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EXHIBIT 10.1
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AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF
JUNE 29, 2001,
AMONG
LIN HOLDINGS CORP.,
LIN TELEVISION CORPORATION,
AS BORROWER,
THE LENDERS PARTY HERETO,
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT,
AS ISSUING LENDER
AND AS SWINGLINE LENDER
JPMORGAN SECURITIES INC.,
AS ARRANGER
THE BANK OF NEW YORK
AND
FLEET NATIONAL BANK,
AS CO-SYNDICATION AGENTS,
AND
THE BANK OF NOVA SCOTIA
AND
BANK OF AMERICA, N.A.,
AS CO-DOCUMENTATION AGENTS
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS ............................................... 4
1.1 Defined Terms ............................................ 4
1.2 Other Definitional Provisions ............................ 40
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS ........................... 42
2.1 Term Commitments ......................................... 41
2.2 Procedure for Term Loan Borrowing ........................ 42
2.3 Repayment of Term Loans .................................. 42
2.4 Revolving Credit Commitments ............................. 43
2.5 Procedure for Revolving Credit Borrowing ................. 45
2.6 Commitment Fees, etc. .................................... 46
2.7 Termination or Reduction of Commitments .................. 46
2.8 Optional Prepayments ..................................... 46
2.9 Mandatory Prepayments and Commitment Reductions .......... 48
2.10 Conversion and Continuation Options ...................... 50
2.11 Minimum Amounts and Maximum Number of Eurodollar Tranches 51
2.12 Interest Rates and Payment Dates ......................... 51
2.13 Computation of Interest and Fees ......................... 52
2.14 Inability to Determine Interest Rate ..................... 52
2.15 Pro Rata Treatment and Payments .......................... 53
2.16 Requirements of Law ...................................... 55
2.17 Taxes .................................................... 56
2.18 Indemnity ................................................ 58
2.19 Change of Lending Office ................................. 59
2.20 Replacement of Lenders under Certain Circumstances ....... 59
2.21 Notice of Certain Costs .................................. 60
SECTION 3. LETTERS OF CREDIT ......................................... 60
3.1 L/C Commitment ........................................... 60
3.2 Procedure for Issuance of Letter of Credit ............... 60
3.3 Commissions, Fees and Other Charges ...................... 61
3.4 L/C Participations ....................................... 61
3.5 Reimbursement Obligation of the Borrower ................. 62
3.6 Obligations Absolute ..................................... 62
3.7 Letter of Credit Payments ................................ 63
3.8 Applications ............................................. 63
SECTION 4. REPRESENTATIONS AND WARRANTIES ............................ 63
4.1 Financial Condition ...................................... 63
4.2 No Change ................................................ 64
4.3 Corporate Existence; Compliance with Law ................. 64
4.4 Corporate Power; Authorization; Enforceable Obligations .. 64
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4.5 No Legal Bar ............................................. 65
4.6 No Material Litigation ................................... 65
4.7 No Default ............................................... 65
4.8 Ownership of Property; Liens ............................. 65
4.9 Intellectual Property .................................... 65
4.10 Taxes .................................................... 65
4.11 Federal Regulations ...................................... 66
4.12 Labor Matters ............................................ 66
4.13 ERISA .................................................... 66
4.14 Investment Company Act; Other Regulations ................ 67
4.15 Subsidiaries ............................................. 67
4.16 Use of Proceeds .......................................... 67
4.17 Environmental Matters .................................... 67
4.18 Accuracy of Information, etc. ............................ 68
4.19 Security Documents ....................................... 69
4.20 Solvency ................................................. 69
4.21 Senior Indebtedness ...................................... 69
4.22 Station Licenses ......................................... 69
SECTION 5. CONDITIONS PRECEDENT ...................................... 70
5.1 Conditions to Initial Extension of Credit ................ 70
5.2 Conditions to Each Extension of Credit ................... 70
SECTION 6. AFFIRMATIVE COVENANTS ..................................... 71
6.1 Financial Statements ..................................... 71
6.2 Certificates; Other Information .......................... 72
6.3 Payment of Obligations ................................... 73
6.4 Conduct of Business and Maintenance of Existence, etc. ... 73
6.5 Maintenance of Property; Insurance ....................... 73
6.6 Inspection of Property; Books and Records; Discussions ... 74
6.7 Notices .................................................. 74
6.8 Environmental Laws ....................................... 75
6.9 Interest Rate Protection ................................. 75
6.10 Additional Collateral, etc. .............................. 76
6.11 Intentionally deleted .................................... 78
6.12 After-Acquired Stations .................................. 78
6.13 Changes in Locations, Name, etc. ......................... 78
SECTION 7. NEGATIVE COVENANTS ........................................ 78
7.1 Financial Condition Covenants ............................ 78
7.2 Limitation on Indebtedness ............................... 79
7.3 Limitation on Liens ...................................... 81
7.4 Limitation on Fundamental Changes ........................ 84
7.5 Limitation on Sale of Assets ............................. 85
7.6 Limitation on Dividends .................................. 86
7.7 Limitation on Capital Expenditures ....................... 87
7.8 Limitation on Investments, Loans and Advances ............ 88
7.9 Limitation on Optional Payments and Modifications of Debt
Instruments, etc. ........................................ 89
7.10 Limitation on Transactions with Affiliates ............... 91
7.11 Limitation on Sales and Leasebacks ....................... 91
7.12 Limitation on Changes in Fiscal Periods .................. 91
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7.13 Limitation on Negative Pledge Clauses .................... 91
7.14 Limitation on Lines of Business .......................... 92
7.15 Limitation on Amendments to Constituent and Transaction
Documents ................................................ 92
7.16 Limitations on Changes in Holding Company Status ......... 92
7.17 Limitation on Changes in Station Affiliation ............. 92
7.18 Limitation on Minority Investments ....................... 92
7.19 Approval of Joint Venture Actions ........................ 93
SECTION 8. EVENTS OF DEFAULT ......................................... 93
SECTION 9. THE ADMINISTRATIVE AGENT .................................. 97
9.1 Appointment .............................................. 97
9.2 Delegation of Duties ..................................... 97
9.3 Exculpatory Provisions ................................... 97
9.4 Reliance by Administrative Agent ......................... 98
9.5 Notice of Default ........................................ 98
9.6 Non-Reliance on the Administrative Agent and Other Lenders 98
9.7 Indemnification .......................................... 99
9.8 Agent in Its Individual Capacity ......................... 99
9.9 Successor Administrative Agent ........................... 100
SECTION 10. MISCELLANEOUS ............................................ 100
10.1 Amendments and Waivers ................................... 101
10.2 Notices .................................................. 102
10.3 No Waiver; Cumulative Remedies ........................... 103
10.4 Survival of Representations and Warranties ............... 103
10.5 Payment of Expenses and Taxes ............................ 103
10.6 Successors and Assigns; Participations and Assignments ... 104
10.7 Adjustments; Set-off ..................................... 107
10.8 Counterparts ............................................. 108
10.9 Severability ............................................. 108
10.10 Integration .............................................. 108
10.11 GOVERNING LAW ............................................ 108
10.12 Submission To Jurisdiction; Waivers ...................... 108
10.13 Acknowledgments .......................................... 109
10.14 WAIVERS OF JURY TRIAL .................................... 109
10.15 Confidentiality .......................................... 109
10.16 FCC Compliance ........................................... 110
10.17 Filing of Mortgages ...................................... 110
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SCHEDULES:
1.1A Loans and Commitments
1.1B Mortgaged Properties
1.1C Consolidated EBITDA Prior to Closing Date
1.1D Network Affiliation Agreements
1.1E Applicable Margin on Incremental Term Loans outstanding as of
June 29, 2001
4.4 Consents, Authorizations, Filings and Notices
4.6 Litigation
4.12 Labor Matters
4.15 Subsidiaries
4.17 Environmental Matters
4.19(a) UCC Filing Jurisdictions
4.19(b) Mortgage Filing Jurisdictions
4.22 Station Licenses
7.2(e) Existing Indebtedness
7.3(f) Existing Liens
7.8(g) Existing Investments
7.8(l) Investments Existing under 7.8(l) as of April 12, 2001
EXHIBITS:
A Intentionally Deleted
B Form of Compliance Certificate
C Form of Closing Certificate
D-1 Form of Mortgage--Borrower
D-2 Form of Mortgage--Subsidiary Guarantor
E Form of Assignment and Acceptance
F Form of Legal Opinion of Weil, Gotshal & Xxxxxx LLP
G Form of Incremental Term Loan Activation Notice
H Form of Swingline Loan Participation Certificate
I-1 Form of Revolving Credit Note
I-2 Form of Term Loan Note
I-3 Form of Swingline Note
J Form of Borrowing Notice
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 29,
2001, among LIN HOLDINGS CORP., a Delaware corporation ("Holdings")
organized by Hicks, Muse, Xxxx & Xxxxx Incorporated ("Xxxxx Muse"),
LIN TELEVISION CORPORATION, a Delaware corporation (the "Borrower"),
the several banks and other financial institutions or entities from
time to time parties to this Agreement (the "Lenders"), THE CHASE
MANHATTAN BANK, as administrative agent (in such capacity, the
"Administrative Agent"), as issuing lender (in such capacity, the
"Issuing Lender"), and as swingline lender (in such capacity, the
"Swingline Lender"), The Bank of Nova Scotia and Bank of America,
N.A., as co-documentation agents (in such capacity, the
"Co-Documentation Agents"), and The Bank of New York and Fleet
National Bank, as co-syndication agents (in such capacity, the
"Co-Syndication Agents").
Pursuant to the Agreement and Plan of Merger dated as of August 12,
1997 (as amended by the Amendment thereto dated October 21, 1997, the "Merger
Agreement"), among the Borrower, Holdings and LIN Acquisition Company ("LIN"),
LIN was merged (the "Merger") with and into the Borrower, with the Borrower
being the surviving entity.
In connection with the Merger, (a) the Borrower issued the Senior
Subordinated Notes (such term and each other capitalized term used but not
defined in the preamble of this Agreement having the meaning assigned to such
term in subsection 1.1) in a public offering or Rule 144A offering or private
placement, (b) Holdings issued the Holdings Discount Notes in a public offering
or Rule 144A offering or private placement, (c) Holdings contributed to the
Borrower at least $555,000,000 (less the amount of rollover investment by
members of management and employees of the Borrower and its Subsidiaries), along
with the net proceeds of the issuance of the Holdings Discount Notes, in cash as
common equity from the proceeds of capital contributions made to Holdings by (i)
Ranger Equity Holdings A Corp., a Delaware corporation ("Equity Holdings A"), in
an aggregate amount of at least $188,000,000, in exchange for approximately 37%
of the common stock of Holdings, and (ii) Ranger Equity Holdings B Corp., a
Delaware corporation ("Equity Holdings B"), in an aggregate amount of at least
$350,000,000, in exchange for the remaining common stock of Holdings, in each
case from the proceeds of a capital contribution made, directly or indirectly,
by funds managed by Xxxxx Muse and certain other investors (collectively, the
"Investors"), in exchange for the issuance to the Investors, directly or
indirectly, of all the common stock of Equity Holdings A and Equity Holdings B,
(d) the Borrower refinanced all of its Existing Indebtedness other than Existing
Indebtedness that is permitted under subsection 7.2(e) ("Refinanced
Indebtedness") and (e) subsequent to receipt of approvals for such mergers and
the related asset transfers, each of Buffalo Broadcasting Co., Inc. and Buffalo
Management Enterprises Co. Inc. were merged with and into LWWI Broadcasting Inc.
("LWWI"), and LWWI was merged with and into the Borrower.
In addition, in connection with the Merger and pursuant to the Joint
Venture Agreements, (a) on the Funding Date (i) LIN Texas obtained an
$815,500,000 25-year non-amortizing term loan (the "Joint Venture Loan") from
GECC, (ii) LIN Texas granted to GECC a first priority security interest (the
"Original Lien") in the KXAS Assets, and (iii) NBC contributed
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to the LLC an undivided 99% interest in the KNSD Assets that were immediately
contributed to the LP, (b) also on the Funding Date, (i) LIN Texas contributed
to the LLC the KXAS Assets, subject to the Original Lien, (ii) the Joint Venture
Loan was assigned to and assumed by the LLC and, upon the execution of the Joint
Venture Loan Guarantee, LIN Texas was released from all liability with respect
to the Joint Venture Loan, (iii) the LP granted to GECC a first priority
security interest (the "Additional Lien") in its 99% undivided interest in the
KNSD Assets, (iv) the Borrower executed a guarantee with respect to the LLC's
obligations under the Joint Venture Loan (the "Original Guarantee") and (v) LIN
Texas loaned the cash proceeds of the Joint Venture Loan to the Borrower or one
of its subsidiaries (any such loan, the "LIN Texas Loan"), (c) immediately
following the effective time of the Merger (i) the LLC contributed to the LP the
KXAS Assets (subject to the Original Lien), (ii) NBC contributed to the LP an
undivided 1% interest in the KNSD Assets, (iii) Equity Holdings B executed the
Joint Venture Loan Guarantee and (iv) the Borrower was released from the
Original Guarantee and has no obligations under the Joint Venture Loan, (d)
Holdings obtained from NBC an option to acquire the assets of television station
WVTM-TV, serving Birmingham, Alabama (the "WVTM Assets"), for a purchase price
of $199,000,000, subject to certain adjustments, as provided in the WVTM
Purchase Agreement, (e) the NBC network affiliation agreements for stations
KXAS-TV, KNSD-TV and WVTM-TV were modified to provide for a term of 25 years
from the Funding Date, (f) the NBC network affiliation agreements for the other
stations owned by the Borrower and its Subsidiaries and Affiliates were modified
to provide for (i) a term for each expiring in the year 2010 and (ii)
compensation thereunder at levels which, taken as a whole, are substantially no
less favorable to the Borrower and its Subsidiaries and Affiliates as
arrangements as may be agreed upon between NBC and a majority of NBC affiliates
in the 25 largest television markets (the network affiliation agreements of the
Borrower and its Subsidiaries described in this clause (f) and in clause (e)
above, together with any other related network affiliation compensation
arrangements, being collectively referred to as the "NBC Network Affiliation
Agreements") and (g) the LP entered into the LP Services Agreement.
The Borrower requested (a) the Tranche A Term Loan Lenders to extend
credit in the form of (i) Initial Tranche A Term Loans on the Closing Date in an
aggregate principal amount not in excess of $50,000,000 and (ii) Delayed Tranche
A Term Loans at any one time during the Delayed Tranche A Commitment Period, in
an aggregate principal amount not in excess of $125,000,000, (b) the Tranche B
Term Loan Lenders to extend credit in the form of Tranche B Term Loans on the
Closing Date, in an aggregate principal amount not in excess of $120,000,000,
(c) the Revolving Credit Lenders to extend credit in the form of Revolving
Credit Loans from time to time during the Revolving Credit Commitment Period, in
an aggregate principal amount at any time outstanding not in excess of the
difference between (i) $160,000,000 and (ii) the sum of the L/C Obligations at
such time and the Swingline Exposure at such time, (d) the Issuing Lender to
issue Letters of Credit from time to time during the Revolving Credit Commitment
Period in an aggregate stated amount at any time outstanding not in excess of
$25,000,000 and (e) the Swingline Lender to extend credit in the form of
Swingline Loans from time to time during the Revolving Credit Commitment Period
in an aggregate principal amount at any time outstanding not in excess of
$25,000,000.
The proceeds of the Initial Tranche A Term Loans and the Tranche B
Term Loans were used on the Closing Date, in part, to (i) finance the Merger
Transactions, (ii) repay in full the Refinanced Indebtedness and (iii) pay
related fees, expenses and other transaction costs (provided
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that fees and expenses payable in connection with the Joint Venture Loan were
reimbursed by NBC). The proceeds of the Delayed Tranche A Term Loans were used
solely to finance the acquisition by the Borrower of the assets of WOOD-TV
Station (the "WOOD-TV Acquisition"), pursuant to the terms of the WOOD-TV
Purchase Agreement. The Initial Tranche A Term Loans and the Delayed Tranche A
Term Loans were repaid in full on June 14, 2001. The proceeds of the Incremental
Term Loans have been and shall be used solely to finance Permitted Acquisitions
and transaction fees and expenses in connection therewith and to fund required
redemptions of the portion of Holdings Discount Notes issued in respect of
accrued interest on Holdings Discount Notes. The proceeds of Revolving Credit
Loans will be used for general corporate purposes, including Permitted
Acquisitions, provided that at no time shall the Total Revolving Extensions of
Credit exceed $60,000,000 except to the extent such excess results from the
borrowing (each, a "Notes Payment Borrowing") at any time of Revolving Credit
Loans the proceeds of which are used to make a dividend or other distribution
directly to Holdings to be applied by Holdings solely to (i) make a prepayment
(including pursuant to a redemption) of principal of the Holdings Discount Notes
that was issued or accreted in respect of the accrued interest or original issue
discount on the Holdings Discount Notes or (ii) pay cash interest on Holdings
Discount Indebtedness on or after March 1, 2003, in the case of clause (ii), in
accordance with the terms of any Holdings Discount Notes Indenture, as
contemplated by subsection 7.6(a)(vi) or 7.6(a)(vii) (each payment by Holdings
contemplated in the preceding clauses (i) and (ii), a "Permitted Notes
Payment"); provided that if any of the proceeds from any Notes Payment Borrowing
are not applied by Holdings by 5:00 p.m., New York City time, on the first
Business Day following the date of such Notes Payment Borrowing to make a
Permitted Notes Payment, then the proceeds from such Notes Payment Borrowing
shall be deposited in an escrow account with, and in the name of and under the
sole dominion and control of, the Administrative Agent, and subject to an
agreement reasonably satisfactory to the Administrative Agent and Holdings,
which agreement shall provide for the grant by Holdings to the Administrative
Agent, for the benefit of the Secured Parties (as defined in the Guarantee and
Collateral Agreement), of a security interest in such escrow account and all
funds from time to time on deposit therein to secure the Obligations, and which
such agreement shall provide that (A) any funds on deposit in such escrow
account may be released solely to make a Permitted Notes Payment on the date
such Permitted Notes Payment is made, (B) the only condition to the release of
such funds shall be the receipt by the Administrative Agent of an officer's
certificate of Holdings to the effect that (x) no Default or Event of Default
under subsection 8(a) in respect of the non-payment of principal (including the
amount of any Reimbursement Obligation), interest or fees (a "Specified Payment
Default"), other than any non-payment of amounts that became due solely as a
result of an acceleration of the maturity of such amounts under Section 8
(except for any such acceleration based upon a Specified Payment Default or
Event of Default under Subsection 8(f)), has occurred and is continuing and (y)
such funds, immediately upon their release, shall be used to make a Permitted
Notes Payment and (C) notwithstanding anything in any Loan Document to the
contrary, neither the Administrative Agent nor any Secured Party shall, or shall
have any right to, foreclose upon or take any other remedial action in respect
of its security interest in such escrow account or any funds on deposit therein,
except during the continuance of a Specified Payment Default or an Event of
Default under Subsection 8(f). The Letters of Credit and Swingline Loans will be
used for general corporate purposes.
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The Lenders and the Swingline Lender are willing to extend such
credit to the Borrower and the Issuing Lender is willing to issue Letters of
Credit for the account of the Borrower, in each case on the terms and subject to
the conditions set forth herein.
The parties hereto hereby agree as follows:
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABC": the American Broadcasting Companies, Inc.
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
For purposes hereof: "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by Chase as its prime rate in
effect at its principal office in New York City (the Prime Rate not being
intended to be the lowest rate of interest charged by Chase in connection
with extensions of credit to debtors); "Base CD Rate" shall mean the sum
of (a) the product of (i) the Three-Month Secondary CD Rate and (ii) a
fraction, the numerator of which is one and the denominator of which is
one minus the C/D Reserve Percentage and (b) the C/D Assessment Rate;
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in
effect on such day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate will,
under the current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day), or, if
such rate shall not be so reported on such day or such next preceding
Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New
York City received at approximately 10:00 A.M., New York City time, on
such day (or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Administrative Agent from three New York
City negotiable certificate of deposit dealers of recognized standing
selected by it; and "Federal Funds Effective Rate" shall mean, for any
day, the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for the
day of such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it. Any change in
the ABR due to a change in the Prime Rate, the Base CD Rate or the Federal
Funds Effective Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Rate, the Base CD Rate or
the Federal Funds Effective Rate, respectively.
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"ABR Loans": Loans the rate of interest applicable to which is based
upon the ABR.
"Acquisition Funding Account": as defined in subsection 2.8(a).
"Additional Holdings Discount Notes": any notes issued after June 8,
2001, by Holdings on terms substantially similar (other than with regard
to pricing and except that the Additional Holdings Discount Notes shall
not be subject to any mandatory redemption requirement in respect of
principal issued or accreted in respect of accrued interest or original
issue discount on the Additional Holdings Discount Notes) to those of the
Holdings Discount Notes (and shall include any substantially identical
discount notes of Holdings in the same aggregate principal amount issued
thereafter in exchange therefor pursuant to a registered exchange offer or
shelf registration statement in accordance with the indenture pursuant to
which the Additional Holdings Discount Notes were issued).
"Additional Lien": as defined in the preamble of this Agreement.
"Additional Senior Subordinated Notes": any notes issued by the
Borrower on terms substantially similar (other than with regard to
pricing) to those of the Senior Subordinated Notes after the Closing Date
(and shall include any substantially identical senior subordinated notes
of the Borrower in the same aggregate principal amount issued thereafter
in exchange therefor pursuant to a registered exchange offer or shelf
registration statement in accordance with any applicable indenture).
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": Chase, together with its affiliates, as the
arranger of the Commitments and as the administrative agent for the
Lenders under this Agreement and the other Loan Documents, together with
any of its successors.
"Affected Eurodollar Loans": as defined in subsection 2.9(f).
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (a) vote 51% or more of the securities having ordinary voting
power for the election of directors (or persons performing similar
functions) of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Agreement": this Amended and Restated Credit Agreement,
as further amended, supplemented or otherwise modified from time
to time.
"Applicable Margin": (a) for all Loans, other than Incremental Term
Loans, the Applicable Margin as determined pursuant to the Pricing Grid,
(b) with respect to Incremental Term Loans outstanding as of April 12,
2001, the Applicable Margin as determined pursuant to Schedule 1.1E, and
(c) with respect to Incremental Term Loans
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made after April 12, 2001, the rate per annum for Incremental Term Loans
agreed to, or the rate per annum determined pursuant to a pricing grid
agreed to, by the Borrower and the applicable Incremental Lenders in the
applicable Incremental Term Loan Activation Notice.
"Application": an application, in such form (reasonably
acceptable to the Borrower) as the Issuing Lender may specify
from time to time, requesting the Issuing Lender to open a Letter
of Credit.
"Approved Fund": with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by an
affiliate of such investment advisor.
"Asset Sale": any sale, transfer or other disposition (including any
sale and leaseback of assets and any sale of accounts receivable in
connection with a receivable financing transaction) by Holdings or any of
its Subsidiaries of any property of Holdings or any such Subsidiary
(including property subject to any Lien under any Security Document),
other than as permitted pursuant to subsection 7.5(a), (b) (provided that,
except with respect to the loss or condemnation of all or substantially
all of the assets of Holdings and its Subsidiaries, the proceeds from such
casualty or condemnation (including insurance) are used to replace or
rebuild the lost or condemned assets within the time period specified in
subsection 2.9(b)) and (c) through (g).
"Asset Swap Transaction": a substantially concurrent purchase and
sale, or exchange, of a Broadcasting Asset of the Borrower or all the
Capital Stock of, or other equity interests in, a Subsidiary owning a
Broadcasting Asset, for a Broadcast Station or Broadcast Enterprise of
another Person or group of affiliated Persons, or all the Capital Stock
of, or other equity interests in, a Person or group of affiliated Persons
owning a Broadcast Station or Broadcast Enterprise (or such lesser amount
as shall be determined by the Board of Directors of the Borrower or such
Subsidiary as fair consideration), including, without limitation, the KXTX
Transaction, provided that (a) the Borrower shall receive, in exchange for
such Broadcasting Asset, or Capital Stock of, or other equity interests
in, such Subsidiary owning a Broadcasting Asset, a Broadcast Station or
Broadcast Enterprise, or Capital Stock of, or other equity interests in, a
Person or group of affiliated Persons owning a Broadcast Station or
Broadcast Enterprise, (b) on a pro forma basis for the most recently
completed four-fiscal-quarter period for which financial statements are
available on the date of such Asset Swap Transaction, no Default or Event
of Default will have occurred and be continuing (including, without
limitation, pursuant to subsection 7.1), provided that for purposes of
calculating Consolidated EBITDA pursuant to this clause (b), the
Consolidated EBITDA of such Broadcast Station or Broadcast Enterprise
being acquired for such four-fiscal-quarter period shall equal the
Consolidated EBITDA of such Broadcast Station or Broadcast Enterprise, as
applicable, for the 12-month period preceding such Asset Swap Transaction,
(c) (i) the Consolidated EBITDA of the Broadcasting Asset being sold or
exchanged plus the Consolidated EBITDA of all Broadcasting Assets that
were sold pursuant to subsection 7.5(h) or exchanged pursuant to
subsection 7.5(i) in such fiscal quarter and in the immediately preceding
four-fiscal-quarter period shall not exceed 25% of the Consolidated EBITDA
of
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the Borrower for such immediately preceding four-fiscal-quarter period,
(ii) the Consolidated EBITDA of the Broadcasting Asset being sold or
exchanged plus the Consolidated EBITDA of all Broadcasting Assets that
were sold pursuant to subsection 7.5(h) or exchanged pursuant to
subsection 7.5(i) in such fiscal quarter and in the immediately preceding
eight-fiscal-quarter period shall not exceed 40% of the Consolidated
EBITDA of the Borrower for such eight-fiscal-quarter period and (iii) the
Consolidated EBITDA of the Broadcasting Asset being sold or exchanged plus
the Consolidated EBITDA of all Broadcasting Assets that were sold pursuant
to subsection 7.5(h) or exchanged pursuant to subsection 7.5(i) in such
fiscal quarter and in the preceding twenty-fiscal-quarter period shall not
exceed 60% of the Consolidated EBITDA of the Borrower for such
twenty-fiscal-quarter period, (d) any Net Cash Proceeds of such Asset Swap
Transaction shall be deemed Net Cash Proceeds of an Asset Sale, and shall
be applied pursuant to subsection 2.9(d) or reinvested pursuant to
subsection 2.9(b), (e) the Borrower provides the Administrative Agent with
a certificate showing compliance with all of the covenants contained in
subsection 7.1, (f) the Borrower takes such actions as may be required or
reasonably requested to ensure that the Administrative Agent, for the
ratable benefit of the Lenders, has a perfected first priority security
interest in any assets required to be secured pursuant to subsection 6.10
or any other Loan Document, subject to Liens permitted by subsection 7.3,
and (g) the Borrower provides the Administrative Agent with appropriate
supporting documentation if reasonably requested by the Administrative
Agent, including, without limitation, any exchange agreement in connection
with such transaction, opinions of counsel, including FCC counsel, in
connection therewith and copies of an FCC consent on Form 732 (or any
comparable form issued by the FCC) relating to the transfer of control or
assignment of the Station Licenses of the acquired Broadcast Station to
the Borrower or its Subsidiary and, unless the Administrative Agent shall
otherwise agree, such consent shall have become a Final Order.
"Assignee": as defined in subsection 10.6(c).
"Assignor": as defined in subsection 10.6(c).
"Available Revolving Credit Commitment": as to any Lender at any
time, an amount equal to (a) such Lender's Revolving Credit Commitment
minus (b) such Lender's Revolving Extensions of Credit.
"Benefitted Lender": as defined in subsection 10.7(a).
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrower": as defined in the introductory paragraph of this
Agreement.
"Borrowing Date": any Business Day specified by the Borrower as a
date on which the Borrower requests the Lenders or Swingline Lender to
make Loans or Swingline Loans hereunder.
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"Broadcast Enterprise": assets used and useful for the operation of
broadcasting or entertainment businesses, or any businesses reasonably
related thereto.
"Broadcast Station": all or substantially all the assets used and
useful for operating a full service commercial television broadcast
station pursuant to a Station License, including without limitation the
rights to use such Station License.
"Broadcasting Assets": collectively, any Stations and any
Non-Station Assets of the Borrower and its Subsidiaries.
"Broadcasting Asset Temporary Repayment": as defined in subsection
2.8(b).
"Business": as defined in subsection 4.17(b).
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law
to close, provided that when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which commercial
banks are not open for dealing in Dollar deposits in the London interbank
market.
"Capital Expenditures": for any period, with respect to any Person,
the aggregate of all expenditures (whether paid in cash or accrued as a
liability) by such Person and its Subsidiaries for the acquisition or
leasing (pursuant to a capital lease) of fixed or capital assets or
additions to equipment (including replacements, capitalized repairs and
improvements during such period). For purposes of this definition, the
following items will be excluded from the definition of "Capital
Expenditures": (a) Capital Expenditures to the extent funded by insurance
proceeds, condemnation awards or payments pursuant to a deed in lieu
thereof, (b) Capital Expenditures to the extent made through barter
transactions and (c) assets acquired pursuant to (i) Permitted
Acquisitions, (ii) Asset Swap Transactions and (iii) a reinvestment of
proceeds received under subsection 7.5(c).
