terminate or all of its Loans
and participations in Letters of Credit shall be assigned for any reason
whatsoever, such Reference Bank shall thereupon cease to be a Reference Bank,
and if, as a result of the foregoing, there would only be one Reference Bank
remaining, the Administrative Agent and the Arrangers (after consultation with
the Borrower and the Lenders) shall, by notice to the Borrower and the Lenders,
designate another Lender reasonably acceptable to the Borrower as a Reference
Bank so that there shall at all times be at least two Reference Banks.
(d) Each Reference Bank shall use its best efforts to furnish quotations
of rates to the Administrative Agent as contemplated hereby. If any of the
Reference Banks shall be unable or shall otherwise fail to supply such rates to
the Administrative Agent upon its request, the rate of interest shall be
determined on the basis of the quotations of the remaining Reference Banks or
Reference Bank.
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2.8 INABILITY TO DETERMINE INTEREST RATE. In the event that prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower absent manifest error) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the LIBOR Adjusted Rate for such
Interest Period, or
(b) the Administrative Agent shall have received notice from the Majority
Lenders that the LIBOR Adjusted 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 Lenders as soon as practicable thereafter. If such notice is
given (x) any LIBOR Loans requested to be made on the first day of such Interest
Period shall accrue interest at the Reference Banks Rate, (y) Loans that were to
have been converted on the first day of such Interest Period to LIBOR Loans
shall be converted to Loans accruing interest at the Reference Banks Rate or
continued as Alternate Base Rate Loans, as the Borrower shall select and (z) any
outstanding LIBOR Loans shall be converted, on the first day of such Interest
Period, to Loans accruing interest at the Reference Banks Rate or to Alternate
Base Rate Loans, as the Borrower shall select. Until such notice has been
withdrawn by the Administrative Agent, no further LIBOR Loans shall be made or
continued as such, nor shall the Borrower have the right to convert Alternate
Base Rate Loans to LIBOR Loans.
2.9 PRO RATA TREATMENT AND PAYMENTS. Each borrowing by the Borrower from
the Lenders hereunder and any reduction of the Aggregate Commitment shall be
made pro rata according to the respective Commitment Percentages of the Lenders.
Each payment (including each prepayment) by the Borrower on account of principal
of and interest on the Loans shall be made pro rata according to the respective
outstanding principal and interest amounts of such Loans then held by the
Lenders. All payments (including prepayments) to be made by the Borrower
hereunder and under the Notes, whether on account of principal, interest, fees
or otherwise, shall be made without set off 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 Section 9.2, in Dollars and in immediately available
funds. The Administrative Agent shall distribute such payments to the applicable
Lenders promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on the LIBOR Loans) becomes due and payable on a
day other than a Business Day, such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension. If
any payment on a LIBOR Loan becomes due and payable on a day other than a
Eurodollar Business Day, the maturity thereof shall be extended to the next
succeeding Eurodollar Business Day (and interest shall continue to accrue
thereon at the applicable rate) unless the result of such extension would be to
extend such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Eurodollar Business Day.
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2.10 ILLEGALITY. Notwithstanding any other provision herein, if any change
after the date of execution hereof in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender or
Applicable Lending Office to make or maintain LIBOR Loans as contemplated by
this Agreement, (a) the commitment of such Lender hereunder to make LIBOR Loans,
continue LIBOR Loans as such and convert Alternate Base Rate Loans to LIBOR
Loans shall forthwith be suspended during such period of illegality and (b) the
Loans of such Lender or Applicable Lending Office then outstanding as LIBOR
Loans, if any, shall be converted automatically to Alternate Base Rate Loans on
the respective last days of the then current Interest Periods with respect to
such Loans or within such earlier period as required by law. If any such
conversion of a LIBOR Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to Section 2.13. To the
extent that a Lender's LIBOR Loans have been converted to Alternate Base Rate
Loans pursuant to this Section 2.10, all payments and prepayments of principal
that otherwise would be applied to such Lender's LIBOR Loans shall be applied
instead to its Alternate Base Rate Loans.
2.11 INCREASED COSTS. (a) In the event that any change after the date of
execution hereof 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 but, if not having the force of law,
generally applicable to and complied with by banks and financial institutions of
the same general type as such Lender in the relevant jurisdiction) from any
central bank or other Governmental Authority made subsequent to the date hereof:
(i) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirements against assets held by,
letters of credit or guarantees issued 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 or Applicable
Lending Office which is not otherwise included in the determination of the
LIBOR Adjusted Rate hereunder; or
(ii) shall impose on such Lender or Applicable Lending Office any
other condition;
and the result of any of the foregoing is to increase the cost to such Lender or
Applicable Lending Office, by an amount which such Lender deems to be material,
of making, converting into, continuing or maintaining LIBOR Loans, or to reduce
any amount receivable hereunder in respect thereof then, in any such case, the
Borrower shall immediately pay to the Administrative Agent, for its own account
or on behalf of such Lender or Applicable Lending Office, as applicable, upon
the demand of the Administrative Agent for itself or at the request of such
Lender, as applicable, any additional amounts necessary to compensate such
Lender or the Administrative Agent, as applicable, for such increased cost or
reduced amount receivable. If the Administrative Agent, any Lender or any
Applicable Lending Office becomes entitled to claim any additional amounts
pursuant to this Section, it shall promptly notify the Borrower, through the
Administrative Agent, of the event by reason of which it has become so entitled.
A certificate as to any additional amounts payable pursuant to this Section
submitted by the Administrative Agent or such Lender or Applicable Lending
Office, through the Administrative Agent, to the Borrower shall be conclusive
evidence of the accuracy of the information so
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recorded, absent manifest error. This covenant shall survive the termination of
this Agreement and the payment of the Notes and all other amounts payable
hereunder.
(b) If, after the date of this Agreement, the introduction of or any
change in any applicable law, rule, regulation or guideline regarding capital
adequacy, or any change in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration
thereof, affects the amount of capital required or expected to be maintained by
any Lender or any corporation controlling any Lender, and such Lender (taking
into consideration such Lender's or such corporation's policies with respect to
capital adequacy) determines that the amount of capital maintained by such
Lender or such corporation which is attributable to or based upon the Loans, the
Commitments or this Agreement must be increased as a consequence of such
introduction or change by an amount deemed by such Lender to be material, then,
upon demand of the Administrative Agent at the request of such Lender, the
Borrower shall immediately pay to the Administrative Agent on behalf of such
Lender, additional amounts sufficient to compensate such Lender or such
corporation for the increased costs to such Lender or corporation of such
increased capital. Any such demand shall be accompanied by a certificate of such
Lender setting forth in reasonable detail the computation of any such increased
costs, which certificate shall be conclusive, absent manifest error. This
obligation of the Borrower under this Section 2.11(b) shall survive repayment of
the Loans and payment of all other amounts hereunder in full and the termination
of this Agreement.
2.12 TAXES. (a) All payments made by the Borrower in respect of the
Obligations 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 or any political subdivision or taxing authority thereof
or therein, other than Excluded Taxes (all such non-Excluded Taxes being
hereinafter called "Taxes"). If any Taxes are required to be withheld from any
amounts payable to the Administrative Agent, any Arranger or any Lender in
respect of the Obligations, the amounts so payable to the Administrative Agent,
such Arranger or such Lender shall be increased to the extent necessary to yield
to the Administrative Agent, such Arranger or such Lender (after payment of all
Taxes) interest or any such other amounts payable hereunder at the rates or in
the amounts specified in this Agreement and the Notes. The Administrative Agent,
an Arranger or a Lender, as the case may be, shall deliver to the Borrower a
certificate setting forth the amount of such Taxes, the calculation of such
Taxes and an explanation of the requirement therefor, all in reasonable detail
and such certificate shall be conclusive, absent manifest error. Whenever any
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 Arranger or such Lender, as the case may be, a copy of an
original official receipt received by the Borrower showing payment thereof or
such other evidence of payment reasonably satisfactory to the Administrative
Agent. If the Borrower fails to pay any 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, the Arrangers and the Lenders for any incremental taxes,
interest or penalties (and related reasonable fees and expenses of counsel) that
may become payable by the Administrative Agent, the Arrangers or any Lender as a
result of any such failure. The agreements in this Section shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder.
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(b) Each Lender that is not organized under the laws of the United States
of America or a state thereof agrees that it will deliver to the Borrower and
the Administrative Agent two duly completed copies of United States Internal
Revenue Service Form X-0, X-0XXX xx X-0XXX (as applicable to it) or successor
applicable form, as the case may be. Each such Lender also agrees to deliver to
the Borrower and the Administrative Agent two further copies of the said Form
X-0, X-0XXX or W-8ECI, or successor applicable forms or other manner or
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the Borrower and
the Administrative Agent, and such extensions or renewals thereof as may
reasonably be requested by the Borrower or the Administrative Agent, unless in
any such case an event beyond the control of such Lender (including, without
limitation, any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender so advised the
Borrower and the Administrative Agent. Each such Lender shall certify with
respect to Form X-0, X-0XXX or W-8ECI, as applicable, that (i) it is entitled to
receive payments under this Agreement without deduction or withholding of any
United States federal income taxes and (ii) it is entitled to an exemption from
United States backup withholding tax.
(c) The Borrower shall not be required to pay any additional amounts to
any Person in respect of United States withholding tax pursuant to Section
2.12(a) if the obligation to pay such additional amounts would not have arisen
but for a failure by such Person to comply with the requirements of Section
2.12(b) (including the accuracy of the certificate described in the final
sentence thereof).
2.13 INDEMNITY. The Borrower agrees to indemnify each Lender and to hold
each Lender harmless from and to pay each Lender within 5 days of such Lender's
demand the amount of any liability, loss or expense arising from the
reemployment of funds obtained by it or from fees payable to terminate the
deposits from which such funds were obtained (including reasonable fees and
expenses of counsel) which such Lender may sustain or incur as a consequence of
(a) default by the Borrower in payment when due of the principal amount of or
interest on any LIBOR Loan, (b) default by the Borrower in making a borrowing
of, conversion into or continuation of LIBOR Loans after the Borrower has given
a notice requesting the same in accordance with the provisions of this
Agreement, (c) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (d) the making by the Borrower of a prepayment or conversion of
LIBOR Loans on a day which is not the last day of an Interest Period with
respect thereto. A Lender's certificate as to such liability, loss or expense
shall be deemed conclusive, absent manifest error. This covenant shall survive
the termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder.
2.14 UNUSED COMMITMENT FEES. The Borrower agrees to pay to the Lenders an
unused commitment fee (the `COMMITMENT FEE') to be shared pro rata among the
Lenders with respect to the Commitments for the period from and including the
Closing Date to but excluding the Commitment Expiration Date, computed at a per
annum rate equal to 0.375% and based on the average daily aggregate amount of
the unused Aggregate Commitment from time to time in
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effect, to be payable quarterly in arrears on the last day of each March, June,
September and December and on the Commitment Expiration Date, commencing on the
first such date to occur after the Closing Date.
2.15 MITIGATION OF COSTS. If any Lender, by changing its Applicable Lending
Office or taking any other reasonable action, so long as making such change or
taking such other action is not, in the good faith judgment of such Lender,
disadvantageous to it in any financial, regulatory or other respect, can
mitigate any adverse effect on the Borrower under Section 2.8, 2.10, 2.11, or
2.12, such Lender shall take such action.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the Loans,
the Borrower hereby represents and warrants to the Administrative Agent, the
Arrangers and each Lender that:
3.1 FINANCIAL CONDITION. The audited consolidated balance sheet of the
Borrower as at December 31, 1999, and the related audited consolidated
statements of operations, changes in stockholders' equity and statements of cash
flows for the fiscal year ended on such date, certified by the Accountants and
to the best of his knowledge by a Responsible Officer of the Borrower, copies of
which have heretofore been furnished to each Lender, present fairly the
consolidated financial condition of the Borrower as at such date in all material
respects, the consolidated results of its operations and consolidated cash flows
for the fiscal year then ended in all material respects. The unaudited
consolidated balance sheet of the Borrower as at June 30, 2000 and the related
unaudited consolidated statements of operation and cash flows for the six-month
period ended on such date, certified to the best of his knowledge by a
Responsible Officer of the Borrower copies of which have heretofore been
furnished to each Lender, present fairly the consolidated financial condition of
the Borrower as at such date in all material respects, and the consolidated
results of its operations and its consolidated cash flows for the six-month
period then ended. All such financial statements (the "Financial Statements"),
including the related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the periods involved
(except as approved by such Accountants or Responsible Officers, as the case may
be, and as disclosed therein and for the absence of notes). The Borrower, on a
consolidated basis, had, at the date of the most recent balance sheet referred
to above, no material Guarantee Obligation, contingent liability or liability
for taxes, or any long-term lease or unusual forward or long-term commitment,
including, without limitation, any interest rate or foreign currency swap or
exchange transaction, which is not reflected in the foregoing statements or in
the notes thereto and which is material in relation to the respective
consolidated financial condition of such entities at such date.
3.2 NO CHANGE. Since June 30, 2000 there has been no event or condition
resulting in a Material Adverse Effect.
3.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of the Loan Parties
(a) is duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization, (b) has the corporate or partnership power
(as applicable) and authority, and the legal right, to own and operate its
Properties, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged and in which it proposes to be engaged
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after the Closing Date, (c) is duly qualified as a foreign entity 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 comply thereunder could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect and (d) is
in compliance with all Requirements of Law and Contractual Obligations except to
the extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
3.4 CORPORATE/PARTNERSHIP POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
The Borrower has the corporate power and authority, and the legal right, to
make, deliver and perform the Loan Documents and to obtain extensions of credit
hereunder and has taken all necessary corporate action to authorize (i) the
borrowings and other extensions of credit on the terms and conditions of this
Agreement and the Notes and (ii) the execution, delivery and performance of the
Loan Documents. No consent or authorization of, filing with or other act by or
in respect of, any Governmental Authority or any other Person is required in
connection with the borrowings and other extensions of credit hereunder or with
the execution, delivery, performance, validity or enforceability of this
Agreement, the Notes or the other Loan Documents. This Agreement has been, and
each of the Notes and the other Loan Documents will be, duly executed and
delivered on behalf of the Borrower. This Agreement constitutes, and each of the
Notes and the other Loan Documents when executed and delivered will constitute,
a legal, valid and binding obligation of the Borrower, enforceable against the
Borrower 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).
3.5 NO LEGAL BAR. The execution, delivery and performance of this
Agreement, the Notes, the Material Agreements and the other Loan Documents, the
borrowings and other extensions of credit hereunder and the use of the proceeds
thereof will not violate any Requirement of Law or Contractual Obligations
(including but not limited to (i) the Existing Credit Agreement and (ii) the
Junior Subordinated Notes) of the Borrower or any of its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect and will not
result in, or require, the creation or imposition of any Lien on any of its or
their respective properties or revenues pursuant to any such Requirement of Law
or Contractual Obligation, except pursuant to the Loan Documents or except as
otherwise permitted pursuant to Section 6.3, which Lien could reasonably be
expected to have a Material Adverse Effect.
3.6 NO MATERIAL LITIGATION. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Borrower, threatened by or against the Borrower or any of its
Subsidiaries or against any of its or their respective properties or revenues,
(a) on the Closing Date, with respect to this Agreement, the Notes or the other
Loan Documents or any of the transactions contemplated hereby or thereby or (b)
which could reasonably be expected to have a Material Adverse Effect.
3.7 OWNERSHIP OF PROPERTY; LIENS. To the Borrower's knowledge, each of the
Borrower and its Subsidiaries shall, on the Closing Date, have (i) with respect
to real property interests, good record and marketable title in fee simple to, a
valid leasehold interest in or rights
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as a permittee or licensee to and (ii) with respect to personal property
interests, good title to, a valid leasehold interest in or rights as a permittee
or licensee to all such personal property which is material to its business,
except for those the failure of which to have good title could not reasonably be
expected to have a Material Adverse Effect, and none of such property is subject
to any Lien except as permitted by Section 6.3.
3.8 INTELLECTUAL PROPERTY. The Borrower and each of its Subsidiaries owns,
or is licensed to use, all trademarks, trade names, patents and copyrights
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 (the "INTELLECTUAL PROPERTY"). To the Borrower's
knowledge, no claim which could reasonably be expected to have a Material
Adverse Effect has been asserted and is pending by any Person challenging or
questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does the Borrower know of
any valid basis for any such claim. To the Borrower's knowledge, the use of such
Intellectual Property by the Borrower and its Subsidiaries does not infringe on
the rights of any Person, except for such claims and infringements that, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect,
nor, to the Borrower's knowledge, do the use by other Persons of such
Intellectual Property infringe on the rights of the Borrower and its
Subsidiaries, except for such claims and infringements that, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
3.9 TAXES. (a) Each of the Borrower and its Subsidiaries has filed or
caused to be filed all material tax returns which, to the knowledge of the
Borrower, are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any not yet delinquent or 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 Borrower or its Subsidiaries, as the
case may be); and to the knowledge of Borrower, no tax Lien has been filed, and
no claim is being asserted with respect to any such tax, fee or other charge
which could reasonably be expected to have a Material Adverse Effect.