"Capital Lease Obligations": as to any Person, the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under
GAAP and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such
time determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants, rights or options to purchase any
of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United
States, in each case maturing on or within one year from the date of
acquisition; (b) certificates of deposit, time
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deposits, Eurodollar time deposits, bankers' acceptances and repurchase
agreements, or overnight bank deposits having maturities of one year or
less from the date of acquisition issued by any Lender or by any
commercial bank organized under the laws of the United States of America
or any state thereof having combined capital and surplus (or whose
obligations are guaranteed by an affiliated commercial bank which has
capital and surplus) of not less than $500,000,000; (c) commercial paper
of an issuer rated at least A-2 by Standard & Poor's Ratings Services or
P-2 by Xxxxx'x Investors Service, Inc., or carrying an equivalent rating
by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of commercial paper issuers generally;
(d) money market accounts or funds with or issued by Qualified Issuers;
(e) repurchase obligations with a term of not more than 90 days for
underlying securities of the types described in clause (a) above entered
into with any bank meeting the qualifications specified in clause (b)
above and (f) demand deposit accounts maintained in the ordinary course of
business with any Lender or with any bank that is not a Lender not in
excess of $100,000 in the aggregate on deposit with such Lender or any
such bank.
"CBS": the CBS Television Network, a division of CBS, Inc.
"C/D Assessment Rate": for any day as applied to the Base CD Rate,
the net annual assessment rate (rounded upward to the nearest 1/100th of
1%) determined by Chase to be payable on such day to the Federal Deposit
Insurance Corporation or any successor (the "FDIC") for the FDIC's
insuring time deposits made in Dollars at offices of Chase in the United
States.
"C/D Reserve Percentage": for any day as applied to the Base CD
Rate, that percentage (expressed as a decimal) which is in effect on such
day, as prescribed by the Board, for determining the maximum reserve
requirement for a member of the Federal Reserve System in New York City
with deposits exceeding one billion Dollars in respect of new non-personal
time deposits in Dollars having a three month maturity and in an amount of
$100,000 or more.
"Change of Control": the earliest to occur of (a) Xxxxx Muse, its
principals and their Affiliates and management of Holdings and the
Borrower ("HMTF") ceasing to own, beneficially and of record, common stock
of Holdings representing greater than 50% of the aggregate equity value
represented by the issued and outstanding common stock of Holdings, (b)
any "Person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended), excluding the
holders of record and "beneficial owners" (as defined in Rules 13(d)-3 and
13(d)-5 under such Act) of the outstanding voting stock of Holdings on
January 21, 2000, becoming the beneficial owner, directly or indirectly,
of more than 50% of the then outstanding voting stock of Holdings and (c)
a Change of Control as defined in any document pertaining to any Senior
Subordinated Indebtedness, Senior Unsecured Indebtedness or the Holdings
Discount Indebtedness.
"Chase": The Chase Manhattan Bank.
"Closing Date": March 3, 1998.
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"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Co-Documentation Agents": as defined in the introductory paragraph
of this Agreement.
"Commitment": as to any Lender, the sum of the Term Commitments, the
Revolving Credit Commitment and the Swingline Loan Commitment of such
Lender and with respect to the Issuing Lender and L/C Participants, as
applicable, their L/C Obligations.
"Commitment Fee Rate": as determined pursuant to the Pricing Grid.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Borrower and which is treated as a single employer under Section 414 of
the Code.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit B.
"Consolidated Cash Interest Expense": for any period, Consolidated
Interest Expense (including, without limitation, that attributable to
Capital Lease Obligations but excluding capitalized financing fees), net
of cash interest income of the Borrower and its Subsidiaries, for such
period (a) minus, in each case to the extent included in determining such
Consolidated Interest Expense for such period, the sum of the following:
(i) non-cash expenses for interest payable in kind and (ii) amortization
of debt discount and fees and (b) plus the sum of cash payments made by
the Borrower or any of its Subsidiaries during such period in respect of
the items referred to in clause (a)(i) of this definition to the extent
previously subtracted pursuant to clause (a) of this definition
(including, without limitation, all commissions, discounts and other fees
and charges owed with respect to letters of credit and bankers' acceptance
financing and net costs under Interest Rate Protection Agreements to the
extent such net costs are allocable to such period in accordance with
GAAP). Prior to the completion of 12 full calendar months after the
Closing Date, Consolidated Cash Interest Expense will be annualized by
multiplying Consolidated Cash Interest Expense for the number of then
completed months after the Closing Date by a fraction, the numerator of
which is 12 and the denominator of which is the number of months in such
shorter period.
"Consolidated Current Assets": at a particular date, all amounts
(other than cash, Cash Equivalents and the current portion of programming
rights) which would, in conformity with GAAP, be set forth opposite the
caption "total current assets" (or any like caption) on a consolidated
balance sheet of the Borrower and its Subsidiaries at such date.
"Consolidated Current Liabilities": at a particular date, all
amounts which would, in conformity with GAAP, be set forth opposite the
caption "total current liabilities" (or any like caption) on a
consolidated balance sheet of the Borrower and its
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Subsidiaries at such date, but excluding (a) the current portion of any
Funded Debt and Film Obligations of the Borrower and its Subsidiaries and
(b) without duplication of clause (a) above, all Indebtedness consisting
of Revolving Credit Loans to the extent otherwise included therein.
"Consolidated Debt Service": for any period, the sum of Consolidated
Cash Interest Expense plus any scheduled amortization payments on any
Indebtedness made or payable during such period, but excluding mandatory
prepayments on any such Indebtedness.
"Consolidated EBITDA": for any period:
(a) Net Income for such period; plus
(b) without duplication, the sum of the following items (to the
extent deducted in the computation of such Net Income for such period):
(i) depreciation expense;
(ii) amortization expense (including amortization in respect
of Film Obligations and other amortized film expense) and
amortization of intangibles (including, but not limited to, goodwill
and organizational costs (including costs associated with the
Transactions));
(iii) Consolidated Interest Expense;
(iv) income and franchise tax expense;
(v) any extraordinary and unusual losses (net of
income taxes);
(vi) the annualized promotional reimbursement from
NBC not to exceed $2,000,000;
(vii) to the extent identified and reasonably satisfactory to
the Administrative Agent, any cost savings realized in connection
with any acquired Broadcasting Assets;
(viii) to the extent set forth in a written contract, any
recurring improvements to Consolidated EBITDA as a result of any
acquired Broadcasting Assets;
(ix) other non-cash charges (excluding barter expenses and
trade expenses); and
(x) for all purposes of this Agreement other than the
computation of the Consolidated Leverage Ratio for the purpose of
determining the Applicable Margin and the Commitment Fee Rate,
non-recurring charges for severance payments related to corporate
restructuring and similar activities not exceeding, in the
aggregate, $10,000,000 during the term of this Agreement;
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less (c) without duplication, the sum of the following
items:
(i) all cash payments originally scheduled to be made
during such period in respect of Film Obligations;
(ii) any extraordinary and unusual gains (net of
income taxes);
(iii) non-cash gains included in Net Income; and
(iv) cash dividends or other distributions made by
the Borrower to Holdings for its reasonable corporate
overhead expenses,
provided that for the purpose of calculating Consolidated EBITDA, not more
than (A) 30% of Consolidated EBITDA for any period of four consecutive
fiscal quarters may be attributable to local marketing agreements and (B)
not more than 10% of Consolidated EBITDA for any period of four
consecutive fiscal quarters may be attributable to non-broadcasting
businesses. For purposes of subsection 2.9 and subsection 7.1(a),
Consolidated EBITDA for any period will be adjusted to (A) exclude the
Consolidated EBITDA attributable to any asset or business that was
disposed of (either directly or as part of an exchange) by the Borrower or
any of its Subsidiaries prior to the date of determination (as if such
asset or business had not been owned by the Borrower or any of its
Subsidiaries prior to the date of determination) and (B) include the
Consolidated EBITDA attributable to any asset or business that was
acquired (either directly or as part of an exchange) by the Borrower or
any of its Subsidiaries (including, to the extent identified and
reasonably satisfactory to the Administrative Agent, pro forma cost
savings in connection therewith) prior to the date of determination (as if
such asset or business had been owned by the Borrower or any of its
Subsidiaries prior to the date of determination). Notwithstanding the
foregoing, (a) the Consolidated EBITDA of each Designated LMA Station
shall be excluded for purposes of determining Consolidated EBITDA for each
fiscal quarter ending on or before the earlier of June 30, 1999 and the
beginning of the first fiscal quarter after the Closing Date for which
such Designated LMA Station has positive Consolidated EBITDA and (b) the
Consolidated EBITDA of any Designated Future LMA Station shall be excluded
for purposes of determining Consolidated EBITDA for each fiscal quarter
ending on or before the earlier of the date that is three years after the
acquisition of such Designated Future LMA Station and the beginning of the
first fiscal quarter after such acquisition for which such Designated
Future LMA Station has positive Consolidated EBITDA.
"Consolidated Fixed Charge Coverage Ratio": for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated Fixed
Charges for such period.
"Consolidated Fixed Charges": for any period, the sum (without
duplication) of (a) Consolidated Debt Service for such period, (b) Capital
Expenditures made by the Borrower or any of its Subsidiaries during such
period, (c) any income taxes paid by the Borrower or any of its
Subsidiaries, and any amounts paid by the Borrower to Holdings
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for purposes of paying income taxes, in each case, during such period, (d)
cash dividends paid by the Borrower during such period less the amount of
any Indebtedness for money borrowed incurred by the Borrower to fund such
dividends to the extent the proceeds of such dividends are used by
Holdings during such period to pay required redemptions of Holdings
Discount Notes after the fifth anniversary of the Closing Date and (e) any
operating losses from Designated Future LMA Stations to the extent such
losses are excluded from Consolidated EBITDA.
"Consolidated Interest Coverage Ratio": for any period, the ratio of
(a) Consolidated EBITDA for such period to (b) Consolidated Cash Interest
Expense for such period.
"Consolidated Interest Expense": for any period, the amount of
interest expense, both expensed and capitalized, of the Borrower and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP,
for such period on the aggregate principal amount of their Indebtedness,
excluding non-cash deferred financing costs (other than for purposes of
the definition of the term "Consolidated EBITDA").
"Consolidated Leverage Ratio": as at the last day of any period, the
ratio of (a) Consolidated Total Debt on such day to (b) Consolidated
EBITDA for such period.
"Consolidated Senior Secured Debt": Consolidated Total Debt less (a)
any Senior Subordinated Indebtedness and any Senior Unsecured Indebtedness
issued in accordance with the terms of this Agreement and (b) any
subordinated Indebtedness assumed in connection with a Permitted
Acquisition or an Asset Swap Transaction pursuant to subsection
7.2(j)(iii).
"Consolidated Senior Secured Leverage Ratio": as at the last day of
any period, the ratio of (a) Consolidated Senior Secured Debt to (b)
Consolidated EBITDA for such period.
"Consolidated Total Debt": at any date, the aggregate principal
amount of all Indebtedness for borrowed money of the Borrower and its
Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP, net of cash on the consolidated balance sheet of the
Borrower to the extent the initial equity contribution (together with any
equity contribution made within 45 days after the Closing Date) to the
Borrower exceeds $555,000,000 less the amount of rollover investment by
members of management and employees of the Borrower and its Subsidiaries
(but only for so long as the cash relating to such equity contribution
shall remain on the balance sheet), plus an amount of cash on the balance
sheet not to exceed the sum of (a) $10,000,000 and (b) at any date, for
all purposes under this Agreement other than the computation of the
Consolidated Leverage Ratio for the purpose of determining the Applicable
Margin and the Commitment Fee Rate, the amount of Retained Net Cash
Proceeds held in the Acquisition Funding Account at such date.
"Consolidated Working Capital": the excess of Consolidated Current
Assets over Consolidated Current Liabilities.
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"Continuing Directors": the directors of Holdings on the Closing
Date, after giving effect to the Merger and the other transactions
contemplated hereby, and each other director, if, in each case, such other
director's nomination for election to the board of directors of Holdings
is recommended by a majority of the then Continuing Directors or such
other director receives the vote of HMTF in his or her election by the
stockholders of Holdings.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking (including, without limitation, any undertaking made to the
FCC) to which such Person is a party or by which it or any of its property
is bound.
"Co-Syndication Agents": as defined in the introductory paragraph of
this Agreement.
"Default": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both,
unless cured or waived, has been satisfied.
"Delayed Tranche A Commitment Period": the period from and including
the Closing Date to the Delayed Tranche A Termination Date.
"Delayed Tranche A Term Loan Commitment": as to any Tranche A Term
Loan Lender, the obligation of such Tranche A Term Loan Lender to make
Delayed Tranche A Term Loans to the Borrower hereunder in an aggregate
principal amount not to exceed the amount set forth under the heading
"Delayed Tranche A Term Loan Commitment" opposite such Lender's name on
Schedule 1.1A to the Original Credit Agreement, as the same may be changed
from time to time pursuant to the terms hereof. The original aggregate
amount of the Delayed Tranche A Term Loan Commitments is $125,000,000.
"Delayed Tranche A Term Loans": as defined in subsection 2.1(a)(i).
"Delayed Tranche A Termination Date": June 30, 1999.
"Designated Future LMA Station": any Station operated by the
Borrower or any of its Subsidiaries pursuant to local marketing
arrangements (or should the FCC rules permit, under direct ownership)
established after the Closing Date, provided that at the time of such
arrangement such Station has not had positive cash flow for at least four
consecutive fiscal quarters.
"Designated LMA Stations": any Existing LMA Station which has not
had positive cash flow for at least four consecutive fiscal quarters.
"Dollars" and "$": lawful currency of the United States of America.
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15
"ECF Percentage": 75%, provided that the ECF Percentage shall be
deemed to be 50% if, on the applicable Excess Cash Flow Application Date,
the Consolidated Leverage Ratio as of the end of the last fiscal quarter
preceding such Excess Cash Flow Application Date was less than 6.00 to
1.00, provided further that the ECF Percentage shall be deemed to be 0%
if, on the applicable Excess Cash Flow Application Date, the Consolidated
Leverage Ratio as of the end of the last fiscal quarter preceding such
Excess Cash Flow Application Date was less than 5.00 to 1.00.
"Environmental Laws": any and all applicable foreign, Federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, legally binding requirements of any
Governmental Authority or other Requirements of Law (including common law)
regulating, relating to or imposing liability or standards of conduct
concerning protection of the environment, as now or may at any time
hereafter be in effect.
"Equity Holdings A": as defined in the preamble of this Agreement.
"Equity Holdings B": as defined in the preamble of this Agreement.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto) dealing
with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board)
maintained by a member bank of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum equal
to the rate at which Chase is offered Dollar deposits at or about 10:00
A.M., New York City time, two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where the eurodollar
and foreign currency and exchange operations in respect of its Eurodollar
Loans are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of its Eurodollar Loans to be outstanding during
such Interest Period.
"Eurodollar Loans": Loans the rate of interest applicable to which
is based upon the Eurodollar Rate.
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"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
--------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar Loans
under the same Facility the then current Interest Periods with respect to
all of which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on the same
day).
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of time,
or both, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower,
Consolidated EBITDA (plus or minus the cash portion of any extraordinary
gains or losses incurred during such fiscal year without duplication of
mandatory prepayments resulting from any transaction giving rise thereto)
for such period (before any adjustments thereto (a) to exclude the
Consolidated EBITDA attributable to any asset or business that was
disposed of (either directly or as part of an exchange) by the Borrower or
any of its Subsidiaries during the period of calculation or (b) to include
the Consolidated EBITDA attributable to any asset or business that was
acquired (either directly or as part of an exchange) by the Borrower or
any of its Subsidiaries (excluding, to the extent identified and
reasonably satisfactory to the Administrative Agent, pro forma cost
savings in connection therewith to the extent included in Consolidated
EBITDA) during the period of calculation), minus the sum of the following
(without duplication):
(i) Consolidated Debt Service for such period;
(ii) Capital Expenditures made during such period by the Borrower
and its Subsidiaries;
(iii) distributions permitted to be made by the Borrower pursuant to
subsection 7.6(a)(iii) and other taxes of the Borrower for such period;
(iv) the amount of any increases during such period in Consolidated
Working Capital;
(v) voluntary prepayments made during such period of the Term Loans;
(vi) voluntary repayments made during such period of the Revolving
Credit Loans, provided that substantially simultaneously therewith the
aggregate Revolving Credit Commitments are permanently reduced by an
amount equal to the amount of such repayment;
(vii) any cash used during such period for any Restricted Payment
(other than any dividend, repurchase of Capital Stock or other
distribution made by the Borrower to
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Holdings), Permitted Acquisition, Asset Swap Transaction or Investment
permitted pursuant to subsections 7.8(f), (j) or (i);
(viii) amounts referred to in clause (ii) of subparagraph
(b) of the proviso contained in the definition of the term "Net
Income"; and
(ix) the amount of payments from the Borrower to Holdings permitted
by clause (a)(vi) of subsection 7.6;
plus the sum of the following (without duplication):
(i) the amount of all proceeds received during such period of
Capital Lease Obligations, purchase money Indebtedness and any other
Indebtedness to the extent used to finance any Capital Expenditures, to
make any Restricted Payment (other than any dividend, repurchase of
Capital Stock or other distribution made by the Borrower to Holdings) or
to make a Permitted Acquisition; and
(ii) the amount of any decreases during such period in Consolidated
Working Capital.
"Excess Cash Flow Application Date": as defined in subsection
2.9(c).
"Existing Indebtedness": all Indebtedness of the Borrower existing
on the Closing Date and prior to the consummation of the Merger.
"Existing LMA Station": any Station operated as of the Closing Date
pursuant to local marketing arrangements, including WCTX-TV, serving New
Haven, Connecticut, WVBT-TV, serving Norfolk, Virginia, KNVA-TV, serving
Austin, Texas, and KXTX-TX, serving Dallas, Texas.
"Facility": each of (a) the Tranche A Term Loan Commitments and the
Tranche A Term Loans made thereunder (the "Tranche A Term Loan Facility"),
(b) the Tranche B Term Loan Commitments and the Tranche B Term Loans made
thereunder (the "Tranche B Term Loan Facility"), (c) the Incremental Term
Loan Amounts and the Incremental Term Loans related thereto (the
"Incremental Term Loan Facility"), (d) the Swingline Loan Commitments and
the Swingline Loans made thereunder and (e) the Total Revolving Credit
Commitments and the Revolving Extensions of Credit made thereunder (the
"Revolving Credit Facility").
"FCC": the Federal Communications Commission or any Governmental
Authority substituted therefor.
"Federal Funds Effective Rate": as defined in the definition of the
term "ABR".
"Film Cash Payments": for any period, the sum (determined on a
consolidated basis in accordance with GAAP) of all scheduled payments made
and to be made by
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Holdings or any of its Subsidiaries during such period on Film Obligations
which were existing as of, or have been incurred at any time after, the
Closing Date.
"Film Obligations": all obligations in respect of the purchase, use,
license or acquisition of programs, programming materials, films and
similar assets used in connection with the business and operation of
Holdings and its Subsidiaries.
"Final Order": with respect to the assignment or transfer of control
of the Station Licenses for any Station, an order of the FCC approving
such assignment or transfer that is final (i.e., no longer subject to
further judicial or administrative review), as to which no requests for
judicial or administrative review are pending, and that has not been
reversed, stayed, enjoined, set aside, annulled or suspended.
"Fox": the Fox Broadcasting Company.
"Funded Debt": as to any Person, all Indebtedness of such Person
that matures more than one year from the date of its creation or matures
within one year from such date but is renewable or extendable, at the
option of such Person, to a date more than one year from such date or
arises under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year
from such date, including, without limitation, all current maturities and
current sinking fund payments in respect of such Indebtedness whether or
not required to be paid within one year from the date of its creation and,
in the case of the Borrower, Indebtedness in respect of the Loans.
"Funding Date": the day immediately prior to the day on which the
Merger is consummated.
"GAAP": generally accepted accounting principles in the United
States of America as in effect from time to time set forth in the opinions
and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board and the rules
and regulations of the Securities and Exchange Commission, or in such
other statements by such other entity as may be in general use by
significant segments of the accounting profession, which are applicable to
the circumstances of Holdings and the Borrower as of the date of
determination, except that for purposes of subsection 7.1, GAAP shall be
determined on the basis of such principles in effect on the Closing Date
and consistent with those used in the preparation of the audited financial
statements referred to in subsection 4.1(a). In the event that any
"Accounting Change" (as defined below) shall occur and such change results
in a change in the method of calculation of financial covenants, standards
or terms in this Agreement, then the Borrower and the Administrative Agent
agree to enter into negotiations in order to amend such provisions of this
Agreement so as to equitably reflect such Accounting Changes with the
desired result that the criteria for evaluating the Borrower's financial
condition shall be the same after such Accounting Changes as if such
Accounting Changes had not been made. Until such time as such an amendment
shall have been executed and delivered by the Borrower, the Administrative
Agent and the Required Lenders, all financial covenants, standards and
terms in this Agreement shall continue to be calculated or construed as if
such Accounting
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Changes had not occurred. The term "Accounting Changes" refers to changes
in accounting principles required by the promulgation of any rule,
regulation, pronouncement or opinion by the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants or, if
applicable, the Securities and Exchange Commission (or successors thereto
or agencies with similar functions).
"GECC": General Electric Capital Corporation, a New York
corporation.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee and Collateral Agreement": the Amended and Restated
Guarantee and Collateral Agreement executed and delivered by Holdings, the
Borrower and each Subsidiary Guarantor, as amended as of June 29, 2001,
and as the same may be further amended, supplemented or otherwise modified
from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued
a reimbursement, counter indemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "primary obligations") of any other third Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (A) for the purchase or payment of any such
primary obligation or (B) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of
the primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
however, that the term "Guarantee Obligation" shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal
to the stated or determinable amount of the primary obligation in respect
of which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may
be liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as determined by such
Person in good faith.
"Guarantors": Holdings and the Subsidiary Guarantors.
"Xxxxx Muse": as defined in the introductory paragraph of this
Agreement.
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"HMTF": as defined in the definition of the term "Change of
Control".
"Holdings": as defined in the introductory paragraph of this
Agreement.
"Holdings Discount Indebtedness": the Holdings Discount Notes, the
Additional Holdings Discount Notes and any unsecured senior indebtedness
of Holdings the proceeds of which shall be used to refinance in full all
of the Holdings Discount Notes, the Additional Holdings Discount Notes or
other Holdings Discount Indebtedness outstanding, provided such
refinancing Indebtedness has (a) no maturity, amortization, mandatory
redemption or purchase option (other than with asset sale proceeds,
subject to the provisions of this Agreement, or following a change of
control) or sinking fund payment prior to Xxxxx 0, 0000, (x) no financial
maintenance covenants, (c) such other terms and conditions (including,
without limitation, interest rate, pay-in-kind interest, events of default
and covenants) as shall be reasonably satisfactory to the Administrative
Agent and (d) any permanent refinancing shall not be less favorable to the
Borrower and the Lenders as the Holdings Discount Notes or the Additional
Holdings Discount Notes, respectively, taken as a whole.
"Holdings Discount Notes": Holdings's 10% Discount Notes due 2008
issued on the Closing Date (and shall include any substantially identical
deferred interest senior unsecured notes of Holdings in the same aggregate
principal amount issued after the Closing Date in exchange therefor
pursuant to a registered exchange offer or shelf registration statement in
accordance with the Holdings Discount Notes Indenture.)
"Holdings Discount Notes Indenture": the indenture to be entered
into by Holdings in connection with the issuance of the Holdings Discount
Notes or any other Holdings Discount Indebtedness, together with all
instruments and other agreements entered into by Holdings in connection
therewith, all in form and substance reasonably satisfactory to the
Administrative Agent, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with subsection 7.9.
"Incremental Lenders": (a) on any Incremental Term Loan Activation
Date, the Lenders signatory to the Incremental Term Loan Activation Notice
and (b) thereafter, each Lender which has made, or acquired pursuant to an
assignment made in accordance with subsection 10.6(c), an Incremental Term
Loan.
"Incremental Maturity Date": as to the Incremental Term Loans to be
made pursuant to any Incremental Term Loan Activation Notice, the maturity
date specified in such Incremental Term Loan Activation Notice, which date
shall be a date at least six months after the Tranche B Maturity Date.
"Incremental Term Loan Activation Date": each date, which shall be a
Business Day on or before the Incremental Term Loan Termination Date, on
which any Lender shall execute and deliver to the Administrative Agent an
Incremental Term Loan Activation Notice pursuant to subsection 2.1(b).
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"Incremental Term Loan Activation Notice": a notice substantially in
the form of Exhibit G.
"Incremental Term Loan Amount": as to each Incremental Lender, on
and after the effectiveness of any Incremental Term Loan Activation
Notice, the obligation of such Incremental Lender to make Incremental Term
Loans hereunder in a principal amount equal to the amount set forth under
the heading "Incremental Term Loan Amount" opposite such Incremental
Lender's name on such Incremental Term Loan Activation Notice.
"Incremental Term Loan Closing Date": each date, which shall be a
Business Day on or before the Incremental Term Loan Termination Date,
designated as such in an Incremental Term Loan Activation Notice.
"Incremental Term Loan Facility": as defined in the definition of
the term "Facility".
"Incremental Term Loan Percentage": as to any Incremental Lender,
the percentage which such Lender's Incremental Term Loans then outstanding
constitutes of the aggregate principal amount of the Incremental Term
Loans then outstanding.
"Incremental Term Loan Termination Date": December 31, 2003.
"Incremental Term Loans": as defined in subsection 2.1(b).
"Incremental Term Note": a Term Note evidencing Incremental Term
Loans.
"Incur": as defined in subsection 7.2; and the term "Incurrence"
shall have a correlative meaning.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services (other
than current trade payables and accrued expenses incurred in the ordinary
course of such Person's business), (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments, (d)
all indebtedness created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of
such property), (e) all Capital Lease Obligations of such Person, (f) all
obligations of such Person, contingent or otherwise, as an account party
under a bankers' acceptance, letter of credit or similar facilities, (g)
the obligations of such Person under any Interest Rate Protection
Agreement, (h) all Guarantee Obligations of such Person in respect of
obligations of the kind referred to in clauses (a) through (g) above and
(i) all obligations of the kind referred to in clauses (a) through (h)
above secured by (or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and contract rights)
owned by such Person, whether or not such Person has assumed or become
liable for the payment of such obligation and on which obligations such
Person
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has recourse only to such property; provided, however, that the amount of
such Indebtedness of any Person described in this clause (i) shall, for
the purposes of this Agreement, be deemed to be equal to the lesser of (i)
the aggregate unpaid amount of such Indebtedness and (ii) the fair market
value of the property or asset encumbered, as determined by such Person in
good faith.
"Initial Public Offering": an underwritten public offering by
Holdings of Capital Stock of Holdings or any Subsidiary or parent thereof
pursuant to a registration statement filed with the Securities and
Exchange Commission in accordance with the Securities Act of 1933, as
amended.
"Initial Tranche A Term Loan Commitment": as to any Tranche A Term
Loan Lender, the obligation of such Tranche A Term Loan Lender to make an
Initial Tranche A Term Loan to the Borrower hereunder in a principal
amount not to exceed the amount set forth under the heading "Initial
Tranche A Term Loan Commitment" opposite such Lender's name on Schedule
1.1A to the Original Credit Agreement. The original aggregate amount of
the Initial Tranche A Term Loan Commitments is $50,000,000.
"Initial Tranche A Term Loans": as defined in subsection 2.1(a)(i).
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": as defined in subsection 4.9.
"Interest Payment Date": (a) as to any ABR Loan, the last day of
each March, June, September and December to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period, (c) as to any
Eurodollar Loan having an Interest Period longer than three months, each
day which is three months, or a whole multiple thereof, after the first
day of such Interest Period and the last day of such Interest Period and
(d) as to any Loan, the date of repayment thereof at final stated
maturity.
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"Interest Period": as to any Eurodollar Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three, six or
(if available to all Lenders under the relevant Facility as determined in
good faith by such Lenders) nine or twelve months thereafter, as selected
by the Borrower in its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto; and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one, two, three, six or (if
available to all Lenders under the relevant Facility as determined in good
faith by such Lenders) nine or twelve months thereafter, as selected by
the Borrower by irrevocable notice to the Administrative Agent not less
than three Business Days prior to the last day of the then current
Interest Period with respect thereto, provided that all of the foregoing
provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is not
a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period that would otherwise extend beyond the
Revolving Credit Termination Date, in the case of Revolving Credit Loans,
or the date final payment is due, in the case of Term Loans, shall end on
the Revolving Credit Termination Date or such due date, as applicable;
(iii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(iv) the Borrower shall select Interest Periods so as not to require
a payment or prepayment of any Eurodollar Loan during an Interest Period
for such Loan.
"Interest Rate Protection Agreement": any interest rate protection
agreement, interest rate futures contract, interest rate option, interest
rate cap or other interest rate hedge arrangement, to or under which
Holdings or any of its Subsidiaries is a party or a beneficiary on the
Closing Date or becomes a party or a beneficiary thereafter.
"Investment" as defined in subsection 7.8.
"Investors": as defined in the preamble of this Agreement.
"Issuing Lender": Chase or any of its affiliates, in its
capacity as issuer of any Letter of Credit.
"Joint Venture Agreements": (a) the LP Agreement, (b) the
LLC Agreement and (c) the NBC Transaction Agreements.
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"Joint Venture Loan": as defined in the preamble of this Agreement.
"Joint Venture Loan Guarantee": the guarantee, in the form
heretofore approved by the Administrative Agent, executed by Equity
Holdings B with respect to the Joint Venture Loan.
"KNSD Assets": as defined in the Transaction Agreement.
"KNSD-TV Station": television station KNSD-TV, serving San
Diego, California.
"KXAN-TV Station": television station KXAN-TV, serving Austin,
Texas.
"KXAS Assets": as defined in the Transaction Agreement.
"KXTX Transaction": any transaction whereby the Borrower contributes
KXTX-TV Station to any Affiliate of Xxxxx Muse or its principals in
exchange for cash, a minority ownership interest therein or a combination
thereof, provided that (i) the cash component of any such consideration
shall not exceed 20% of the total consideration received in connection
with such transaction and (ii) the Borrower shall deliver to the
Administrative Agent a fairness opinion with respect to such consideration
delivered by an independent investment banking firm of nationally
recognized standing.
"KXTX-TV Station": television station KXTX-TV, serving Dallas,
Texas.
"L/C Commitment": $25,000,000.
"L/C Fee Payment Date": the last day of each March, June, September
and December and the last day of the Revolving Credit Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters
of Credit which have not then been reimbursed pursuant to subsection 3.5.
"L/C Participants": with respect to any Letter of Credit, the
collective reference to all the Revolving Credit Lenders other than the
Issuing Lender that issued such Letter of Credit.
"Lenders": as defined in the introductory paragraph of
this Agreement.
"Letters of Credit": as defined in subsection 3.1(a), provided that
to the extent the Borrower shall have deposited amounts in a cash
collateral account for the benefit of the Lenders, the Letters of Credit
relating thereto shall be deemed not to be Letters of Credit for purposes
of this Agreement.
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"License Subsidiary": (a) as of the Closing Date, (i) in the case of
the WISH-TV Station, the WANE-TV Station, the WAVY-TV Station and the
WIVB-TV Station, LWWI, (ii) in the case of the KXAN-TV Station, KXAN,
Inc., (iii) in the case of the WTNH-TV Station, WTNH Broadcasting, Inc.
and (iv) in the case of the WAND-TV Station, WAND Television, Inc. and (b)
after the Closing Date, in each case for clauses (i) through (iv) below
upon receipt of the necessary FCC approvals for any transfer, (i) in the
case of the WISH-TV Station and the WANE-TV Station, Indiana Broadcasting
LLC, (ii) in the case of the WIVB-TV Station, WIVB Broadcasting LLC, (iii)
in the case of the WAVY-TV Station, WAVY Broadcasting LLC, (iv) in the
case of the WTNH-TV Station, WTNH Broadcasting Inc., (v) in the case of
the KXAN-TV Station, KXAN, Inc., (vi) in the case of the WAND-TV Station,
WAND Television, Inc. and (vii) in the case of any Station acquired after
the Closing Date, the Subsidiary of the Borrower that shall hold the
respective Station Licenses under the authority of which such Station is
operated, provided that each such License Subsidiary shall be a single
purpose entity the sole purpose of which shall be to hold the Station
Licenses and to perform related functions with respect thereto.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention
agreement and any capital lease having substantially the same economic
effect as any of the foregoing).
"LIN": as defined in the preamble of this Agreement.
"LIN Texas": LIN Television of Texas, LP, a Delaware limited
partnership.
"LIN Texas Loan": as defined in the preamble of this Agreement.
"LLC": Station Venture Holdings, LLC, a Delaware limited liability
company.
"LLC Agreement": the Station Venture Holdings, LLC Amended and
Restated Limited Liability Company Agreement dated as of January 15, 1998,
between Outlet and LIN Texas.
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Security Documents
and the Notes, if any.
"Loan Parties": Holdings, the Borrower and each Subsidiary
of the Borrower which is a party to a Loan Document.
"LP": Station Venture Operations, LP, a Delaware limited
partnership.
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"LP Agreement": the Station Venture Operations, LP Amended and
Restated Limited Partnership Agreement dated as of January 15, 1998,
between Outlet, the LLC and Holdings.
"LP Services Agreement": the TV Master Service Agreement dated as of
January 15, 1998, among the LLC, the LP and NBC.
"LWWI": as defined in the preamble of this Agreement.
"Majority Facility Lenders": with respect to any Facility, Lenders
which collectively are the holders of more than 50% of the aggregate
unpaid principal amount of the Tranche A Term Loans, the Tranche B Term
Loans or the Incremental Term Loans, or of the Total Revolving Extensions
of Credit, as the case may be, outstanding under such Facility (or, (a) in
the case of the Revolving Credit Facility, prior to any termination of the
Revolving Credit Commitments, Lenders which are collectively the holders
of more than 50% of the aggregate Revolving Credit Commitments or, (b) in
the case of the Tranche A Term Loan Facility, prior to the Delayed Tranche
A Termination Date, Lenders which are collectively the holders of more
than 50% of the sum of the Delayed Tranche A Term Loan Commitments and the
outstanding Tranche A Term Loans).
"Majority Revolving Credit Facility Lenders": the Majority
Facility Lenders in respect of the Revolving Credit Facility.
"Majority Tranche A Term Facility Lenders": the Majority
Facility Lenders in respect of the Tranche A Term Loan Facility.
"Material Adverse Effect": a material adverse effect on (a) at the
Closing Date, the Transactions and the other transactions contemplated by
this Agreement, (b) the business, operations, properties, condition
(financial or otherwise) or prospects of Holdings and its Subsidiaries or
the Borrower and its Subsidiaries, each taken as a whole (other than, for
purposes of the conditions to the initial funding of Loans on the Closing
Date, changes in general economic conditions or in economic conditions
generally affecting the television broadcasting industry) or (c) the
validity or enforceability of this Agreement or any of the other Loan
Documents or the rights or remedies of the Administrative Agent, the
Swingline Lender, the Issuing Lender or the Lenders hereunder or
thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated
as such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Merger": as defined in the preamble of this Agreement.
"Merger Agreement": as defined in the preamble of this Agreement.
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"Merger Transactions": the transactions contemplated by the Merger
Agreement.
"Mortgaged Properties": the real properties listed on Schedule 1.1B,
as to which the Administrative Agent for the benefit of the Lenders shall,
subject to subsection 10.17, be granted a Lien pursuant to the Mortgages
and which Schedule 1.1B shall include only those real properties owned by
the Borrower and its Subsidiaries at the Closing Date with a fair market
value in excess of $1,500,000.
"Mortgages": each of the mortgages and deeds of trust made by any
Loan Party in favor of, or for the benefit of, the Administrative Agent
for the benefit of the Lenders, substantially in the form of Exhibit D-1
or D-2, as the case may be (with such changes thereto as shall be
advisable under the law of the jurisdiction in which such mortgage or deed
of trust is to be recorded), as the same may be amended, supplemented or
otherwise modified from time to time.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NBC": the National Broadcasting Company, Inc., a Delaware
corporation.
"NBC Network Affiliation Agreements": as defined in the preamble of
this Agreement.
"NBC Transaction Agreements": the Transaction Agreement and all
exhibits and schedules thereto.
"NBC Transactions": the transactions contemplated by the NBC
Transaction Agreements.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale or Recovery Event, net of attorneys' fees,
notarial fees, accountants' fees, investment banking fees, appraisal fees,
survey costs, title insurance premiums, amounts to be applied to the
repayment of Indebtedness secured by a Lien expressly permitted hereunder
on any asset which is the subject of such Asset Sale or Recovery Event
(other than any Lien pursuant to a Security Document) and other customary
fees and expenses actually incurred in connection therewith, net of taxes
paid or reasonably estimated to be payable as a result thereof (after
taking into account any available tax credits or deductions and any tax
sharing arrangements) and net of purchase price adjustments reasonably
expected to be payable in connection therewith and (b) in connection with
any issuance or sale of equity securities or debt securities or
instruments or the incurrence of loans, the cash proceeds received from
such issuance or Incurrence, net of attorneys' fees, notarial fees,
investment banking fees, accountants' fees,
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underwriting discounts and commissions and other customary fees and
expenses actually Incurred in connection therewith.
"Net Income": at a particular date, all amounts which would, in
conformity with GAAP, be set forth opposite the caption "Net Income" (or
any like caption) on a consolidated statement of operations of the
Borrower and its Subsidiaries at such date; provided that such amount
shall be adjusted to exclude (to the extent otherwise included therein)
(a) earnings or losses attributable to any Person (other than the LLC) in
which the Borrower or any of its Subsidiaries has a joint interest, except
to the extent of the amount of dividends or other distributions actually
paid to the Borrower or such Subsidiary by such other Person in cash
during such period and (b) any earnings or losses attributable to the
interest of the Borrower or any of its Subsidiaries in the LLC, except for
any such earnings to the extent of (i) actual distributions of
Distributable Cash (as defined in the LLC Agreement) in respect of such
interest made to the Borrower or any of its Subsidiaries and (ii) amounts
that would have constituted Distributable Cash and would have been
required to be distributed to the Borrower and its Subsidiaries in respect
of such interest but for the reserve requirement of Section 8.06 of the
LLC Agreement.
"Network Affiliation Agreements": the NBC Network Affiliation
Agreements, each agreement set forth on Schedule 1.1D and each other
agreement entered into by the Borrower or any of its Subsidiaries
(including any such agreement assumed pursuant to an Asset Swap
Transaction or otherwise) pursuant to which a television network agrees to
serve as the primary source within a designated market area for television
programming for any Station.
"Non-Consenting Lender": as defined in subsection 2.20.
"Non-Excluded Taxes": as defined in subsection 2.17(a).
"Non-Funding Lender": as defined in subsection 2.15(c).
"Non-Station Asset": all of the assets used and useful for the
operation of the Borrower's and its Subsidiaries' broadcasting and
entertainment businesses, other than the Stations.
"Non-U.S. Lender": as defined in subsection 2.17(b).
"Notes": the collective reference to the Term Notes, the
Revolving Credit Notes and the Swingline Notes.
"Notes Payment Borrowing": as defined in the penultimate sentence of
the penultimate paragraph of the preamble of this Agreement.
"Obligations": the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or
not a claim for post-filing or post-petition interest is allowed in such
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proceeding) the Loans, the Reimbursement Obligations and all other
obligations and liabilities of the Borrower to the Administrative Agent,
the Swingline Lender, the Issuing Lender or to any Lender (or, in the case
of Interest Rate Protection Agreements, any affiliate of any Lender),
whether direct or indirect, absolute or contingent, due or to become due,
or now existing or hereafter incurred, which may arise under, out of, or
in connection with, the Original Credit Agreement, this Agreement, any
Notes, any other Loan Document, the Letters of Credit, any Interest Rate
Protection Agreement entered into with any Lender or any affiliate of any
Lender or any other document made, delivered or given in connection
herewith or therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses (including,
without limitation, all fees, charges and disbursements of counsel to the
Administrative Agent, to the Swingline Lender, to the Issuing Lender or to
any Lender that are required to be paid by the Borrower pursuant hereto)
or otherwise.
"Original Credit Agreement": the Credit Agreement dated as of March
3, 1998, as amended (other than the replacement of Schedule 1.1A in the
Fifth Amendment dated as of June 8, 2001, to this Agreement), among
Holdings, the Borrower, the lenders party thereto, Chase, as
administrative agent to the lenders, swingline lender and issuing lender,
Bank of America, as documentation agent, and The Bank of New York, as
syndication agent.
"Original Guarantee": as defined in the preamble of this Agreement.
"Original Lien": as defined in the preamble of this Agreement.
"Outlet": Outlet Broadcasting, Inc., a Rhode Island corporation.
"Participant": as defined in subsection 10.6(b).
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA (or any
successor).
"Permitted Acquisition": the acquisition by the Borrower or any of
its Subsidiaries of one or more Broadcast Stations or Broadcast
Enterprises, or all the capital stock of, or other equity interests in,
any other Person whose primary business is the ownership and operation of
one or more Broadcast Stations or Broadcast Enterprises, in the United
States (or such lesser amount as shall be determined by the Board of
Directors of the Borrower or such Subsidiary as fair consideration),
including, without limitation, the KXTX Transaction, provided that (a) on
a pro forma basis for the most recently completed four-fiscal-quarter
period for which financial statements are available on the date of such
acquisition, no Default or Event of Default will have occurred and be
continuing (including, without limitation, pursuant to subsection 7.1),
provided that for purposes of calculating Consolidated EBITDA pursuant to
this clause (a), the Consolidated EBITDA of such Broadcast Stations or
Broadcast Enterprises being acquired for such four-fiscal-quarter period
shall be equal to the Consolidated EBITDA of such Broadcast Stations or
Broadcast Enterprises for the 12-month period immediately preceding such
acquisition, (b) the Borrower provides the Administrative Agent with a
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certificate showing compliance with all of the covenants contained in
subsection 7.1 and showing the aggregate purchase price (including the
assumption of any Indebtedness) for such Permitted Acquisition, (c) the
Borrower takes such actions as may be required or reasonably requested to
ensure that the Administrative Agent, for the ratable benefit of the
Lenders, has a perfected first priority security interest in any assets
required to be secured pursuant to subsection 6.10 or any other Loan
Document, subject to Liens permitted by subsection 7.3, and (d) the
Borrower provides the Administrative Agent with appropriate supporting
documentation if reasonably requested by the Administrative Agent,
including, without limitation, any acquisition documents in connection
with such acquisition, opinions of counsel, including FCC counsel, in
connection therewith and copies of an FCC consent on Form 732 (or any
comparable form issued by the FCC) relating to the transfer of control or
assignment of the Station Licenses of any acquired Broadcast Station to
the Borrower or its Subsidiary and, unless the Administrative Agent shall
otherwise agree, such consent shall have become a Final Order.
"Permitted Issuance": (a) the issuance by Holdings of shares of
Capital Stock as dividends on issued and outstanding Capital Stock of the
same class of Holdings or pursuant to any dividend reinvestment plan, (b)
the issuance by Holdings of options or other equity securities of Holdings
to outside directors, members of management or employees of Holdings or
any Subsidiary of Holdings, (c) the issuance of securities as interest or
dividends on pay-in-kind debt or preferred equity securities in accordance
with their terms permitted hereunder and under the other Loan Documents,
(d) the issuance to Holdings or any Subsidiary (or any director, with
respect to directors' qualifying shares) by any of its Subsidiaries of any
of their respective Capital Stock, in each case with respect to this
clause (d) to the extent such Capital Stock issued to Holdings or any
Subsidiary is pledged to the Administrative Agent pursuant to the
applicable Loan Document (provided that (i) only 65% of the voting Capital
Stock of any foreign Subsidiary of the Borrower is required to be so
pledged and (ii) no voting Capital Stock of any foreign Subsidiary of any
other foreign Subsidiary is required to be so pledged), (e) the issuance
by Holdings of shares of its common stock in connection with a Permitted
Acquisition, (f) cash payments made in lieu of issuing fractional shares
of Holdings Capital Stock in an aggregate amount not to exceed $100,000,
and (g) the issuance by Holdings of shares of Capital Stock of Holdings to
infuse additional capital into Holdings in an aggregate amount not to
exceed $25,000,000, plus any amounts relating to the infusion of capital
into Holdings made (i) within 45 days after the Closing Date and (ii)
solely for the purpose of making an Investment in the Joint Venture as
contemplated by subsection 7.8(o).
"Permitted Notes Payment": as defined in the penultimate sentence of
the penultimate paragraph of the preamble of this Agreement.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if
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such plan were terminated at such time, would under Section 4069 of ERISA
be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pledged Debt Securities": as defined in the Guarantee and
Collateral Agreement.
"Pledged Stock": as defined in the Guarantee and
Collateral Agreement.
"Pricing Grid": the pricing grid as follows:
Revolving Credit Loans and Swingline Loans
Revolving
Applicable Applicable Credit Facility
Consolidated Leverage Ratio Margin for Margin for Commitment
Eurodollar Loans ABR Loans Fee
Level 1: Greater than or equal to
6.50 to 1.00 2.75% 1.75% 0.750%
Level 2: Greater than or equal to
6.00 to 1.00 and less 2.50% 1.50% 0.750%
than 6.50 to 1.00
Level 3: Greater than or equal to
5.50 to 1.00 and less 2.25% 1.25% 0.500%
than 6.00 to 1.00
Level 4: Greater than or equal to
5.00 to 1.00 and less 2.00% 1.00% 0.500%
than 5.50 to 1.00
Level 5: Greater than or equal to
4.50 to 1.00 and less 1.75% 0.75% 0.500%
than 5.00 to 1.00
Level 6: Less than 4.50 to 1.00 1.50% 0.50% 0.375%
Tranche B Term Loans
Applicable Applicable
Margin for Margin for
Consolidated Leverage Ratio Eurodollar Loans ABR Loans
Level 1: Greater than or equal to
6.50 to 1.00 3.00% 2.00%
Level 2: Greater than or equal to
6.00 to 1.00 and less than 2.75% 1.75%
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Applicable Applicable
Margin for Margin for
Consolidated Leverage Ratio Eurodollar Loans ABR Loans
6.50 to 1.00
Level 3: Greater than or equal to
5.50 to 1.00 and less 2.75% 1.75%
than 6.00 to 1.00
Level 4: Greater than or equal to
5.00 to 1.00 and less 2.50% 1.50%
than 5.50 to 1.00
Level 5: Greater than or equal to
4.50 to 1.00 and less 2.50% 1.50%
than 5.00 to 1.00
Level 6: Less than 4.50 to 1.00 2.50% 1.50%
Changes in the Applicable Margin and the Commitment Fee Rate resulting from
changes in the Consolidated Leverage Ratio shall become effective on the day
(the "Adjustment Date") of receipt by the Administrative Agent of the financial
statements delivered pursuant to subsection 6.1 and shall remain in effect until
the next change to be effected pursuant to this paragraph. If any financial
statements referred to above are not delivered within the time periods specified
above, then, until such financial statements are delivered, at the option of the
Administrative Agent or the Required Lenders, the Consolidated Leverage Ratio as
at the end of the fiscal period that would have been covered thereby shall for
the purposes of this definition be determined by reference to "Level 1". Each
determination of the Consolidated Leverage Ratio pursuant to this paragraph
shall be made with respect to the period of four consecutive fiscal quarters of
the Borrower ending at the end of the period covered by the relevant financial
statements.
"Prime Rate": as defined in the definition of the term "ABR".
"Projections": as defined in subsection 6.2(c).
"Properties": as defined in subsection 4.17(a).
"Property": any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether
tangible or intangible, including, without limitation, Capital
Stock.
"Qualified Issuer": any commercial bank (a) which has, or whose
obligations are guaranteed by an affiliated commercial bank which has,
capital and surplus in excess of $500,000,000 and (b) the outstanding
long-term debt securities of which are rated at least A-2 by Standard &
Poor's Ratings Services or at least P-2 by Xxxxx'x Investors Service,
Inc., or carry an equivalent rating by a nationally recognized rating
agency if both of the two named rating agencies cease publishing ratings
of investments.
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"Recovery Event": any settlement of or payment in respect of any
property insurance or casualty insurance claim or any condemnation
proceeding or deed in lieu thereof relating to any Property of Holdings or
any of its Subsidiaries, excluding any such settlement or payment which,
together with any related settlement or payment, yields gross proceeds to
Holdings or any of its Subsidiaries of less than $5,000,000.
"Refinanced Indebtedness": as defined in the preamble of this
Agreement.
"Refunded Swingline Loans": as defined in subsection 2.4(c)(ii).
"Register": as defined in subsection 10.6(d).
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to subsection 3.5 for amounts drawn
under Letters of Credit.
"Reinvestment Deferred Amount": with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by Holdings or any of its
Subsidiaries in connection therewith which are not applied to prepay the
Term Loans or reduce the Revolving Credit Commitments pursuant to
subsection 2.9(d) as a result of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in respect of
which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a Responsible
Officer stating that no Event of Default has occurred and is continuing
and that the Borrower (directly or indirectly through a Subsidiary)
intends and expects to use all or a specified portion of the Net Cash
Proceeds of an Asset Sale or Recovery Event to acquire assets useful in
its business, provided that to the extent the Net Cash Proceeds of an
Asset Sale relate to the sale of a Broadcasting Asset sold in accordance
with subsection 7.5(h) or exchanged in accordance with subsection 7.5(i)
or relate to a Recovery Event with respect to a Broadcasting Asset, the
Borrower may deliver a Reinvestment Notice with respect to such Net Cash
Proceeds only to the extent such Net Cash Proceeds shall be used to make a
Permitted Acquisition pursuant to subsection 7.5(h) or to pay cash
consideration in connection with an Asset Swap Transaction pursuant to
subsection 7.5(i).
"Reinvestment Prepayment Amount": with respect to any Reinvestment
Event, the Reinvestment Deferred Amount relating thereto less any amount
expended prior to the relevant Reinvestment Prepayment Date to acquire
assets useful in the Borrower's business.
"Reinvestment Prepayment Date": with respect to any Reinvestment
Event, the earlier of (a) the date occurring 365 days after such
Reinvestment Event and (b) the date on which the Borrower shall have
determined not to, or shall have otherwise ceased to, acquire assets
useful in the Borrower's business with all or any portion of the relevant
Reinvestment Deferred Amount, provided that if the Reinvestment Notice
with respect to such Reinvestment Event relates to the acquisition of a
new Station by the Borrower or
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any of its Subsidiaries (whether as a result of a Permitted Acquisition,
an Asset Swap Transaction or otherwise) and the Borrower or such
Subsidiary has filed within 365 days of the Reinvestment Event an
application with the FCC for the approval of the transfer of control or
assignment of the Station License of such acquired Station, the period
specified in paragraph (a) shall be extended to a period equal to five
Business Days after the time required for the FCC to issue a Final Order
relating to the transfer of control of such Station License.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Replacement Guarantor Pledge Agreement": as defined in the credit
agreement governing the Joint Venture Loan.
"Reportable Event": any of the events set forth in Section 4043(b)
of ERISA, other than those events as to which the thirty day notice period
is waived under the regulations issued pursuant to Section 4043(b) of
ERISA.
"Required Lenders": Lenders, other than Non-Funding Lenders, which
collectively are the holders of more than 50% of the sum of (i) the Loans,
(ii) the unused Tranche A Term Loan Commitments and (iii) the aggregate
unused Revolving Credit Commitments (excluding commitments to issue
Letters of Credit or make Swingline Loans) or, if the Revolving Credit
Commitments have been terminated, the Total Revolving Extensions of Credit
(other than Swingline Loans).
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation (including,
without limitation, Environmental Laws or rules, regulations or orders,
whether addressed to Holdings, the Borrower or any of its Subsidiaries, of
the FCC) or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its
property is subject.
"Responsible Officer": the chief executive officer, the president,
any vice president or senior vice president, the treasurer or any
assistant treasurer, the secretary or assistant secretary and the chief
financial officer (or officer having comparable duties) of the Borrower.
"Restricted Payment" as defined in subsection 7.6.
"Retained Net Cash Proceeds": as defined in subsection 2.8(a).
"Revolving Credit Commitment": as to any Revolving Credit Lender,
the obligation of such Revolving Credit Lender, if any, to make Revolving
Credit Loans, and to participate in Swingline Loans and Letters of Credit,
in an aggregate principal and/or face amount not to exceed the amount set
forth under the heading "Revolving Credit Commitment" opposite such
Lender's name on Schedule 1.1A, as the same may be
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changed from time to time pursuant to the terms hereof. The aggregate
amount of the Revolving Credit Commitments as of June 14, 2001, is
$160,000,000.
"Revolving Credit Commitment Period": the period from and including
the Closing Date to the Revolving Credit Termination Date.
"Revolving Credit Facility": as defined in the definition of the
term "Facility".
"Revolving Credit Lender": each Lender which has a Revolving Credit
Commitment or which has made, or acquired pursuant to an assignment made
in accordance with subsection 10.6(c), Revolving Credit Loans or has
participations in outstanding Letters of Credit or Swingline Loans.
"Revolving Credit Loans": as defined in subsection 2.4(a).
"Revolving Credit Note": as defined in subsection 10.6(f).
"Revolving Credit Percentage": as to any Revolving Credit Lender at
any time, the percentage which such Lender's Revolving Credit Commitment
then constitutes of the aggregate Revolving Credit Commitments (or, at any
time after the Revolving Credit Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of such
Lender's Revolving Credit Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Credit Loans then
outstanding).
"Revolving Credit Termination Date": the earlier of (a) the
Scheduled Revolving Credit Termination Date or, if such date is not a
Business Day, the Business Day next preceding such date and (b) the date
upon which the Revolving Credit Commitments shall be earlier terminated
pursuant hereto.
"Revolving Extensions of Credit": as to any Revolving Credit Lender
at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Credit Loans made by such Lender then outstanding,
(b) such Lender's Revolving Credit Percentage of the L/C Obligations then
outstanding and (c) such Lender's Swingline Exposure at such time.
"Scheduled Revolving Credit Termination Date": March 31, 2005.
"Security Documents": the collective reference to the Guarantee and
Collateral Agreement, the Mortgages and all other security documents
hereafter delivered to the Administrative Agent granting a Lien on any
Property of any Person to secure the obligations and liabilities of any
Loan Party under any Loan Document.
"Senior Subordinated Indebtedness": the Senior Subordinated Notes,
the Additional Senior Subordinated Notes and any unsecured senior
subordinated Indebtedness of the Borrower the proceeds of which shall be
used to refinance in full all of the Senior Subordinated Notes, the
Additional Senior Subordinated Notes or other Senior Subordinated
Indebtedness outstanding, provided such refinancing Indebtedness has
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(a) no maturity, amortization, mandatory redemption or purchase option
(other than with asset sale proceeds, subject to the provisions of this
Agreement, or following a change of control) or sinking fund payment prior
to the tenth anniversary of the Closing Date, (b) no financial maintenance
covenants, (c) such other terms and conditions (including without
limitation, interest rate, events of default, subordination and covenants)
as shall be reasonably satisfactory to the Administrative Agent and (d)
any permanent refinancing shall not be less favorable to the Borrower and
the Lenders as the Senior Subordinated Notes or the Additional Senior
Subordinated Notes, respectively, taken as a whole.
"Senior Subordinated Note Indenture": the indenture to be entered
into by the Borrower and certain of its Subsidiaries in connection with
the issuance of the Senior Subordinated Notes or any other Senior
Subordinated Indebtedness, together with all instruments and other
agreements entered into by the Borrower and such Subsidiaries in
connection therewith, all in form and substance reasonably satisfactory to
the Administrative Agent, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with subsection 7.9.
"Senior Subordinated Notes": the Borrower's 8 3/8% Senior
Subordinated Notes due 2008 issued on the Closing Date (and shall include
any substantially identical senior subordinated notes of the Borrower in
the same aggregate principal amount issued after the Closing Date in
exchange therefor pursuant to a registered exchange offer or shelf
registration statement in accordance with the Senior Subordinated Note
Indenture).
"Senior Unsecured Indebtedness": the Senior Unsecured Notes and any
unsecured senior indebtedness of the Borrower the proceeds of which shall
be used to refinance in full all of the Senior Unsecured Notes or other
Senior Unsecured Indebtedness outstanding, provided such refinancing
Indebtedness has (a) no maturity, amortization, mandatory redemption or
purchase option (other than with asset sale proceeds, subject to the
provisions of this Agreement, or following a change of control) or sinking
fund payment prior to January 15, 2008, (b) no financial maintenance
covenants, (c) such other terms and conditions (including, without
limitation, interest rate, events of default and covenants) as shall be
reasonably satisfactory to the Administrative Agent and (d) any permanent
refinancing shall not be less favorable to the Borrower and the Lenders as
the Senior Unsecured Notes taken as a whole.
"Senior Unsecured Notes": any notes issued after June 8, 2001, by
the Borrower on terms substantially similar (other than with regard to
pricing and subordination) to those of the Senior Subordinated Notes (and
shall include any substantially identical senior unsecured notes of the
Borrower in the same aggregate principal amount issued thereafter in
exchange therefor pursuant to a registered exchange offer or shelf
registration statement in accordance with the Senior Unsecured Notes
Indenture).
"Senior Unsecured Notes Indenture": the indenture to be entered into
by the Borrower and certain of its Subsidiaries in connection with the
issuance of the Senior Unsecured Notes or any other Senior Unsecured
Indebtedness, together with all instruments and other agreements entered
into by the Borrower and its Subsidiaries in connection therewith, all in
form and substance reasonably satisfactory to the
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Administrative Agent, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with subsection 7.9.
"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, means that, as of
any date of determination, (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair
salable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond
such Person's ability to pay as such debts and liabilities mature, and (d)
such Person is not engaged in business or a transaction, and is not about
to engage in business or a transaction, for which such Person's property
would constitute an unreasonably small capital.
"Specified Payment Default": as defined in the penultimate sentence
of the penultimate paragraph of the preamble of this Agreement.