(b) There are no Taxes imposed on the Borrower or its Subsidiaries by any
political subdivision or taxing authority due or payable either on or by virtue
of the execution and delivery by the Borrower, the Administrative Agent, the
Arrangers or the Lenders of this Agreement or any other Loan Document to which
the Borrower or any other Loan Party is a party or on any payment to be made by
the Borrower pursuant hereto or thereto.
3.10 FEDERAL REGULATIONS. No part of the proceeds of any Loans are intended
to be or will be used, directly or indirectly, for any purpose which violates
the provisions of the Regulations of the Board of Governors of the Federal
Reserve System. If requested by any Lender, any Arranger or the Administrative
Agent, and in any event upon consummation of any Acquisition involving the
purchase of stock by the Borrower or any Subsidiary, the Borrower will furnish
to the Administrative Agent, the Arrangers and each Lender a statement to the
foregoing effect in conformity with the requirements of Form U-1 referred to in
Regulation U.
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3.11 ERISA. No Reportable Event has occurred during the five-year period
prior to the date on which this representation is made with respect to any Plan
which has or would likely result in a Material Adverse Effect. Each Plan has
complied in all material respects with the applicable provisions of ERISA and
the Code. The present value of all accrued benefits under all Single Employer
Plans maintained by the Borrower or any Commonly Controlled Entity (based on
those assumptions used to fund the Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made, exceed
the value of the assets of such Plans by an aggregate amount greater than
$1,000,000. Neither the Borrower nor any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan which has or would
likely result in a Material Adverse Effect. 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 (excluding benefits
required by Section 4980B of the Code) to be profited to their current and
former employees under Plans which are welfare benefit plans (as defined in
Section 3(a) of ERISA) does not, in the aggregate, exceed the assets under all
such Plans allocable to such benefits by an amount which has a Material Adverse
Effect.
3.12 INVESTMENT COMPANY ACT; OTHER REGULATIONS. None of the Loan Parties is
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT").
3.13 MATERIAL AGREEMENTS. Each of the Material Agreements to which the
Borrower or any other Loan Party is a party is a legal, valid and binding
obligation of the parties thereto enforceable against such parties in accordance
with their 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); and neither
the Borrower nor any other Loan Party is in breach or violation of or in default
under any Material Agreement in any material respect which would individually or
in the aggregate have a Material Adverse Effect. Each of the Lenders, the
Arrangers and the Administrative Agent has received a complete and correct copy
of each of the Material Agreements and the Junior Subordinated Notes (including
in each case all exhibits, schedules and disclosure letters referred to therein
or delivered pursuant thereto, if any) and all amendments thereto and other side
letters or agreements affecting the terms thereof. As of the Closing Date,
neither the Borrower nor any of its Subsidiaries is party to any Program
Services Agreement.
3.14 SUBSIDIARIES. The Subsidiaries listed on Schedule 3 constitute all of
the direct and indirect Subsidiaries of the Borrower.
3.15 PURPOSE OF LOANS. The proceeds of the Loans shall be used as follows:
(i) to refinance the Ask Jeeves JV Investment consummated by the Borrower prior
to the Closing Date, (ii) to make the Mexican League Soccer Acquisition, (iii)
to make Acquisitions and New Investments (including but not limited to (x) the
purchase of the Xxxxxx Investment and (y) by purchase of additional stock of
Entravision), (iv) for general corporate purposes, (v) for Borrower Stock
Purchases and (vi) to refinance amounts outstanding under the Existing Credit
Agreement, in each case subject to the terms and conditions of this Agreement.
Following
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application of the proceeds of each Loan, not more than 25% of the value of the
assets (of either Borrower, or of Borrower and its Subsidiaries on a combined
basis) subject to the provisions of Section 6.3 or 6.5 will be Margin Stock.
3.16 ENVIRONMENTAL MATTERS. To the Borrower's knowledge after reasonable
inquiry:
(a) The Properties and all operations at the Properties are in compliance
in all material respects with all applicable Environmental Laws, and there is no
contamination at, under or about the Properties, or violation of any
Environmental Law with respect to the Properties or the business conducted at
the Properties which involves a matter or matters which has caused or are
reasonably likely to cause a Material Adverse Effect.
(b) Neither the Borrower nor any of its Subsidiaries has received any
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 conducted at the Properties
which involves a matter or matters which has caused or are reasonably likely to
cause a Material Adverse Effect, nor does 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 cause a
Material Adverse Effect.
(c) No judicial proceedings or governmental or administrative action is
pending, or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any of its Subsidiaries is named as a
party with respect to the Properties or the business conducted at the Properties
which involves a matter or matters which has caused or are reasonably likely to
cause a Material Adverse Effect, 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 such business except insofar as such
proceeding, action, decree, order or other requirement, or any aggregation
thereof, is not reasonably likely to cause a Material Adverse Effect.
3.17 ACCURACY AND COMPLETENESS OF INFORMATION. The documents furnished and
the statements made in writing to the Lenders by the Borrower in connection with
the negotiation, preparation or execution of this Agreement or any of the other
Loan Documents taken as a whole do not contain any untrue statement of fact
material to the creditworthiness of the Borrower or omit to state any such
material fact necessary in order to make the statements contained therein not
misleading, in either case which has not been corrected, supplemented or
remedied by subsequent documents furnished or statements made in writing to the
Lenders prior to the date hereof. The projections and pro forma financial
information contained in such materials are based upon good faith estimates and
assumptions believed by the Borrower to be reasonable at the time made and as of
the Closing Date, it being recognized that such projections as to future events
are not to be viewed as facts and that actual results during the period or
periods covered by any such projections may differ from the projected results.
3.18 PERMITS, ETC. Each Loan Party has all permits, licenses,
authorizations and approvals required for it lawfully to acquire, own, control,
manage or operate each Primary Station currently owned, controlled, managed or
operated by such Loan Party (including, without
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limitation, all Media Licenses) except for such permits, licenses,
authorizations or approvals required for the lawful ownership, control,
management or operation of a Primary Station, the failure to obtain or maintain
which will not have a Material Adverse Effect. No Primary Station is party to
any station lease arrangement. Each Primary Station is in compliance in all
material respects with all such permits, licenses, authorizations and approvals.
Each Loan Party has duly and timely filed all reports and documents required by
the Communications Act with respect to the ownership, management or operation of
each Primary Station owned by such Loan Party, except for such reports or
documents the failure to file which will not have a Material Adverse Effect. No
condition exists or event has occurred which, in itself or with the giving of
notice or lapse of time or both, would result in the suspension, revocation,
impairment, forfeiture or non-renewal of any such permit, license, authorization
or approval required for the lawful ownership, control, management or operation
of a Primary Station, and there is no claim that any thereof is not in full
force and effect, except for such of the immediately preceding matters which are
not likely or reasonably likely to cause a Material Adverse Effect. Except for
such of the immediately preceding matters which are not likely or reasonably
likely to cause a Material Adverse Effect, there are (i) no judgments, decrees
or orders issued or to the Borrower's knowledge threatened by the FCC with
respect to the Borrower, any Subsidiary or any of the Primary Stations, (ii) no
complaints, petitions, filings or other proceedings pending or to the Borrower's
knowledge threatened before the FCC (other than rule making of general
applicability to the broadcast industry) with respect to the Borrower, any
Subsidiary or any of the Primary Stations and (iii) no events that have occurred
that could result in the imposition of any financial penalty by the FCC upon the
Borrower, any Subsidiary or any of the Primary Stations.
3.19 COPYRIGHT ACT REQUIREMENTS. Each Loan Party that owns, manages or
operates a Primary Station has recorded or deposited with and paid to the United
States Copyright Office, the Registrar of Copyrights, the Patent and Trademark
Office, the American Society of Composers, Authors and Publishers, Broadcast
Music, Inc. and/or any other licensors of copyrighted materials, all notices,
statements of account, royalty fees and other documents and instruments required
under the terms and conditions of any patent, trademark, service xxxx, trade
name and copyright used in the operation of a Primary Station and/or the
Copyright Act of 1976, as amended from time to time, and the rules and
regulations promulgated thereunder and, except as disclosed in writing to the
Administrative Agent, is not liable to any Person for copyright infringement
under any law, rule, regulation, contract or license as a result of its business
operation, all except to the extent that non-compliance with the preceding
requirements would not, in the aggregate, be reasonably expected to have a
Material Adverse Effect.
3.20 NATURE OF BUSINESS. Neither the Borrower nor any of its Subsidiaries
is engaged in any material business other than the ownership and operation of
(or the ownership of stock of or other interests in companies that own or
operate) any Media/Communications Business.
3.21 FCC MATTERS; MEDIA LICENSES. The Borrower and its Subsidiaries are in
all material respects in compliance with the Communications Act, including,
without limitation, the rules, regulations and published policies of the FCC
relating to the transmission of television signals, all except to the extent
that non-compliance with the preceding requirements would not, in the aggregate,
be reasonably expected to have a Material Adverse Effect. Each Station owned by
the Borrower or any of its Subsidiaries on the Closing Date is set forth on
Schedule 5.
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3.22 RANKING OF LOANS. This Agreement and the other Loan Documents to which
the Borrower is a party, when executed, and the Loans, when borrowed are and
will be the direct and general obligations of the Borrower. The Borrower's
obligations hereunder and thereunder rank and will rank at least PARI PASSU in
priority of payment with all other Senior Debt. The Borrower's obligations
hereunder and thereunder constitute "Senior Debt" as defined in, and pursuant
to, the Junior Subordinated Notes referred to in clause (i) of the definition
thereof contained in Section 1.1.
3.23 INSOLVENCY. After giving effect to the funding of the Loans to be
funded on the Closing Date (assuming borrowing of the entire Aggregate
Commitment on such date), the existence of the Junior Subordinated Notes and the
payment of all estimated legal, investment banking, underwriting, accounting and
other fees related hereto, the Borrower and each other Loan Party will be
Solvent as of and on the Closing Date.
3.24 LABOR MATTERS. As of the Closing Date there are no strikes or other
labor disputes against the Borrower or any of its Subsidiaries pending or, to
the Borrower's knowledge, threatened against any Loan Party.
3.25 CONDEMNATION. To the Borrower's knowledge, no taking of any of the
Properties or any part thereof through eminent domain, conveyance in lieu
thereof, condemnation or similar proceeding is pending or, to the knowledge of
the Borrower, threatened by any Governmental Authority which would reasonably be
expected to have a Material Adverse Effect.
3.26 LEASES, LICENSES, PERMITS, SITE USE AGREEMENTS AND OTHER OCCUPANCY
AGREEMENTS. To the Borrower's knowledge, any and all leases, licenses, permits,
site use agreements and any other type of occupancy permit to which the Borrower
or any Subsidiary is a party are in full force and effect with no material
defaults existing thereunder which individually or in the aggregate would have a
Material Adverse Effect.
3.27 CORPORATE ORGANIZATION. On the Closing Date, the corporate
organization of the Borrower and its Subsidiaries, including the respective
ownership interests of the Borrower in each of its Subsidiaries, is as set forth
on Schedule 7.
SECTION 4. CONDITIONS PRECEDENT
4.1 CONDITIONS TO CLOSING DATE. The effectiveness of this Agreement, and
the agreement of each Lender to make the initial Loans on the Closing Date, are
subject to the satisfaction, immediately prior to or concurrently with the
making of such Loans on the Closing Date (except as otherwise expressly provided
hereunder), of the following conditions precedent:
(a) CREDIT AGREEMENT. The Administrative Agent shall have received this
Agreement, executed and delivered by an officer of the Borrower as of the
Closing Date, with a counterpart for each Lender, and such officer shall be
covered by an incumbency certificate which shall have been executed and
delivered to the Administrative Agent.
(b) OTHER LOAN DOCUMENTS. The Administrative Agent shall have received the
Notes and the sideletter entered into between the Borrower and the Arrangers
relating to syndication of the Loans and the Commitments, in each case executed
and delivered by an officer of the
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Borrower with a counterpart for each Lender, and such officer shall be covered
by an incumbency certificate which shall have been executed and delivered to the
Administrative Agent.
(c) INCUMBENCY CERTIFICATE. The Administrative Agent shall have received,
with an executed counterpart for each Lender, an incumbency certificate of the
Borrower dated the Closing Date, executed by one of its Responsible Officers or
its Secretary or Assistant Secretary.
(d) CORPORATE PROCEEDINGS. The Administrative Agent shall have received,
with a counterpart for each Lender, a copy of the resolutions of the Board of
Directors of the Borrower authorizing (i) the execution, delivery and
performance of the Loan Documents and (ii) the borrowings contemplated
hereunder, certified by the Secretary or an Assistant Secretary of the Borrower
as of the Closing Date, which certificate states that the resolutions thereby
certified have not been amended, modified, revoked or rescinded and are in full
force and effect.
(e) ORGANIZATIONAL DOCUMENTS. The Administrative Agent shall have
received, with a counterpart for each Lender, copies of the certificate of
incorporation and by-laws of the Borrower, certified as of the Closing Date as
complete and correct copies thereof by the Secretary or an Assistant Secretary
of the Borrower.
(f) FEES AND COSTS. The Arrangers and the Administrative Agent shall have
received payment of all fees, costs, expenses and taxes accrued and unpaid and
otherwise due and payable on or before the Closing Date by the Borrower in
connection with this Agreement.
(g) LEGAL OPINIONS. The Administrative Agent shall have received, with a
counterpart for each Lender, the following executed legal opinions:
(i) the executed legal opinion of O'Melveny & Xxxxx LLP, counsel to
the Borrower, in form and substance reasonably acceptable to the Arrangers;
(ii) the executed legal opinion of Xxxx Xxxxxxx, FCC counsel to the
Borrower, in form and substance reasonably acceptable to the Arrangers; and
(iii) such other legal opinions as the Arrangers may reasonably
request.
(h) MATERIAL AGREEMENTS. The Administrative Agent shall have received,
with a counterpart for each Lender, copies of each of the Material Agreements,
and each of the documents evidencing the Junior Subordinated Notes, all as
certified as true and correct by the Borrower and all in form and substance
satisfactory to the Majority Lenders.
(i) GOOD STANDING CERTIFICATES. The Administrative Agent shall have
received a certificate, dated a recent date, of the Secretary of State of the
States of Delaware, California and each other jurisdiction where the Borrower is
required to be qualified to do business under such jurisdiction's law,
certifying as to the existence and good standing of, and the payment of taxes
by, the Borrower in such state and listing all charter documents of the Borrower
on file with such officials.
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(j) TAX AND LEGAL STRUCTURE; LITIGATION. The Arrangers shall have reviewed,
and be reasonably satisfied with, (i) the state and federal tax assumptions of
the Borrower and each Subsidiary, (ii) the ownership, capital, organizational
and legal structure of the Borrower and its Subsidiaries and (iii) the nature
and status of any litigation affecting the Borrower and its Subsidiaries and/or
this Agreement and any other Loan Document and the transactions contemplated
hereby.
(k) NO DEFAULT/REPRESENTATIONS. No Default shall have occurred and be
continuing on the Closing Date or would occur after giving effect to the Loans
requested to be made on the Closing Date, and the representations and warranties
contained in this Agreement and each other Loan Document and certificate or
other writing delivered to the Lenders in satisfaction of the conditions set
forth in this Section 4.1 prior to or on the Closing Date shall be correct in
all material respects on and as of the Closing Date, and the Administrative
Agent shall have received a certificate of the Borrower to such effect in the
form of Exhibit C, dated as of the Closing Date and executed by a Responsible
Officer of the Borrower.
(l) EXISTING CREDIT AGREEMENT. The Administrative Agent shall have received
evidence satisfactory to it that the Loans are permitted under Section 6.2 of
the Existing Credit Agreement.
(m) SOLVENCY CERTIFICATE. The Administrative Agent shall have received for
distribution to the Lenders a certificate of the Chief Financial Officer of the
Borrower to the effect that the Borrower is Solvent after giving effect to the
funding of the Loans on the Closing Date (assuming borrowing of the entire
Aggregate Commitment on such date), the existence of the Junior Subordinated
Notes and the Existing Credit Agreement, and the payment of all estimated legal,
investment banking, accounting, underwriting and other fees related hereto and
thereto.
(n) INSURANCE POLICIES. The Administrative Agent shall have received
evidence that the insurance policies provided for in Section 5.5 are in full
force and effect, certified by the insurance broker therefor, together with
appropriate evidence showing the Administrative Agent as an additional named
insured for the benefit of the Lenders, all in form and substance reasonably
satisfactory to the Administrative Agent.
(o) OPERATIONAL CONSENTS. The Administrative Agent shall have received
evidence, in form and substance reasonably satisfactory to the Administrative
Agent that (i) the Borrower and its Subsidiaries have obtained all FCC consents
and licenses required by law or necessary for the operation of the Borrower and
its Subsidiaries and (ii) the Borrower and its Subsidiaries have obtained all
other consents and licenses required by law or necessary for the operation of
the Borrower and its Subsidiaries, the failure of which to obtain would have a
Material Adverse Effect.
(p) FINANCIAL CERTIFICATES. The Administrative Agent shall have received
the following certificates, in each case signed by a Responsible Officer of the
Borrower and in form, substance and detail acceptable to the Arrangers:
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(i) A certificate indicating that after giving effect to the
transactions contemplated to occur on the Closing Date (and assuming
borrowing of (i) the entire Aggregate Commitment on such date and (ii) the
entire Aggregate Commitment under the Existing Credit Agreement on such
date), PRO FORMA Funded Debt (excluding the aggregate Redemption Value of
all outstanding Modesto Station Purchase Preferred Stock) for the Borrower
and its Subsidiaries on a consolidated basis will not exceed $600,000,000
on and as of the Closing Date;
(ii) A certificate indicating that the Financial Statements accurately
reflect the financial condition and performance of the Borrower and its
Subsidiaries (i) for fiscal year 1999 and (ii) the fiscal quarter ended
June 30, 2000, in each case in accordance with GAAP consistently applied;
and
(iii) A Covenant Compliance Certificate showing compliance with the
covenants referred to therein, on a PRO FORMA basis, as of the Closing Date
(based on EBITDA as of June 30, 2000 and assuming borrowing of the entire
Aggregate Commitment on the Closing Date).
(q) NON-FOREIGN ENTITY; TAX IDENTIFICATION NUMBER. The Administrative Agent
shall have received, reviewed and approved a certificate from the Borrower
regarding such entity's domestic status, which certificate shall also include
such entity's tax identification number.
(r) NO MATERIAL ADVERSE CHANGE. No material adverse change shall have
occurred, as determined in the sole discretion of the Arrangers, in respect of
the condition (financial or otherwise), business, operations, assets (including
Media Licenses), nature of assets, liabilities or prospects of the Borrower and
its Subsidiaries.
(s) ADDITIONAL PROCEEDINGS. The Administrative Agent shall have received
such other approvals, opinions and documents as any Lender, through the
Administrative Agent, may reasonably request and all legal matters incident to
the making of such Loans shall be reasonably satisfactory to the Administrative
Agent and the Arrangers.
4.2 CONDITIONS TO EACH LOAN . The agreement of each Lender to make each
Loan requested to be made by it is subject to the satisfaction, immediately
prior to or concurrently with the making of such Loan, of the following
conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES; NO DEFAULT. The following statements
shall be true and the Borrower's acceptance of the proceeds of such Loan shall
be deemed to be a representation and warranty of the Borrower on the date of
such Loan that:
(i) The representations and warranties contained in this Agreement and
in each other Loan Document and certificate or other writing delivered to
the Lenders prior to, on or after the Closing Date pursuant hereto and on
or prior to the date for such Loan are correct on and as of such date in
all material respects as though made on and as of such date except to the
extent that such representations and warranties expressly relate to an
earlier date; and
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(ii) No Default has occurred and is continuing or would result from
the making of the Loan to be made on such date.
(b) LEGALITY. The making of such Loan shall not contravene any law, rule or
regulation applicable to any Lender or the Borrower or any other Loan Party.
(c) BORROWING NOTICE. The Administrative Agent shall have received a
borrowing notice pursuant to the provisions of this Agreement from the Borrower.
(d) APPROVALS. With respect to a borrowing in connection with an
Acquisition of television or radio stations, the Administrative Agent shall have
received copies of all FCC and regulatory approvals and licenses necessary in
connection with any such Acquisition and all shareholder approvals necessary in
connection with any such Acquisition.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that from and after the Closing Date, so long as
any Commitments remain in effect, any Note remains outstanding and unpaid or any
other amount is owing to any Lender, the Administrative Agent or the Arrangers
hereunder:
5.1 FINANCIAL STATEMENTS. The Borrower shall furnish to the Arrangers (for
distribution to each Lender):
(a) as soon as available, but in any event within 90 days after the end of
each fiscal year of the Borrower, a copy of the consolidated and consolidating
balance sheet of the Borrower and its consolidated Subsidiaries as at the end of
such year and the related consolidated and consolidating statements of
operations and retained earnings, stockholders' equity and of cash flows for
such year, setting forth in each case in comparative form the figures for the
previous year, audited without a "going concern" or like qualification or
exception, or other qualification arising out of the scope of the audit, by the
Accountants;
(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, the unaudited consolidated and consolidating balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter and the
related unaudited consolidated and consolidating statements of operations,
retained earnings, stockholders' equity and of cash flows of the Borrower and
its consolidated Subsidiaries for such quarter and the portion of the fiscal
year through the end of such quarter, setting forth in each case in comparative
form the figures for the previous year, certified by a Responsible Officer of
the Borrower as being fairly stated in all material respects (subject to normal
year-end audit adjustments);
(c) as soon as available, but in any event within 90 days after the end of
each fiscal year of the Borrower, a certificate from the Accountants verifying
compliance by the Borrower and its Subsidiaries on a consolidated basis with
each financial covenant set forth in Section 6.1 and, based on their review of
the financial reports of the Borrower and its Subsidiaries on a consolidated
basis, an opinion of the Accountants that no Default shall have occurred under
any Loan Document; provided, that the Accountants shall not be required, as a
result of delivering
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such opinion, to undertake any special investigation in addition to their normal
audit examination; and
(d) as soon as available, but in any event within 45 days after the end of
each fiscal quarter of the Borrower, financial reports, consistent with the
internal reporting practices of the Borrower and its Subsidiaries as in effect
on the Closing Date, relating to the operations of each Primary Station as at
the end of such quarter and the portion of the fiscal year through the end of
such quarter, certified by a Responsible Officer of the Borrower as being fairly
stated in all material respects (subject to normal year-end audit adjustments);
all such financial statements to be complete and correct in all material
respects and to 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 the Accountants or Responsible Officer, as the
case may be, and disclosed therein).
5.2 CERTIFICATES; OTHER INFORMATION. The Borrower shall:
(a) furnish to the Arrangers (for distribution to each Lender) concurrently
with the delivery of the financial statements referred to in Sections 5.1(a) and
5.1(b), a certificate of a Responsible Officer of the Borrower stating that, (i)
to the best of such Responsible Officer's knowledge, the Borrower during such
period has observed or performed all of its covenants (including calculations
substantially in the form of Exhibit D regarding all financial covenants) and
other agreements, and satisfied every condition, contained in this Agreement and
in the Notes and the other Loan Documents to which it is a party to be observed,
performed or satisfied by it, and that such Responsible Officer has obtained no
knowledge of any Default except as specified in such certificate and (ii) to the
best of such Responsible Officer's knowledge, no Default has occurred and the
Borrower is in compliance with its covenants in the Loan Documents;
(b) at least once during each fiscal year of the Borrower, convene a bank
meeting among the Lenders upon reasonable notice to the Lenders, or attend such
a meeting convened by the Arrangers, and present cash flow projections for the
forthcoming year and a report discussing the views of the Borrower concerning
the recent performance and near and intermediate term prospects of (i) the
businesses in which the Borrower and its Subsidiaries are principally engaged
and (ii) trends concerning assets under management, advisory fees, competition
and strategic initiatives by the Borrower and its Subsidiaries;
(c) furnish to the Arrangers (for distribution to each Lender) within five
days after the same are filed, copies of all financial statements and reports
which the Borrower or any Subsidiary may make to, or file with, the Securities
and Exchange Commission or any successor or analogous Governmental Authority;
(d) furnish to the Arrangers (for distribution to each Lender) promptly
but, in any event, within 5 Business Days, after receipt thereof, copies of all
financial reports (including, without limitation, management letters), if any,
submitted to the Borrower or any of its Subsidiaries by the Accountants in
connection with any annual or interim audit of the books thereof;
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(e) furnish to the Arrangers (for distribution to each Lender) as soon as
available and in any event not later than January 31 of each year, commencing
with the fiscal year ending on December 31, 2001, a copy of the annual operating
budgets for the Borrower and its Subsidiaries for such fiscal year, detailed by
quarter and a copy of the three-year annual operating budgets for the Borrower
and its Subsidiaries for such three-year period;
(f) furnish to the Arrangers (for distribution to each Lender) as soon as
possible and in any event within five days after the occurrence of a Default or,
in the good faith determination of a Responsible Officer of the Borrower, a
Material Adverse Effect, the written statement by a Responsible Officer of the
Borrower, setting forth the details of such Default or Material Adverse Effect
and the action which the Borrower proposes to take with respect thereto;
(g) furnish to the Arrangers (for distribution to each Lender) promptly
but, in any event, within 5 Business Days, after the same become available,
copies of all statements, reports and other information which the Borrower or
any of its Subsidiaries sends to any holders, as holders, of its Indebtedness or
its securities;
(h) furnish to the Arrangers (for distribution to each Lender) (A) as soon
as possible and in any event within 30 days after the Borrower knows or has
reason to know that any Termination Event with respect to any Plan has occurred,
a statement of a Responsible Officer of the Borrower describing such Termination
Event and the action, if any, which the Borrower proposes to take with respect
thereto, (B) promptly and in any event within ten Business Days after receipt
thereof by the Borrower or any of its ERISA Affiliates from the PBGC, copies of
each notice received by the Borrower or any of its ERISA Affiliates of the
PBGC's intention to terminate any Plan or to have a trustee appointed to
administer any Plan, (C) promptly and in any event within 30 days after the
filing thereof with the Internal Revenue Service, copies of each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) with respect to
each Single Employer Plan maintained for or covering employees of the Borrower
or any of its Subsidiaries if the present value of the accrued benefits under
the Plan exceeds its assets by an amount in excess of $1,000,000 and (D)
promptly and in any event within fifteen Business Days after receipt thereof by
the Borrower or any of its ERISA Affiliates from a sponsor of a Multiemployer
Plan or from the PBGC, a copy of each notice received by the Borrower or any of
its ERISA Affiliates concerning the imposition or amount of withdrawal liability
under Section 4202 of ERISA or indicating that such Multiemployer Plan may enter
reorganization status under Section 4241 of ERISA;
(i) furnish to the Arrangers (for distribution to each Lender) promptly
after the commencement thereof, but in any event not later than five Business
Days after service of process with respect thereto on, or the obtaining of
knowledge by, the Borrower or any of its Subsidiaries, notice of each action,
suit or proceeding before any court or governmental authority or other
regulatory body or any arbitrator as to which there is a reasonable possibility
of a determination that would have a Material Adverse Effect;
(j) furnish to the Arrangers (for distribution to each Lender) promptly
after the sending or filing thereof, but in any event not later than ten
Business Days following such sending or filing, copies of (A) all Ownership
Reports on FCC Form 323 (or any similar form which may be adopted by the FCC
from time to time) and any supplements thereto, and (B) all
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statements, reports and other information filed by or on behalf of the Borrower
or any of its Subsidiaries with the FCC if such statement, report or other
information indicates a material change in the condition, financial or
otherwise, or operations of the Borrower or any of its Subsidiaries;
(k) furnish to the Arrangers (for distribution to each Lender) promptly
upon receipt thereof, but in any event not later than five Business Days
following such receipt, copies of (i) all notices and other communications that
the Borrower or any of its Subsidiaries shall have received from the FCC
relating to any adjudicatory hearing before the FCC as to which the Borrower or
any of its Subsidiaries is a party, (ii) any petition, complaint, notice of
violation or notice of apparent liability made with the FCC or received from the
FCC relating to any proceeding involving the Borrower or any of its Subsidiaries
which, if determined adversely to the Borrower or its Subsidiaries, could result
in the rescission, non-renewal, revocation or materially adverse modification of
any Media License and (iii) any cease and desist order or similar directive from
the FCC, if compliance with such cease and desist order for an indefinite period
or for the period set forth in such order could reasonably be expected to have a
Material Adverse Effect or if the Borrower or any of the Subsidiaries of the
Borrower against which such order is issued is unable to comply with such order
within the time period provided in such order and such failure or the
continuation of such failure could reasonably be expected to have a Material
Adverse Effect;
(l) furnish to the Arrangers (for distribution to each Lender) no later
than 10 days prior to the formation or acquisition of any Subsidiary of the
Borrower or a Subsidiary of a Subsidiary, a supplement to Schedule 3, setting
forth the information with respect to each such Subsidiary reasonably required
by the Majority Lenders;
(m) furnish to the Arrangers (for distribution to each Lender) no later
than 30 days prior to the acquisition of a Media License or Primary Station by
the Borrower or any Subsidiary, a supplement to Schedule 5, setting forth the
information with respect to each Primary Station or Media License reasonably
required by the Majority Lenders; and
(n) furnish to the Arrangers (for distribution to each Lender) promptly
such additional financial and other information as any Lender, through the
Administrative Agent, may from time to time reasonably request.
5.3 PAYMENT OF OBLIGATIONS. The Borrower shall, and shall cause each of its
Subsidiaries to, pay, discharge or otherwise satisfy at or before maturity or
before they become delinquent, as the case may be, all its obligations of
whatever nature, except where the failure to so satisfy such obligations would
not have a Material Adverse Effect or 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 the Borrower or its Subsidiaries, as the case may be.
5.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. The Borrower shall,
and shall cause each of its Subsidiaries to, continue to engage in business of
the same general type as conducted by the Borrower and its Subsidiaries as of
the Closing Date and preserve, renew and keep in full force and effect its
corporate existence and take all reasonable action to maintain all
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rights, registrations, licenses, privileges and franchises necessary or
desirable in the normal conduct of its business, except to the extent that a
failure to maintain such rights, registrations, licenses, privileges and
franchises would not have a Material Adverse Effect or except as otherwise
permitted pursuant to Section 6.5, and comply with all Contractual Obligations
and Requirements of Law except to the extent that failure to comply therewith
would not, in the aggregate, have a Material Adverse Effect.
5.5 MAINTENANCE OF PROPERTY; INSURANCE. The Borrower shall, and shall cause
each of its Subsidiaries to, keep all Property useful or necessary in its
business in good working order and condition (ordinary wear and tear excepted);
maintain with financially sound and reputable insurance companies or
associations insurance on such of its Property in at least such amounts and
against such risks as are usually insured against in the same general area by
companies engaged in the same or a similar business; and furnish to the
Administrative Agent, upon written request, full information as to the insurance
carried. All such policies of liability insurance on the property of the
Borrower and the Subsidiaries shall contain an endorsement, in form and
substance reasonably satisfactory to the Administrative Agent in its sole
discretion, showing the Administrative Agent, on behalf of the Lenders, as
additional insured, or as its interests appear. Such endorsement, or an
independent instrument furnished to the Administrative Agent, shall provide that
the insurance companies will endeavor to give the Administrative Agent at least
30 days' prior written notice before any such policy or policies of insurance
shall be altered or canceled. All policies of insurance required to be
maintained under this Agreement shall be in customary form and with insurers
recognized as adequate by the Administrative Agent and all such policies shall
be in such amounts as shall be customary for similar companies in the same or
similar business in the same geographical area. The Borrower and its
Subsidiaries shall deliver to the Administrative Agent insurance certificates
certified by the Borrower's or such Subsidiary's insurance brokers, as to the
existence and effectiveness of each policy of insurance and evidence of payment
of all premiums then due and payable therefor. In addition, the Borrower shall
notify the Administrative Agent promptly of any occurrence causing a material
loss of any insured Property and the estimated (or actual, if available) amount
of such loss.
(i) Each policy for liability insurance shall provide for all losses
to be paid on behalf of the Administrative Agent and the Borrower or its
Subsidiary (as the case may be), as their respective interests may appear.
(ii) Reimbursement under any liability insurance maintained by the
Borrower or its Subsidiaries pursuant to this Section 5.5 may be paid
directly to the Person who shall have incurred liability covered by such
insurance.
5.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. The Borrower
shall, and shall cause each of its Subsidiaries to, keep proper books of records
and account in which full, true and correct entries in conformity with GAAP and
all Requirements of Law shall be made of all material dealings and transactions
in relation to its business and activities; and upon reasonable notice and at
such reasonable times during usual business hours, permit representatives of any
Lender to visit and inspect any of its properties and examine and make abstracts
from any of its books and records at any reasonable time and as often as may
reasonably be desired and to discuss the business, operations, properties and
financial and other condition of the Borrower and
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its Subsidiaries with officers and employees of the Borrower and its
Subsidiaries and with its Accountants (as long as a member of senior management
of the Borrower is present during such discussion).
5.7 ENVIRONMENTAL LAWS. The Borrower shall, and shall cause each of its
Subsidiaries to:
(a) Comply with, and ensure compliance by all tenants and subtenants, if
any, with, all applicable Environmental Laws and obtain and comply in all
material respects with any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws except to the
extent that failure to do so could not be reasonably expected to have a Material
Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling and testing,
and all remedial, removal and other actions required under Environmental Laws
and promptly comply in all material respects with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws except
to the extent that the same are being contested in good faith by appropriate
proceedings; and
(c) Defend, indemnify and hold harmless the Administrative Agent, the
Arrangers and the Lenders, and their respective employees, agents, officers and
directors, from and against any and all claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or nature
known or unknown, contingent or otherwise, arising out of, or in any way
relating to the violation of, noncompliance with or liability under any
Environmental Laws applicable to the operations of the Borrower or any of its
Subsidiaries, or the Borrower's or any of its Subsidiaries' interest in
Properties, or any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, attorney's and consultant's
fees, investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing arise out of
the gross negligence or willful misconduct of the party seeking indemnification
therefor. This indemnity shall continue in full force and effect regardless of
the termination of this Agreement.