"Station Licenses": (a) with respect to the Borrower or any of its
Subsidiaries, all authorizations, licenses or permits issued by the FCC
and granted or assigned to the Borrower or any of its Subsidiaries, or
under which the Borrower or any of its Subsidiaries has the right to
operate any Station, together with any extensions or renewals thereof and
(b) with respect to any other Person, all authorizations, licenses or
permits issued by the FCC and granted or assigned to such Person, or under
which such Person has the right to operate any Broadcast Station, together
with any extensions or renewals thereof.
"Stations": collectively, (a) the WISH-TV Station, (b) the WANE-TV
Station, (c) the WIVB-TV Station, (d) the WAVY-TV Station, (e) the WTNH-TV
Station, (f) the KXAN-TV Station, (g) the WAND-TV Station and (h) any
additional Broadcast Station acquired after the Closing Date.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors
or other managers of such corporation, partnership or other entity are at
the time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a "Subsidiary"
or to "Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower after giving effect to the Transactions.
"Subsidiary Guarantor": each Subsidiary of the Borrower party to the
Guarantee and Collateral Agreement.
"Swingline Exposure": at any time, the aggregate principal amount of
all outstanding Swingline Loans at such time. The Swingline Exposure of
any Revolving
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Credit Lender at any time shall mean its Revolving Credit Percentage of
the aggregate Swingline Exposure at such time.
"Swingline Lender": as defined in the introductory paragraph of this
Agreement.
"Swingline Loan Participation Certificate": a certificate in
substantially the form of Exhibit H.
"Swingline Loan Commitment": the obligation of the Swingline Lender
to make Swingline Loans to the Borrower hereunder. The original amount of
the Swingline Loan Commitment is $25,000,000.
"Swingline Loans": as defined in subsection 2.4(c)(i).
"Swingline Note": as defined in subsection 10.6(f).
"Term Commitments": the Tranche A Term Loan Commitments and the
Tranche B Term Loan Commitments.
"Term Loans": the Tranche A Term Loans, the Tranche B Term Loans and
the Incremental Term Loans made by the Lenders to the Borrower pursuant to
subsection 2.1 and outstanding as of June 29, 2001, as set forth under the
respective headings opposite each applicable Lender's name on Schedule
1.1A.
"Term Notes": as defined in subsection 10.6(f).
"Test Period": any period of four consecutive fiscal quarters of the
Borrower most recently ended.
"Total Revolving Extensions of Credit": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Revolving Credit
Lenders at such time.
"Tranche A Term Loan Commitment": as to any Tranche A Term Loan
Lender, such Tranche A Term Loan Lender's Initial Tranche A Term Loan
Commitment and Delayed Tranche A Term Loan Commitment.
"Tranche A Term Loan Facility": as defined in the definition of the
term "Facility".
"Tranche A Term Loan Lender": each Lender which has a Tranche A Term
Loan Commitment or which has made, or acquired pursuant to an assignment
made in accordance with subsection 10.6(c), a Tranche A Term Loan.
"Tranche A Term Loan Percentage": as to any Tranche A Term Loan
Lender (a) at any time prior to the Closing Date, the percentage which
such Lender's Tranche A Term Loan Commitment then constitutes of the
aggregate Tranche A Term Loan Commitments, (b) at any time during the
Delayed Tranche A Commitment Period, the
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percentage which the sum of such Lender's Delayed Tranche A Term Loan
Commitment and the principal amount of such Lender's Tranche A Term Loans
then outstanding constitutes of the sum of the aggregate Delayed Tranche A
Term Loan Commitments and the aggregate principal amount of the Tranche A
Term Loans then outstanding and (c) at any time after the end of the
Delayed Tranche A Commitment Period, the percentage which the principal
amount of such Lender's Tranche A Term Loans then outstanding constitutes
of the aggregate principal amount of the Tranche A Term Loans then
outstanding.
"Tranche A Term Loans": the Initial Tranche A Term Loans and the
Delayed Tranche A Term Loans.
"Tranche A Term Note": any Term Note evidencing Tranche A Term
Loans.
"Tranche B Maturity Date": as defined in subsection 2.3(b).
"Tranche B Term Loan Commitment": as to any Tranche B Term Loan
Lender, the obligation of such Tranche B Term Loan Lender to make a
Tranche B Term Loan to the Borrower hereunder in a principal amount not to
exceed the amount set forth under the heading "Tranche B Term Loan
Commitment" opposite such Lender's name on Schedule 1.1A to the Original
Credit Agreement. The original aggregate amount of the Tranche B Term Loan
Commitments is $120,000,000.
"Tranche B Term Loan Facility": as defined in the definition of the
term "Facility".
"Tranche B Term Loan Lender": each Lender which has a Tranche B Term
Loan Commitment or which has made, or acquired pursuant to an assignment
made in accordance with subsection 10.6(c), a Tranche B Term Loan.
"Tranche B Term Loan Percentage": as to any Tranche B Term Loan
Lender at any time, the percentage which such Lender's Tranche B Term Loan
Commitment then constitutes of the aggregate Tranche B Term Loan
Commitments (or, at any time after the Closing Date, the percentage which
the principal amount of such Lender's Tranche B Term Loans then
outstanding constitutes of the aggregate principal amount of the Tranche B
Term Loans then outstanding).
"Tranche B Term Loans": as defined in subsection 2.1(a)(ii).
"Tranche B Term Note": any Term Note evidencing Tranche B
Term Loans.
"Transaction Agreement": the Transaction Agreement dated as of
January 15, 0000, xxxxxxx XXX, Xxxxxx, XXX Xxxxx, the Borrower, the LLC,
the LP and Holdings.
"Transaction Documents": the Merger Agreement, the Joint Venture
Agreements and the other documents relating to the Transactions.
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"Transactions": the Merger Transactions and the NBC
Transactions.
"Transferee": as defined in subsection 10.6(g).
"Type": as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be revised from time to time.
"WAND-TV Station": television station WAND (TV), serving
Decatur, Illinois.
"WANE-TV Station": television station WANE-TV, serving Fort
Xxxxx, Indiana.
"WAVY-TV Station": television station WAVY-TV, serving
Norfolk, Virginia.
"Wholly Owned Subsidiary": as to any Person, any other Person
all of the Capital Stock of which (other than directors' qualifying
shares required by law) is owned by such Person directly and/or through
other Wholly Owned Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor
that is a Wholly Owned Subsidiary of the Borrower.
"WISH-TV Station": television station WISH-TV, serving
Indianapolis, Indiana.
"WIVB-TV Station": television station WIVB-TV, serving
Buffalo, New York.
"WOOD-TV Acquisition": as defined in the preamble of this
Agreement.
"WOOD-TV Purchase Agreement": the Asset Purchase Agreement
dated August 12, 1997, among Holdings, LIN Broadcasting Corporation,
LIN Michigan Broadcasting Corporation, LCH Communications, Inc. and the
Borrower.
"WOOD-TV Station": television station WOOD-TV, serving Grand
Rapids, Michigan.
"WTNH-TV Station": means television station WTNH-TV, serving
New Haven, Connecticut.
"WVTM Assets": as defined in the preamble of this Agreement.
"WVTM Purchase Agreement": the Asset Purchase Option Agreement
among Holdings, Birmingham Broadcasting (WVTM TV), Inc. and NBC dated
January 15, 1998.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the other Loan Documents or any certificate or other
document made or delivered pursuant hereto or thereto.
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(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to Holdings and its Subsidiaries not defined in
subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Commitments. (a) Subject to the terms and conditions
hereof,
(i) each Tranche A Term Loan Lender severally agreed pursuant
to the Original Credit Agreement (A) to make a term loan (an "Initial Tranche A
Term Loan") to the Borrower on the Closing Date in a principal amount not to
exceed the amount of the Initial Tranche A Term Loan Commitment of such Lender
and (B) to make a term loan (a "Delayed Tranche A Term Loan") to the Borrower at
any one time during the Delayed Tranche A Commitment Period in a principal
amount not to exceed the Delayed Tranche A Term Loan Commitment of such Lender.
Prior to the date hereof, the Initial Tranche A Terms Loans were made and
Delayed Tranche A Term Loans in the aggregate principal amount of $93,000,000
were made. Thereafter, the Initial Tranche A Term Loans and Delayed Tranche A
Term Loans were repaid in full.
(ii) each Tranche B Term Loan Lender severally agreed to make
a term loan (a "Tranche B Term Loan") to the Borrower on the Closing Date in a
principal amount not to exceed the Tranche B Term Loan Commitment of such
Lender.
(b) The Borrower and all or certain of the Lenders may, up to
five times during the period from and including April 12, 2001, to but excluding
the Incremental Term Loan Termination Date, agree that such Lenders shall become
Incremental Lenders or increase the principal amount of their Incremental Term
Loans by executing and delivering to the Administrative Agent an Incremental
Term Loan Activation Notice specifying (i) the respective Incremental Term Loan
Amount of such Incremental Lenders, (ii) the applicable Incremental Term Loan
Closing Date, (iii) the applicable Incremental Maturity Date, (iv) the
amortization schedule for the applicable Incremental Term Loans, which shall
comply with subsection 2.3(c) and (v) the Applicable Margin for the Incremental
Term Loans to be made pursuant to such Incremental Term Loan Activation Notice,
and which shall be otherwise duly completed. Each Incremental Lender that is a
signatory to an Incremental Term Loan Activation Notice severally agrees, on the
terms and conditions of this Agreement, to make a term loan (an "Incremental
Term Loan") to the Borrower on the Incremental Term Loan Closing Date specified
in such Incremental Term Loan Activation Notice in a principal amount not to
exceed the amount of the Incremental Term Loan
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Amount of such Incremental Lender specified in such Incremental Term Loan
Activation Notice. Subject to the terms and conditions of this Agreement, the
Borrower may convert Incremental Term Loans of one Type into Incremental Term
Loans of another Type (as provided in subsection 2.10) or continue Incremental
Term Loans of one Type as Incremental Term Loans of the same Type (as provided
in subsection 2.10). Incremental Term Loans that are prepaid may not be
reborrowed. Nothing in this subsection 2.1(b) shall be construed to obligate any
Lender to execute an Incremental Term Loan Activation Notice. Notwithstanding
the foregoing, the aggregate amount of Incremental Term Loans made after June 8,
2001, shall not exceed $75,000,000.
(c) The Term Loans may from time to time be Eurodollar Loans
or ABR Loans, as determined by the Borrower and notified to the Administrative
Agent in accordance with subsections 2.2 and 2.10.
2.2 Procedure for Term Loan Borrowing. Intentionally deleted.
(b) The Borrower shall give the Administrative Agent
irrevocable written (or telephonic promptly confirmed in writing) notice of each
borrowing of Incremental Term Loans (which notice must be received by the
Administrative Agent prior to 12:00 Noon, New York City time, (i) three Business
Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or
(ii) one Business Day prior to the requested Borrowing Date, in the case of ABR
Loans), specifying (A) the amount and Type of Incremental Term Loans to be
borrowed, (B) the requested Borrowing Date and (C) in the case of Eurodollar
Loans, the respective amounts of each such Type of Loan and the respective
lengths of the initial Interest Period therefor. Each such notice shall be given
by the Borrower in the form of Exhibit J. There shall be no more than seven
borrowings under the Incremental Term Loan Facility. Each borrowing under the
Incremental Term Loan Facility shall be in an amount equal to (x) in the case of
ABR Loans, $1,000,000 or a whole multiple of $100,000 in excess thereof and (y)
in the case of Eurodollar Loans, $5,000,000 or a whole multiple of $100,000 in
excess thereof. Upon receipt of any such notice with respect to an Incremental
Term Loan from the Borrower, the Administrative Agent shall promptly notify each
Tranche A Term Loan Lender or Incremental Lender, as the case may be, thereof.
Each Incremental Lender will make its respective Incremental Term Loan Amount
available to the Administrative Agent for the account of the Borrower at the
office of the Administrative Agent specified in subsection 10.2 prior to 12:00
Noon, New York City time, on the Borrowing Date requested by the Borrower in
funds immediately available to the Administrative Agent. Such borrowing will
then be made available to the Borrower by the Administrative Agent crediting the
account of the Borrower on the books of such office with the aggregate of the
amounts made available to the Administrative Agent by the applicable Lenders and
in like funds as received by the Administrative Agent.
2.3 Repayment of Term Loans. (a) Intentionally deleted.
(b) The Tranche B Term Loans of each Tranche B Term Loan
Lender shall mature in consecutive quarterly installments, each of which
installments in any calendar year specified below shall be in an amount equal to
the product of (i) one quarter of the amount set forth opposite such calendar
year (except (i) with respect to 2005 during which there will be one installment
of the entire amount set forth opposite such year on December 31, 2005, and (ii)
with respect to 2007 during which there will be one installment of the entire
amount of the lesser of the amount of Tranche B Term Loans then outstanding and
the amount set forth below opposite such
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year on March 31, 2007 (the "Tranche B Maturity Date")) and (ii) such Lender's
Tranche B Term Loan Percentage:
Year Amount
2001 $0.00
2002 0.00
2003 0.00
2004 0.00
2005 2,993,818.49
2006 65,298,694.10
2007 18,673,135.33
(c) The Incremental Term Loans made prior to April 12, 2001,
shall mature in a single installment on September 30, 2007. The Incremental Term
Loans made after April 12, 2001, if any, of each Incremental Lender shall mature
in consecutive quarterly installments as specified in the Incremental Term Loan
Activation Notice pursuant to which such Incremental Term Loans were made;
provided that such Incremental Term Loans shall have a longer average weighted
life than that of the outstanding Term Loans and such Incremental Term Loans,
taken as a whole.
2.4 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans ("Revolving Credit Loans") to the Borrower from time to
time during the Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding which, when added to such Lender's Swingline
Exposure at such time and Revolving Credit Percentage of the L/C Obligations
then outstanding, does not exceed the amount of such Lender's Revolving Credit
Commitment. During the Revolving Credit Commitment Period the Borrower may use
the Revolving Credit Commitments by borrowing, prepaying and reborrowing the
Revolving Credit Loans in whole or in part, all in accordance with the terms and
conditions hereof. The Revolving Credit Loans may from time to time be
Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with subsections 2.5 and 2.10, provided that
no Revolving Credit Loan shall be made as a Eurodollar Loan after the day that
is one month prior to the Scheduled Revolving Credit Termination Date.
Notwithstanding the foregoing, at no time shall any Revolving Credit Loan be
made if, after giving effect thereto, the Total Revolving Extensions of Credit
would exceed $60,000,000 except to the extent such excess would result from a
Notes Payment Borrowing.
(b) The Borrower shall repay all outstanding Revolving Credit
Loans on the Revolving Credit Termination Date and all outstanding Swingline
Loans on the earlier of the Revolving Credit Termination Date and the first date
after such Swingline Loan is made that is the 15th or last day of a calendar
month and is at least two Business Days after such Swingline Loan is made.
(c)(i) Subject to the terms and conditions hereof, the
Swingline Lender agrees to make swingline loans ("Swingline Loans") to the
Borrower from time to time during the Revolving Credit Commitment Period in an
aggregate principal amount at any one time
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outstanding not to exceed $25,000,000, provided that at no time may the Total
Revolving Extensions of Credit exceed the aggregate Revolving Credit
Commitments. During the Revolving Credit Commitment Period, the Borrower may use
the Swingline Loan Commitment by borrowing, prepaying, in whole or in part, and
reborrowing the Swingline Loans, all in accordance with the terms and conditions
hereof. All Swingline Loans shall be ABR Loans. The Borrower shall give the
Swingline Lender irrevocable written (or telephonic promptly confirmed in
writing) notice (which notice must be received by the Swingline Lender prior to
12:00 noon New York City time) on the requested Borrowing Date specifying the
amount of the requested Swingline Loan which shall be in an aggregate minimum
amount of $100,000, or a whole multiple of $25,000 in excess thereof. Each such
notice shall be given by the Borrower in the form of Exhibit J. The proceeds of
the Swingline Loan will be made available by the Swingline Lender to the
Borrower at the office of the Swingline Lender by 2:00 p.m. New York City time
on the Borrowing Date by crediting the account of the Borrower at such office
with such proceeds. The Borrower may, at any time and from time to time, prepay
the Swingline Loans, in whole or in part, without premium or penalty, by
notifying the Swingline Lender prior to 12:00 noon New York City time on any
Business Day of the date and amount of prepayment. If any such notice is given,
the amount specified in such notice shall be due and payable on the date
specified therein. Partial prepayments shall be in an aggregate principal amount
of $100,000, or a whole multiple of $25,000 in excess thereof.
(ii) The Swingline Lender, at any time in its sole and
absolute discretion, may, on behalf of the Borrower (which hereby irrevocably
directs the Swingline Lender to act on its behalf), and without regard to the
minimum amounts in subsection 2.5, request each Revolving Credit Lender
including the Swingline Lender to make a Revolving Credit Loan in an amount
equal to such Lender's Revolving Credit Percentage of the amount of the
Swingline Loans outstanding on the date such notice is given (the "Refunded
Swingline Loans"). Unless any of the events described in paragraph (f) of
Section 8 shall have occurred with respect to the Borrower (in which event the
procedures of subparagraph (iii) of this subsection 2.4(c) shall apply), each
Revolving Credit Lender shall make the proceeds of its Revolving Credit Loan
available to the Administrative Agent for the account of the Swingline Lender at
the office of the Administrative Agent specified in subsection 10.2 prior to
1:00 p.m. New York City time in immediately available funds on the Business Day
next succeeding the date such notice is given. The proceeds of such Revolving
Credit Loans shall be immediately applied to repay the Refunded Swingline Loans.
Effective on the day such Revolving Credit Loans are made, the portion of such
Loans so paid shall no longer be outstanding as Swingline Loans, shall no longer
be due under any Swingline Note and shall be Revolving Credit Loans made by the
Revolving Credit Lenders in accordance with their respective Revolving Credit
Percentages. The Borrower authorizes the Swingline Lender to charge its accounts
with the Administrative Agent (up to the amount available in each such account)
in order to immediately pay the amount of such Refunded Swingline Loans to the
extent amounts received from the Revolving Credit Lenders are not sufficient to
repay in full such Refunded Swingline Loans.
(iii) If prior to the making of a Revolving Credit Loan
pursuant to subparagraph (ii) of this subsection 2.4(c) one of the events
described in paragraph (f) of Section 8 shall have occurred and be continuing
with respect to the Borrower, each Revolving Credit Lender will, on the date
such Revolving Credit Loan was to have been made pursuant to the notice in
subsection 2.4(c)(ii), purchase an undivided participating interest in the
Refunded
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Swingline Loan in an amount equal to (i) its Revolving Credit Percentage times
(ii) the Refunded Swingline Loans. Each Revolving Credit Lender will immediately
transfer to the Swingline Lender, in immediately available funds, the amount of
its participation, and upon receipt thereof the Swingline Lender will deliver to
such Revolving Credit Lender a Swingline Loan Participation Certificate dated
the date of receipt of such funds and in such amount.
(iv) Whenever, at any time after any Revolving Credit Lender
has purchased a participating interest in a Swingline Loan, the Swingline Lender
receives any payment on account thereof, the Swingline Lender will distribute to
such Revolving Credit Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Revolving Credit Lender's participating interest was
outstanding and funded); provided, however, that in the event that such payment
received by the Swingline Lender is required to be returned, such Revolving
Credit Lender will return to the Swingline Lender any portion thereof previously
distributed by the Swingline Lender to it.
(v) Each Revolving Credit Lender's obligation to make the
Loans referred to in subsection 2.4(c)(ii) and to purchase participating
interests pursuant to subsection 2.4(c)(iii) shall be absolute and unconditional
and shall not be affected by any circumstance, including, without limitation,
(A) any set-off, counterclaim, recoupment, defense or other right which such
Revolving Credit Lender or the Borrower may have against the Swingline Lender,
the Borrower or any other Person for any reason whatsoever; (B) the occurrence
or continuance of a Default or an Event of Default; (C) any adverse change in
the condition (financial or otherwise) of the Borrower; (D) any breach of this
Agreement or any other Loan Document by Holdings, the Borrower or any of its
Subsidiaries or any other Lender; or (E) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
2.5 Procedure for Revolving Credit Borrowing. Subject to
subsection 2.8(b), the Borrower may borrow under the Revolving Credit
Commitments during the Revolving Credit Commitment Period on any Business Day,
provided that the Borrower shall give the Administrative Agent irrevocable
written (or telephonic promptly confirmed in writing) notice (which notice must
be received by the Administrative Agent prior to 12:00 Noon, New York City time,
(a) three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, or (b) one Business Day prior to the requested Borrowing Date,
in the case of ABR Loans), specifying (i) the amount and Type of Revolving
Credit Loans to be borrowed, (ii) the requested Borrowing Date and (iii) in the
case of Eurodollar Loans, the respective amounts of each such Type of Loan and
the respective lengths of the initial Interest Period therefor. Each such notice
shall be given by the Borrower in the form of Exhibit J. Each borrowing under
the Revolving Credit Commitments shall be in an amount equal to (A) in the case
of ABR Loans, $1,000,000 or a whole multiple of $100,000 in excess thereof (or,
if the then aggregate Available Revolving Credit Commitments are less than
$1,000,000, such lesser amount) and (B) in the case of Eurodollar Loans,
$5,000,000 or a whole multiple of $100,000 in excess thereof. Upon receipt of
any such notice from the Borrower, the Administrative Agent shall promptly
notify each Revolving Credit Lender thereof. Each Revolving Credit Lender will
make the amount of its pro rata share of each borrowing available to the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in subsection 10.2 prior to 12:00 Noon, New York
City time, on the Borrowing Date requested by the Borrower in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available
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to the Borrower by the Administrative Agent crediting the account of
the Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Revolving Credit Lenders and in
like funds as received by the Administrative Agent.
2.6 Commitment Fees, etc. (a) The Borrower agrees to pay to
the Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the Closing Date to the last
day of the Revolving Credit Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment of
such Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and December and on the
Revolving Credit Termination Date, commencing on the first of such dates to
occur after March 3, 1998. For purposes of calculating commitment fees under
this subsection 2.6(a) only, no portion of the Revolving Credit Commitments
shall be deemed utilized as a result of outstanding Swingline Loans.
(b) Intentionally deleted.
(c) The Borrower agrees to pay to the Administrative Agent the
fees in the amounts and on the dates set forth in the Amended and Restated Fee
Letter dated January 12, 1998, in writing among Holdings, the Borrower, the
Administrative Agent and Chase Securities Inc.
2.7 Termination or Reduction of Commitments.
(a) The Initial Tranche A Term Loan Commitments and the
Tranche B Term Loan Commitments were automatically and permanently terminated at
5:00 p.m., New York City time, on the Closing Date. The Delayed Tranche A Term
Loan Commitments were automatically and permanently terminated at 5:00 p.m., New
York City time, on the Delayed Tranche A Termination Date. The Revolving Credit
Commitments shall be automatically and permanently terminated at 5:00 p.m., New
York City time, on the Revolving Credit Termination Date.
(b) The Borrower shall have the right, upon not less than
three Business Days' notice to the Administrative Agent, to terminate the
Revolving Credit Commitments or, from time to time, to reduce the amount of the
Revolving Credit Commitments, provided that no such termination or reduction
with respect to Revolving Credit Commitments shall be permitted if, after giving
effect thereto and to any prepayments of the Swingline Loans and the Revolving
Credit Loans made on the effective date thereof, the Total Revolving Extensions
of Credit would exceed the Revolving Credit Commitments then in effect. Any
reduction pursuant to this subsection 2.7(b) shall be in an amount equal to
$1,000,000, or a whole multiple of $100,000 in excess thereof, and shall reduce
permanently the Revolving Credit Commitments then in effect. Upon receipt of any
notice pursuant to this subsection 2.7(b), the Administrative Agent shall
promptly notify each Revolving Credit Lender and the Swingline Lender, as
applicable, of the contents thereof).
2.8 Optional Prepayments. (a) The Borrower may at any time and
from time to time prepay the Loans, in whole or in part, without premium or
penalty, upon irrevocable written (or telephonic promptly confirmed in writing)
notice delivered to the Administrative Agent at
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least three Business Days prior thereto in the case of Eurodollar Loans and at
least one Business Day prior thereto in the case of ABR Loans, which notice
shall specify the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans, ABR Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each, provided that if a Eurodollar Loan is
prepaid on any day other than the last day of the Interest Period applicable
thereto, the Borrower shall also pay any amounts owing pursuant to subsection
2.18. Upon receipt of any such notice the Administrative Agent shall promptly
notify each relevant Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein.
Amounts prepaid on account of the Term Loans may not be reborrowed. Partial
prepayments (other than as contemplated in subsection 2.8(b)) of Eurodollar
Loans shall be in an aggregate principal amount of $5,000,000 or a whole
multiple of $100,000 in excess thereof. Partial prepayments (other than of a
Swingline Loan or as contemplated by subsection 2.8(b)) of ABR Loans shall be in
an aggregate principal amount of $1,000,000 or a whole multiple of $100,000
thereof. At the election of the Borrower, the first $20,000,000 in aggregate
amount of optional prepayments on account of the Term Loans shall be applied to
the then remaining installments thereof as the Borrower elects and thereafter
optional prepayments of the Term Loans shall be allocated among the Term Loans
under the Tranche A Term Loan Facility, the Tranche B Term Loan Facility and the
Incremental Term Loan Facility ratably based on the outstanding principal amount
of the Term Loans under each such Facility and applied to the then remaining
installments (except that optional prepayments as contemplated by Section 7.2(g)
of Term Loans using the Net Cash Proceeds of the issuance of Additional Holdings
Discount Notes or Senior Unsecured Notes shall be allocated first to prepay all
outstanding Tranche A Term Loans and second, after all outstanding Tranche A
Term Loans have been paid in full, among the Term Loans under the Tranche B Term
Loan Facility and the Incremental Term Loan Facility ratably based on the
outstanding Term Loans under each such Facility, provided that the Borrower may
retain Net Cash Proceeds so allocated to Term Loans under the Tranche B Term
Loan Facility in an aggregate amount equal to $35,000,000 during the term of
this Agreement (the "Retained Net Cash Proceeds")) of the Term Loans under each
such Facility ratably based on the number of then remaining installments under
such Facility (i.e. each then remaining installment of the applicable Term Loans
shall be reduced by an amount equal to the aggregate amount to be applied to
such Term Loan divided by the number of the then remaining installments for such
Term Loans), provided that if the amount to be applied to any installment
required by this Agreement would exceed the then remaining amount of such
installment, then an amount equal to such excess shall be applied to the
remaining installments in the order of maturity after giving effect to all prior
reductions thereto (including the amount of prepayments theretofore allocated
pursuant to the preceding portion of this sentence). The Retained Net Cash
Proceeds shall be deposited in a single bank account with, and in the name of
and under the sole dominion and control of, the Administrative Agent or any
Lender (the "Acquisition Funding Account") and (A) any funds on deposit in such
Acquisition Funding Account may be withdrawn by the Borrower solely to make a
Permitted Acquisition on the date such Permitted Acquisition is made or to make
a voluntary prepayment of Tranche B Term Loans in accordance with this
subsection 2.8(a) on the date such prepayment is made, and (B) the Borrower
shall not withdraw any funds on deposit in such Acquisition Funding Account
unless immediately prior to such withdrawal it has delivered to the
Administrative Agent an officer's certificate of the Borrower to the effect that
(x) if the proceeds of such withdrawal are to be used to effect a Permitted
Acquisition, no Default or Event of Default has occurred and is continuing, and
(y) such funds, immediately upon their withdrawal, shall be used to make a
Permitted
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Acquisition, or to make a voluntary prepayment of Tranche B Term Loans in
accordance with this subsection 2.8(a), provided that, if any funds remain in
the Acquisition Funding Account on December 9, 2002, all such funds shall be
applied on such date to make a voluntary prepayment of Tranche B Term Loans in
accordance with this subsection 2.8(a).
(b) In the event that the Borrower specifies in the
Reinvestment Notice with respect to the sale of any Broadcasting Asset that the
Borrower will apply the Net Cash Proceeds of such sale to the temporary
repayment of Revolving Credit Loans pursuant to this subsection 2.8(b), the
Borrower shall apply such Net Cash Proceeds to the repayment of Revolving Credit
Loans as provided in subsection 2.8(a), without giving effect to any minimum
repayment amounts set forth therein. Any such repayment is referred to herein as
a "Broadcasting Asset Temporary Repayment". The Borrower may from time to time
reborrow all or a portion of the amount prepaid pursuant to any Broadcasting
Asset Temporary Repayment if (i) such borrowing complies with all the procedures
for borrowing set forth in subsection 2.5 and (ii) promptly upon the receipt of
the proceeds of such borrowing, the Borrower (A) applies such proceeds to make a
Permitted Acquisition, (B) deposits such proceeds in a cash collateral account
with the Administrative Agent as contemplated by subsection 2.9(b) or (C)
applies such proceeds to the prepayment of Term Loans and the permanent
reduction of Revolving Credit Commitments in the manner specified in such
subsection 2.9(d). So long as any portion of any Broadcasting Asset Temporary
Repayment has not been reborrowed, the Borrower shall not be entitled to borrow,
and no Lender shall be entitled to make, Revolving Credit Loans or Swingline
Loans if after giving effect thereto the aggregate amount of outstanding
Revolving Extensions of Credit at such time would exceed an amount equal to (i)
the aggregate amount of the Revolving Credit Commitments at such time minus (ii)
the aggregate amount of all Broadcasting Asset Temporary Repayments that have
not been reborrowed at such time.
2.9 Mandatory Prepayments and Commitment Reductions. (a) If
any Capital Stock (other than a Permitted Issuance) or Indebtedness shall be
issued or Incurred by Holdings, the Borrower or any of its Subsidiaries
(excluding any Incurrence of Indebtedness in accordance with subsection 7.2
other than the issuance of the Additional Senior Subordinated Notes), an amount
equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of
such issuance or Incurrence toward the prepayment of the Term Loans and to the
extent of any excess to the reduction of the Revolving Credit Commitments as set
forth in subsection 2.9(d), provided that if, at the time of such issuance or
Incurrence, the Consolidated Leverage Ratio as of the last day of the most
recent Test Period is (i) less than 5.00 to 1.00 and greater than or equal to
4.00 to 1.00, an amount equal to 50% of the Net Cash Proceeds thereof shall be
applied on the date of such issuance or Incurrence first, toward the prepayment
of the Term Loans, and second, to the reduction of the Revolving Credit
Commitments as set forth in subsection 2.9(d) and (ii) less than 4.00 to 1.00,
no such prepayment or reduction shall be required in respect of such issuance or
Incurrence.
(b) If on any date Holdings, the Borrower or any of its
Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery
Event then, unless a Reinvestment Notice shall be delivered in respect thereof,
such Net Cash Proceeds shall be applied, within five Business Days after such
date, toward the prepayment of the Term Loans and the reduction of the Revolving
Credit Commitments as set forth in subsection 2.9(d), provided that if a
Reinvestment Notice shall be delivered in respect thereof (i) on each
Reinvestment Prepayment Date, an amount
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equal to the Reinvestment Prepayment Amount with respect to the relevant
Reinvestment Event shall be applied toward the prepayment of the Term Loans and
the reduction of the Revolving Credit Commitments as set forth in subsection
2.9(d) and (ii) if such Net Cash Proceeds relate to an Asset Sale pursuant to
subsection 7.5(h) or an Asset Swap Transaction pursuant to subsection 7.5(i) and
a Reinvestment Notice has been delivered in connection therewith, pending such
Reinvestment Prepayment Date, such Net Cash Proceeds shall be (A) applied to the
repayment of Revolving Credit Loans pursuant to subsection 2.8(b) to be
reborrowed by the Borrower, subject to compliance by the Borrower at the time of
such reborrowing with the terms and conditions of this Agreement, to make a
Permitted Acquisition or as cash consideration in connection with an Asset Swap
Transaction or (B) deposited in a cash collateral account with the
Administrative Agent (the proceeds of which will be invested by the
Administrative Agent in Cash Equivalents at the request of the Borrower) to be
released by the Administrative Agent at the request of the Borrower, subject to
compliance by the Borrower at the time of such release with the terms and
conditions of this Agreement, to make a Permitted Acquisition or as cash
consideration in connection with an Asset Swap Transaction, provided further,
that, notwithstanding subsection 2.9(d), if, at the time of receipt of such Net
Cash Proceeds, the Consolidated Leverage Ratio as of the last day of the most
recent Test Period is (i) less than 5.00 to 1.00 and greater than or equal to
4.00 to 1.00, an amount equal to 50% of the Net Cash Proceeds thereof shall be
applied as set forth in subsection 2.9(d) and (ii) less than 4.00 to 1.00, no
such prepayment or reduction shall be required in respect of such Net Cash
Proceeds, (provided that amounts not required to be applied toward the
prepayment of the Term Loans and, if applicable, the reduction of the Revolving
Credit Commitments pursuant to clauses (i) and (ii) above shall be reinvested in
the business of the Borrower or any of its Subsidiaries in a manner permitted by
Section 4.08 of the Senior Subordinated Note Indenture (or any comparable
section after the Closing Date) on or prior to the 179th day after receipt of
such Net Cash Proceeds, and any amounts not so reinvested on or prior to such
time shall be applied first, toward the prepayment of the Term Loans and,
second, to the reduction of the Revolving Credit Commitments prior to the 180th
day after receipt thereof).
(c) If, for any fiscal year of the Borrower commencing with
the fiscal year ending December 31, 1998, there shall be Excess Cash Flow, the
Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF
Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and
the reduction of the Revolving Credit Commitments as set forth in subsection
2.9(d). Each such prepayment shall be made on a date (an "Excess Cash Flow
Application Date") no later than five days after the earlier of (i) the date on
which the financial statements of the Borrower referred to in subsection 6.1(a),
for the fiscal year with respect to which such prepayment is made, are required
to be delivered to the Lenders and (ii) the date such financial statements are
delivered.
(d) Subject to the other provisions of this subsection 2.9,
(i) 100% of the Net Cash Proceeds of the issuance of any Capital Stock (other
than a Permitted Issuance) or the issuance or Incurrence of any Indebtedness as
provided in subsection 2.9(a), (ii) 100% of the Net Cash Proceeds of any Asset
Sale or Recovery Event, unless a Reinvestment Notice shall be delivered in
respect of any Asset Sale or Recovery Event (in which case the terms of
subsection 2.9(b) shall apply) as provided in subsection 2.9(b) and (iii) the
Excess Cash Flow to be applied pursuant to subsection 2.9(c) shall be applied
first, to the prepayment of the Term Loans, and second, to the permanent
reduction of the Revolving Credit Commitments. Any such
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reduction of the Revolving Credit Commitments shall be accompanied by prepayment
of first, the Swingline Loans, and second, the Revolving Credit Loans, to the
extent, if any, that the Total Revolving Extensions of Credit exceed the amount
of the aggregate Revolving Credit Commitments as so reduced, provided that if
the aggregate principal amount of the Swingline Loans and Revolving Credit Loans
then outstanding is less than the amount of such excess (because L/C Obligations
constitute a portion thereof), the Borrower shall, to the extent of the balance
of such excess, deposit an amount in cash in a cash collateral account
established with the Administrative Agent for the benefit of the Lenders on
terms and conditions reasonably satisfactory to the Administrative Agent. The
application of any prepayment pursuant to this subsection 2.9 shall be made
first to ABR Loans and second to Eurodollar Loans. Subject to subsection 2.9(e),
amounts prepaid on account of the Term Loans (i) shall be allocated among the
Term Loans under the Tranche A Term Loan Facility, the Tranche B Term Loan
Facility and the Incremental Term Loan Facility ratably based on the outstanding
principal amount of the Term Loans under each such Facility and applied to the
then remaining installments of the Term Loans under each such Facility ratably
based on the number of such installments under such Facility and (ii) may not be
reborrowed.
(e) Any Lender holding Tranche B Term Loans or Incremental
Term Loans may, to the extent Tranche A Term Loans are outstanding, elect on not
less than one Business Day's prior written notice to the Administrative Agent
with respect to any mandatory prepayment made pursuant to this subsection 2.9,
not to have such prepayment applied to such Lender's Tranche B Term Loans or
Incremental Term Loans, as applicable, until all Tranche A Term Loans shall have
been paid in full, in which case the amount not so applied shall be applied to
prepay Tranche A Term Loans and shall reduce the then remaining installments of
the Tranche A Term Loans ratably based on the number of such installments.
(f) Notwithstanding the foregoing provisions of this
subsection 2.9, if at any time the mandatory prepayment of any Loans pursuant to
this Agreement would result, after giving effect to the procedures set forth in
this Agreement, in the Borrower incurring costs under subsection 2.16, 2.17 or
2.18 as a result of Eurodollar Loans ("Affected Eurodollar Loans") being prepaid
other than on the last day of an Interest Period applicable thereto, which costs
are required to be paid pursuant to subsection 2.18, then, the Borrower may, in
its sole discretion, initially deposit a portion (up to 100%) of the amounts
that otherwise would have been paid in respect of the Affected Eurodollar Loans
with the Administrative Agent (which deposit must be equal in amount to the
amount of the Affected Eurodollar Loans not immediately prepaid) to be held as
security for the obligations of the Borrower to make such mandatory prepayment
pursuant to a cash collateral agreement to be entered into in form and substance
reasonably satisfactory to the Administrative Agent, with such cash collateral
to be directly applied upon the first occurrence (or occurrences) thereafter of
the last day of an Interest Period applicable to the relevant Loan that is a
Eurodollar Loan (or such earlier date or dates as shall be requested by the
Borrower), to repay an aggregate principal amount of such Loan equal to the
Affected Eurodollar Loans not initially repaid pursuant to this sentence.
2.10 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least one Business Day's prior irrevocable written (or
telephonic promptly confirmed in writing) notice of such election (but no later
than 12:00 Noon, New York City time on the Business Day
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immediately prior to such election), provided that unless the Borrower elects to
deposit with the Administrative Agent the amount of any breakage costs and other
Eurodollar Loans related costs to be incurred by the Borrower under this
Agreement with respect to any prepayment or conversion of such Eurodollar Loans
prior to the end of an Interest Period, any such conversion of Eurodollar Loans
may only be made on the last day of an Interest Period with respect thereto. The
Borrower may elect from time to time to convert ABR Loans to Eurodollar Loans by
giving the Administrative Agent at least three Business Days' prior irrevocable
written (or telephonic promptly confirmed in writing) notice of such election by
12:00 Noon, New York City time (which notice shall specify the length of the
initial Interest Period therefor), provided that no ABR Loan may be converted
into a Eurodollar Loan (i) when any Event of Default has occurred and is
continuing and the Administrative Agent or the Required Lenders have determined
that such a conversion is not appropriate or (ii) after the date that is one
month prior to the final scheduled termination or maturity date of such
Facility. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
subsection 1.1, of the length of the next Interest Period to be applicable to
such Loans, provided that no Eurodollar Loan may be continued as such (i) when
any Event of Default has occurred and is continuing and the Administrative Agent
has or the Required Lenders have determined that such a continuation is not
appropriate or (ii) after the date that is one month prior to the final
scheduled termination or maturity date of any Facility, and provided further
that if the Borrower shall fail to give any required notice as described above
in this paragraph or if such continuation is not permitted pursuant to the
preceding proviso such Eurodollar Loans shall be automatically converted to ABR
Loans on the last day of such then expiring Interest Period. Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant Lender
thereof.
2.11 Minimum Amounts and Maximum Number of Eurodollar
Tranches. Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations and optional prepayments of Eurodollar
Loans hereunder and all selections of Interest Periods hereunder shall be in
such amounts and be made pursuant to such elections so that, after giving effect
thereto, (a) the aggregate principal amount of the Eurodollar Loans comprising
each Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of
$100,000 in excess thereof, (b) no more than six Eurodollar Tranches under a
particular Facility shall be outstanding at any one time and (c) no more than
ten Eurodollar Tranches in the aggregate shall be outstanding at any one time.
2.12 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR plus the Applicable Margin.
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(c) Upon the occurrence and during the continuance of an Event
of Default under subsection 8(a), (i) all outstanding Loans and any overdue
amounts hereunder shall bear interest at a rate per annum which is (A) in the
case of the Loans, the rate that would otherwise be applicable thereto pursuant
to the foregoing provisions of this subsection 2.12 plus 2% or (B) in the case
of Reimbursement Obligations, overdue interest, commitment fee or other amount
payable at a rate per annum equal to the rate applicable to ABR Loans under the
relevant Facility plus 2% (or, in the case of any such other amounts that do not
relate to a particular Facility, the rate applicable to ABR Loans under the
Revolving Credit Facility plus 2%), in each case, with respect to clauses (i)
and (ii) above, from the date of such non-payment until such amount is paid in
full (after judgment as well as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
subsection 2.12 shall be payable from time to time on demand.
2.13 Computation of Interest and Fees. (a) Interest, fees and
other amounts payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to ABR Loans
the rate of interest on which is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower and the relevant Lenders of
each determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the ABR or the Eurocurrency Reserve Requirements
shall become effective as of the opening of business on the day on which such
change becomes effective. The Administrative Agent shall as soon as practicable
notify the Borrower and the relevant Lenders of the effective date and the
amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to subsections
2.12.
2.14 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination, absent manifest error, shall be conclusive and binding
upon the Borrower) that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Required Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such
Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar
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Loans requested to be made on the first day of such Interest Period shall be
made as ABR Loans, (y) any Loans that were to have been converted on the first
day of such Interest Period to Eurodollar Loans shall be continued as ABR Loans
and (z) any outstanding Eurodollar Loans shall be converted to ABR Loans on the
last day of the Interest Period applicable thereto. Until such notice has been
withdrawn by the Administrative Agent (which the Administrative Agent agrees to
do when the circumstances that prompted delivery of such notice no longer
exist), no further Eurodollar Loans under the relevant Facility shall be made or
continued as such, nor shall the Borrower have the right to convert Loans under
the relevant Facility to Eurodollar Loans.
2.15 Pro Rata Treatment and Payments. (a) Each borrowing by
the Borrower from the Lenders hereunder, each payment by the Borrower on account
of any commitment fee and any reduction of the Commitments of the Lenders shall
be made, with regard to the applicable Facility, pro rata according to the
respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages,
Incremental Term Loan Percentages or Revolving Credit Percentages, as the case
may be, of the relevant Lenders.
(b) Whenever (i) any payment received by the Administrative
Agent under this Agreement or any Note or (ii) any other amounts received by the
Administrative Agent for or on behalf of the Borrower (including, without
limitation, proceeds of collateral or payments under any guarantee) is
insufficient to pay in full all amounts then due and payable to the
Administrative Agent and the Lenders under this Agreement and any Note, such
payment shall be distributed by the Administrative Agent and applied by the
Administrative Agent and the Lenders in the following order: first, to the
payment of fees and expenses due and payable to the Administrative Agent under
and in connection with this Agreement; second, to the payment of all expenses
due and payable under subsection 10.5, ratably among the Administrative Agent
and the Lenders in accordance with the aggregate amount of such payments owed to
the Administrative Agent and each such Lender; third, to the payment of fees due
and payable under subsections 2.6 and 3.3, ratably among the Revolving Credit
Lenders in accordance with the Revolving Credit Commitment of each Revolving
Credit Lender , the Tranche A Term Loan Lenders in accordance with the Delayed
Tranche A Term Loan Commitments of each Tranche A Term Loan Lender, if
applicable, and, in the case of the Issuing Lender, the amount retained by the
Issuing Lender for its own account pursuant to subsection 3.3(a); fourth, to the
payment of interest then due and payable under the Loans, ratably in accordance
with the aggregate amount of interest owed to each such Lender; and fifth, to
the payment of the principal amount of the Loans and the L/C Obligations then
due and payable and, in the case of proceeds of collateral or payments under any
guarantee, to the payment of any other obligations to any Lender not covered in
first through fourth above ratably secured by such collateral or ratably
guaranteed under any such guarantee, ratably among the Lenders in accordance
with the aggregate principal amount and, in the case of proceeds of collateral
or payments under any guarantee, the obligations secured or guaranteed thereby
owed to each such Lender.
(c) If any Revolving Credit Lender (each, a "Non-Funding
Lender") has (x) failed to make a Revolving Credit Loan required to be made by
it hereunder, and the Administrative Agent has determined that such Revolving
Credit Lender is not likely to make such Revolving Credit Loan or (y) given
notice to the Borrower or the Administrative Agent that it will not make, or
that it has disaffirmed or repudiated any obligation to make, any Revolving
Credit Loans, in each case by reason of the provisions of the Financial
Institutions Reform,
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Recovery and Enforcement Act of 1989, as amended, or otherwise, any payment made
on account of the principal of the Revolving Credit Loans outstanding shall be
made as follows:
(i) with respect to Revolving Credit Loans, in the case of any
such payment made on any date when and to the extent that, in the
determination of the Administrative Agent, the Borrower would be able,
under the terms and conditions hereof, to reborrow the amount of such
payment under the Revolving Credit Commitments and to satisfy any
applicable conditions precedent set forth in subsection 5.2 to such
reborrowing, such payment shall be made on account of the outstanding
Revolving Credit Loans held by the Revolving Credit Lenders other than
the Non-Funding Lender pro rata according to the respective outstanding
principal amounts of the Revolving Credit Loans of such Revolving
Credit Lenders;
(ii) otherwise, such payment shall be made on account of the
outstanding Revolving Credit Loans held by the Revolving Credit Lenders
pro rata according to the respective outstanding principal amounts of
such Revolving Credit Loans; and
(iii) any payment made on account of interest on the Revolving
Credit Loans shall be made pro rata according to the respective amounts
of accrued and unpaid interest due and payable on the Revolving Credit
Loans with respect to which such payment is being made.
The Borrower agrees to give the Administrative Agent such assistance in making
any determination pursuant to this paragraph as the Administrative Agent may
reasonably request. Any such determination by the Administrative Agent shall be
conclusive and binding on the Lenders.
(d) Subject to subsection 2.15(c) and subsection 2.9(e), each
payment (including each prepayment) by the Borrower on account of principal of
and interest on the Tranche A Term Loans, the Tranche B Term Loans and the
Incremental Term Loans shall be made pro rata according to the respective
outstanding principal amounts of the applicable Term Loans then held by the
applicable Term Loan Lenders.
(e) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on the Loans (other than the Term Loans)
shall be made first to the Swingline Loans and then pro rata according to the
respective outstanding principal amounts of the Revolving Credit Loans then held
by the Revolving Credit Lenders.
(f) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Administrative Agent's office
specified in subsection 10.2, in Dollars and in immediately available funds.
Payments received by the Administrative Agent after such time shall be deemed to
have been received on the next Business Day. The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next
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succeeding Business Day (except, in the case of Eurodollar Loans, as otherwise
provided in clause (i) of the definition of "Interest Period"). In the case of
any extension of any payment of principal pursuant to the preceding sentence,
interest thereon shall be payable at the then applicable rate during such
extension.
(g) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a Borrowing Date that such Lender will not
make the amount that would constitute its share of such borrowing available to
the Administrative Agent, the Administrative Agent may assume that such Lender
is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the greater of the daily average Federal
Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this subsection 2.15(g) shall be conclusive
in the absence of manifest error. If such Lender's share of such borrowing is
not made available to the Administrative Agent by such Lender within three
Business Days of such Borrowing Date, the Administrative Agent shall also be
entitled to recover such amount with interest thereon at the rate per annum
applicable to ABR Loans under the relevant Facility, on demand, from the
Borrower. The failure of any Lender to make any Loan to be made by it shall not
relieve any other Lender of its obligation, if any, hereunder to make its Loan
on such Borrowing Date, but no Lender shall be responsible for the failure of
any other Lender to make the Loan to be made by such other Lender on such
Borrowing Date.
2.16 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the Closing Date:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any Application
or any Eurodollar Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded
Taxes covered by subsection 2.17 and the establishment of a tax based
on the net income of such Lender and changes in the rate of tax on the
net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
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and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable, provided that before making
any such demand, each Lender agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions and so long as such
efforts would not be disadvantageous to it, in its reasonable discretion, in any
legal, economic or regulatory manner) to designate a different Eurodollar
lending office if the making of such designation would allow the Lender or its
Eurodollar lending office to continue to perform its obligations to make
Eurodollar Loans or to continue to fund or maintain Eurodollar Loans and avoid
the need for, or materially reduce the amount of, such increased cost. If any
Lender becomes entitled to claim any additional amounts pursuant to this
subsection 2.16, it shall promptly notify the Borrower, through the
Administrative Agent, of the event by reason of which it has become so entitled.
If the Borrower notifies the Administrative Agent within five Business Days
after any Lender notifies the Borrower of any increased cost pursuant to the
foregoing provisions of this subsection 2.16(a), the Borrower may convert all
Eurodollar Loans of such Lender then outstanding into ABR Loans in accordance
with subsection 2.10 and shall, additionally, reimburse such Lender for any cost
in accordance with subsection 2.18.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the Closing Date shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender, to the Borrower, through the Administrative Agent, of
a written request therefor, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such corporation
for such reduction.
(c) A certificate as to any additional amounts payable
pursuant to this subsection 2.16, showing in reasonable detail the calculation
thereof and certifying that it is generally charging such costs to other
similarly situated borrowers under similar credit facilities, submitted by any
Lender through the Administrative Agent shall be conclusive in the absence of
manifest error, provided that the determination of such amounts shall be made in
good faith in a manner generally consistent with such Lender's standard
practices. The obligations of the Borrower pursuant to this subsection 2.16
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder for a period of nine months thereafter.
2.17 Taxes. (a) Except as provided below in this subsection,
all payments made by the Borrower under this Agreement shall be made free and
clear of, and without deduction or
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withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Administrative Agent or any Lender
as a result of a present or former connection between the Administrative Agent
or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or any other Loan Document). If any
such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder, the amounts so
payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement; provided,
however, that the Borrower shall be entitled to deduct and withhold any
Non-Excluded Taxes and shall not be required to increase any such amounts
payable to any Lender that is not organized under the laws of the United States
of America or a state thereof to the extent such Lender's compliance with the
requirements of subsection 2.17(b) at the time such Lender becomes a party to
this Agreement fails to establish a complete exemption from such withholding or
to the extent such failure to establish a complete exemption from such
withholding thereafter is attributable to the actions of such Lender. Whenever
any Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this subsection 2.17
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder for a period of nine months thereafter.
(b) Each Lender (or Transferee) that is not a United States
person within the meaning of Section 7701(a)(30) of the Code (a "Non-U.S.
Lender") shall deliver to the Borrower and the Administrative Agent (or, in the
case of a Participant, to the Lender from which the related participation shall
have been purchased) two copies of either U.S. Internal Revenue Service Form
W-8ECI or Form W-8BEN, or, in the case of a Non-U.S. Lender claiming exemption
from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest", a Form W-8BEN, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S. Lender
delivers a Form W-8BEN, an annual certificate representing, under penalty of
perjury, that such Non-U.S. Lender is not a "bank" for purposes of Section
881(c) of the Code, is not a 10-percent shareholder (within the meaning of
Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled
foreign corporation related to the Borrower (within the meaning of Section
864(d)(4) of the Code)), properly completed and duly executed by such Non-U.S.
Lender claiming complete exemption from, or a reduced rate of, U.S. federal
withholding tax on all payments by the Borrower under this
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Agreement and the other Loan Documents. Such forms shall be delivered by each
Non-U.S. Lender on or before the date it becomes a party to this Agreement (or,
in the case of any Participant, on or before the date such Participant purchases
the related participation). In addition, each Non-U.S. Lender shall deliver such
forms on or before the expiration or obsolescence and promptly upon the
invalidity of any form previously delivered by such Non-U.S. Lender and after
the occurrence of any event requiring a change in the most recently provided
form and, if necessary, obtain any extensions of time reasonably requested by
the Borrower or the Administrative Agent for filing and completing such forms.
Each Non-U.S. Lender (and, if applicable, any other Lender or Transferee)
agrees, to the extent legally entitled to do so, upon reasonable request by the
Borrower, to provide to the Borrower (for the benefit of the Borrower and the
Administrative Agent) such other forms as may be reasonably required in order to
establish the legal entitlement of such Lender to an exemption from withholding
with respect to payments of interest under this Agreement or the other Loan
Documents, provided that in determining the reasonableness of such a request,
such Lender shall be entitled to consider the cost of complying with such
request (to the extent unreimbursed by the Borrower) that would be imposed on
such Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time
it determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this subsection 2.17(b), a Non-U.S. Lender shall not be
required to deliver any form pursuant to this subsection 2.17(b) that such
Non-U.S. Lender is not legally able to deliver. If the Administrative Agent or
any Lender (or Transferee) receives a refund in respect of Non-Excluded Taxes
paid by the Borrower, it shall promptly pay such refund, together with any other
amounts paid by the Borrower in connection with such refunded Non-Excluded
Taxes, to the Borrower, net of all out-of-pocket expenses of such Lender
incurred in obtaining such refund, provided that the Borrower agrees to promptly
return such refund to the Administrative Agent or the applicable Lender if it
receives notices from the Administrative Agent or applicable Lender that such
Administrative Agent or Lender is required to repay such refund.
2.18 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss (excluding loss of profit) or
expense which such Lender actually incurs as a consequence of (a) withdrawal of
notice given by the Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (b)
failure by the Borrower to make any prepayment after the Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (c) the
making of a prepayment of Eurodollar Loans on a day which is not the last day of
an Interest Period with respect thereto. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest which would
have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate
of interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) which would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. A certificate as to any
amounts payable pursuant to this subsection 2.18, showing in reasonable detail
the calculation thereof, submitted to the Borrower by any Lender shall be
conclusive in the
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absence of manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder
for a period of nine months thereafter.
2.19 Change of Lending Office. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of subsection 2.16 or
2.17(a) with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event, provided that such
designation is made on terms that in the reasonable judgment of such Lender,
cause such Lender and its lending office(s) to suffer no economic, legal or
regulatory disadvantage, and provided further that nothing in this subsection
2.19 shall affect or postpone any of the obligations of any Borrower or the
rights of any Lender pursuant to subsection 2.16 or 2.17(a).
2.20 Replacement of Lenders under Certain Circumstances. If at
any time (a) the Borrower becomes obligated to pay additional amounts described
in subsection 2.16 or 2.17 as a result of any condition described in such
subsections or any Lender ceases to make Eurodollar Loans pursuant to subsection
2.16, (b) any Lender becomes insolvent and its assets become subject to a
receiver, liquidator, trustee, custodian or other Person having similar powers,
(c) any Lender becomes a "Non-Consenting Lender" (as defined below in this
subsection 2.20) or (d) any Lender becomes a "Non-Funding Lender", then the
Borrower may, on ten Business Days' prior written notice to the Administrative
Agent and such Lender, replace such Lender by causing such Lender to (and such
Lender shall be obligated to) assign pursuant to subsection 10.6(c) all of its
rights and obligations under this Agreement to a Lender or other entity selected
by the Borrower and reasonably acceptable to the Administrative Agent (and in
the case of Revolving Credit Commitments or Revolving Loans, reasonably
acceptable to the Issuing Lender and the Swingline Lender) for a purchase price
equal to the outstanding principal amount of such Lender's Loans and all accrued
interest and fees and other amounts payable hereunder (including amounts payable
under subsection 2.18 as though such Loans were being paid instead of being
purchased), provided that (i) neither the Administrative Agent nor any Lender
shall have any obligation to the Borrower to find a replacement Lender or other
such entity, (ii) in the event of a replacement of a Non-Consenting Lender or a
Lender to which the Borrower becomes obligated to pay additional amounts
pursuant to clause (a) of this subsection 2.20, in order for the Borrower to be
entitled to replace such a Lender, such replacement must take place no later
than 180 days after (A) the date the Non-Consenting Lender shall have notified
the Borrower and the Administrative Agent of its failure to agree to any
requested consent, waiver or amendment or (B) the Lender shall have demanded
payment of additional amounts under one of the subsections described in clause
(a) of this subsection 2.20, as the case may be, and (iii) in no event shall the
Lender hereby replaced be required to pay or surrender to such replacement
Lender or other entity any of the fees received by such Lender hereby replaced
pursuant to this Agreement. In the case of a replacement of a Lender to which
the Borrower becomes obligated to pay additional amounts pursuant to clause (a)
of this subsection 2.20, the Borrower shall pay such additional amounts to such
Lender prior to such Lender being replaced and the payment of such additional
amounts shall be a condition to the replacement of such Lender. In the event
that (x) the Borrower or the Administrative Agent has requested the Lenders to
consent to a departure or waiver of any provisions of the Loan Documents or to
agree to any amendment thereto, (y) the consent, waiver or amendment in question
requires the agreement of all Lenders in accordance with the terms of
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subsection 10.1 or all the Lenders with respect to a certain class of the Loans
and (z) Required Lenders or more than 50% of the class of such Lenders have
agreed to such consent, waiver or amendment, then any Lender who does not agree
to such consent, waiver or amendment shall be deemed a "Non-Consenting Lender".
The Borrower's right to replace a Non-Funding Lender pursuant to this subsection
2.20 is, and shall be, in addition to, and not in lieu of, all other rights and
remedies available to the Borrower against such Non-Funding Lender under this
Agreement, at law, in equity, or by statute.
2.21. Notice of Certain Costs. Notwithstanding anything in
this Agreement to the contrary, to the extent any notice required by subsection
2.15 through and including subsection 2.18 is given by any Lender more than 90
days after such Lender has knowledge (or should have had knowledge) of the
occurrence of the event giving rise to the additional cost, reduction in
amounts, loss, tax or other additional amounts described in such subsections,
such Lender shall not be entitled to compensation under such subsections for any
such amounts incurred or accruing prior to the giving of such notice to the
Borrower.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other Revolving
Credit Lenders set forth in subsection 3.4(a), agrees to issue letters of credit
("Letters of Credit") for the account of the Borrower on any Business Day during
the Revolving Credit Commitment Period in such form as may be approved from time
to time by the Issuing Lender, provided that the Issuing Lender shall not have
any obligation to issue any Letter of Credit if, after giving effect to such
issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii) the
aggregate amount of the Available Revolving Credit Commitments would be less
than zero. Each Letter of Credit shall (i) be denominated in Dollars and (ii)
expire no later than the earlier of (x) the first anniversary of its date of
issuance and (y) the date which is five Business Days prior to the Scheduled
Revolving Credit Termination Date, provided that any Letter of Credit with a
one-year term may provide for the renewal thereof for additional one-year
periods (which shall in no event extend beyond the date referred to in clause
(y) above).