5.8 USE OF PROCEEDS. The Borrower will use, and cause its Subsidiaries to
use, the proceeds of the Loans as set forth in Section 3.15 and in compliance
with Section 3.10.
5.9 COMPLIANCE WITH LAWS, ETC. Except as set forth in Section 5.7 relating
specifically to Environmental Laws, the Borrower shall comply, and shall cause
each of its Subsidiaries to comply, in all material respects with all applicable
laws, rules, regulations and orders except where noncompliance would not
reasonably be expected to have a Material Adverse Effect, such compliance to
include, without limitation (i) paying before the same become delinquent all
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits or upon any of its Properties and (ii) paying all lawful
claims which if unpaid might become a Lien upon any of its Properties; provided,
however, that neither the Borrower nor any of its Subsidiaries shall be required
to pay and discharge or to cause to be paid and discharged any such tax,
assessment, charge, levy or claim so long as (A) the validity or applicability
thereof is being contested in good faith by appropriate proceedings or the
failure to pay such tax, assessment, charge, levy or claim would not have a
Material Adverse Effect and
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(B) the Borrower or such Subsidiary shall, to the extent required by GAAP, have
set aside on its books adequate reserves with respect thereto.
5.10 MEDIA LICENSES. The Borrower will obtain, maintain and preserve, and
cause each of its Subsidiaries to obtain, maintain and preserve, all Media
Licenses, including without limitation, by filing with the FCC (i) those of the
Loan Documents required to be filed under the FCC's rules and regulations within
30 days after the Closing Date, and (ii) all reports (including Ownership
Reports on Form 323) and other documents required to be filed by the
Communications Act in connection with the transactions contemplated hereby and
maintaining public records and files in accordance with the Communications Act
and the rules and regulations of the FCC, except for such Media Licenses in
respect of the Primary Stations the failure of which to obtain, maintain or
preserve will not have a Material Adverse Effect.
5.11 LEASES AND LICENSES. The Borrower shall or shall cause its
Subsidiaries to perform and carry out all of the provisions of all of the
leases, licenses, permits and any other occupancy agreements relating to real
property or real property interests (the "OCCUPANCY AGREEMENTS") to be performed
by the Borrower or any of its Subsidiaries and shall appear in and defend any
action in which the validity of any of the Occupancy Agreements relating to any
real property or real property interests is at issue and shall commence and
maintain any action or proceeding necessary to establish or maintain the
validity of any of such Occupancy Agreements and to enforce the provisions
thereof.
5.12 NOTICES. The Borrower will provide, and will cause its Subsidiaries to
provide to the Arrangers, within 5 days following receipt by the Borrower or
such Subsidiary, copies of all notices received by the Borrower or such
Subsidiary (i) under any Material Agreement, relating to any default, any
claimed force majeure or any other material provision thereof and (ii) from the
Internal Revenue Service or other taxing authority relating to any dispute
regarding deductions, audits or any other material matter which, if adversely
determined against the Borrower or such Subsidiary, would have a Material
Adverse Effect.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that from and after the Closing Date, so long as
any Commitments remain in effect, any Note remains outstanding and unpaid or any
other amount is owing to any Lender, the Arrangers or the Administrative Agent
hereunder:
6.1 FINANCIAL CONDITION COVENANTS. The Borrower shall not:
(a) MAXIMUM TOTAL DEBT RATIO. Permit the Total Debt Ratio at any time
(provided that EBITDA shall be calculated as of the end of the last fiscal
quarter for which financial statements under Section 5.1(b) shall have been
required to be delivered, unless a covenant compliance certificate together with
financial statements for the relevant period shall have been delivered to the
Lenders for a more recent period, in which case EBITDA set forth therein shall
be used for calculating this ratio) of the Borrower and its Subsidiaries on a
consolidated basis to exceed the following levels for the periods indicated:
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PERIOD RATIO
------ -----
Closing Date to and including December 30, 2000 4.25:1
December 31, 2000 and thereafter 4.00:1
(b) MINIMUM TOTAL INTEREST COVERAGE RATIO. Permit the Total Interest
Coverage Ratio as of the end of any fiscal quarter of the Borrower and its
Subsidiaries to be less than 2.60:1; PROVIDED that Interest Expense, as used in
the Total Interest Coverage Ratio, shall exclude all PIK Interest.
(c) MINIMUM FIXED CHARGE COVERAGE RATIO. Permit the Fixed Charge Coverage
Ratio as of the end of any fiscal quarter of the Borrower and its Subsidiaries
to be less than 1.10:1; provided that Interest Expense, as used in Total Debt
Service as used in Fixed Charge Coverage Ratio, shall exclude all PIK interest.
6.2 LIMITATION ON INDEBTEDNESS. The Borrower shall not create, incur,
assume or suffer to exist any Indebtedness, and shall not permit any of its
Subsidiaries to create, incur, assume or suffer to exist any Indebtedness,
except for:
(a) Indebtedness created hereunder and under the Notes;
(b) Indebtedness of the Borrower or any of its Subsidiaries (not referred
to in any other clause of this Section 6.2) secured by Liens permitted with
respect to the Borrower or its Subsidiaries by Section 6.3;
(c) Indebtedness under the Existing Credit Agreement in an aggregate
principal amount not exceeding $351,100,000, LESS the principal amount of
mandatory repayments and prepayments made thereunder from time to time on and
after the Closing Date;
(d) [Intentionally Omitted];
(e) Indebtedness of a Person which becomes a Subsidiary after the date
hereof, provided that (i) such Indebtedness existed at the time such Person
became a Subsidiary and was not created in anticipation thereof and (ii)
immediately after giving effect to the acquisition of such Person by the
Borrower or any existing Subsidiary no Default shall have occurred and be
continuing;
(f) unsecured Indebtedness of any Subsidiary owing to the Borrower or any
other Subsidiary or secured Indebtedness of any Subsidiary owing to the Borrower
or any Subsidiary;
(g) the License Fee Guaranties; and the Junior Subordinated Notes, in
amounts in existence on the Closing Date;
(h) Indebtedness (i) under any Interest Rate Agreement required by the
Existing Credit Agreement, (ii) evidenced by performance bonds or letters of
credit issued in the ordinary course of business or reimbursement obligations in
respect thereof, (iii) evidenced by a letter of
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credit facility related to insurance associated with claims for work-related
injuries or (iv) for bank overdrafts incurred in the ordinary course of business
that are promptly repaid;
(i) trade credit incurred to acquire goods, supplies, services and incurred
in the ordinary and normal course of business;
(j) Capitalized Lease Obligations in an aggregate amount not exceeding
$50,000,000; and
(k) all deferred taxes (where such deferral is otherwise permitted under
the terms of this Agreement and under applicable law).
6.3 LIMITATION ON LIENS. The Borrower shall not, and shall not permit any
of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon
any of its property, assets or revenues, whether now owned or hereafter
acquired, except for:
(a) Liens created under the Existing Credit Agreement or under any of the
other Loan Documents (as defined in the Existing Credit Agreement);
(b) Liens existing on any Property at the time of its acquisition after the
date hereof not created in anticipation of such acquisition and limited solely
to the Property acquired;
(c) Liens arising pursuant to any order of attachment, distraint or similar
legal process arising in connection with court proceedings so long as the
execution or other enforcement thereof is effectively stayed and claims secured
thereby are being contested in good faith by appropriate proceedings;
(d) Liens for taxes not yet due or which are being contested in good faith
by appropriate proceedings, provided that adequate reserves with respect thereto
are maintained on the books of the Borrower or its Subsidiaries, as the case may
be, in conformity with GAAP;
(e) Liens created by operation of law not securing the payment of
Indebtedness for money borrowed or guaranteed, including carriers',
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 45 days or which are being contested in good faith by appropriate
proceedings;
(f) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(g) deposits to secure the performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(h) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate, would not
cause a Material Adverse Effect;
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(i) [Intentionally Omitted];
(j) Liens on the Property or assets of a Person which becomes a Subsidiary
after the date hereof securing Indebtedness permitted by Section 6.2(e),
provided that (i) such Liens existed at the time such Person became a Subsidiary
and were not created in anticipation thereof, (ii) any such Lien is not spread
to cover any property or assets of such Person after the time such Person
becomes a Subsidiary and (iii) the amount of Indebtedness secured thereby is not
increased; and
(k) Liens on Property or assets securing leases permitted pursuant to
Section 6.12.
6.4 LIMITATION ON FUNDAMENTAL CHANGES. The Borrower shall not, and shall
not permit any of its Subsidiaries to, 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, except, so long as no Default or Event of Default has occurred and is
continuing or would result therefrom:
(a) upon at least 15 days' prior notice to the Arrangers, any Subsidiary of
the Borrower may merge into the Borrower (provided that the Borrower is the
survivor thereof) or into any other wholly-owned Subsidiary of the Borrower,
provided that the obligations of the merging entity are assumed by the Borrower
or such wholly-owned Subsidiary, as applicable; and
(b) any Subsidiary of the Borrower may merge or consolidate with any Person
to consummate any New Investment or Acquisition permitted by Section 6.7;
provided that the survivor of that merger or consolidation is a Subsidiary.
6.5 LIMITATION ON SALE OF ASSETS. The Borrower shall not, and shall not
permit any of its Subsidiaries to, make any Asset Disposition, unless such Asset
Disposition shall be for fair market value. Fair market value shall be
determined by the Board of Directors of the Borrower or its management
committee, in the case of Asset Dispositions relating to assets having a book
value of $10,000,000 or less, and by an independent appraisal firm reasonably
satisfactory to the Majority Lenders, in the case of Asset Dispositions relating
to assets having a book value over $10,000,000. In any case, the Borrower may
not sell, and will not permit any of its Subsidiaries to sell, any Primary
Station or the Media Licenses therefor.
6.6 LIMITATION ON DIVIDENDS. The Borrower shall not, and shall not permit
any of its Subsidiaries to, (a) if a corporation, declare or pay any dividend
(other than dividends payable solely in common stock of the Borrower or its
Subsidiaries) 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
the Borrower or its Subsidiaries or any warrants or options to purchase any such
Capital Stock, whether now or hereafter outstanding (except only such dividends,
payments or other amounts payable to the Borrower or a wholly-owned Subsidiary
of the Borrower), and (b) if a partnership, make any distribution with respect
to the ownership interests therein, or, in either case, any other distribution
in respect thereof, either directly or indirectly, whether in cash or property
or in
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obligations of the Borrower or any Subsidiary (except distributions to the
Borrower or any wholly-owned Subsidiary of the Borrower) (such declarations,
payments, setting apart, purchases, redemptions, defeasance, retirements,
acquisitions and distributions being herein called "RESTRICTED PAYMENTS"),
except for:
(i) Restricted Payments paid by the Borrower to PTI Holdings for the
repurchase of its Junior Subordinated Note in accordance with Section 6.8;
(ii) such other Restricted Payments as the Borrower or its
Subsidiaries may elect to make, provided that (x) the Total Debt Ratio as
of the date of the most recent quarterly or annual financial statements
delivered pursuant to Section 5.1 after giving effect to the making of such
Restricted Payment is less than 3.50:1, (y) no Default has occurred and is
continuing or would result from the making of such Restricted Payment, and
(z) the Borrower is in compliance with the Fixed Charge Coverage Ratio
(calculated on a basis so as to include such Restricted Payments as a fixed
charge, except for such Restricted Payments relating to Borrower Stock
Purchases) as of the date thereof; and
(iii) Restricted Payments paid by the Borrower to (A) redeem or
repurchase the Modesto Station Purchase Preferred Stock in an aggregate
amount not exceeding the Redemption Value thereof plus accrued and unpaid
dividends and (B) pay regularly scheduled and accrued and unpaid dividends
on the Modesto Station Purchase Preferred Stock; provided that at the time
that such Restricted Payment is made no Preferred Stock Default shall have
occurred and be continuing or would result from the making of such
Restricted Payment.
Notwithstanding anything herein to the contrary, the Borrower shall not permit
(i) the aggregate amount of Restricted Payments for Borrower Stock Purchases to
exceed $150,000,000 or (ii) the aggregate percentages of such purchased shares
to exceed 10% of the issued common stock of the Borrower.
6.7 LIMITATION ON INVESTMENTS, LOANS AND ADVANCES. The Borrower shall not,
and shall not permit any of its Subsidiaries to, make any advance, loan,
extension of credit 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 of the foregoing, an
"INVESTMENT"), any Person, except for:
(a) the Borrower's ownership interest in its Subsidiaries and certain
Subsidiaries' ownership interests in certain other Subsidiaries, in each case on
or prior to the Closing Date and as set forth in Section 3.27;
(b) investments in marketable securities, liquid investments and other
financial instruments that are acquired for investment purposes and that have a
value which may be readily established and which are investment grade, including
any such investment that may be readily sold or otherwise liquidated;
(c) extensions of trade credit in the ordinary course of business;
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(d) advances to employees of the Borrower or its Subsidiaries for travel,
entertainment and relocation expenses in the ordinary course of business;
(e) investments constituting non-cash consideration received in connection
with an Asset Disposition, provided that such non-cash consideration shall not
exceed 15% of the aggregate consideration received for such Asset Disposition;
and provided further that the aggregate amount of any such non-cash
consideration with respect to all Asset Dispositions shall not exceed $5,000,000
at any one time outstanding;
(f) investments in existence as of the Closing Date, as set forth on
Schedule 6;
(g) Acquisitions not otherwise referred to in any other clause of this
Section 6.7; provided that (i) the aggregate Consideration with respect to any
Acquisition shall not exceed the Net Proceeds of any Equity Offerings available
for such purpose; (ii) no Default has occurred and is continuing or would result
from the consummation of such Acquisition (and the Borrower shall have delivered
a Covenant Compliance Certificate showing PRO FORMA calculations assuming such
Acquisition had been consummated to the Administrative Agent); (iii) the
Acquisition (if of a radio or television station), has received final FCC
approval and evidence thereof satisfactory to the Administrative Agent has been
provided to the Administrative Agent; (iv) the Administrative Agent shall have
received, reviewed and approved (such approval not to be unreasonably withheld)
the form of all documents setting forth the terms of, effecting or otherwise
relating to, such Acquisition; and (v) the Borrower shall be in compliance with
the Total Debt Ratio on a PRO FORMA basis assuming such Acquisition had been
consummated;;
(h) investments permitted under Section 6.2(f);
(i) investments not otherwise referred to in this Section 6.7 in an
aggregate amount not to exceed $50,000,000 during the term of this Agreement,
provided that no such investment shall be permitted if at the time of the making
thereof a Default has occurred and is continuing or would result from the making
of such investment;
(j) investments in Entravision permitted by Section 6.7(j) of the Existing
Credit Agreement;
(k) New Investments; provided that (i) no Default has occurred and is
continuing or would result from the consummation of such New Investment (and the
Borrower shall have delivered a Covenant Compliance Certificate showing PRO
FORMA calculations assuming such New Investment had been consummated to the
Administrative Agent); (ii) the New Investment (if in a radio or television
station), has received (if such investment shall require FCC approval) final FCC
approval and evidence thereof satisfactory to the Administrative Agent has been
provided to the Administrative Agent; (iii) the Administrative Agent shall have
received the form of all documents setting forth the terms of, effecting or
otherwise relating to, such New Investment; and (iv) the Borrower shall be in
compliance with the Total Debt Ratio on a PRO FORMA basis assuming such New
Investment had been consummated; and
(l) the Borrower and its Subsidiaries may make an investment in a joint
venture for the purpose of establishing and operating pay television channels in
the United States; PROVIDED that the Borrower's (or its Subsidiaries')
investment therein shall not exceed $10,000,000 in the
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aggregate (exclusive of all general and administrative expenses and affiliate
sales and promotion expenses contributed by Borrower (or any such Subsidiary));
and PROVIDED, FURTHER THAT (i) no Default has occurred and is continuing or
would result from the consummation of such investment; and (ii) the
Administrative Agent shall have received and reviewed the form of all documents
setting forth the terms of, effecting or otherwise relating to, such investment.
6.8 LIMITATION ON MODIFICATIONS OF DEBT INSTRUMENTS; REPURCHASE OF JUNIOR
SUBORDINATED NOTES; Etc.(a) . (a) The Borrower shall not, and shall not permit
any Subsidiary to, amend the subordination provisions of the Subordinated
Indebtedness or any guarantee thereof.
(b) Notwithstanding anything to the contrary contained herein, the Borrower
shall not repurchase, or permit PTI Holdings to repurchase, any Junior
Subordinated Note if the aggregate purchase price paid for the Junior
Subordinated Notes would exceed the accreted value thereof or if any Default has
occurred and is continuing, or would result from such repurchase.