(b) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York.
(c) The Issuing Lender shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any L/C Participant to exceed any limits imposed by,
any applicable Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. The Borrower
may from time to time request that the Issuing Lender issue a Letter of Credit
by delivering to the Issuing Lender at its address for notices specified herein
an Application therefor, completed to the satisfaction of the Issuing Lender,
and such other certificates, documents and other papers and information as the
Issuing Lender may reasonably request. Upon receipt of any Application, the
Issuing Lender will process such Application and the certificates, documents and
other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall
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promptly issue the Letter of Credit requested thereby (but in no event shall the
Issuing Lender be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed to by the Issuing Lender and the Borrower. The Issuing
Lender shall furnish a copy of such Letter of Credit to the Borrower promptly
following the issuance thereof. The Issuing Lender shall promptly furnish to the
Administrative Agent notice of the issuance of each Letter of Credit (including
the amount thereof). The Administrative Agent will furnish to the Revolving
Credit Lenders (a) prompt notice of the issuance of each standby Letter of
Credit and (b) a monthly report setting forth for the relevant month the total
aggregate daily amount available to be drawn under commercial Letters of Credit
that were outstanding during such month.
3.3 Commissions, Fees and Other Charges. (a) The Borrower will
pay to the Administrative Agent, for the account of each Revolving Credit
Lender, a commission on the average daily face amount of each Letter of Credit
at a per annum rate equal to the Applicable Margin then in effect with respect
to Eurodollar Loans under the Revolving Credit Facility minus the fronting fee
referred to below, shared ratably among the Revolving Credit Lenders and payable
quarterly in arrears on each L/C Fee Payment Date after the issuance date. In
addition, the Borrower shall pay to the Issuing Lender for its own account a
fronting fee of 1/4 of 1% per annum of the average daily face amount of each
Letter of Credit issued by the Issuing Lender, payable quarterly in arrears on
each L/C Fee Payment Date after the issuance date.
(b) In addition to the foregoing fees and commissions, the
Borrower shall pay or reimburse the Issuing Lender for such normal and customary
costs and expenses as are incurred or charged by the Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.
3.4 L/C Participations. (a) The Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
the Issuing Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Percentage in the Issuing Lender's obligations
and rights under each Letter of Credit issued by the Issuing Lender and the
amount of each draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit issued by the Issuing Lender for which the
Issuing Lender is not reimbursed in full by the Borrower in accordance with the
terms of this Agreement, such L/C Participant shall pay to the Issuing Lender
upon demand an amount equal to such L/C Participant's Revolving Credit
Percentage of the amount of such draft or any part thereof, which is not so
reimbursed.
(b) If any amount required to be paid by any L/C Participant
to the Issuing Lender pursuant to subsection 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit is paid to the Issuing Lender within three Business Days after the
date such payment is due, such L/C Participant shall pay to the Issuing Lender
on demand an amount equal to the product of (i) such amount, times (ii) the
greater of the
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daily average Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation during the period from and including the date such payment is
required to the date on which such payment is immediately available to the
Issuing Lender, times (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is 360. If any
such amount required to be paid by any L/C Participant pursuant to subsection
3.4(a) is not made available to the Issuing Lender by such L/C Participant
within three Business Days after the date such payment is due, the Issuing
Lender shall be entitled to recover from such L/C Participant, on demand, such
amount with interest thereon calculated from such due date at the rate per annum
applicable to ABR Loans under the Revolving Credit Facility. A certificate of
the Issuing Lender submitted to any L/C Participant with respect to any amounts
owing under this subsection shall be conclusive in the absence of manifest
error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with subsection 3.4(a), the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by the Issuing Lender), or any payment of interest on account thereof, the
Issuing Lender will distribute to such L/C Participant its pro rata share
thereof; provided, however, that in the event that any such payment received by
the Issuing Lender shall be required to be returned by the Issuing Lender, such
L/C Participant shall return to the Issuing Lender the portion thereof
previously distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. The Borrower
agrees to reimburse the Issuing Lender on each date on which the Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by the Issuing Lender for the amount of (a) such draft
so paid and (b) any taxes, fees, charges or other costs or expenses incurred by
the Issuing Lender in connection with such payment. Each such payment shall be
made to the Issuing Lender in Dollars and in immediately available funds.
Interest shall be payable on any and all amounts remaining unpaid by the
Borrower under this subsection from the date such amounts become payable
(whether at stated maturity, by acceleration or otherwise) until payment in full
at the rate set forth in subsection 2.12(c).
3.6 Obligations Absolute. The Borrower's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Issuing Lender (except to
the extent resulting from the gross negligence or willful misconduct of the
Issuing Lender), any beneficiary of a Letter of Credit or any other Person. The
Borrower also agrees with the Issuing Lender that, subject to the last sentence
of this subsection 3.6, the Issuing Lender shall not be responsible for, and the
Borrower's Reimbursement Obligations under subsection 3.5 shall not be affected
by, among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee. The Issuing
Lender shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection
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with any Letter of Credit, except for errors, omissions or delays in
transmission found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Issuing Lender. The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards or care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the Borrower and
shall not result in any liability of the Issuing Lender to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the Issuing Lender shall promptly notify
the Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit issued by it shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that
the documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent, the Lenders, the Swingline
Lender and the Issuing Lender to enter into this Agreement and to make the Loans
and issue or participate in the Letters of Credit, Holdings and the Borrower
hereby represent and warrant to the Administrative Agent, the Swingline Lender,
the Issuing Lender and each Lender that:
4.1 Financial Condition. (a) The audited consolidated
financial statements of the Borrower as of and for the fiscal year ending
December 31, 1997, reported on by Ernst & Young LLP, present fairly the
consolidated financial condition of the Borrower and the results of operations
and cash flows as of such date and for such period. All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the period
involved (except as approved by the relevant firm of accountants and disclosed
therein). The most recent balance sheet referred to above reflects, as required
by GAAP, any material Guarantee Obligations, contingent liabilities and
liabilities for taxes, and any long-term leases and unusual forward or long-term
commitments, including, without limitation, any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives, in each case as of the date of such balance sheet.
(b) The two unaudited pro forma consolidated balance sheets of
Holdings and its consolidated Subsidiaries as at December 31, 1997 (including
the notes thereto), copies of which have heretofore been furnished to each
Lender, have each been prepared giving effect (as if such events had occurred on
such date) to (i) the consummation of the Transactions, (ii) the Loans to be
made hereunder and the use of proceeds thereof and (iii) the payment of fees and
expenses in connection with the foregoing, provided, that one such balance sheet
gives effect to such events assuming consummation of the WOOD-TV Acquisition and
one such balance sheet gives effect
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to such events assuming the WOOD-TV Acquisition has not been consummated. Each
of the aforementioned unaudited pro forma consolidated balance sheets presents
fairly on a pro forma basis the financial position of Holdings and its
consolidated Subsidiaries, as at December 31, 1997 and is based upon good faith
estimates and assumptions believed by management of Holdings and the Borrower to
be reasonable at the time made, assuming that the events specified in the
preceding sentence had actually occurred at such date.
4.2 No Change. Since the date of the most recent audited
financial statements delivered pursuant to subsection 4.1(a)(i), there has been
no (a) development or event which has had or could reasonably be expected to
have a Material Adverse Effect, provided that nothing specifically disclosed in
the financial model delivered to the Lenders on June 4, 2001, shall constitute a
Material Adverse Effect, or (b) sale, transfer or other disposition by the
Borrower or any of its Subsidiaries of any material part of its business or
property, other than as contemplated in the NBC Transactions.
4.3 Corporate Existence; Compliance with Law. Each of Holdings
and its Subsidiaries (a) is duly organized or formed, as the case may be,
validly existing and in good standing under the laws of the jurisdiction of its
organization or formation, (b) has the requisite power and authority, and the
legal right, to own and operate its property, to lease the property it operates
as lessee and to conduct the business in which it is currently engaged, (c) is
duly qualified as a foreign corporation and in good standing under the laws of
each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification except to the extent that
the failure to so qualify could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect and (d) is in compliance with all Requirements of
Law except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations.
Each Loan Party has the requisite power and authority, and the legal right, to
make, deliver and perform the Loan Documents and the Transaction Documents to
which it is a party and, in the case of the Borrower, to borrow and obtain other
extensions of credit hereunder. Each Loan Party has taken all necessary
corporate or other action to authorize the execution, delivery and performance
of the Loan Documents and the Transaction Documents to which it is a party and,
in the case of the Borrower, to authorize the borrowings and other extensions of
credit on the terms and conditions of this Agreement. Other than consents from
the FCC as required pursuant to the Merger Agreement, no consent or
authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the
Transactions and the borrowings and other extensions of credit hereunder or with
the execution, delivery, performance, validity or enforceability of this
Agreement, any of the other Loan Documents or the Transaction Documents, except
(i) consents, authorizations, filings and notices described in Schedule 4.4,
which consents, authorizations, filings and notices have been obtained or made
and are in full force and effect, (ii) consents under immaterial Contractual
Obligations and (iii) the filings referred to in subsections 4.19 and 10.17.
Each Loan Document and each Transaction Document has been duly executed and
delivered on behalf of each Loan Party thereto. This Agreement and each
Transaction Document constitutes, and each Loan Document upon execution will
constitute, a legal, valid and binding obligation of each Loan party thereto,
enforceable against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws
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affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
4.5 No Legal Bar. The execution, delivery and performance of
this Agreement, the Transaction Documents and the Loan Documents, the issuance
of Letters of Credit, the borrowings hereunder and the use of the proceeds
thereof will not violate any Requirement of Law or any material Contractual
Obligation of any of the Loan Parties and will not result in, or require, the
creation or imposition of any Lien on any of their respective properties or
revenues pursuant to any Requirement of Law or any such material Contractual
Obligation (other than the Liens created by the Security Documents).
4.6 No Material Litigation. Except as set forth in Schedule
4.6, no litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of Holdings or the
Borrower, threatened by or against any of the Loan Parties or against any of
their respective properties or revenues (a) with respect to any of the Loan
Documents or any of the transactions contemplated hereby or thereby, (b) as of
the Closing Date, with respect to the Transaction Documents or any of the
transactions contemplated thereby or (c) which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect.
4.7 No Default. None of the Loan Parties is in default under
or with respect to any of its Contractual Obligations (including the Transaction
Documents) in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of the Loan Parties has
title in fee simple to, or a valid leasehold interest in, all its material real
property, and good title to, or a valid leasehold interest in, all its other
material property, and none of such property is subject to any Lien except as
permitted by subsection 7.3.
4.9 Intellectual Property. Each of the Borrower and each of
its Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
service marks, copyrights, technology, know-how and processes ("Intellectual
Property") necessary for the conduct of its business as currently conducted,
except for those the failure to own or license which could not reasonably be
expected to have a Material Adverse Effect . Except as, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect and to the
knowledge of Holdings and the Borrower (a) no claim has been asserted and is
pending by any Person challenging or questioning the use of any Intellectual
Property or the validity of any Intellectual Property (nor does Holdings or the
Borrower know of any valid basis for any such claim) and (b) the use of
Intellectual Property by the Borrower and its Subsidiaries does not infringe on
the rights of, and no Intellectual Property of the Borrower or any of its
Subsidiaries is being infringed upon by, any Person.
4.10 Taxes. Each of the Loan Parties has filed or caused to be
filed all Federal and all other material tax returns which are required to be
filed and has paid all taxes shown to be due and payable on said returns or on
any material assessments made against it or any of its property and all other
material taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than (a) any taxes, fees or other charges the
amount or
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validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the applicable Loan Party, and (b) taxes, assessments,
fees or other charges imposed by any Governmental Authority, other than income
taxes imposed by the United States of America, with respect to which the failure
to make payments could not, by reason of the amount thereof or of remedies
available to such Governmental Authorities, reasonably be expected to have a
Material Adverse Effect); and no tax Lien has been filed, and, to the knowledge
of Holdings and the Borrower, no material claim is being asserted, with respect
to any such material tax, fee or other charge, other than those being contested
in good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the Loan Parties.
4.11 Federal Regulations. No Letters of Credit and no part of
the proceeds of any Loans will be used for "buying" or "carrying" any "margin
stock" within the respective meanings of each of the quoted terms under
Regulation U of the Board as now and from time to time hereafter in effect or
for any purpose which violates the provisions of the Regulations of the Board.
If requested by any Lender or the Administrative Agent, the Borrower will
furnish to the Administrative Agent and each Lender a statement to the foregoing
effect in conformity with the requirements of FR Form G-3 or FR Form U-1
referred to in said Regulation U.
4.12 Labor Matters. Except as set forth on Schedule 4.12,
there are no strikes or other labor disputes against the Borrower or any of its
Subsidiaries pending or, to the knowledge of Holdings and the Borrower,
threatened that (individually or in the aggregate) could reasonably be expected
to have a Material Adverse Effect. Hours worked by and payments made to
employees of the Borrower and its Subsidiaries have not been in violation of the
Fair Labor Standards Act or any other applicable Requirement of Law dealing with
such matters that (individually or in the aggregate) could reasonably be
expected to have a Material Adverse Effect. To the knowledge of Holdings and the
Borrower, all payments due from the Borrower or any of its Subsidiaries on
account of employee health and welfare insurance that (individually or in the
aggregate) could reasonably be expected to have a Material Adverse Effect if not
paid have been paid or accrued as a liability on the books of the Borrower or
the relevant Subsidiary.
4.13 ERISA. Except where the liability, individually or in the
aggregate, which could reasonably be expected to result has not had or could not
reasonably be expected to have a Material Adverse Effect: (a) neither a
Reportable Event nor an "accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Single Employer Plan; (b) each Plan (other than
a Multiemployer Plan) has complied in all material respects with the applicable
provisions of ERISA and the Code; (c) no termination of a Single Employer Plan
has occurred, and no Lien in favor of the PBGC or a Single Employer Plan has
arisen and remains outstanding, during such five-year period; (d) the present
value of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
in an amount that could reasonably be expected to have a Material Adverse
Effect; (e) none of the Loan Parties nor any Commonly Controlled Entity has had
a complete or partial withdrawal from any Multiemployer Plan, and, to
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the knowledge of the Loan Parties, none of the Loan Parties nor any Commonly
Controlled Entity would become subject to any liability under ERISA if the Loan
Parties or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding the date
on which this representation is made or deemed made; (f) no such Multiemployer
Plan is in Reorganization or Insolvent; (g) the present value (determined using
actuarial and other assumptions which are reasonable in respect of the benefits
provided and the employees participating) of the liability of the Borrower and
each Commonly Controlled Entity for post retirement benefits to be provided to
their current and former employees under Plans which are welfare benefit plans
(as defined in Section 3(l) of ERISA) does not, in the aggregate, exceed the
assets under all such Plans allocable to such benefits.
4.14 Investment Company Act; Other Regulations. No Loan Party
is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness.
4.15 Subsidiaries. The Subsidiaries listed on Schedule 4.15
constitute after the completion of the Transactions all the Subsidiaries of the
Borrower at the Closing Date. Holdings has no Subsidiaries other than the
Borrower.
4.16 Use of Proceeds. The proceeds of the Loans and the
issuances of Letters of Credit shall be used solely for the purposes specified
in the preamble of this Agreement.
4.17 Environmental Matters. Except as set forth on Schedule
4.17:
(a) The facilities and properties owned, leased or operated by
the Borrower or any of its Subsidiaries (the "Properties") do not contain, and
have not previously contained, any Materials of Environmental Concern in amounts
or concentrations or under such conditions which (i) constitute or constituted a
violation of, or could reasonably be expected to give rise to liability under,
any Environmental Law in effect at the time of the making of this
representation, or (ii) could materially and adversely interfere with the
continued operation of the Properties, or (iii) materially impair the fair
saleable value thereof except in each case insofar as such violation, liability,
interference, or reduction in fair market value, or any aggregation thereof, is
not reasonably likely to result in a Material Adverse Effect.
(b) The business operated by the Borrower or any of its
Subsidiaries (the "Business"), the Properties and all operations at the
Properties are, and to the knowledge of Holdings and the Borrower have been, in
compliance in all respects with all applicable Environmental Laws except for
noncompliance which is not reasonably likely to result in a Material Adverse
Effect.
(c) Neither Holdings, the Borrower nor any of its Subsidiaries
has received any written notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or compliance
with Environmental Laws with regard to any of the Properties or the Business,
nor does Holdings or the Borrower have knowledge or reason to believe that any
such notice will be received or is being threatened except insofar as such
notice
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or threatened notice, or any aggregation thereof, does not involve a matter or
matters that is or are reasonably likely to result in a Material Adverse Effect.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in a manner
or to a location which could reasonably be expected to result in the Borrower or
any of its Subsidiaries incurring liability under, any Environmental Law in
effect at the time of the making of this representation, nor have any Materials
of Environmental Concern been generated, treated, stored or disposed of at, on
or under any of the Properties in violation of, or in a manner that could
reasonably be expected to result in the Borrower or any of its Subsidiaries
incurring liability under, any applicable Environmental Law in effect at the
time of the making of this representation except insofar as any such violation
or liability referred to in this paragraph, or any aggregation thereof, is not
reasonably likely to result in a Material Adverse Effect.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of Holdings or the Borrower, threatened,
under any Environmental Law to which Holdings, the Borrower or any of its
Subsidiaries is or will be named as a party with respect to the Properties or
the Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect to
the Properties or the Business except insofar as such proceeding, action,
decree, order or other requirement, or any aggregation thereof, is not
reasonably likely to result in a Material Adverse Effect.
(f) There has been no release or, to the best knowledge of
Holdings or the Borrower, threat of release of Materials of Environmental
Concern at or from the Properties, or arising from or related to the operations
of Holdings or any of its Subsidiaries in connection with the Properties or
otherwise in connection with the Business, in violation of or in amounts or in a
manner that could reasonably give rise to liability under Environmental Laws in
effect at the time of making this representation except insofar as any such
violation or liability referred to in this paragraph, or any aggregation
thereof, is not reasonably likely to result in a Material Adverse Effect.
4.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document or any other document,
certificate or statement furnished to the Administrative Agent or the Lenders,
or any of them, by or on behalf of any Loan Party for use in connection with the
transactions contemplated by this Agreement or the other Loan Documents (but
excluding all projections and pro forma financial information and other
estimates covered by the next sentence), contained as of the date such
statement, information, document or certificate was so furnished, any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements contained herein or therein not misleading. The
projections and pro forma financial information and other estimates and opinions
contained in the materials referenced above are based upon good faith estimates
and assumptions believed by management of the Borrower to be reasonable at the
time made, it being recognized by the Administrative Agent and the Lenders that
such financial information as it relates to future events is not to be viewed as
fact and that actual results during the period or periods covered by such
financial information may differ from the projected results set forth therein by
a material amount. As of the Closing Date, the representations and warranties
(a) of Holdings and LIN in the Merger Agreement are true and correct in all
material respects, (b) of
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Holdings and LIN in the NBC Transaction Agreements are true and correct in all
material respects and (c) of all other parties to the Merger Agreement and the
NBC Transaction Agreements, to the knowledge of Holdings and the Borrower, are
true and correct in all material respects. As of the Closing Date, there is no
fact known to any Loan Party (other than general economic conditions, which
conditions are commonly known and affect businesses generally) that could
reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Loan Documents or in any other
documents, certificates and statements furnished to the Administrative Agent and
the Lenders for use in connection with the transactions contemplated hereby and
by the other Loan Documents.
4.19 Security Documents. (a) Except as described in subsection
10.16, the Guarantee and Collateral Agreement is effective to create in favor of
the Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable security interest in the collateral described therein and proceeds
thereof. In the case of the Pledged Stock and the Pledged Debt Securities, when
stock certificates representing such Pledged Stock or certificates representing
such Pledged Debt Securities are delivered to the Administrative Agent, or when
financing statements in appropriate form are filed in the offices specified on
Schedule 4.19(a), and in the case of the other collateral described in the
Guarantee and Collateral Agreement, when financing statements in appropriate
form are filed in the offices specified on Schedule 4.19(a), the Guarantee and
Collateral Agreement shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in such
collateral and the proceeds thereof, as security for the Obligations (as defined
in the Guarantee and Collateral Agreement), in each case prior and superior in
right to any other Person subject, except in the case of such Pledged Stock and
the Pledged Debt Securities, to Liens permitted by subsection 7.3.
(b) Each of the Mortgages is effective to create in favor of
the Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and proceeds
thereof, and when the Mortgages are filed in the offices specified on Schedule
4.19(b) in accordance with subsection 10.17, each Mortgage shall constitute a
fully perfected Lien on, and security interest in, all right, title and interest
of the Loan Parties in the Mortgaged Properties and the proceeds thereof, as
security for the Obligations (as defined in the relevant Mortgage), in each case
prior and superior in right to any other Person, subject to Liens permitted by
subsection 7.3 (other than, with respect to Mortgaged Properties as of the
Closing Date, subsections 7.3(g) and (q)).
4.20 Solvency. Each Loan Party is, and after giving effect to
the Transactions and the incurrence of all Indebtedness and obligations being
incurred in connection herewith and therewith will be, Solvent.
4.21 Senior Indebtedness. The Obligations will constitute
"Senior Indebtedness" of the Borrower under and as defined in the Senior
Subordinated Note Indenture. The obligations of each Subsidiary Guarantor and
Holdings under the Guarantee and Collateral Agreement will constitute "Guarantor
Senior Indebtedness" of such Subsidiary Guarantor or Holdings under and as
defined in the Senior Subordinated Note Indenture.
4.22 Station Licenses. Schedule 4.22 accurately and completely
lists as of the Closing Date (after giving effect to the Transactions), for each
Station, all Station Licenses
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granted or assigned to the Borrower or any of its Subsidiaries, or under which
the Borrower and its Subsidiaries have the right to operate such Station. As of
the Closing Date, the Station Licenses listed on Schedule 4.22 with respect to
any Station include all material authorizations, licenses and permits issued by
the FCC that are required or necessary for the operation of such Station, and
the conduct of the business of the Borrower and its Subsidiaries with respect to
such Station, as now conducted or proposed to be conducted. The Station Licenses
listed on Schedule 4.22 will be, as of the Closing Date, issued in the name of,
or validly assigned to the respective License Subsidiary for the Station being
operated under authority of such Station Licenses and validly issued and in full
force and effect, and the Borrower and its Subsidiaries will have fulfilled and
performed in all material respects their obligations with respect thereto and
have full power and authority to operate thereunder, and, except as described in
Schedule 4.22 hereto, all consents to the transfer of control of the principal
broadcasting licenses and any other material Station Licenses in connection with
the transactions contemplated hereby and in the Transaction Documents shall have
been granted by the FCC, provided that such consents will not be required to
have become Final Orders.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. Intentionally
Deleted.
5.2 Conditions to Each Extension of Credit. The agreement of
each Lender and the Swingline Lender to make any extension of credit requested
to be made by it on any date (including, without limitation, its initial
extension of credit) is subject to the satisfaction of the following conditions
precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by any Loan Party in or pursuant to
the Loan Documents shall be true and correct in all material respects
on and as of such date as if made on and as of such date except for any
representation and warranty which is expressly made as of an earlier
date, which representation and warranty shall have been true and
correct in all material respects as of such earlier date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
subsection 5.2 have been satisfied.
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SECTION 6. AFFIRMATIVE COVENANTS
Each of Holdings and the Borrower hereby agree that, so long
as the Commitments remain in effect, any Letter of Credit remains outstanding or
any Loan or other amount is owing to any Lender, the Swingline Lender, the
Issuing Lender or the Administrative Agent hereunder, each of Holdings and the
Borrower shall and (except in the case of delivery of financial information
reports and notices) shall cause each of its Subsidiaries to:
6.1 Financial Statements. Furnish to the Administrative Agent
which shall in turn be promptly distributed by the Administrative Agent to the
Lenders or, in the case of clause (c) hereof, upon the request of any Lender):
(a) as soon as available but in any event within 90 days after
the end of each fiscal year of Holdings and the Borrower, as
applicable, (i) a copy of the audited consolidated balance sheet of
each of Holdings and its consolidated Subsidiaries and the Borrower and
its consolidated Subsidiaries as at the end of such year and the
related audited consolidated statements of operations and of cash flows
for such year, and (ii) the annual operating statements of each
Station, in each case setting forth in comparative form the figures for
the previous year, and, in the case of clause (i), reported on without
a "going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by independent certified public
accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of each
fiscal year of Holdings and the Borrower, as applicable (i) the
unaudited consolidated balance sheet of each of Holdings and its
consolidated Subsidiaries and the Borrower and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidated statements of income and of cash flows for such quarter
and the portion of the fiscal year through the end of such quarter, and
(ii) the quarterly operating statements of each Station, in each case
setting forth in comparative form the figures for the corresponding
period in the previous year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal
year-end audit adjustments); and
(c) as soon as available, but in any event not later than 15
days after receipt thereof, the information set forth in clauses (a),
(b), (c) and (d) of Annex D to the Joint Venture Loan.
All such financial statements shall fairly present in all material respects the
financial position of Holdings and its Subsidiaries or the Borrower and its
Subsidiaries, as applicable, as of such date and shall be prepared in reasonable
detail and in accordance with GAAP applied consistently throughout the periods
reflected therein and with prior periods (except as approved by such accountants
or officer, as the case may be, and disclosed therein).
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6.2 Certificates; Other Information. Furnish to the
Administrative Agent (which shall in turn be promptly distributed by the
Administrative Agent to the Lenders) or, in the case of clause (f), to the
relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a)(i), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default relating to the
covenants contained in subsections 7.1 and 7.7, except as specified in
such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to subsection 6.1(a) and 6.1(b),(i) a certificate of a
Responsible Officer stating that, to such Responsible Officer's
knowledge, each Loan Party during such period has observed or performed
all of its covenants and other agreements, and satisfied every
condition, contained in this Agreement and the other Loan Documents to
which it is a party to be observed, performed or satisfied by it, in
all material respects, and that such Responsible Officer has obtained
no knowledge of any Default or Event of Default except as specified in
such certificate, (ii) (A) a Compliance Certificate containing all
information necessary for determining compliance by Holdings and its
Subsidiaries with the provisions of this Agreement referred to therein
as of the last day of the relevant fiscal quarter or fiscal year and
(B) to the extent not previously disclosed to the Administrative Agent,
a listing of any state within the United States where any Loan Party
keeps inventory or equipment and of any Intellectual Property arising
under the laws of the United States (or any jurisdiction therein)
acquired by any Loan Party since the date of the most recent list
delivered pursuant to this clause (B) (or, in the case of the first
such list so delivered, since the Closing Date) and (iii) any final
accountants' management letters delivered by the independent certified
public accountants reporting on such financial statements to Holdings
or any of its Subsidiaries;
(c) as soon as available, and in any event no later than 45
days after the end of each fiscal year of Holdings, a detailed
consolidated budget for (i) Holdings and its consolidated Subsidiaries
and (ii) each Station, in each case for such fiscal year (including a
projected consolidated balance sheet of Holdings and its Subsidiaries,
as applicable, as of the end of such fiscal year, and the related
consolidated statements of projected cash flow, projected changes in
financial position and projected income), and, as soon as available,
significant revisions, if any, of such budget and projections with
respect to such fiscal year (collectively, the "Projections"), which
Projections shall in each case be accompanied by a certificate of a
Responsible Officer stating that such Projections are based upon good
faith estimates and assumptions believed by management of Holdings to
be reasonable at the time made, it being recognized by the Lenders that
such financial information as it relates to future events is not to be
viewed as fact and that actual results during the period or periods
covered by such financial information may differ from the projected
results set forth therein by a material amount;
(d) within five days after the same are sent, copies of all
financial statements and reports which Holdings or the Borrower sends
to the holders of any class of its debt securities or public equity
securities and within five days after the same are filed, copies
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of all financial statements and reports which Holdings or the Borrower
may make to, or file with, the Securities and Exchange Commission or
any successor or analogous Governmental Authority;
(e) promptly following their submission with the FCC or any
other Federal, state or local Governmental Authority, copies of any and
all periodic or special reports filed by Holdings or any of its
Subsidiaries, if such reports are publicly available and indicate any
material adverse change in the business, operations or financial
condition of Holdings or any of its Subsidiaries or if copies thereof
are requested by any Lender or the Administrative Agent (but only to
the extent such reports are publicly available), and copies of any and
all material notices and other material communications from the FCC or
from any other Federal, state or local Governmental Authority with
respect to Holdings or any of its Subsidiaries or any Station; and
(f) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of Holdings or its Subsidiaries, as the case may be,
provided that notwithstanding the foregoing, Holdings and each of its
Subsidiaries shall have the right to pay any such obligation and in good faith
contest, by proper legal actions or proceedings, the validity or amount of such
claims.