6.9 TRANSACTIONS WITH AFFILIATES. The Borrower shall not, and shall not
permit any of its Subsidiaries to, enter into any transaction, including,
without limitation, any purchase, sale, lease or exchange of property or the
rendering of any service, with any Affiliate or any Subsidiary less than
wholly-owned, directly or indirectly, by the Borrower, unless such transaction
(i) is otherwise permitted under this Agreement or (ii) is in the ordinary
course of the Borrower's or such Subsidiary's business and is upon terms no less
favorable to the Borrower or such Subsidiary, as the case may be, than it would
obtain in a comparable arm's length transaction with a Person not an Affiliate
or (iii) is pursuant to any Material Agreement or (iv) is a New Investment or an
investment in a pay television joint venture permitted by Section 6.7(k) or
6.7(l), respectively.
6.10 FISCAL YEAR. The Borrower shall not permit the fiscal year of the
Borrower or any of its consolidated Subsidiaries to end on a day other than
December 31, except with the consent of the Majority Lenders (which consent
shall not be unreasonably withheld and which consent may be conditioned upon
adjusting the covenants in a manner to give each of the parties hereto
substantially the same protection and benefits as were in effect prior to any
such change in the fiscal year of the Borrower or any of its consolidated
Subsidiaries).
6.11 RESTRICTIONS AFFECTING SUBSIDIARIES. The Borrower shall not, and shall
not permit any of its Subsidiaries to, enter into, or suffer to exist, any
agreement (other than this Agreement and the Existing Credit Agreement) with any
Person other than the Lenders which prohibits or limits the ability of any
Subsidiary to (a) pay dividends or make other distributions or pay any
Indebtedness owed to the Borrower or any other Subsidiary, (b) make loans or
advances to the Borrower or any other Subsidiary or (c) transfer any of its
properties or assets to the Borrower or any other Subsidiary.
6.12 LEASE OBLIGATIONS. The Borrower shall not, and shall not permit any of
its Subsidiaries to, sell, assign or otherwise transfer any of its Properties,
rights or assets (whether now owned or hereafter acquired) to any Person and
thereafter directly or indirectly lease back the same or similar property.
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6.13 UNFUNDED LIABILITIES. The Borrower shall not permit unfunded
liabilities for any and all Plans maintained for or covering employees of the
Borrower or any Subsidiary to exceed $5,000,000 at any time.
6.14 MANAGEMENT FEES. The Borrower shall not, and shall not permit any of
its Subsidiaries to, pay any management fees for services rendered other than
(i) management fees to Persons not Affiliates for services rendered and incurred
in an arm's length transaction and in the ordinary course of the Borrower's or
such Subsidiaries' business and (ii) management fees payable by Subsidiaries of
the Borrower to the Borrower or a wholly-owned Subsidiary of the Borrower.
6.15 MATERIAL AGREEMENTS. The Borrower shall not, and shall not permit any
of its Subsidiaries to, enter into or permit (i) any termination of the Material
Agreements (except as such agreements may terminate in accordance with their
terms), (ii) any modification or amendment of any provision of any Material
Agreement, which modification or amendment would have a Material Adverse Effect,
(iii) any modification or amendment of the Program License Agreements which
would change the terms of any payment thereunder, which would decrease the
availability of programming thereunder, which would be adverse to the Lenders or
which would be material or (iv) any other modification or amendment of any
provision of any Material Agreement (provided, that the Borrower shall give the
Arrangers (who shall, in turn, promptly notify the Lenders), at least 10 days'
prior notice of all such proposed modifications and amendments under this clause
(iv) and if the Majority Lenders do not vote to disapprove such proposed
modification or amendments within such 10-day notice period, the Lenders shall
be deemed to have approved such proposed modifications or amendments).
6.16 LIMITATION ON EQUITY OFFERINGS. The Borrower shall not, and shall not
permit any of its Subsidiaries to, consummate any Equity Offering of the Capital
Stock of the Borrower or any Subsidiary by the Borrower or any Subsidiary except
for (i) Equity Offerings in which 100% of the Net Proceeds thereof are used for
Acquisitions permitted by Section 6.7 (g) and (ii) Equity Offerings in which 20%
of the Net Proceeds thereof are used to make the prepayment required by Section
2.3(a); provided that the Borrower or any Subsidiary may use less than 100% of
the Net Proceeds of an Equity Offering for an Acquisition permitted by Section
6.7(g) if 20% of that portion of such Net Proceeds not used for an Acquisition
are used to make the prepayment required by Section 2.3(a).
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal on any Note when due or
the Borrower shall fail to pay any interest on any Note within two Business Days
after any such interest becomes due in accordance with the terms thereof and
hereof or the Borrower shall fail to pay any other amount payable hereunder
within five Business Days after any such other amount becomes due; 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
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other statement furnished at any time under or in connection with this Agreement
or any other Loan Document shall prove to have been incorrect in any material
respect when made or deemed made; or
(c) The Borrower shall default in the observance or performance of any
agreement contained in Section 5.2(f), 5.3, 5.4, 5.8, 5.9 or 5.10, or any
provision of Section 6; or
(d) Any Loan Party shall default in the observance or performance of any
other agreement contained in this Agreement or the other Loan Documents (other
than as provided in paragraphs (a) through (c) of this Section), and such
default shall continue unremedied for a period of 30 days after the earlier of
(i) notice thereof from the Administrative Agent to the Borrower and (ii) actual
knowledge thereof by a senior officer of such Loan Party or any provision of any
Loan Document shall at any time for any reason be declared null and void, or the
validity or enforceability of any Loan Document shall at any time be contested
by any Loan Party, or a proceeding shall be commenced by any Loan Party, or by
any Governmental Authority or other Person having jurisdiction over any Loan
Party, seeking to establish the invalidity or unenforceability thereof, or any
Loan Party shall deny that it has any liability or obligation purported to be
created under any Loan Document; or
(e) (a) The Borrower or any other Loan Party shall (i) (except as set forth
in (b) below) default in any payment of principal or interest, regardless of the
amount, due in respect of any (A) Indebtedness (other than the Notes) issued
under an indenture or other agreement, if the original principal amount of
Indebtedness covered by such indenture or agreement is $5,000,000 or greater or
(B) any Guarantee Obligation with respect to an amount of $5,000,000 or greater,
beyond the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness or Guarantee Obligation was created, whether or
not such default has been waived by the holders of such Indebtedness or
Guarantee Obligation; or (ii) (except as set forth in (b) below) default in the
observance or performance of any other agreement or condition relating to any
such Indebtedness or Guarantee Obligation 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 holders of such Indebtedness
or beneficiary or beneficiaries of such Guarantee Obligation (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to become due
prior to its stated maturity or such Guarantee Obligation to become payable or
such Indebtedness to be required to be defeased or purchased; or (b) any Event
of Default (as defined in the Existing Credit Agreement) shall occur; or
(f) (i) The Borrower or any other Loan Party 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, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its assets, or the Borrower or any
other Loan Party shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the Borrower or any other
Loan Party
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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, unstayed or unbonded
for a period of 60 days; or (iii) there shall be commenced against the Borrower
or any other Loan Party 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, stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) the Borrower or
any other Loan Party 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) the Borrower or any other Loan Party shall
generally not, or shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due or there shall be a general assignment for
the benefit of creditors; or
(g) (i) Any Person shall engage in any non-exempt "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, (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 or appointment of a trustee would reasonably be expected 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 (other
than a standard termination) or (v) the Borrower or any Commonly Controlled
Entity would reasonably be expected to incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan;
and in each case regarding clauses (i) through (v) above, such event or
condition, together with all other such events or conditions, if any, would
reasonably be expected to subject the Borrower or any other Loan Party to any
tax, penalty or other liabilities in the aggregate to exceed $5,000,000; or
(h) One or more judgments or decrees shall be entered against the Borrower
or any other Loan Party involving in the aggregate a liability (not paid or
fully covered by insurance) of $5,000,000 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 in any event five days before the date
of any sale pursuant to such judgment or decree or any non-monetary judgment or
order shall be entered against the Borrower or any other Loan Party that is
reasonably likely to have a Material Adverse Effect and either (i) enforcement
proceedings shall have been commenced by any Person upon such judgment which has
not been stayed pending appeal or (ii) there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(i) There shall occur any default in the material observance or material
performance of any Material Agreement or any such Material Agreement shall
terminate or otherwise no longer be in full force and effect; or
(j) Any Media License required for the lawful ownership, lease, control,
use, operation, management or maintenance of a Primary Station shall be
canceled, terminated, rescinded, annulled, revoked, suspended or limited, or
amended or otherwise modified in any
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material adverse respect, or shall fail to be renewed for any reason whatsoever;
or any such Media License, the loss of which would have a Material Adverse
Effect, shall no longer be in full force and effect; or the grant of any such
Media License, the loss of which would have a Material Adverse Effect, shall
have been stayed, vacated or reversed, or modified in any material adverse
respect, by judicial or administrative proceedings; or
(k) Any material provision of any Loan Document, after delivery thereof
pursuant to the provisions hereof, shall, for any reason other than an act or
omission by the Administrative Agent, cease to be valid or enforceable in
accordance with its terms and such cessation shall have a Material Adverse
Effect; or
(l) A Change in Control shall have occurred;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (f) above, automatically the Commitments to the Borrower shall
immediately terminate and the Loans made to the Borrower hereunder (with accrued
interest thereon) and all other Obligations shall immediately become due and
payable, and (B) if such event is any other Event of Default, with the consent
of the Majority Lenders, the Administrative Agent may, or upon the request of
the Majority Lenders, the Administrative Agent shall, take any or all of the
following actions: (i) by notice to the Borrower declare the Commitments to the
Borrower to be terminated forthwith, whereupon such Commitments shall
immediately terminate; and (ii) by notice of default to the Borrower, declare
the Loans (with accrued interest thereon) and all other Obligations under this
Agreement and the Notes to be due and payable forthwith, whereupon the same
shall immediately become due and payable. In all cases, with the consent of the
Majority Lenders, the Administrative Agent may enforce any or all of rights and
remedies created pursuant to any Loan Document or available at law or in equity.
Except as expressly provided above in this Section, presentment, demand, protest
and all other notices of any kind are hereby expressly waived by the Borrower.
SECTION 8. THE ADMINISTRATIVE AGENT AND THE ARRANGERS
8.1 APPOINTMENT. Each Lender hereby irrevocably designates and appoints
Chase as Administrative Agent and Chase and BNP Paribas as the Arrangers for
such Lender under this Agreement and the other Loan Documents, and each such
Lender irrevocably authorizes Chase, as the Administrative Agent, and Chase and
BNP Paribas, as the Arrangers, for such Lender, 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 or the Arrangers, as the case may be, by the terms of
this Agreement and the other Loan Documents, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, neither the Administrative Agent nor the Arrangers
shall 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 or the Arrangers in such respective capacities.
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8.2 DELEGATION OF DUTIES. The Administrative Agent and the Arrangers may
execute any of their respective 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. Neither the
Administrative Agent nor the Arrangers shall be responsible for the negligence
or misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
8.3 EXCULPATORY PROVISIONS. Neither the Administrative Agent, the Arrangers
nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement or any other Loan Document (except for its or such Person's own
gross negligence or willful misconduct) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made
by the Borrower or any Subsidiary 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 or the Arrangers 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 the Notes or any other Loan
Document or for any failure of the Borrower or any Subsidiary to perform its
obligations hereunder or thereunder. Neither the Administrative Agent nor the
Arrangers shall 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 the Borrower or any Subsidiary.
8.4 RELIANCE BY ADMINISTRATIVE AGENT AND ARRANGERS. The Administrative
Agent and the Arrangers shall be entitled to rely, and shall be fully protected
in relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by any of them 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), the Accountants and independent
accountants and other experts selected by the Administrative Agent or the
Arrangers. The Administrative Agent and the Arrangers 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 or the Arrangers 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 Majority Lenders or 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 (except those incurred solely as a result of the Administrative
Agent's or any Arranger's gross negligence or willful misconduct) which may be
incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent and the Arrangers shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the Notes and the
other Loan Documents in accordance with a request of the Majority Lenders or all
Lenders, as may be required, 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 Notes.
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8.5 NOTICE OF DEFAULT. Neither the Administrative Agent nor the Arrangers
shall be deemed to have knowledge or notice of the occurrence of any Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such 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 Arrangers and the Lenders. The Administrative Agent shall take such
action with respect to such Default as shall be reasonably directed by the
Majority Lenders or all Lenders as appropriate; 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 as it shall deem advisable in
the best interests of the Lenders or as the Administrative Agent shall believe
necessary to protect the Lenders' interests under the Loan Documents.
8.6 NON-RELIANCE ON ADMINISTRATIVE AGENT, ARRANGERS AND OTHER LENDERS. Each
Lender expressly acknowledges that none of the Administrative Agent, the
Arrangers or any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to it
and that no act by the Administrative Agent or the Arrangers hereafter taken,
including any review of the affairs of the Borrower or any Subsidiary, shall be
deemed to constitute any representation or warranty by the Administrative Agent
or the Arrangers to any Lender. Each Lender represents to the Administrative
Agent and the Arrangers that it has, independently and without reliance upon the
Administrative Agent or the Arrangers 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 Borrower or any Subsidiary 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 the Arrangers 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
Borrower and its Subsidiaries. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Administrative Agent or
the Arrangers hereunder, the Administrative Agent and the Arrangers 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 the Borrower or any Subsidiary
which may come into the possession of the Administrative Agent or the Arrangers
or any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
8.7 INDEMNIFICATION. The Lenders agree to indemnify the Administrative
Agent and the Arrangers in their respective capacities as such (to the extent
not reimbursed by or on behalf of the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to the respective
amounts of their Commitments, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs
(including, without limitation, the allocated reasonable cost of internal
counsel), expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Notes)
be imposed on, incurred by or asserted against the Administrative Agent
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or the Arrangers, in their respective capacities as Administrative Agent and
Arrangers, but not as Lenders hereunder, in any way relating to or arising out
of 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 or the
Arrangers 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 resulting solely from the Administrative Agent's or
the Arrangers' gross negligence or willful misconduct. The agreements in this
Section shall survive the payment of the Notes and all other amounts payable
hereunder.
8.8 ADMINISTRATIVE AGENT AND ARRANGERS IN THEIR INDIVIDUAL CAPACITIES. The
Administrative Agent, each Arranger and their respective Affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
the Borrower and any Subsidiary as though the Administrative Agent and such
Arranger were not the Administrative Agent and an Arranger, respectively,
hereunder and under the other Loan Documents. With respect to the Administrative
Agent or any Arranger the Loans made by the Administrative Agent or such
Arranger, as applicable, and any Note issued to any of the Administrative Agent
or the Arrangers, as the case may be, 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 the Administrative Agent or an Arranger, as the
case may be, and the terms "Lender" and "Lenders" shall include the
Administrative Agent and the Arrangers in their individual capacities.
8.9 SUCCESSOR ADMINISTRATIVE AGENT OR ARRANGERS. The Administrative Agent
or any Arranger may resign as Administrative Agent or Arranger, respectively,
upon 30 days' notice to the Lenders and the Majority Lenders may at any time
remove the Administrative Agent or either or both of the Arrangers. If the
Administrative Agent or any Arranger shall be removed or shall resign as
Administrative Agent or Arranger under this Agreement and the other Loan
Documents, then the Majority Lenders shall appoint from among the Lenders a
successor administrative agent or arranger, as the case may be, for the Lenders,
which successor administrative agent or arranger, as the case may be, shall be
approved by the Borrower (which consent shall not be unreasonably withheld or
delayed and which shall not be required if an Event of Default under Section
7.1(a) shall have occurred and is continuing), whereupon such successor
administrative agent or arranger, as the case may be, shall succeed to the
rights, powers and duties of the Administrative Agent and the Arranger and the
term "Administrative Agent" or "Arranger" shall mean such successor
administrative agent or Arranger, as the case may be, effective upon its
appointment, and the former Administrative Agent's or Arranger's rights, powers
and duties as Administrative Agent or Arranger, as the case may be, shall be
terminated, without any other or further act or deed on the part of such former
Administrative Agent or Arranger or any of the parties to this Agreement or any
holders of the Notes. After any retiring Administrative Agent's or Arranger's
removal or resignation as Administrative Agent or Arranger, the provisions of
this Section shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent or Arranger, as the case may be,
under this Agreement and the other Loan Documents. Further, if the
Administrative Agent or any Arranger no longer has any Loans or Commitments
hereunder, the Administrative Agent or
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such Arranger shall immediately resign and shall be replaced, and have the
benefits, as set forth in this Section 8.9.
8.10 ARRANGERS. Without limiting any provision contained in this Section 8,
(i) none of the Lenders identified in this Agreement as an "Arranger" shall
have, except as and to the limited extent expressly provided herein, any
obligation, responsibility or duty under this Agreement other than those
applicable to all Lenders as such and (ii) the Joint Advisors, Joint Lead
Arrangers and Joint Book Managers hereunder shall have no obligation,
responsibility or duty whatsoever under this Agreement. Each Lender acknowledges
that it has not relied, and will not rely, on any of the Lenders so identified
in deciding to enter into this Agreement or in taking or not taking action
hereunder.