6.4 Conduct of Business and Maintenance of Existence, etc. (a)
Except as contemplated by subsection 7.4, (i) continue to engage in business of
the same general type as now conducted by it, (ii) preserve, renew and keep in
full force and effect its existence and (iii) take all reasonable action to
preserve and maintain all rights, privileges, licenses and franchises necessary
or desirable in the normal conduct of its business, except (other than with
respect to the Station Licenses), in the case of this clause (iii), to the
extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect and except if (A) in the reasonable business judgment of
Holdings, the Borrower or such Subsidiary, as the case may be, it is in its best
economic interest not to preserve and maintain such privileges, rights or
franchises (other than the Station Licenses), and (B) such failure to preserve
and maintain such privileges, rights or franchises (other than the Station
Licenses) would not materially adversely affect the rights of the Lenders
hereunder or the value of the collateral security for the Loans; (b) comply with
all Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect and (c) comply in all material respects with
the terms of all Station Licenses.
6.5 Maintenance of Property; Insurance. (a) Keep all property
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted, and maintain with financially sound and
reputable insurance companies insurance on all its property in at least such
amounts and against at least such risks (but including in any event public
liability, product liability and business interruption) as are usually insured
against in the same general area by companies engaged in the same or a similar
business or as otherwise
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reasonably requested by the Administrative Agent; and furnish to the
Administrative Agent, upon written request, information in reasonable detail as
to the insurance carried except to the extent that the failure to do any of the
foregoing with respect to any such property could not reasonably be expected to
materially adversely affect the value or usefulness of such property.
(b) All such insurance shall (i) provide that no cancelation,
material reduction in amount or material change in coverage thereof shall be
effective until at least thirty (30) days after receipt by the Administrative
Agent of written notice thereof, (ii) name the Administrative Agent as insured
party or loss payee and (iii) if reasonably requested by the Administrative
Agent, include a breach of warranty clause.
6.6 Inspection of Property; Books and Records; Discussions.
(a) Keep proper books of records and accounts in accordance with sound business
practices and (b) upon reasonable prior notice and at any reasonable time,
permit representatives of the Administrative Agent or any Lender to visit and
inspect any of its properties and examine and, if reasonably requested, make
copies of its contracts, books and records and to discuss the business,
operations, properties and financial and other condition of Holdings and its
Subsidiaries with officers and employees of Holdings and its Subsidiaries and
with its independent certified public accountants, provided that the
Administrative Agent or such Lender shall notify Holdings and the Borrower prior
to any contact with such accountants and give Holdings and the Borrower the
opportunity to participate in such discussions.
6.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of Holdings or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between
Holdings or any of its Subsidiaries and any Governmental Authority and
which has a reasonable likelihood of being adversely determined, which
in either case, if not cured or if adversely determined, as the case
may be, could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting Holdings or any of
its Subsidiaries in which the amount involved is $5,000,000 or more and
not covered by insurance or in which injunctive or similar relief is
sought;
(d) the following events, as soon as possible and in any event
within 30 days after Holdings or the Borrower knows or has reason to
know thereof and if, individually or in the aggregate, the liability
that could reasonably be expected to result would be material to
Holdings and its Subsidiaries taken as a whole: (i) the occurrence of
any Reportable Event with respect to any Plan (other than a
Multiemployer Plan), a failure to make any required contribution to a
Plan, the creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of,
any Multiemployer Plan or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any
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Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan;
(e) any development or event which has had or could reasonably
be expected to have a Material Adverse Effect; and
(f) the receipt by Holdings or any of its Subsidiaries of any
complaint, order, citation, notice or other written communication from
any Person with respect to the existence or alleged existence of a
violation of any Environmental Laws or Materials of Environmental
Concern or any other environmental matter including the occurrence of
any spill, discharge or release in a quantity that is reportable under
any Environmental Laws on any Mortgaged Properties or any other
property owned, leased or utilized by Holdings or any of its
Subsidiaries but only to the extent that such complaint, order,
citation, notice or written communication individually could reasonably
be expected to result in liability or an obligation under any
Environmental Law that could reasonably be expected to have a Material
Adverse Effect.
Each notice pursuant to this subsection 6.7 shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action Holdings or the relevant Subsidiary proposes to
take with respect thereto.
6.8 Environmental Laws. (a) Except as could not reasonably be
expected to have a Material Adverse Effect, comply with, and use reasonable
efforts to ensure compliance by all tenants and subtenants, if any, with all
applicable Environmental Laws, and obtain and comply with and maintain, and use
reasonable efforts to ensure that all tenants and subtenants obtain and comply
with and maintain, any and all licenses, approvals, notifications, registrations
or permits required by applicable Environmental Laws.
(b) Conduct and complete (or cause to be conducted and
completed) in all material respects all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and in a timely fashion comply in all material respects with
all lawful orders and directives of all Governmental Authorities regarding
Environmental Laws, except to the extent that the failure to do so could not be
reasonably expected to have a Material Adverse Effect.
6.9 Interest Rate Protection. On or before the date that is
the earlier to occur of (a) September 30, 1998 and (b) 60 days after the closing
of the WOOD-TV Acquisition, enter into Interest Rate Protection Agreements to
the extent necessary to provide that at least 50% of the aggregate principal
amount of Indebtedness of the Borrower and its Subsidiaries outstanding after
the Closing Date is subject to either a fixed interest rate or interest rate
protection for a period of not less than two years (provided, that in the event
that the term thereof shall be less than two years, such Interest Rate
Protection Agreements shall be extended or replaced no later than the expiration
of such term, with the term of such extended or replacement Interest Rate
Protection Agreements ending no earlier than the second anniversary of the date
on which the original Interest Rate Protection Agreements were entered into),
which Interest Rate Protection Agreements shall in each case have terms and
conditions reasonably satisfactory to the Administrative Agent. None of Holdings
or any of its Subsidiaries shall default (beyond any applicable grace period) in
the performance of any of its material obligations thereunder.
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6.10 Additional Collateral, etc. (a) If at any time following
the Closing Date the aggregate monetary value (as determined by aggregating the
monetary value of each item or items of property so acquired on the date of the
acquisition thereof) of all property (to the extent not already secured) of any
nature whatsoever acquired by the Borrower or any Subsidiary after the Closing
Date is in excess of $1,000,000 (other than (i) any Property described in
paragraph (b) or (c) below and (ii) any Property subject to a Lien expressly
permitted by subsection 7.3(g)) as to which the Administrative Agent, for the
benefit of the Lenders, does not have a perfected Lien, promptly (i) execute and
deliver to the Administrative Agent such amendments to the Guarantee and
Collateral Agreement or such other documents as the Administrative Agent deems
necessary or advisable in order to grant to the Administrative Agent, for the
benefit of the Lenders, a security interest in such Property and (ii) take all
actions necessary or advisable to grant to the Administrative Agent, for the
benefit of the Lenders, a perfected first priority security interest in such
Property, including without limitation, the filing of Uniform Commercial Code
financing statements and filings with the United States Patent and Trademark
Office and in such jurisdictions as may be required by the Guarantee and
Collateral Agreement or by law or as may be reasonably requested by the
Administrative Agent.
(b) With respect to any fee interest in any real estate
acquired after the Closing Date by the Borrower or any of its Subsidiaries
(other than any such real estate subject to a Lien expressly permitted by
subsection 7.3(g), (j) or (q) (but in the case of clause (q), only to the extent
of such Lien)), promptly (i) execute and deliver a first priority Mortgage
(subject only to Liens permitted by subsection 7.3) in favor of the
Administrative Agent, for the benefit of the Lenders, covering such real estate,
(ii) if reasonably requested by the Administrative Agent, provide the Lenders
with a title report as well as a current ALTA survey thereof, together with a
surveyor's certificate, in each case in form and substance reasonably
satisfactory to the Administrative Agent. Notwithstanding the foregoing, the
Borrower and its Subsidiaries shall only be required to execute and deliver
Mortgages and/or provide title reports and current ALTA surveys covering fee
properties acquired after the Closing Date by the Borrower or its Subsidiaries
with a fair market value at the time of such acquisition in excess of
$1,500,000.
(c) With respect to any new Subsidiary created or acquired
after the Closing Date by the Borrower or any of its Subsidiaries, promptly (i)
execute and deliver to the Administrative Agent such amendments to the Guarantee
and Collateral Agreement as the Administrative Agent deems necessary or
advisable in order to grant to the Administrative Agent, for the benefit of the
Lenders, a perfected first priority security interest in the Capital Stock and
debt securities of such new Subsidiary which are owned by the Borrower or any of
its Subsidiaries and required to be pledged pursuant to the Guarantee and
Collateral Agreement, (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock and debt securities, together with (A) in the
case of such Capital Stock, undated stock powers endorsed in blank, and (B) in
the case of such debt securities, endorsed in blank, in each case executed and
delivered by a Responsible Officer of the Borrower or such Subsidiary, as the
case may be, (iii) cause such new Subsidiary (A) to become a party to the
Guarantee and Collateral Agreement and (B) to take such actions necessary or
advisable to grant to the Administrative Agent for the benefit of the Lenders a
perfected first priority security interest in the collateral described in the
Guarantee and Collateral Agreement with respect to such new Subsidiary,
including, without limitation, the filing of Uniform Commercial Code financing
statements in such jurisdictions as
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may be required by the Guarantee and Collateral Agreement or by law or as may be
reasonably requested by the Administrative Agent and (iv) if reasonably
requested by the Administrative Agent, deliver to the Administrative Agent legal
opinions relating to the matters described above, which opinion shall be in form
and substance, and from counsel, reasonably satisfactory to the Administrative
Agent, provided that notwithstanding the foregoing, only 65% of the voting
Capital Stock of any direct foreign Subsidiary of Holdings, the Borrower or any
domestic Subsidiary need be pledged under this clause (c), no voting Capital
Stock of any foreign Subsidiary of any other foreign Subsidiary need be pledged
under this clause (c) and no direct or indirect foreign Subsidiary shall become
a Guarantor hereunder or shall be required to pledge any of its assets.
(d) Promptly, but in any event not later than 30 Business Days
after the Administrative Agent or the Required Lenders, as applicable, shall
have made a request contemplated by subsection 10.17, provide to the
Administrative Agent in respect of each Mortgaged Property (i) a mortgagee's
title insurance policy (or policies) or marked up unconditional binder for such
insurance, provided that each such policy shall (A) be in an amount reasonably
satisfactory to the Administrative Agent with respect to each Mortgaged Property
covered thereby (but not in excess of the fair market value thereof); (B) insure
that the Mortgage insured thereby creates a valid first Lien on such Mortgaged
Property free and clear of all defects and encumbrances, except as disclosed
therein or otherwise permitted by subsection 7.3 (other than subsections 7.3(g)
and (q)); (C) name the Administrative Agent for the benefit of the Lenders as
the insured thereunder; (D) be in the form of ALTA Loan Policy - 1992 (or
equivalent policies) to the extent available in the applicable jurisdictions;
(E) contain such endorsements and affirmative coverage as the Administrative
Agent may reasonably request to the extent available in the applicable
jurisdictions and available without material cost to the Borrower or its
Subsidiaries; and (F) be issued by title companies satisfactory to the
Administrative Agent (including any such title companies acting as co-insurers
or reinsurers, at the option of the Administrative Agent) and (ii) evidence
satisfactory to it that all premiums in respect of each such policy, all charges
for mortgage recording tax, and all related expenses, if any, have been paid or
duly provided for.
(e) Upon the request of the Administrative Agent, to the
extent permitted by applicable Requirements of Law at the time of such request,
grant or cause its Subsidiaries to grant, to the Administrative Agent, a direct
security interest in the Station Licenses within 30 days after receipt of such
request, provided that to the extent FCC consent shall be required in connection
with granting such security interest, such consent shall be requested within 30
days after receipt of such request and upon receipt of such FCC consent, such
security interest shall be granted within 10 Business Days thereof.
(f) Upon the occurrence and during the continuance of (i) any
Event of Default with respect to paragraph (a) of Section 8, (ii) any payment
default with respect to any Senior Subordinated Indebtedness, Senior Unsecured
Indebtedness or Holdings Discount Indebtedness or (iii) any Event of Default
with respect to subsection 7.1, promptly, but in any event not more than 30
Business Days (subject to necessary approvals by the FCC), following the request
of the Administrative Agent, cause the assets relating to each Station held by
the Borrower to be transferred to its respective License Subsidiary or, at the
election of the Administrative Agent, another Subsidiary that has no other
assets or liabilities.
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6.11 Intentionally deleted.
6.12 After-Acquired Stations. Unless the Borrower and the
Administrative Agent shall otherwise agree, cause the Station License relating
to each after-acquired Station to be held in a separate License Subsidiary,
provided that to the extent the Borrower shall not have received FCC approval
with respect to the foregoing at the scheduled closing of the acquisition of
such Station, the Borrower shall comply with the foregoing requirement as soon
as practicable following such acquisition (but in any event within 60 days after
such acquisition).
6.13 Changes in Locations, Name, etc. The Borrower shall not,
except upon not less than 15 days' prior written notice to the Administrative
Agent and delivery to the Administrative Agent of all additional executed
financing statements and other documents reasonably requested by the
Administrative Agent to maintain the validity, perfection and priority of the
security interests provided for in the Guarantee and Collateral Agreement:
(a) permit any of the Inventory or Equipment (each as defined
in the Guarantee and Collateral Agreement) (other than (i) immaterial Inventory
and Equipment and (ii) Inventory and Equipment in transit in the ordinary course
of business) to be kept at a location other than those listed on Schedule 5 of
the Guarantee and Collateral Agreement;
(b) change the location of its chief executive office or sole
place of business from that referred to in Section 4.4 of the Guarantee and
Collateral Agreement; or
(c) change its name, identity or corporate structure to such
an extent that any financing statement filed by the Administrative Agent in
connection with the Guarantee and Collateral Agreement would become misleading.
SECTION 7. NEGATIVE COVENANTS
Each of Holdings and the Borrower hereby agrees that, so long
as the Commitments remain in effect, any Letter of Credit remains outstanding or
any Loan or other amount is owing to any Lender or the Administrative Agent
hereunder, neither Holdings nor the Borrower shall, or shall permit (except with
respect to subsection 7.1) any of its Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants. (a) Consolidated Leverage
Ratio. Permit the Consolidated Leverage Ratio as of the last day of any Test
Period set forth below to exceed the ratio set forth below opposite such period:
Period Consolidated Leverage Ratio
04/01/01 to 03/31/04 7.40x
04/01/04 to 12/31/04 6.75x
01/01/05 and thereafter 6.25x
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(b) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio as of the last day of any Test Period set
forth below to be less than the ratio set forth below opposite such period:
Period Consolidated Interest
Coverage Ratio
04/01/01 to 12/31/03 1.50x
01/01/04 to 03/31/04 1.60x
04/01/04 to 06/30/04 1.65x
07/01/04 to 09/30/04 1.70x
10/01/04 and thereafter 1.75x
(c) Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio as at the completion of any Test Period
to be less than 1.05x.
(d) Consolidated Senior Secured Leverage Ratio. Permit the
Consolidated Senior Secured Leverage Ratio as of the last day of any Test Period
to exceed 3.00x.
7.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist (in each case, to "Incur") any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan
Document;
(b) Indebtedness among the Loan Parties (other than Holdings)
arising as a result of intercompany loans;
(c) purchase money Indebtedness, provided that the aggregate
amount of Indebtedness incurred pursuant to this subsection 7.2(c)
shall not exceed $20,000,000 at any one time outstanding;
(d) Capital Lease Obligations, provided that the aggregate
principal amount of Capital Lease Obligations incurred pursuant to this
subsection 7.2(d) in any fiscal year of the Borrower, when added to the
aggregate amount of other Capital Expenditures made during such fiscal
year pursuant to subsection 7.7, shall not exceed the amount permitted
to be expended during such fiscal year pursuant to subsection 7.7;
(e) Indebtedness (other than Senior Subordinated Indebtedness
and Holdings Discount Indebtedness) outstanding on the Closing Date and
listed on Schedule 7.2(e) and any refinancings, refundings, renewals or
extensions thereof (without any increase in the principal amount
thereof other than pursuant to the instrument creating such Lien
without any modification thereof after the Closing Date);
(f) (i) indemnities and guarantees (including guarantees of
Indebtedness if such Indebtedness is otherwise permitted hereunder)
made in the ordinary course of business by the Borrower or any of its
Subsidiaries, provided that such indemnities and guarantees could not
individually or in the aggregate have a Material Adverse Effect, (ii)
guarantees
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by Holdings or any of its Subsidiaries of (A) real property leases and
(B) personal property operating leases, in each case entered into in
the ordinary course of business by the Borrower or any of its
Subsidiaries and (iii) indemnities in favor of the Persons issuing
title insurance policies insuring the title to any property;
(g)(i) Senior Subordinated Indebtedness of the Borrower in an
aggregate principal amount not to exceed $650,000,000, (ii) Senior
Unsecured Indebtedness of the Borrower in an aggregate principal amount
not to exceed $350,000,000, provided that the Net Cash Proceeds of the
issuance of any Senior Unsecured Notes shall be applied to the optional
prepayment of the Term Loans as provided in Section 2.8 (other than to
the extent that such issuance is made in accordance with Section 7.9 to
effect a refinancing of any Senior Unsecured Notes), (iii) Holdings
Discount Indebtedness in an aggregate principal amount at maturity not
to exceed $425,000,000 minus the aggregate principal amount of Holdings
Discount Notes prepaid (other than to the extent that such issuance is
made in accordance with Section 7.9 to effect a refinancing of any
Holdings Discount Notes except pursuant to any mandatory redemption),
including pursuant to a mandatory redemption, at any time during the
term of this Agreement, provided that the Net Cash Proceeds of the
issuance of any Additional Holdings Discount Notes shall be contributed
by Holdings to the Borrower as common equity and applied to the
optional prepayment of the Term Loans as provided in Section 2.8 (other
than to the extent that such issuance is made in accordance with
Section 7.9 to effect a refinancing of any Holdings Discount Notes),
and (iv) Guarantee Obligations of any Subsidiary Guarantor in respect
of Indebtedness referred to in clause (i) or (ii) of this subsection
7.2(g), provided that (A) a Subsidiary Guarantor shall not guarantee
any Senior Subordinated Indebtedness unless such guarantee of the
Senior Subordinated Indebtedness is subordinated to the guarantee of
such Subsidiary Guarantor of the Obligations on terms no less favorable
to the Lenders than the subordination provisions of the Senior
Subordinated Notes or Additional Senior Subordinated Notes, as
applicable, and (B) a Subsidiary Guarantor shall not guarantee any
Senior Subordinated Indebtedness or Senior Unsecured Indebtedness
unless such guarantee of the Senior Subordinated Indebtedness or the
Senior Unsecured Indebtedness, as the case may be, provides for the
release and termination thereof, and is released and terminated,
without action by any party, upon (I) the sale of all or substantially
all of the assets of such Subsidiary Guarantor (including by way of an
Asset Swap Transaction), (II) a sale of all of the equity interest in
such Subsidiary Guarantor or (III) such Subsidiary Guarantor ceasing to
be a Restricted Subsidiary (as defined in the Senior Subordinated Note
Indenture or any Additional Senior Subordinated Notes Indenture or the
Senior Unsecured Notes Indenture, as the case may be);
(h) Indebtedness resulting from the endorsement of negotiable
instruments in the ordinary course of business;
(i) Indebtedness in respect of any Interest Rate Protection
Agreements;
(j) Indebtedness (i) of the Borrower or any of its
Subsidiaries to the seller on an unsecured basis representing the
purchase price in a Permitted Acquisition or any Asset Swap Transaction
in an aggregate amount for all Permitted Acquisitions and Asset Swap
Transactions not to exceed $30,000,000, (ii) of the Borrower or any of
its Subsidiaries that is not subordinated to the Obligations, assumed
in connection with any Permitted
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Acquisition or any Asset Swap Transaction in an aggregate amount for
all Permitted Acquisitions and Asset Swap Transactions not to exceed
$30,000,000 and (iii) (A) of the Borrower and (B) of any Subsidiary of
the Borrower, in each case that is subordinated to the Obligations and
is assumed in connection with any Permitted Acquisition or any Asset
Swap Transaction, in an aggregate amount for all Permitted Acquisitions
and Asset Swap Transactions not to exceed $200,000,000 in the case of
clause (A) and $30,000,000 in the case of clause (B), provided that in
the case of this clause (iii), (A) after giving effect to the
assumption of such Indebtedness, (I) no Default or Event of Default
will have occurred and be continuing and no default or event of default
shall have occurred and be continuing under the Senior Subordinated
Note Indenture and (II) the Borrower shall be in compliance with all
covenants contained in subsection 7.1, (B) the subordination provisions
of such Indebtedness shall be reasonably satisfactory in all respects
to the Administrative Agent (it being understood that, to the extent
such subordination provisions are no less favorable to the Lenders than
the subordination provisions of the Senior Subordinated Notes, such
terms shall be deemed satisfactory) (C) the aggregate amount of such
Indebtedness, to the extent its terms provide for any maturity,
amortization or mandatory redemption (other than with asset sale
proceeds, subject to the provisions of this Agreement, or following a
change of control) or sinking fund payment prior to the date that is
six months following the Tranche B Maturity Date, shall not exceed
$100,000,000 and (D) the covenants and events of default relating to
such Indebtedness shall be no more restrictive than those contained in
this Agreement taken as a whole;
(k) Indebtedness of any Loan Party (other than Holdings) to
any other Loan Party from intercompany transfers of assets made in the
ordinary course of business or to the extent permitted under
subsections 7.5 and 7.8;
(l) Indebtedness subject to Liens permitted under subsections
7.3(a), (b), (c), (d) and (r);
(m) indemnities made in (i) the Loan Documents, the
Transaction Documents or in any of the agreements contemplated hereby
and thereby and (ii) the monitoring and oversight agreement and
financial advisory agreement described in subsection 7.6(a)(iv), and in
the corporate charter and/or bylaws or other comparable constituent
documents of Holdings and its Subsidiaries; and
(n) additional Indebtedness of the Borrower or any of its
Subsidiaries in an aggregate principal amount (for the Borrower and all
Subsidiaries) not to exceed $25,000,000 at any one time outstanding.
7.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings, provided that adequate
reserves with respect to contested taxes are maintained on the books of
Holdings or one of its Subsidiaries, as the case may be, in conformity
with GAAP;
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(b) carriers', landlord's, warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business which are not overdue for a period of more than 60
days or which are being contested in good faith by appropriate
proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, insurance contracts, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary
course of business;
(e) easements, rights-of-way, restrictions, covenants, minor
exceptions to title and other similar encumbrances (i) previously or
hereinafter incurred in the ordinary course of business which, in the
aggregate, are not material in amount and which, in the case of such
encumbrances on any of the Mortgaged Properties, do not in the
aggregate materially detract from the value of the Property subject
thereto or, in the case of such encumbrances on property, materially
interfere with the ordinary conduct of the business of the Borrower or
any of its Subsidiaries or (ii) which are set forth in the title
reports delivered to the Administrative Agent on or prior to the
Closing Date or after the Closing Date pursuant to subsection 6.10(b);
(f) Liens in existence on the Closing Date listed on Schedule
7.3(f), securing Indebtedness permitted by subsection 7.2(e) (including
refinancings, refundings, renewals and extensions of such Indebtedness
as permitted by subsection 7.2(e)), provided that no such Lien is
spread to cover any additional property (other than after acquired
title in or on such property and proceeds of the existing collateral in
accordance with the instrument creating such Lien) after the Closing
Date and that the amount of Indebtedness secured thereby is not
increased except pursuant to the instrument creating such Lien (without
any modification thereof after the Closing Date);
(g) (i) Liens securing Indebtedness of the Borrower or any of
its Subsidiaries permitted pursuant to subsections 7.2(c) and 7.2(d)
(provided that (A) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets,
(B) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and (C) the amount of
Indebtedness secured thereby is not increased except pursuant to the
instrument creating such Lien (without any modification thereof after
the Closing Date)) and (ii) Liens existing on any property or asset at
the time of acquisition thereof by the Borrower or any Subsidiary or
existing on any property or asset of any Person that becomes a
Subsidiary after the Closing Date at the time such Person becomes a
Subsidiary (provided that (x) such Lien is not created in contemplation
of or in connection with such acquisition or such Person becoming a
Subsidiary, as the case may be, (y) such Lien shall not apply to any
other property or assets of the Borrower or any of its Subsidiaries and
(z) such Lien shall secure only those obligations which it secures on
the date of such acquisition or the date such Person becomes a
Subsidiary, as the case may be) and (iii) Liens securing Indebtedness
of the Borrower or any of its
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Subsidiaries assumed in connection with a Permitted Acquisition or an
Asset Swap Transaction in accordance with the terms of subsection
7.2(j)(ii);
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease entered
into by the Borrower or any of its Subsidiaries in the ordinary course
of its business and covering only the assets so leased;
(j) any obligations or duties affecting any of the Property of
the Borrower or its Subsidiaries to any municipality or public
authority with respect to any franchise, grant, license or permit which
do not materially impair the use of such Property for the purposes for
which it is held;
(k) Liens imposed by operation of law with respect to any
judgments or orders not constituting an Event of Default;
(l) attachment or judgment Liens (other than judgment Liens
paid or fully covered by insurance which are not outstanding for more
than 60 days) in an aggregate amount outstanding at any one time not in
excess of $10,000,000;
(m) Liens arising from precautionary Uniform Commercial Code
financing statement filings with respect to operating leases or
consignment arrangements entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business;
(n) Liens in favor of a banking institution arising by
operation of law encumbering deposits (including the right of set-off)
held by such banking institution incurred in the ordinary course of
business and which are within the general parameters customary in the
banking industry;
(o) licenses (other than Station Licenses), leases or
subleases permitted hereunder granted to others not interfering in any
material respect with the business of Holdings or any of its
Subsidiaries;
(p) Liens on property of the Borrower or any of its
Subsidiaries in favor of landlords securing licenses (other than
Station Licenses), subleases and leases permitted hereunder and granted
to others and not interfering in any material respect in the business
of Holdings or any of its Subsidiaries;
(q) Liens not otherwise permitted by this subsection 7.3 so
long as the aggregate outstanding principal amount of the obligations
secured thereby does not exceed $7,500,000 at any one time; and
(r) Liens granted by LIN Texas with respect to its interest in
the LLC to GECC in connection with the Joint Venture Loan.
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7.4 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
(a) any Subsidiary of the Borrower (other than, except as set
forth below, any License Subsidiary or, at any time after any of the
conditions set forth in subsection 6.10(f)(i), (ii) or (iii) shall have
occurred, any Subsidiary holding the assets and liabilities of any
Station) may be merged or consolidated with or into the Borrower
(provided that the Borrower shall be the continuing or surviving
corporation) or with or into any Wholly Owned Subsidiary Guarantor
(other than, except as set forth below, any License Subsidiary or, at
any time after any of the conditions set forth in subsection 6.10(f)
(i), (ii) or (iii) shall have occurred, any Subsidiary holding the
assets and liabilities of any Station) (provided that the Wholly Owned
Subsidiary Guarantor shall be the continuing or surviving corporation);
provided, however, that (i) a License Subsidiary and any Subsidiary
holding the assets and liabilities of any Station may take any actions
otherwise prohibited by this clause (a) to the extent such merger or
consolidation occurs in contemplation of, and immediately preceding, a
sale, transfer or other disposition (including an Asset Swap
Transaction) of such License Subsidiary or other Subsidiary and (ii)
any Subsidiary may take any actions otherwise prohibited by this clause
(a) to the extent necessary to comply with the requirements of
subsection 6.10(f);
(b) any Subsidiary of the Borrower (other than, except as set
forth below, any License Subsidiary or, at any time after any of the
conditions set forth in subsection 6.10(f)(i), (ii) or (iii) shall have
occurred, any Subsidiary holding the assets and liabilities of any
Station) may sell, lease, transfer or otherwise dispose of any or all
of its assets (upon voluntary liquidation or otherwise) to the Borrower
or any Wholly Owned Subsidiary Guarantor; provided, however, that (i) a
License Subsidiary and any Subsidiary holding the assets and
liabilities of any Station may take any actions otherwise prohibited by
this clause (b) to the extent any sale, transfer or other disposition
occurs in contemplation of, and immediately preceding, a sale, transfer
or other disposition (including an Asset Swap Transaction) of such
License Subsidiary or other Subsidiary and (ii) any Subsidiary may take
any actions otherwise prohibited by this clause (b) to the extent
necessary to comply with the requirements of subsection 6.10(f); and
(c) the Borrower may be merged or consolidated with or into a
newly formed limited liability company with no assets or liabilities
that is a Subsidiary of Holdings solely for the purposes of realizing
certain tax benefits so long as Holdings shall take such actions as
would be required under subsection 6.10(c) if such limited liability
company were a Subsidiary of the Borrower.