SECTION 9. MISCELLANEOUS
9.1 AMENDMENTS AND WAIVERS. Neither this Agreement, any Note, any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section. With the
prior written consent of the Majority Lenders and the Borrower, the Borrower
may, from time to time, enter into written amendments, supplements or
modifications hereto and to the Notes and the other Loan Documents for the
purposes of adding any provisions to this Agreement or the Notes or the other
Loan Documents or changing in any manner the rights of the Lenders, the Borrower
or any other Loan Party hereunder or thereunder or waiving, on such terms and
conditions as may be specified in such instrument, any of the requirements of
this Agreement or the Notes or the other Loan Documents or any Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) (a) reduce the amount or extend the
maturity of any Note or any installment due thereon, or reduce the rate or
extend the time of payment of interest thereon, or reduce the amount or extend
the time of payment of any fee, indemnity or reimbursement payable to any Lender
hereunder, or change the amount or maturity of any Lender's Commitment, in each
case without the written consent of the Lender affected thereby; or (b) amend,
modify or waive any provision of this Section 9.1 or reduce the percentage
specified in or otherwise modify the definition of Majority Lenders, or consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents (except as
permitted under Section 6.4); or (c) release the Borrower from any liability
under the Loan Documents; or (d) amend, modify or waive, directly or indirectly,
any of the provisions of Section 2.1(h) or 2.9; or (e) amend, modify or waive,
directly or indirectly, any provision of this Agreement requiring the consent or
approval or notification of all Lenders, in each case set forth in clauses
(i)(b) through (i)(e) above without the written consent of all the Lenders; or
(ii) amend, modify or waive any provision of Section 8 without the written
consent of the then Administrative Agent and the then Arrangers. Any such waiver
and any such amendment, supplement or modification shall apply equally to each
of the Lenders and shall be binding upon the Borrower, the Lenders, the
Administrative Agent, the Arrangers and all future holders of the Notes. In the
case of any waiver, the Borrower, the Lenders, the Arrangers and the
Administrative Agent shall be restored to their former position and rights
hereunder and under the outstanding Notes and any other Loan Documents, and any
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default, or impair any right
consequent thereon.
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9.2 NOTICES. All notices, requests and demands or other communications 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 by hand, or 3 days
after being deposited in the United States mail, certified and postage prepaid
and return receipt requested, or, in the case of telecopy notice, when received,
in each case addressed as follows in the case of the Borrower, the Arrangers and
the Administrative Agent, and as set forth in Schedule 2, or in the Assignment
and Acceptance pursuant to which a Person becomes a party hereto, in the case of
the other parties hereto, or to such other address as may be hereafter notified
by the respective parties hereto and any future holders of the Notes:
The Borrower: Univision Communications Inc.
1999 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
with copies to:
Univision Communications Inc.
Glenpointe Centre West
500 Xxxxx X. Xxxx Xxxxxxxxx
0xx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
Univision Communications Inc.
0000 Xxxxxx xx xxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
Chase, as The Chase Manhattan Bank
Administrative Agent 000 Xxxx Xxxxxx, 00xx Xxxxx
and an Arranger: Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Telecopy: (000) 000-0000
with a copy to:
Agent Bank Services Group
1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
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BNP Paribas, as BNP Paribas
an Arranger: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telecopy: (000) 000-0000
; provided that any notice, request or demand to or upon the Administrative
Agent, the Arrangers or the Lenders pursuant to Section 2.1, 2.2, 2.4, 2.8 or
2.11 or any notice to the Borrower pursuant to Section 7 shall not be effective
until received.
9.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent, any Arranger or any Lender,
any right, remedy, power or privilege hereunder 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.
9.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder 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 Notes (but shall not be deemed to be
restated unless otherwise expressly provided for).
9.5 PAYMENT OF EXPENSES AND TAXES. The Borrower agrees (a) to pay or
reimburse the Administrative Agent and the Arrangers for all their reasonable
costs and out-of-pocket expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement and the Notes and the other Loan Documents and any other
documents prepared in connection herewith or therewith, any syndication of the
Loans and/or the Commitments, 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 and the
Arrangers, (b) after the occurrence and during the continuance of a Default, to
pay or reimburse each Arranger, the Administrative Agent and each Lender, for
all its reasonable costs and out-of-pocket expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement, the Notes,
the other Loan Documents and any such other documents or in connection with any
refinancing or restructuring of the credit arrangements provided under this
Agreement in the nature of a "work-out" or of any insolvency or bankruptcy
proceeding, including, without limitation, reasonable legal fees and
disbursements of counsel to the Administrative Agent, the Arrangers and each
Lender and the allocated reasonable cost of internal counsel to the Arrangers,
the Administrative Agent and each Lender, (c) to pay, and indemnify and hold
harmless each Lender, each Arranger and the Administrative Agent from, 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 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 Notes, the other Loan
Documents and any such other documents and (d) to pay, and indemnify and hold
harmless each Lender, each Arranger and the
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Administrative Agent from and against, any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs
(including, without limitation, the allocated reasonable cost of internal
counsel and the reasonable legal fees and disbursements of outside counsel to
the Lenders, the Arrangers and the Administrative Agent), expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, the
Notes, the other Loan Documents or the use of the proceeds of the Loans and any
such other documents (all the foregoing, collectively, the "INDEMNIFIED
LIABILITIES"), provided, that the Borrower shall have no obligation hereunder to
the Administrative Agent, any Arranger or any Lender with respect to indemnified
liabilities arising from (i) the gross negligence or willful misconduct of the
Administrative Agent, such Arranger or such Lender or their agents or
attorneys-in-fact, (ii) legal proceedings commenced against the Administrative
Agent, any Arranger or any Lender by any security holder or creditor thereof
arising out of and based upon rights afforded any such security holder or
creditor solely in its capacity as such or (iii) legal proceedings commenced
against any Lender, the Administrative Agent or any Arranger by any other
Arranger or Lender or the Administrative Agent with respect to fee arrangements
and other payment obligations between the Administrative Agent, the Arrangers
and the Lenders. The agreements in this Section shall survive repayment of the
Notes and all other amounts payable hereunder. The Administrative Agent, the
Arrangers and the Lenders agree to provide reasonable details and supporting
information concerning any costs and expenses required to be paid by the
Borrower pursuant to the terms hereof.
9.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS; PURCHASING LENDERS.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Arrangers, the Administrative Agent, all future
holders of the Notes and their respective successors and assigns, except that
the Borrower may not assign, transfer or delegate 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 commercial banking or
finance business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("PARTICIPANTS") participating interests in any
Loan owing to such Lender, any Note held by such Lender, any Commitment of such
Lender or any other interest of such Lender hereunder and under the other Loan
Documents; provided that the holder of any such participation, other than an
Affiliate of such Lender, shall not be entitled to require such Lender to take
or omit to take any action hereunder except action directly affecting the
extension of the maturity of any portion of the principal amount of a Loan or
Commitment or any portion of interest or fees related thereto or a reduction of
the principal amount or principal payment amount of or the rate of interest
payable on the Loans or any fees related thereto or any increase in
participation amounts. In the event of any such sale by a Lender of
participating interests 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 Note for all purposes under this Agreement
and the other Loan Documents, and the Borrower, the Arrangers 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. The Borrower agrees that if amounts outstanding under
this Agreement and the Notes are due or unpaid, or shall have been
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declared or shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall be deemed to have the right of setoff in respect
of its participating interest in amounts owing under this Agreement and any Note
to the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement or any Note, provided that such
Participant shall only be entitled to such right of setoff if it shall have
agreed in the agreement pursuant to which it shall have acquired its
participating interest to share with the Lenders the proceeds thereof as
provided in Section 9.7. The Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 2.8, 2.9, 2.11, 2.12, 2.13 and 9.5 with
respect to its participation in the Commitments and the Loans outstanding from
time to time; provided, that no Participant shall be entitled to receive any
greater amount pursuant to such Sections 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 may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to any of its
Affiliates or to any Lender, any Affiliate thereof or to one or more additional
lenders or financial institutions, which additional lenders shall be subject to
the consent of the Borrower, such consent not to be unreasonably withheld and
not to be required if a Default has occurred and is continuing ("PURCHASING
LENDERS") all or any part of its rights and obligations under this Agreement,
the Notes and the other Loan Documents pursuant to an Assignment and Acceptance
substantially in the form of Exhibit B, executed by such Purchasing Lender and
such transferor Lender and delivered to the Administrative Agent for its
acceptance and recording in the Register (as defined in (d) below), provided,
that any such sale must result in the Purchasing Lender having at least
$5,000,000 in aggregate amount of obligations under this Agreement, the Notes
and the other Loan Documents. Upon such execution, delivery, acceptance and
recording, from and after the transfer effective date determined pursuant to
such Assignment and Acceptance, (x) the Purchasing Lender 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 as set forth
therein, and (y) the transferor Lender thereunder shall, to the extent of such
assigned portion and as provided in such Assignment and Acceptance, be released
from its obligations under this Agreement and the other Loan Documents (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of a transferor Lender's rights and obligations under this Agreement, such
transferor Lender shall cease to be a party hereto). Such Assignment and
Acceptance shall be deemed to amend this Agreement to the extent, and only to
the extent, necessary to reflect the addition of such Purchasing Lender and the
resulting adjustment of Commitment Percentages arising from the purchase by such
Purchasing Lender of all or a portion of the rights and obligations of such
transferor Lender under this Agreement, the Notes and the other Loan Documents.
On or prior to the transfer effective date determined pursuant to such
Assignment and Acceptance, the Borrower, at its own expense, shall execute and
deliver to the Administrative Agent in exchange for the surrendered Note a new
Note to the order of such Purchasing Lender in an amount equal to the Commitment
assumed by it pursuant to such Assignment and Acceptance, and if the transferor
Lender has retained a Commitment hereunder a new Note to the order of the
transferor Lender in an amount equal to the Commitment retained by it hereunder.
Such new Note shall be dated the Closing Date and shall otherwise be in the form
of the Note replaced thereby. The Note surrendered by the transferor Lender
shall be returned by the Administrative Agent to the Borrower marked "canceled."
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(d) The Administrative Agent shall maintain at its address referred to in
Section 9.2 a copy of each Assignment and Acceptance and each Joining Lender
Agreement delivered to it and a register (the "REGISTER") for the recordation of
the names and addresses of the Lenders and the Commitments of, and 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, the Administrative Agent, the Arrangers and the Lenders may treat each
Person whose name is recorded in the Register as the owner of the Loans recorded
therein for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by a
transferor Lender and Purchasing Lender (and, in the case of a Purchasing Lender
that is not then a Lender or an Affiliate thereof, by the Borrower and the
Administrative Agent), together with payment to the Administrative Agent (except
in the case of a Lender assigning to its Affiliate) of a registration and
processing fee of $3,500, the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to the Borrower.
(f) The Borrower authorizes each Lender to disclose to any Participant or
Purchasing Lender (each, a "TRANSFEREE") and any prospective Transferee any and
all financial information in such Lender's possession concerning the Borrower
and its Subsidiaries and its Affiliates which has been delivered to such Lender
by or on behalf of the Borrower pursuant to this Agreement or any other Loan
Document or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of the Borrower and
its Subsidiaries and its Affiliates prior to becoming a party to this Agreement;
provided that such Transferee or prospective Transferee agrees to maintain the
confidentiality of such information in accordance with the provisions of Section
9.18.
(g) If, pursuant to this Section, any interest in this Agreement or any
Note is transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any state thereof, the transferor
Lender shall cause such Transferee concurrently with the effectiveness of such
transfer, (i) to represent to the transferor Lender and the Administrative Agent
(for the benefit of the transferor Lender, the Administrative Agent, the
Arrangers and the Borrower) that under applicable law and treaties no taxes will
be required to be withheld by the Administrative Agent, the Arrangers, the
Borrower, if applicable, or the transferor Lender with respect to any payments
to be made to such Transferee in respect of the Loans, (ii) to furnish to the
transferor Lender and the Administrative Agent (and, in the case of any
Purchasing Lender registered in the Register, the Administrative Agent and the
Borrower) U.S. Internal Revenue Service Form X-0, X-0XXX xx X-0XXX (as
applicable to it) (wherein such Transferee claims entitlement to complete
exemption from U.S. federal withholding tax on all interest payments hereunder)
and (iii) to agree (for the benefit of the transferor Lender and the
Administrative Agent, the Arrangers and the Borrower) to provide the transferor
Lender and the Administrative Agent (and, in the case of any Purchasing Lender
registered in the Register, the Administrative Agent and the Borrower) a new
Form X-0, X-0XXX or W-8ECI (as applicable to it) upon the expiration or
obsolescence of any previously delivered form and comparable statements in
accordance with applicable U.S. laws and regulations and amendments duly
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executed and completed by such Transferee, and to comply from time to time with
all applicable U.S. laws and regulations with regard to such withholding tax
exemption.
(h) Nothing herein shall prohibit any Lender from pledging or assigning any
of its rights under its Note to any Federal Reserve Bank in accordance with
applicable law.
9.7 ADJUSTMENTS; SET-OFF.
(a) If any Lender (a "BENEFITTED LENDER") shall at any time receive any
payment of all or part of its Loans, or interest thereon, or fees, 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
7(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 interest thereon, or fees, such benefitted Lender shall
purchase for cash from the other Lenders such portion of each such other
Lender's Loans or fees, 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. The Borrower agrees that each Lender so purchasing a portion of
another Lender's Loan may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if such
Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by law,
each Lender shall have the right, exercisable upon the occurrence and during the
continuance of an Event of Default and acceleration of the Obligations pursuant
to Section 7, without prior notice to the Borrower, any such notice being
expressly waived by the Borrower to the extent permitted by applicable law, to
set-off and appropriate and apply against any such Obligations 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 or bank
controlling such Lender to or for the credit or the account of the Borrower.
Each Lender agrees promptly to notify the Borrower after any such set-off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
9.8 COUNTERPARTS. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts, 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.
9.9 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
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such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
9.10 INTEGRATION. This Agreement represents the entire agreement of the
Borrower, the Administrative Agent, the Arrangers and the Lenders with respect
to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent, the Arrangers or any
Lender relative to the subject matter hereof not expressly set forth or referred
to herein or in the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK (WITHOUT REFERENCE TO ITS CHOICE OF LAW RULES).
9.12 SUBMISSION TO JURISDICTION; WAIVERS; APPOINTMENT OF PROCESS AGENT. (a)
The Borrower to the extent permitted by applicable law, hereby irrevocably and
unconditionally:
(i) 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 States of California and New York, the courts of the United States of
America for the Central District of California and the Southern District of
New York, and appellate courts from any thereof;
(ii) 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 in any such court was brought in an inconvenient court
and agrees not to plead or claim the same; and
(iii) agrees that nothing herein shall affect the right to effect
service of process in any manner permitted by law or shall limit the right
to xxx in any other jurisdiction.
9.13 ACKNOWLEDGEMENTS. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the Notes and the other Loan Documents;
(b) neither the Administrative Agent, any Arranger nor any Lender has any
fiduciary relationship to the Borrower solely by virtue of any of the Loan
Documents, and the relationship pursuant to the Loan Documents between the
Administrative Agent, the Arrangers and the Lenders, on one hand, and the
Borrower on the other hand, is solely that of creditor and debtor; and
(c) no joint venture exists among the Lenders or among the Borrower and the
Lenders.
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9.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT, THE
ARRANGERS AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
9.15 HEADINGS. Section headings herein are included for convenience of
reference only and shall not constitute a part of this Agreement for any other
purpose.
9.16 CONFLICT OF TERMS. Except as otherwise provided in this Agreement or
any of the other Loan Documents by specific reference to the applicable
provisions of this Agreement, if any provision contained in this Agreement is in
conflict with, or inconsistent with, any provision in any of the other Loan
Documents, the provision contained in this Agreement shall govern and control.
9.17 COPIES OF CERTIFICATES, ETC. Whenever the Borrower is required to
deliver notices, certificates, opinions, statements or other information
hereunder to the Administrative Agent or to the Arrangers for delivery to any
Lender, it shall do so in such number of copies as the Administrative Agent or
the Arrangers shall reasonably specify (provided, that if, for any reason, the
Administrative Agent or the Arrangers do not deliver such notices, certificates,
opinions, statements or other information to any Lender, the Borrower shall
deliver such items to such Lender upon the request of such Lender). Whenever the
Administrative Agent or the Arrangers receives from the Borrower notices,
certificates, opinions, statements or other information hereunder or under any
other Loan Document for delivery to the Lenders, the Administrative Agent or the
Arrangers shall promptly deliver such items to each Lender, unless the Borrower
is required by the terms hereof to deliver such items to such Lender itself.
9.18 CONFIDENTIALITY. The Lenders shall take normal and reasonable
precautions to maintain the confidentiality of all non-public information
obtained pursuant to the requirements of this Agreement which has been
identified as such by the Borrower but may, in any event, make disclosures (i)
reasonably required by any bona fide transferee, assignee or participant in
connection with the contemplated transfer or assignment of any of the
Commitments or Loans or participations therein or (ii) as required or requested
by any governmental agency or representative thereof or as required pursuant to
legal process or (iii) to its attorneys and accountants or (iv) as required by
law or (v) in connection with litigation involving any Lender; provided that (a)
such transferee, assignee or participant agrees to comply with the provisions of
this Section 9.18 unless specifically prohibited by applicable law or court
order, (b) each Lender shall use its best efforts to notify the Borrower of any
requirement or request by any governmental agency or representative thereof
(other than any such request in connection with an examination of such Lender by
such governmental agency) and any requirement pursuant to legal process of or
for disclosure of such information (other than in connection with litigation
between the Borrower and any Lender) and (c) in no event shall any Lender be
obligated or required to return any materials furnished by the Borrower and its
Subsidiaries.
9.19 PUBLICITY. The Arrangers shall have the right to review and approve
(such approval not to be unreasonably withheld or delayed), in advance, any
public announcements (in
-66-
any form) and any filings describing or quoting from the credit arrangements
reflected in this Agreement and the other Loan Documents, provided, however,
that the Borrower (i) shall be permitted to file copies of any Loan Document
with the SEC, the FCC or any other governmental agency as required by law and
(ii) shall also be permitted to disclose information concerning the Loan
Documents if the Borrower's attorneys reasonably believe that such disclosure is
required by law.
9.20 MARGIN STOCK. In connection with each Loan extended hereunder, each
Lender represents that it, in good faith, has not relied upon Margin Stock as
collateral in extending or maintaining such Loan.
-67-
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.
UNIVISION COMMUNICATIONS INC.
By /S/ C. XXXXXXX XXXXXXXXXX
Name: C. Xxxxxxx Xxxxxxxxxx
Title: Execurive Vice President
THE CHASE MANHATTAN BANK,
as Administrative Agent, as
an Arranger and as a Lender
By /S/ XXXXXX XXXXX XXXXX
Name: Xxxxxx Xxxxx Xxxxx
Title: Vice President
BNP PARIBAS, as an Arranger
and as a Lender
By /S/ XXXXX XXXXX
Name: Xxxxx Xxxxx
Title: Vice President
By /S/ XXXX XXXXXX
Name: Xxxx Xxxxxx
Title: Director
-68-
EXHIBIT A
TO CREDIT
AGREEMENT
FORM OF NOTE
Los Angeles, California
$_____________________ ______________,________
FOR VALUE RECEIVED, the undersigned, UNIVISION COMMUNICATIONS INC., a Delaware
corporation (the "Borrower"), hereby unconditionally promises to pay to the
order of _________________________ (the "Lender"), in lawful money of the United
States and in immediately available funds, the aggregate unpaid principal amount
of the Loans made by the Lender to the undersigned pursuant to Section 2.1 of
the Credit Agreement (as hereinafter defined) on the Maturity Date. Such payment
shall be made for the account of the Lender at the office of The Chase Manhattan
Bank located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other
office as the holder of this Note may notify the undersigned and as agreed to by
The Chase Manhattan Bank. The undersigned further agrees to pay interest in like
money at such office or such other office on the unpaid principal amount hereof
from time to time from the date hereof at the rates per annum and on the dates
specified in Sections 2.6 and 2.7 of the Credit Agreement until paid in full
(both before and after judgment to the extent permitted by law).
This Note is one of the Notes referred to in the Credit Agreement dated as
of October ___, 2000 (as amended, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"), among the undersigned, the Lender, the other
Lenders parties thereto, The Chase Manhattan Bank and BNP Paribas, as Arrangers
and The Chase Manhattan Bank, as Administrative Agent, is entitled to the
benefits thereof and of the other Loan Documents and is subject to optional and
mandatory prepayment in whole or in part as provided therein. Capitalized terms
used herein which are defined in the Credit Agreement shall have such meanings
unless otherwise defined herein or unless the context otherwise requires.
Upon the occurrence of any one or more of the Events of Default specified
in the Credit Agreement, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as provided
therein.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO ITS CHOICE OF LAW
RULES).
UNIVISION COMMUNICATIONS INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT B
TO CREDIT
AGREEMENT
ASSIGNMENT AND ACCEPTANCE
Date: _____________________
Reference is made to that certain Credit Agreement dated as of October ___,
2000 (as it may be amended, modified or supplemented from time to time, the
"CREDIT AGREEMENT"), by and among UNIVISION COMMUNICATIONS INC., a Delaware
corporation (the "BORROWER"), the Lenders (as defined in the Credit Agreement),
THE CHASE MANHATTAN BANK, a New York banking corporation, as an arranger and BNP
PARIBAS, a French banking corporation, as an arranger (collectively, the
"ARRANGERS") and THE CHASE MANHATTAN BANK, a New York banking corporation, as
administrative agent (the "AGENT"). Terms defined and the rules of
interpretation contained in the Credit Agreement have the same meanings and
application herein.
_________________ (the "ASSIGNOR") is a Lender under the Credit Agreement
and agrees with _________________________ (the "ASSIGNEE") as follows:
1. As of the Effective Date (as defined below), the Assignor hereby sells
and assigns to the Assignee, and the Assignee hereby purchases and assumes from
the Assignor, a _____% interest in and to all of the Assignor's rights and
obligations under the Credit Agreement and the other Loan Documents (which
assignment will result in the Assignee having (i) a Commitment Percentage of
___% and (ii) a Commitment of $_____________) in respect of (a) the Assignor's
Commitment as in effect on the Effective Date (as set forth in the Schedule
attached hereto and without giving effect to other assignments thereof which
have become or will be effective as of the Effective Date), (b) the Loans owing
to the Assignor on the Effective Date (as set forth in the Schedule attached
hereto and without giving effect to other assignments thereof which have become
or will be effective as of the Effective Date) and (c) all amounts payable to
the Assignor under the Loan Documents, including the Assignor's Note. The
Assignee hereby appoints and authorizes the Agent and the Arrangers, as
applicable, to exercise such powers as are delegated to the Agent and the
Arrangers, respectively, by Section 8 of the Credit Agreement and by the other
Loan Documents.
2. The Assignor (i) represents and warrants that as of the Effective Date
its Commitment, Commitment Percentage and Loans (without giving effect to other
assignments thereof which have become or will be effective as of the Effective
Date or any funding or repayment on the Effective Date) are as set forth in the
Schedule attached hereto; (ii) represents and warrants 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; (iii) represents and warrants
that it has full power and authority and has taken all action necessary to
execute and deliver this Assignment and any and all other documents required or
permitted to be executed or delivered by it in connection herewith and to
fulfill its obligations under, and to consummate the transactions contemplated
by, this Assignment, and no governmental authorizations or other authorizations
are required in connection therewith; (iv) represents and warrants that this
Assignment constitutes the legal, valid and binding obligation of the Assignor;
(v) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any Loan
Document or any other instrument or document furnished pursuant thereto, or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Loan Document or any other instrument or document furnished pursuant
thereto; and (vi) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any
other Loan Party, or the performance or observance by the Borrower of any of its
obligations under the Loan Documents or any other instrument or document
furnished thereto.
3. The Assignee (i) confirms that it has received copies of such of the
Loan Documents and other documents delivered pursuant to Section 4 of the Credit
Agreement as it has requested, together with a copy of the most recent financial
statements of the Borrower received by the Agent pursuant to Section 5.1 of the
Credit Agreement, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment; (ii) agrees that it will, independently and without reliance upon
the Agent, the Assignor or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Loan Documents; (iii)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender; (iv) specifies as its Applicable Lending Offices
the offices set forth beneath its name on the signature pages hereof; [1(v)
represents and warrants, for the benefit of the Assignor, the Agent, the
Arrangers and the Borrower, that under applicable law and treaties no taxes will
be required to be withheld by the Agent, the Arrangers, the Borrower or the
Assignor with respect to any payments to be made to the Assignee with respect to
the Loans; (vi) attaches, as applicable, two duly completed copies of United
States Internal Revenue Service Form X-0, X-0XXX xx X-0XX0 or successor
applicable form, as the case may be; (vii) agrees to deliver to the Agent and
the Assignor two further copies of the said Form X-0, X-0XXX xx X-0XX0 or
successor applicable forms or other manner of certification as to such tax
matters, as the case may be, on or before the date that any such form expires or
becomes obsolete or after the occurrence of any event requiring a change in the
most recent form previously delivered by the Assignee to the Agent and the
Assignor, and such extensions or renewals thereof as may reasonably be requested
by the Agent or the Assignor, unless in any such case an event beyond the
control of the Assignee (including, without limitation, any change in treaty,
law or regulation) has occurred prior to the date on which any such delivery
would otherwise be required which renders all such forms inapplicable or which
would prevent the Assignee from duly completing and delivering any such form
with respect to it and the Assignee so advised the Agent and the Assignor;]
(viii) represents and warrants that it has full power and authority, and has
taken all action necessary, to execute and deliver this Assignment, and any and
all other documents required or permitted to be executed or delivered by it in
connection with this Assignment and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Assignment, and no
governmental authorizations or other authorizations are required in connection
therewith; and (ix) represents and warrants that this Assignment constitutes the
legal, valid and binding obligation of the Assignee.
__________________________
1. Bracketed provsions to be included if Assignee is organized under the laws of
any jurisdictio other tan the United States ir any state therof.
-2-
4. The effective date for this Assignment shall be _________________ (the
"EFFECTIVE DATE"). Following the execution of this Assignment, it will be
delivered to the Agent for acceptance and recording by the Agent and, if
applicable, for acceptance by the Borrower.
5. Upon such acceptance and recording, as of the Effective Date, (i) the
Assignee shall be a party to the Credit Agreement and, to the extent provided in
this Assignment, shall have the rights and obligations of a Lender thereunder
and under the other Loan Documents and (ii) the Assignor shall, to the extent
provided in this Assignment, relinquish its rights and be released from its
obligations under the Credit Agreement and the other Loan Documents.
6. Upon such acceptance and recording, from and after the Effective Date,
the Agent shall make all payments under the Credit Agreement and the other Loan
Documents in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and fees with respect thereto)
to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the other Loan Documents
for periods prior to the Effective Date, as the case may be, directly between
themselves.
7. Concurrently with the execution of this Assignment, the Assignor shall
execute two counterpart original Requests for Registration, in the form of
Exhibit A to this Assignment, to be forwarded to Agent. The Assignor and the
Assignee further agree to execute and deliver such other instruments, and take
such other action, as either party may reasonably request in connection with the
transactions contemplated by this Assignment, and the Assignor specifically
agrees to cause the delivery of (i) two original counterparts of this Assignment
and (ii) the Requests for Registration, to the Agent for the purpose of
registration of the Assignee as a "Lender" pursuant to Section 9.6 of the Credit
Agreement.
-3-
8. This Assignment shall be governed by, and construed in accordance with,
the laws of the State of New York.
-----------------------------------------,
as Assignor
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
-----------------------------------------,
as Assignee
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
APPLICABLE LENDING OFFICES:
LIBOR LOANS
Address:
------------------------------------------
------------------------------------------
------------------------------------------
ALTERNATE BASE RATE LOANS
Address:
------------------------------------------
------------------------------------------
------------------------------------------
ADDRESS FOR NOTICES:
------------------------------------------
------------------------------------------
------------------------------------------
Telephone No.:
----------------------------
Telecopier No.:
---------------------------
Attention:
--------------------------------
-4-
[Consented to as of the _____
day of ____________, ____.
UNIVISION COMMUNICATIONS INC.
By:
---------------------------------
Name:
--------------------------------
Title:
-----------------------------2]
_________________________
2 To be included if required by Section 9.6(c).
-5-
SCHEDULE
ASSIGNOR'S COMMITMENT
Commitment $______________
ASSIGNOR'S COMMITMENT PERCENTAGE
Commitment Percentage _____%
ASSIGNOR'S LOANS
Loans $______________
EXHIBIT A TO
ASSIGNMENT AND ACCEPTANCE
REQUEST FOR REGISTRATION
TO: THE CHASE MANHATTAN BANK, as Agent
THIS REQUEST FOR REGISTRATION is made as of the date of the enclosed
Assignment and Acceptance with reference to that certain Credit Agreement, dated
as of October ___, 2000, among the Lenders (as defined therein), The Chase
Manhattan Bank, as an arranger, BNP Paribas, as an arranger, The Chase Manhattan
Bank, as administrative agent (the "AGENT"), and Univision Communications Inc.,
a Delaware corporation (as amended from time to time, the "CREDIT AGREEMENT").
Terms defined and the rules of interpretation contained in the Credit Agreement
have the same meanings and application herein.
The Assignor and Assignee described below hereby request that Agent
register the Assignee as a Lender pursuant to Section 9.6 of the Credit
Agreement effective as of the Effective Date described in the enclosed
Assignment and Acceptance and, in connection with this request, certify to the
Agent that the enclosed Assignment and Acceptance sets forth the correct
Commitment and Commitment Percentage of the Assignee.
Enclosed with this Request are (i) the registering and processing fee of
$3,500 payable to the Agent pursuant to Section 9.6 of the Credit Agreement,
(ii) two counterpart originals of the Assignment and Acceptance and (iii) the
original Note of the Borrower in favor of the Assignor in the principal amount
of $__________. The Assignor and Assignee hereby jointly request that the Agent
cause the Borrower to issue, pursuant to Section 9.6(c) of the Credit Agreement,
(i) a replacement Note, dated as of the same date as the original note being
replaced, in favor of the Assignor in the principal amount of the balance of its
Commitment (after giving effect to the Assignment) of $____________, and (ii) a
new Note, dated as of the date of the note referred to in the immediately
preceding clause, in favor of the Assignee in the principal amount of the
Assignee's Commitment of $____________.
IN WITNESS WHEREOF, the Assignor and Assignee have executed this Request
for Registration by their duly authorized officers as of this ______ day of
________________, ____.
"Assignor"
----------------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
"Assignee"
----------------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
--------------------------------------------------------------------------------
CONFIRMATION OF REGISTRATION BY AGENT
TO: The Assignor and Assignee referred to in the above Request for Registration
The Agent referred to below hereby certifies that it has registered the
Assignee as a Lender under the Credit Agreement, effective as of the Effective
Date described above, with the Commitment and Commitment Percentage set forth
for the Assignee in the Assignment and Acceptance and has adjusted the
registered Commitment and Commitment Percentage of the Assignor to reflect the
assignment effected by such Assignment and Acceptance.
THE CHASE MANHATTAN BANK, as Agent
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
-2-
EXHIBIT C
TO CREDIT
AGREEMENT
FORM OF NO DEFAULT/REPRESENTATION CERTIFICATE
__________________________ the ______________ of Univision Communications
Inc., a Delaware corporation (the "BORROWER") hereby certifies in connection
with the Credit Agreement dated as of October ___, 2000 among The Chase
Manhattan Bank, a New York banking corporation ("CHASE"), as administrative
agent, BNP Paribas, a French banking corporation, as an arranger, Chase, as an
arranger, the financial institutions parties thereto and the Borrower (such
Credit Agreement, as it may be amended, modified or supplemented from time to
time, the "CREDIT AGREEMENT"), as of the date set forth below, that:
(i) the representations and warranties contained in the Credit
Agreement and in each other Loan Document and each certificate or other writing
delivered to the Lenders prior to, on or after the Closing Date (as defined in
the Credit Agreement) pursuant to the Credit Agreement and on or prior to the
date of the Loans (as defined in the Credit Agreement) requested in connection
herewith, are true and correct on and as of the date of the making of such Loans
in all material respects as though made on and as of such date except to the
extent that such representations and warranties expressly relate to an earlier
date; and
(ii) no Default (as defined in the Credit Agreement) has occurred and
is continuing or would result from the making of the Loans requested in
connection herewith.
IN WITNESS WHEREOF, I HAVE HEREUNTO SIGNED MY NAME AS OF THIS ____ DAY OF
________________, ____:
--------------------------------
Name:
--------------------------
Title:
--------------------------
EXHIBIT D
TO CREDIT
AGREEMENT
FORM OF COVENANT COMPLIANCE CERTIFICATE
The undersigned, _________________________, the _________________________
of Univision Communications Inc., a Delaware corporation (the "Borrower") refers
to that certain Credit Agreement dated as of October ___, 2000, among The Chase
Manhattan Bank, a New York banking corporation ("Chase"), as administrative
agent, BNP Paribas, a French banking corporation, as an arranger, Chase, as an
arranger, the financial institutions parties thereto and the Borrower (such
Credit Agreement, as it may be amended, modified or supplemented from time to
time, the "Credit Agreement"; capitalized terms used herein and not defined
shall have the meanings assigned to them in the Credit Agreement), and certifies
(i) that, to the best of the undersigned's knowledge, the Borrower during the
period ending ___________, ____ has observed or performed all of its covenants
and other agreements, and satisfied every condition, contained in the Credit
Agreement and in the Notes and the other Loan Documents to which it is a party
to be observed, performed or satisfied by it, (ii) that, to the best of the
undersigned's knowledge, no Default has occurred and the Borrower is in
compliance with its covenants in the Loan Documents to which it is a party and
(iii) as to the accuracy of the following figures for the period ending
___________, ____:
1. MAXIMUM TOTAL DEBT RATIO
a. Funded Debt for Borrower and Subsidiaries
A. Capitalized Lease Obligations $_____________
B. Aggregate Redemption Value of
Modesto Station Preferred Stock $_____________
C. Indebtedness (other than
Indebtedness described in clauses
(f), (h), (i), (j) and (k) of
Section 6.2 of the Credit
Agreement) $_____________
D. A + B + C $_____________
b. EBITDA for Borrower and Subsidiaries
A. Net Income (after eliminating
extraordinary gains and losses) $____________
B. provision for taxes $____________
-1-
C. depreciation and amortization $____________
D. Interest Expense
(i) interest and (dividends)
on Funded Debt $____________
(ii) commitment, L/C and line of
credit fees $____________
(iii) net amounts payable
(or receivable) under
Interest Rate Agreements $____________
(iv) interest income $____________
(v) (i)+(ii) + [or -](iii)-(iv) $____________
E. termination payments $____________
F. payments pursuant to Non-Compete
Agreements $____________
G. other non-cash changes $____________
H. Program Rights Payments actually
made or scheduled to be made. $____________
I. non-cash revenues $____________
J. principal payments for
Transponder Leases $____________
K. A+B+C+D+E+F+G-H-I-J $____________
c. Ratio of (a) to (b): _____ to 1
2. MINIMUM TOTAL INTEREST COVERAGE RATIO
a. EBITDA (see 1(b)(K) above) $_____________
b. Interest Expense excluding all PIK
Interest
A. Interest Expense
(see 1(b)(D)(v) above) $_____________
B. PIK Interest $_____________
C. A - B $_____________
-2-
c. Ratio of (a) to (b)(C): _____ to 1
3. MINIMUM FIXED CHARGE COVERAGE RATIO
a. EBITDA (see 1(b)(K) above) $_____________
b. Total Debt Service/Capital
Expenditures/Cash Income Taxes/
Restricted Payments $_____________
(i) Total Debt Service
A. Interest Expense excluding
all PIK Interest (see 2(b)(C)
above) $_____________
B. regularly scheduled principal
payments on Funded Debt
(which result in permanent
reduction in availability)
(other than payments made
pursuant to Section 2.2 and
2.3, or Section 2.5 and 2.6
of the Existing Credit
Agreement) (see Modesto
Station provisions) $_____________
C. A + B $_____________
(ii) Capital Expenditures made or
committed to be made by Borrower
and its Subsidiaries (including
property held under capital
leases but excluding expenditures
arising from Program Rights
Obligations and expenditures
under Transponder Leases) $_____________
(iii) Cash Income Taxes $_____________
(iv) Restricted Payments permitted
under Section 6.6(ii) of the
Credit Agreement (other than
those made by the Borrower to
effect a Borrower Stock Purchase) $_____________
(v) (i)(C) + (ii) + (iii) + (iv) $_____________
c. Ratio of (a) to (b): _____ to 1
4. LIMITATION ON INVESTMENTS
-3-
a. Investments made pursuant to
Section 6.7(i) of the Credit
Agreement (cannot exceed $50,000,000
during term of Credit Agreement) $_____________
b. Other Media/Communications Investments
(which is a component of New
Investments) made after December 20,
1999 (per Section 6.7(k) of the Credit
Agreement cannot exceed $400,000,000) $_____________
5. LIMITATION ON UNFUNDED LIABILITIES
a. unfunded liabilities of Plans of
Borrower and Subsidiaries (cannot
exceed $5,000,000) $_____________
IN WITNESS WHEREOF, I HAVE HEREUNTO SIGNED MY NAME, AS THE
____________________ OF UNIVISION COMMUNICATIONS INC., AS OF THIS ____ DAY OF
______________, 200_:
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
-4-
EXHIBIT E
TO CREDIT
AGREEMENT
FORM OF CONTINUATION NOTICE
Date: _________________
To: The Chase Manhattan Bank,
as Administrative Agent
Global Media/Telecommunications Group
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ______________
Re: Univision Communications Inc.
We refer to that certain Credit Agreement dated as of October ___, 2000
among The Chase Manhattan Bank, as administrative agent and an arranger, BNP
Paribas, as an arranger, the financial institutions parties thereto and
Univision Communications Inc. (such Credit Agreement, as amended, modified or
supplemented from time to time, the "Credit Agreement"). Capitalized terms used
herein and not defined have the meanings assigned to them in the Credit
Agreement.
[Pursuant to Section 2.4(a) of the Credit Agreement, the undersigned elects
to convert the following LIBOR Loans to Alternate Base Rate Loans at the end of
the current Interest Period for such LIBOR Loans:
LIBOR LOAN AMOUNT LAST DAY OF CURRENT INTEREST PERIOD
----------------- -----------------------------------
1.
2.
3. [and so on] ]
[Pursuant to Section 2.4(a) of the Credit Agreement, the undersigned elects
to convert Alternate Base Rate Loans in the aggregate amount of $__________ to
LIBOR Loan(s) as follows:
DESIRED DATE LENGTH OF
LIBOR LOAN AMOUNT OF CONVERSION INTEREST PERIOD
----------------- ------------- ---------------
1.
2.
3. [and so on] ]
[Pursuant to Section 2.4(b) of the Credit Agreement, the undersigned elects
to continue the Interest Periods with respect to the following LIBOR Loans for
the following additional Interest Period:
LAST DAY OF CURRENT LENGTH OF CONTINUED
LIBOR LOAN AMOUNT INTEREST PERIOD INTEREST PERIOD
----------------- ------------------- -------------------
1.
2.
3. [and so on] ]
Sincerely,
UNIVISION COMMUNICATIONS INC.
By:
---------------------------------
Name:
-------------------------------
Title:
-------------------------------
SCHEDULE 1
----------
LENDERS AND COMMITMENTS
------------------------
LENDER COMMITMENT
------- ----------
BNP Paribas $50,000,000
The Chase Manhattan Bank $50,000,000
SCHEDULE 2
----------
LENDER NOTICE ADDRESSES
-----------------------
BNP PARIBAS
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxx Fax: (000) 000-0000
THE CHASE MANHATTAN BANK
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxx Fax: (000) 000-0000
With a copy to:
Agent Bank Services Group
1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxx Fax: (000) 000-0000
Schedule 3
Subsidiaries of Univision Communications Inc.
PTI Holdings, Inc., a Delaware Corporation
Univision Television Group, Inc.,
KWEX License Partnership, G.P., a California general partnership
KUVN License Partnership, G.P., a California general partnership
KMEX License Partnership, G.P., a California general partnership
KDTV License Partnership, G.P., a California general partnership
KFTV License Partnership, G.P., a California general partnership
KTVW License Partnership, G.P., a California general partnership
KXLN License Partnership, G.P., a California general partnership
WGBO License Partnership, G.P., a California general partnership
WXTV License Partnership, G.P., a California general partnership
WLTV License Partnership, G.P., a California general partnership
KUVS License Partnership, G.P., a California general partnership
KUVI License Partnership, G.P., a California general partnership
The Univision Network Limited Partnership
Galavision, Inc.
Sunshine Acquisition, Limited Partnership
Sunshine Acquisition Corp.
Univision Online, Inc.
Vision Latina, S.A. de C.V.
Creaciones Calientes, S.A. de C.V.
Univision - EV Holdings, LLC
Univision - Sports, LLC
Schedule 4
(Intentionally Omitted)
SCHEDULE 5
----------
BORROWER STATIONS/MEDIA LICENSES(1)
KDTV(TV), SAN FRANCISCO, CALIFORNIA, CHANNEL 14(2)
--------------------------------------------------
LICENSEE: KDTV License Partnership, G.P.
RENEWAL EXPIRATION: 12/1/2006
KDTV-LP, SANTA ROSA, CALIFORNIA, CHANNEL 28
--------------------------------------------------
LICENSEE: KDTV License Partnership, G.P.
RENEWAL EXPIRATION: 12/1/2006
KFTV(TV), HANFORD, CALIFORNIA, CHANNEL 21(3)
--------------------------------------------------
LICENSEE: KFTV License Partnership, G.P.
RENEWAL EXPIRATION: 12/1/2006
KABE-LP, BAKERSFIELD, CALIFORNIA, CHANNEL 39(4)
--------------------------------------------------
LICENSEE: KFTV License Partnership, G.P.
RENEWAL EXPIRATION: 12/1/2006
--------------------------------------
1 In addition to the following, by Public Notice dated July 18, 2000, the FCC
declared Univision Television Group, Inc. the winning bidder in an auction to
award the construction permit for a new television station on Channel 52 at
Xxxxxx, Texas. On August 17, 2000, Univision Television Group, Inc. filed an
application for the facility. On September 5, 2000, Xxxxxxx Xxxxxxx, an
unsuccessful bidder in the auction, filed a Petition to Deny the application.
This matter is currently pending.
2 On October 21, 1999, KDTV License Partnership, G.P. filed an application
for KDTV(TV) seeking consent to the construction of a new digital facility on
Channel 51. The application is currently pending.
3 On October 22, 1999, KFTV License Partnership, G.P. filed an application
for KFTV(TV) seeking consent to the construction of a new digital facility on
Channel 20. The application is currently pending.
4 On June 1, 1998, KFTV License Partnership, G.P. filed an application
seeking displacement relief to change the channel of operation of KABE-LP from
Channel 39 to Channel 31 due to the impact of full power television station
digital operations. This application was mutually exclusive with another low
power television applicant seeking similar displacement relief. On November 25,
1998, a Joint Request for Approval of Settlement Agreement was filed with the
FCC seeking the FCC's consent to a Settlement Agreement whereby KABE-LP would be
awarded the construction permit for Channel 31. This application and Joint
Request for Approval of Settlement Agreement are currently pending.
KMEX-TV, LOS ANGELES, CALIFORNIA, CHANNEL 34(5)
--------------------------------------------------
LICENSEE: KMEX License Partnership, G.P.
RENEWAL EXPIRATION: 12/1/2006
KTVW-TV, PHOENIX, ARIZONA, CHANNEL 33(6)
--------------------------------------------------
LICENSEE: KTVW License Partnership, G.P.
RENEWAL EXPIRATION: 10/1/2006
KUVE-LP, TUCSON, ARIZONA, CHANNEL 52(7)
--------------------------------------------------
LICENSEE: KTVW License Partnership, G.P.
RENEWAL EXPIRATION: 10/1/2006
KUVI(TV), BAKERSFIELD, CALIFORNIA, CHANNEL 45(8)
--------------------------------------------------
LICENSEE: KUVI License Partnership, G.P.
RENEWAL EXPIRATION: 12/1/2006
KUVN(TV), GARLAND, TEXAS, CHANNEL 23(9)
--------------------------------------------------
LICENSEE: KUVN License Partnership, G.P.
RENEWAL EXPIRATION: 0/0/0000
XXXX-XX, XXXX XXXXX, XXXXX, CHANNEL 31(10)
--------------------------------------------------
--------------------------------------
5 On October 28, 1999, KMEX License Partnership, G.P. filed an application
for KMEX-TV seeking consent to the construction of a new digital facility on
Channel 35. The application is currently pending.
6 On October 22, 1999, KTVW License Partnership, G.P. filed an application
for KTVW-TV seeking consent to the construction of a new digital facility on
Channel 34. The application is currently pending.
7 On June 1, 1998, KTVW License Partnership, G.P. filed an application
seeking displacement relief to change the channel of operation of KUVE-LP from
Channel 52 to Channel 38 due to the impact of full power television station
digital operations. This application was mutually exclusive with other low power
television applicants seeking similar displacement relief. Beginning on
September 28, 1999, the FCC held an auction to resolve the mutual exclusivity,
and by Public Notice dated October 12, 1999, KTVW License Partnership, G.P. was
announced as the winning bidder. Mexican concurrence to the grant of this
application is required. This application is currently pending. In addition,
KTVW License Partnership, G.P. is the applicant for a new low power television
station on Channel 48 at Tucson, Arizona. Mexican concurrence to the grant of
this application is required. The application currently is pending.
8 On October 28, 1999, KUVI License Partnership, G.P. filed an application
for KUVI(TV) seeking consent to the construction of a new digital facility on
Channel 55. The application is currently pending.
9 On October 29, 1999, KUVN License Partnership, G.P. filed
an application for KUVN(TV) seeking consent to the construction of a new digital
facility on Channel 24. The application is currently pending.
LICENSEE: KUVN License Partnership, G.P.
RENEWAL EXPIRATION: 8/1/2006
KUVS(TV), MODESTO, CALIFORNIA, CHANNEL 19(11)
--------------------------------------------------
LICENSEE: KUVS License Partnership, G.P.
RENEWAL EXPIRATION: 12/1/2006
KWEX-TV, SAN ANTONIO, TEXAS, CHANNEL 41(12)
--------------------------------------------------
LICENSEE: KWEX License Partnership, G.P.
RENEWAL EXPIRATION: 8/1/2006
K30CE, AUSTIN, TEXAS, CHANNEL 30(13)
--------------------------------------------------
LICENSEE: KWEX License Partnership, G.P.
RENEWAL EXPIRATION: 8/1/2006
KXLN-TV, ROSENBERG, TEXAS, CHANNEL 45(14)
--------------------------------------------------
LICENSEE: KXLN License Partnership, G.P.
RENEWAL EXPIRATION: 0/0/0000
XXXX-XX, XXXXXX, XXXXXXXX, CHANNEL 66(15)
--------------------------------------------------
LICENSEE: WGBO License Partnership, G.P.
--------------------------------------
(...continued)
10 On June 1, 1998, KUVN License Partnership, G.P. filed an application
seeking displacement relief to change the channel of operation of KUVN-LP from
Channel 31 to Channel 47 due to the impact of full power television station
digital operations. The application was granted on September 29, 2000. The
construction permit will expire on September 29, 2003.
11 On October 28, 1999, KUVS License Partnership, G.P. filed an application
for KUVS(TV) seeking consent to the construction of a new digital facility on
Channel 18. The application currently is pending.
12 On October 22, 1999, KWEX License Partnership, G.P. filed an application
for KWEX-TV seeking consent to the construction of a new digital facility on
Channel 39. The application currently is pending.
13 On June 1, 1998, KWEX License Partnership, G.P. filed an application
seeking displacement relief to change the channel of operation of K30CE from
Channel 30 to Channel 31 due to the impact of full power television station
digital operations. The application was granted on May 10, 2000. The
construction permit will expire on May 10, 2003.
14 On October 21, 1999, KXLN License Partnership, G.P. filed an application
for KXLN-TV seeking consent to the construction of a new digital facility on
Channel 46. The application currently is pending
15 On October 29, 1999, WGBO License Partnership, G.P. filed an application
for WGBO-TV seeking consent to the construction of a new digital facility on
Channel 53. The application currently is pending
RENEWAL EXPIRATION: 12/1/2005
WLTV(TV), MIAMI, FLORIDA, CHANNEL 23(16)
--------------------------------------------------
LICENSEE: WLTV License Partnership, G.P.
RENEWAL EXPIRATION: 2/1/2005
WXTV(TV), PATERSON, NEW JERSEY, CHANNEL 41(17)
--------------------------------------------------
LICENSEE: WXTV License Partnership, G.P.
RENEWAL EXPIRATION: 6/1/2007
WXTV-LP, PHILADELPHIA, PENNSYLVANIA, CHANNEL 28
--------------------------------------------------
LICENSEE: WXTV License Partnership, G.P.
RENEWAL EXPIRATION: 8/1/2007
W47AD, HARTFORD, CONNECTICUT, CHANNEL 47(18)
--------------------------------------------------
LICENSEE: WXTV License Partnership, G.P.
RENEWAL EXPIRATION: 4/1/2007
--------------------------------------
16 On October 22, 1999, WLTV License Partnership, G.P. filed an application
for WLTV(TV) seeking consent to the construction of a new digital facility on
Channel 24. The application currently is pending.
17 On October 28, 1999, WXTV License Partnership, G.P. filed an application
for WXTV(TV) seeking consent to the construction of a new digital facility on
Channel 40. The application currently is pending.
18 On June 1, 1998, WXTV License Partnership, G.P. filed an application
seeking displacement relief to change the channel of operation of W47AD from
Channel 47 to Channel 28 due to the impact of full power television station
digital operations. This application was mutually exclusive with other low power
television applicants seeking similar displacement relief. On August 20, 1999, a
Joint Petition was filed with the FCC seeking the FCC's consent to a Settlement
Agreement, whereby W47AD would be awarded the construction permit for Channel
28. On May 5, 2000, the FCC issued a proposed grant list accepting the W47AD
application for filing and giving third parties until June 5, 2000 to file
Petitions to Deny. On June 12, 2000, an Informal Petition to Deny was filed
against the application by Paging Associates, Inc. This matter is currently
pending.
Schedule 6
BORROWERS' AND SUBSIDIARIES' INVESTMENTS
Entravision Communications Corporation - 28.5% equity interest.
Cocorojo LLC - 49% equity interest.
Ask Jeeves En Espanol, Inc. - 50% equity interest.
SCHEDULE 7
[UNIVISION GROUP STRUCTURE GRAPH]