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7.5 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables, leasehold interests and its
interest in the LLC), whether now owned or hereafter acquired, except:
(a) obsolete or worn out property disposed of in the ordinary
course of business or property that is no longer useful in the conduct
of the Borrower's business disposed of in the ordinary course of
business;
(b) transfers resulting from any casualty or condemnation of
property or assets;
(c) any sale or other transfer at fair market value of any
property or assets constituting fixed assets for at least 75% cash,
provided that the aggregate net cash proceeds of the sales and
transfers made pursuant to this paragraph (c) in the aggregate do not
exceed $5,000,000 in any fiscal year;
(d) intercompany sales or transfers of assets made in the
ordinary course of business;
(e) the sale or discount of overdue accounts receivable
arising in the ordinary course of business, but only in connection with
the compromise or collection thereof;
(f) licenses or sublicenses of intellectual property and
general intangibles (other than any Station Licenses) and licenses,
leases or subleases of other property (other than any Station Licenses)
in each case in the ordinary course of business and which do not
materially interfere with the business of the Borrower and its
Subsidiaries;
(g) dispositions permitted by subsection 7.4;
(h) the sale of any Broadcasting Asset for aggregate
consideration equal to the fair market value of such Broadcasting Asset
(as determined in good faith by the board of directors of the Borrower
or the applicable Subsidiary), provided that (i) after giving effect to
such sale, no Default or Event of Default exists or shall be
continuing, (ii) at least 75% of such consideration received by the
Borrower in respect thereof shall be in the form of cash and Cash
Equivalents, (iii) the Net Cash Proceeds of such sale shall be applied
in the manner prescribed by subsection 2.9(d) and (iv) (A) the
Consolidated EBITDA of the Broadcasting Asset being sold plus the
Consolidated EBITDA of all Broadcasting Assets that were sold pursuant
to this subsection 7.5(h) or exchanged pursuant to subsection 7.5(i) in
such fiscal quarter and in the immediately preceding
four-fiscal-quarter period shall not exceed 25% of the Consolidated
EBITDA of the Borrower for such immediately preceding
four-fiscal-quarter period, (B) the Consolidated EBITDA of the
Broadcasting Asset being sold plus the Consolidated EBITDA of all
Broadcasting Assets that were sold pursuant to this subsection 7.5(h)
or exchanged pursuant to subsection 7.5(i) in such fiscal quarter and
in the preceding eight-fiscal-quarter period shall not exceed 40% of
the Consolidated EBITDA of the Borrower for such eight-fiscal quarter
period and (C) the Consolidated EBITDA of the Broadcasting Assets being
sold plus the Consolidated EBITDA of all Broadcasting Assets that were
sold pursuant to this
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subsection 7.5(h) or exchanged pursuant to subsection 7.5(i) in such
fiscal quarter and in the preceding twenty-fiscal-quarter period shall
not exceed 60% of the Consolidated EBITDA of the Borrower for such
twenty-fiscal-quarter period;
(i) Asset Swap Transactions; and
(j) the KXTX Transaction
7.6 Limitation on Dividends. Declare or pay any dividend
(other than dividends payable solely in common stock) on, or make any payment on
account of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other acquisition of, any shares
of any class of Capital Stock of Holdings or any of its Subsidiaries or any
warrants or options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of Holdings or any
of its Subsidiaries (such declarations, payments, setting apart, purchases,
redemptions, defeasance, retirements, acquisitions and distributions being
herein called "Restricted Payments"), except that:
(a) the Borrower may make Restricted Payments to Holdings, so
long as no Event of Default (or with respect to clause (vi) below, any
interest payment Default) has occurred and is continuing or would be
continuing after giving effect to such Restricted Payment, provided
that the Borrower shall be permitted to make the Restricted Payments in
clauses (iii) and (iv) below notwithstanding any such Event of Default,
unless, in the case of clause (iv), such Event of Default relates to a
payment Default under subsection 8(a):
(i) the proceeds of which shall be applied by
Holdings directly to pay out of pocket expenses, for
administrative, legal and accounting services provided by
third parties that are reasonable and customary and incurred
in the ordinary course of business for such professional
services, or to pay franchise fees and similar costs;
provided, however, any such administrative expenses shall not
exceed an aggregate amount of $3,000,000 per fiscal year;
(ii) payments, the proceeds of which will be used to
repurchase the Capital Stock or other securities of Holdings
from outside directors, employees or members of the management
of Holdings, or any Subsidiary of Holdings, at a price not in
excess of fair market value, in an aggregate amount not in
excess of $15,000,000, net of the proceeds received by
Holdings as a result of any resales of any such Capital Stock
or other securities;
(iii) payments, the proceeds of which will be used to
pay taxes of Holdings, the Borrower and its Subsidiaries as
part of a consolidated, combined or unitary tax filing group
or of the separate operations of Holdings;
(iv) payments, the proceeds of which will be used to
pay management fees to Xxxxx Muse & Co. Partners, L.P. in
accordance with the terms of its monitoring
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and oversight agreement and the financial advisory agreement
contemplated by subsection 7.10(b)(ii);
(v) if such Restricted Payment is a purchase of
Capital Stock or a distribution to Holdings to permit Holdings
to purchase its Capital Stock, in either case, made in order
to fulfill the obligations of Holdings or any of its
Subsidiaries under an employee stock purchase plan or similar
plan covering employees of Holdings or any Subsidiary of
Holdings as from time to time in effect in an aggregate net
amount not to exceed $15,000,000;
(vi) at any time on or after March 1, 2003, the
proceeds of which shall be applied by Holdings to pay cash
interest and scheduled principal (including pursuant to a
mandatory redemption) on the Holdings Discount Indebtedness in
accordance with its terms, provided that such Restricted
Payments shall not exceed in any quarterly period, the amounts
due with respect to the Holdings Accrued Indebtedness for such
quarter; and
(vii) at any time, using the proceeds of any Notes
Payment Borrowing the proceeds of which will be either (A)
used solely to make Permitted Notes Payments or (B) placed
into an escrow account as provided in the penultimate sentence
of the penultimate paragraph of the preamble of this
Agreement;
(b) any Subsidiary may make Restricted Payments to the
Borrower or any of its Subsidiaries;
(c) Permitted Issuances may be made; and
(d) Restricted Payments necessary to complete the
Transactions.
7.7 Limitation on Capital Expenditures. (a) Make or commit to
make any Capital Expenditure, except Capital Expenditures of the Borrower and
its Subsidiaries in the ordinary course of business not exceeding for any fiscal
year $35,000,000, provided that 100% of any amount not used in any fiscal year
may be carried forward into the next succeeding fiscal year (it being understood
and agreed that no amount may be carried forward beyond the year immediately
succeeding the fiscal year in which it arose).
(b) In addition to the Capital Expenditures permitted pursuant
to paragraph (a) of this subsection 7.7, to the extent such proceeds are not
otherwise utilized pursuant to subsection 7.8(n) or 7.9(e), the Borrower and its
Subsidiaries may make additional Capital Expenditures (which shall not be
counted in the limitations set forth in paragraph (a) of this subsection 7.7)
consisting of (i) the investment of Net Cash Proceeds not required to be applied
pursuant to subsection 2.9, including with respect to the investment of the
proceeds of the sale of assets which are permitted pursuant to subsection 7.5
and (ii) the investment of Excess Cash Flow generated during prior fiscal years
(beginning with Excess Cash Flow generated in the fiscal year ended in December
1998 but, in each case, including the retained portion of Excess Cash Flow for
only those periods where the respective Excess Cash Flow payment has theretofore
occurred) and not required to be applied pursuant to subsection 2.9(c).
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(c) Notwithstanding the foregoing, in no event shall Capital
Expenditures be made by Holdings.
7.8 Limitation on Investments, Loans and Advances. Make any advance,
loan, extension of credit (by way of guaranty or otherwise) or capital
contribution to, or purchase any stock, bonds, notes, debentures or other
securities of or any assets constituting a business unit of, or make any other
investment in, any Person ("Investments"), except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) Guarantee Obligations permitted by subsection 7.2(f) and
subsection 7.2(g)(iii);
(d) the Transactions and, subject to the proviso set forth in the
definition of the term "Permitted Acquisition", the WOOD-TV Acquisition
and the acquisition of the WVTM Assets in accordance with all material
applicable Requirements of Law and the terms of the WVTM Purchase
Agreement (without giving effect to any amendments or waivers that could
reasonably be expected to adversely impact the Facilities and are not
reasonably satisfactory to the Administrative Agent);
(e) Investments (other than Permitted Acquisitions) by Holdings and
its Subsidiaries in any of the Loan Parties, including any new Subsidiary
which becomes a Loan Party;
(f) loans and advances by Holdings or its Subsidiaries to their
respective directors, officers and employees in an aggregate principal
amount not exceeding $5,000,000 at any one time outstanding;
(g) loans, advances or Investments in existence on the Closing Date
and listed on Schedule 7.8(g), and extensions, renewals, modifications or
restatements or replacements thereof, provided that no such extension,
renewal, modification or restatement shall (i) increase the amount of the
original loan, advance or Investment or (ii) adversely affect the
interests of the Lenders with respect to such original loan, advance or
Investment or the interests of the Lenders under this Agreement or any
other Loan Document in any material respect;
(h) Investments permitted by subsections 7.2(b), (f) and (l),
subsections 7.4 and 7.6 and Capital Expenditures permitted by subsection
7.7;
(i) promissory notes and other similar non-cash consideration
received by the Subsidiaries of Holdings in connection with the
dispositions permitted by subsection 7.5, including equity interests
received in connection with Asset Swap Transactions permitted by
subsection 7.5(i);
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(j) Investments in Interest Rate Protection Agreements in the
ordinary course of the business of the Borrower or any of its Subsidiaries
and not for purposes of speculation;
(k) Investments (including debt obligations and Capital Stock)
received in connection with the bankruptcy or reorganization of suppliers
and customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course of
business;
(l) (i) Investments listed on Schedule 7.8(l) and extensions,
renewals, modifications or restatements or replacements thereof, provided
that no such extension, renewal, modification or restatement shall (A)
increase the amount of the original loans, advances or Investments or (B)
adversely affect the interests of the Lenders with respect to such
original loans, advances or Investments or the interests of the Lenders
under this Agreement or any other Loan Document in any material respect;
and (ii) in addition to the foregoing but subject to subsection 7.18,
Investments by the Borrower and its Subsidiaries in an aggregate amount
not exceeding $30,000,000 (valued at cost, without regard to any write
down or write up thereof) at any one time outstanding;
(m) Investments after the Closing Date by the Borrower and its
Subsidiaries constituting Permitted Acquisitions or Asset Swap
Transactions;
(n) in addition to the foregoing, to the extent such proceeds are
not otherwise utilized pursuant to subsection 7.7(b) or 7.9(e), the
Subsidiaries of Holdings may make additional Investments (which shall not
be counted in the limitations set forth above) as follows: (i) Investments
consisting of the Investment of Net Cash Proceeds not required to be
applied pursuant to subsection 2.9, including (A) with respect to the
Investment of proceeds of the insurance and condemnation proceeds not
required to be applied pursuant to subsection 2.9 and (B) with respect to
the Investment of proceeds of the sale of assets which are permitted
pursuant to subsection 7.5; and (ii) Investments consisting of the
Investment of Excess Cash Flow generated during prior fiscal years
(beginning with Excess Cash Flow generated in the fiscal year ended in
December 1998 but, in each case, including the retained portion of the
respective Excess Cash Flow for only those periods where the respective
Excess Cash Flow payment has theretofore occurred) and not required to be
applied pursuant to subsection 2.9(c); and
(o) Investments in Holdings that are downstreamed to the Joint
Venture within two Business Days solely for the purpose of curing any
event of default under the Joint Venture Loan.
7.9 Limitation on Optional Payments and Modifications of Debt
Instruments, etc. (a) Make any optional payment or prepayment on or redemption
of or any payments in redemption, defeasance or repurchase of (A) any Senior
Subordinated Indebtedness (except pursuant to a permanent refinancing of Senior
Subordinated Indebtedness) or (B) the Holdings Discount Indebtedness (except
pursuant to a permanent refinancing of the Holdings Discount Indebtedness) or
(C) the Senior Unsecured Indebtedness (except pursuant to a permanent
refinancing of the Senior Unsecured Indebtedness), except in each case mandatory
payments of interest, scheduled principal (including pursuant to a mandatory
redemption) on or after March 1,
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2003, with respect to interest accruing following the Closing Date, fees and
expenses required by the terms of the agreement governing or instrument
evidencing such Indebtedness but only to the extent permitted under the
subordination provisions, if any, applicable thereto, and except, in the case of
the Holdings Discount Notes, any Permitted Notes Payment;
(b) amend, supplement, waive or otherwise modify any of the
provisions of any Senior Subordinated Indebtedness, the Senior Subordinated Note
Indenture, any Senior Unsecured Indebtedness, the Senior Unsecured Notes
Indenture, the Holdings Discount Indebtedness or the Holdings Discount Notes
Indenture:
(i) in the case of Senior Subordinated Indebtedness and the Senior
Subordinated Note Indenture, which amends or modifies any subordination
provisions contained therein;
(ii) which shortens the fixed maturity, or increases the rate or
shortens the time of payment of interest on, or increases the amount or
shortens the time of payment of any principal or premium payable whether
at maturity, at a date fixed for prepayment or by acceleration or
otherwise of such Indebtedness, or increases the amount of, or accelerates
the time of payment of, any fees payable in connection therewith;
(iii) which relates to the affirmative or negative covenants, events
of default or remedies under the documents or instruments evidencing such
Indebtedness and the effect of which is to subject Holdings or any of its
Subsidiaries to any more onerous or more restrictive provisions; or
(iv) which otherwise adversely affects the interests of the Lenders
as senior creditors or the interests of the Lenders under this Agreement
or any other Loan Document in any respect;
(c) make any payment in cash on any equity or debt security that may
be made under the terms thereof by the issuance of any security of the same
nature;
(d) designate any Indebtedness (other than the Loans and the Senior
Unsecured Indebtedness) as "Designated Senior Indebtedness" under any Senior
Subordinated Indebtedness (including, without limitation, under the Senior
Subordinated Note Indenture); or
(e) make any optional payment or prepayment on or redemption of or
any payments in redemption, defeasance or repurchase of any Indebtedness that is
subordinated to the Obligations and that is assumed in connection with a
Permitted Acquisition or an Asset Swap Transaction pursuant to subsection
7.2(j)(iii) (except pursuant to a permanent refinancing of such Indebtedness),
except (i) mandatory payments of interest, fees and expenses required by the
terms of the agreement governing or instrument evidencing such Indebtedness but
only to the extent permitted under the subordination provisions, if any,
applicable thereto, and (ii) the Borrower and its Subsidiaries may, to the
extent such proceeds are not otherwise utilized pursuant to subsections 7.7(b)
or 7.8(n), use cash consisting of the retained amount of Excess Cash Flow
generated during prior fiscal years (beginning with Excess Cash Flow generated
in the fiscal year ended December 1998 but, in each case, including the retained
portion of the respective Excess
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Cash flow for only those periods where the respective Excess Cash Flow payment
has theretofore occurred) to make voluntary prepayments on such Indebtedness in
an aggregate amount, which, when added to the aggregate amount of all prior
prepayments of such Indebtedness, shall not exceed $100,000,000.
7.10 Limitation on Transactions with Affiliates. (a) Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property or the rendering of any service, with any Affiliate unless
such transaction is (i) otherwise permitted under this Agreement, (ii) in the
ordinary course of business of Holdings or the relevant Subsidiary of Holdings,
as the case may be, and (iii) upon fair and reasonable terms no less favorable
to Holdings or such Subsidiary, as the case may be, than it would obtain in a
comparable arm's length transaction with a Person which is not an Affiliate.
(b) In addition, notwithstanding the foregoing, Holdings and its
Subsidiaries shall be entitled to make the following payments and/or to enter
into the following transactions:
(i) the payment of reasonable and customary fees and reimbursement
of expenses payable to directors of Holdings;
(ii) the payment to Xxxxx Muse & Co. Partners, L.P. of fees and
expenses pursuant to a monitoring and oversight agreement and a financial
advisory agreement approved by the board of directors of Holdings; and
(iii) the employment arrangements with respect to the procurement of
services of directors, officers and employees in the ordinary course of
business and the payment of reasonable fees in connection therewith.
7.11 Limitation on Sales and Leasebacks. Enter into any arrangement
with any Person providing for the leasing by the Borrower or any Subsidiary of
real or personal, immovable or movable, property which has been or is to be sold
or transferred by the Borrower or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Borrower or such
Subsidiary, provided that this subsection 7.11 shall not prohibit any sale and
leaseback resulting from the incurrence of any lease in respect of any capital
asset entered into within 120 days of the acquisition of such capital asset for
the purpose of providing permanent financing of such capital asset.
7.12 Limitation on Changes in Fiscal Periods. Permit the fiscal year
of Holdings or the Borrower to end on a day other than December 31, provided
that Holdings and the Borrower may change such fiscal year upon the approval of
the Administrative Agent or change Holdings's or the Borrower's method of
determining fiscal quarters.
7.13 Limitation on Negative Pledge Clauses. Enter into with any
Person, or suffer to exist, any agreement, other than (a) this Agreement and the
other Loan Documents, (b) the Senior Subordinated Note Indenture and any other
agreement evidencing Senior Subordinated Indebtedness, (c) the Holdings Discount
Notes Indenture and any other agreement evidencing the Holdings Discount
Indebtedness, (d) any indenture evidencing Indebtedness
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permitted under subsection 7.2(j)(iii), (e) the Senior Unsecured Notes Indenture
and any other agreement evidencing Senior Unsecured Indebtedness and (f) in the
case of clause (i) below only, any agreements governing any purchase money Liens
Capital Lease Obligations, Liens permitted under subsection 7.3(j) or any other
similar agreement or transaction otherwise permitted hereby (in which case, any
prohibition or limitation shall only be effective against the assets financed
thereby), which prohibits or limits the ability of Holdings, the Borrower or any
of its Subsidiaries to (i) create, incur, assume or suffer to exist any Lien
upon any of its Property or revenues, whether now owned or hereafter acquired,
or (ii) pay dividends or make other distributions, or pay any Indebtedness owed,
to Holdings, the Borrower or any of its Subsidiaries.
7.14 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for those businesses in which
the Borrower and its Subsidiaries are engaged on the date of this Agreement or
which are reasonably related thereto (including, without limitation, in
connection with any Permitted Acquisition, Asset Swap Transaction or otherwise).
7.15 Limitation on Amendments to Constituent and Transaction
Documents. (a) Amend, supplement or otherwise modify its certificate of
incorporation or by-laws unless such amendment, supplement or other modification
does not adversely affect the interests of any Lender in any material respect or
(b) amend, supplement or otherwise modify (pursuant to a waiver or otherwise)
the Joint Venture Loan Guarantee, the LLC Agreement, the LP Agreement or the
Network Affiliation Agreements or consent to, or permit Equity Holdings B to
consent to, any amendment, supplement or other modification (pursuant to a
waiver or otherwise) to the Joint Venture Loan or the Replacement Guarantor
Pledge Agreement unless such amendment, supplement or other modification does
not adversely affect the interests of any Lender in any material respect.
7.16 Limitations on Changes in Holding Company Status. Permit
Holdings, Equity Holdings B or Equity Holdings A to engage in any activities or
incur any Indebtedness or Guarantee Obligations other than (a) in the case of
Holdings, (i) owning the stock of the Borrower, (ii) its activities incident to
the performance of the Loan Documents, including its guarantee thereunder, (iii)
transactions pursuant to or expressly contemplated by the Transaction Documents
or this Agreement, (iv) its unsecured subordinated guarantee of any Senior
Subordinated Indebtedness in accordance with the terms of this Agreement and (v)
any Holdings Discount Indebtedness, (b) in the case of Equity Holdings B, (i)
owning the stock of Holdings and (ii) the Joint Venture Loan Guarantee and (c)
in the case of Equity Holdings A, owning the stock of Holdings.
7.17 Limitation on Changes in Station Affiliation. Permit any
Station (other than a Station that, on the Closing Date, is affiliated with
United Paramount Network or Warner Brothers Network) to change its network
affiliation if the percentage represented by such Station of Consolidated EBITDA
for the twelve month period preceding the date of the proposed change (giving
pro forma effect to any acquisitions or dispositions that have occurred since
the beginning of such twelve month period as if such acquisitions or
dispositions had occurred at the beginning of such twelve month period),
together with the percentage represented by each such other Station that
previously changed its network affiliation after the Closing Date of the
Consolidated EBITDA for the twelve month period preceding the date of such
previous change (determined on a pro forma basis as aforesaid), would exceed
40%, provided that WAVY-TV Station may
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become affiliated with Fox and such change will not be subject to the foregoing
restriction and will not be taken into account for purposes of this subsection
7.17.
7.18 Limitation on Minority Investments. Permit more than 10% of
Consolidated EBITDA for any Test Period to be derived from minority investments
in partnerships and local marketing agreements where the Borrower or any Wholly
Owned Subsidiary is not the operating and control entity of the local marketing
agreement, provided that such percentage shall be increased to 15% following any
KXTX Transaction.
7.19 Approval of Joint Venture Actions. Approve any corporate
transaction involving the LLC or the LP that could reasonably be expected to
materially and adversely impact the Lenders without the prior consent of the
Required Lenders.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or
the Borrower shall fail to pay any interest on any Loan or Reimbursement
Obligation, or any other amount payable hereunder or under any other Loan
Document, within five days after any such interest or other amount becomes
due in accordance with the terms hereof; or Holdings, after the delivery
of an officer's certificate relating to the release of funds held in
escrow as provided in the penultimate sentence of the penultimate
paragraph of the preamble of this Agreement, shall fail to make the
Permitted Notes Payment referred to in such officer's certificate on the
date of such release; or the Borrower, after the delivery of an officer's
certificate relating to the withdrawal of funds held in the Acquisition
Funding Account, shall fail to make the Permitted Acquisition or prepay
the Tranche B Term Loans referred to in such officer's certificate on the
date of such withdrawal; or
(b) Any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or which is contained in any
certificate, document or financial or other statement furnished by it at
any time under or in connection with this Agreement or any such other Loan
Document shall prove to have been inaccurate in any material respect on or
as of the date made or deemed made; or
(c) (i) Holdings, the Borrower or any of their Subsidiaries shall
default in the observance or performance of any agreement contained in
subsection 6.4(a)(ii), subsection 6.7(a), subsection 6.10(e) or (f),
subsection 6.13 or Section 7 of this Agreement; or
(d) Holdings, the Borrower or any Subsidiary shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in paragraphs
(a) through (c) of this subsection), and such default shall continue
unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the
request of any Lender); or
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(e) Holdings, the Borrower or any of its Subsidiaries shall (i)
default in making any payment of any principal of or interest on any
Indebtedness (other than pursuant to the Loan Documents) beyond the period
of grace, if any, provided in the instrument or agreement under which such
Indebtedness was created; or (ii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of
which default or other event or condition is to cause, or to permit the
holder or beneficiary of such Indebtedness (or a trustee or agent on
behalf of such holder or beneficiary) to cause, with the giving of notice
if required, such Indebtedness to become due prior to its stated maturity
or (in the case of any such Indebtedness constituting a Guarantee
Obligation) to become payable, provided that a default, event or condition
described in clause (i) or (ii) of this paragraph (e) shall not at any
time constitute an Event of Default under this Agreement unless, at such
time, one or more defaults, events or conditions (without duplication as
to the same item of Indebtedness) of the type described in clauses (i) and
(ii) of this paragraph (e) shall have occurred and be continuing with
respect to Indebtedness the outstanding amount of which exceeds in the
aggregate $10,000,000; or
(f) (i) Holdings, the Borrower or any of its Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
winding-up, liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official for it or for
all or any substantial part of its assets, or Holdings, the Borrower or
any of its Subsidiaries shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against Holdings, the
Borrower or any of its Subsidiaries any case, proceeding or other action
of a nature referred to in clause (i) above which (A) results in the entry
of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days; or
(iii) there shall be commenced against Holdings, the Borrower or any of
its Subsidiaries any case, proceeding or other action seeking issuance of
a warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry of an
order for any such relief which shall not have been vacated, discharged,
or stayed or bonded pending appeal within 60 days from the entry thereof,
or (iv) Holdings, the Borrower or any of its Subsidiaries shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) Holdings, the Borrower or any of its Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts (other than intercompany debt) as they become
due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan
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shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed (or a trustee shall
be appointed) to administer, or to terminate, any Single Employer Plan,
which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely to
result in the termination of such Plan for purposes of Title IV of ERISA,
(iv) any Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) the Borrower or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (vi) above, such event or condition, together with all
other such events or conditions, if any, could reasonably be expected to
have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
Holdings, the Borrower or any of its Subsidiaries involving in the
aggregate a liability (not paid or fully covered by insurance) of
$10,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 60 days from
the entry thereof; or
(i) Any Loan Document shall, at any time, cease to be in full force
and effect (unless released by the Administrative Agent at the direction
of the Required Lenders or all Lenders (to the extent required by
subsection 10.1) or as otherwise permitted under this Agreement or the
other Loan Documents) or shall be declared null and void (and, if such
invalidity is such so as to be amenable to cure without materially
disadvantaging the position of the Administrative Agent and the Lenders
thereunder, the relevant Loan Party shall have failed to cure such
invalidity within 30 days after notice from the Administrative Agent or
such shorter time period as is specified by the Administrative Agent in
such notice and is reasonable in the circumstances), or the validity or
enforceability thereof shall be contested by any Loan Party, or any of the
Liens intended to be created by any Security Document (including, without
limitation, any Mortgage filed pursuant to subsection 10.17) shall cease
to be or shall not be a valid and perfected Lien having the priority
contemplated thereby (and, if such invalidity is such so as to be amenable
to cure without materially disadvantaging the position of the
Administrative Agent and the Lenders as secured parties thereunder, the
relevant Loan Party shall have failed to cure such invalidity within 30
days after notice from the Administrative Agent or such shorter time
period as specified by the Administrative Agent in such notice and is
reasonable in the circumstances); or
(j) A Change of Control shall occur or Holdings shall fail to own
directly or indirectly, beneficially and of record, 100% of the Capital
Stock of the Borrower free and clear of all Liens other than Liens in
favor of the Lenders pursuant to the Loan Documents; or
(k) Holdings, the Borrower or any Subsidiary shall incur any
liability (not paid or fully covered by insurance) under any Environmental
Law in an amount which would result in a Material Adverse Effect; or
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(l) The principal broadcasting licenses of any Station, or any other
material authorizations, licenses or permits issued by the FCC, shall be
revoked or canceled or expire by its terms and not be renewed, or shall be
modified in each case in a manner which would have a Material Adverse
Effect; or
(m) The Borrower or any of its Subsidiaries shall have received a
notice of termination with respect to any Network Affiliation
Agreements(or any alternative network affiliation agreement in compliance
with this clause (m)) if the percentage represented by such Network
Affiliation Agreement (for the Station in question) of Consolidated EBITDA
for the 12-month period preceding the date of the termination (giving pro
forma effect to any acquisitions or dispositions that have occurred since
the beginning of such 12-month period as if such acquisitions or
dispositions had occurred at the beginning of such 12-month period), would
exceed 15%, unless, within 30 days after receipt of such termination
notice, an alternative network affiliation agreement in form and substance
reasonably satisfactory to the Required Lenders shall have been executed
and delivered and come into effect prior to or concurrently with the
termination date of such Network Affiliation Agreement; or any such
Network Affiliation Agreement shall otherwise for any reason be terminated
or cease to be in full force and effect; or
(n) The Borrower or any of its Subsidiaries shall default in the
payment when due of any Film Obligations in an aggregate amount in excess
of $2,000,000 and such default shall continue unremedied for a period of
150 or more days, except to the extent the same shall be contested in good
faith and by proper proceedings and against which adequate reserves are
being maintained; or
(o) Any Event of Default shall have occurred and be continuing with
respect to the Joint Venture Loan and the lender thereunder shall have
instituted proceedings against Equity Holdings B with respect to the Joint
Venture Loan Guarantee, the outcome of which, if adversely determined,
could reasonably be expected to have a Material Adverse Effect.
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to Holdings or the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including, without
limitation, all amounts of L/C Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented the documents
required thereunder) shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or any of the following actions may
be taken: (i) with the consent of the Majority Revolving Credit Facility
Lenders, the Administrative Agent may, or upon the request of the Majority
Revolving Credit Facility Lenders, the Administrative Agent shall, by notice to
the Borrower declare the Revolving Credit Commitments to be terminated
forthwith, whereupon the Revolving Credit Commitments shall immediately
terminate and (ii) with the consent of the Required Lenders, the Administrative
Agent may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrower, declare the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the other
Loan Documents (including, without limitation, all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit shall
have presented the documents
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required thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to this paragraph, the Borrower shall at such time deposit
in a cash collateral account opened by the Administrative Agent an amount equal
to the aggregate then undrawn and unexpired amount of such Letters of Credit.
Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrower hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned
to the Borrower (or such other Person as may be lawfully entitled thereto).
Except as otherwise expressly provided above in this Section 8, the Borrower
waives presentment, demand, protest or other notice of any kind.
SECTION 9. THE ADMINISTRATIVE AGENT
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
the Administrative Agent, in such capacity, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto
to the extent permitted by applicable law. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates
shall be (a) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Loan
Document (except to the extent that any of the foregoing are found by a final
and nonappealable decision of a court of competent jurisdiction to have resulted
from its or such Person's own gross negligence or willful misconduct) or (b)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Loan Party or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
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by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Administrative Agent shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party.
9.4 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement and the other Loan Documents in accordance with a request
of the Required Lenders (or, if so specified by this Agreement, all Lenders),
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders and all future holders of the Loans.
9.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders (or, if so specified by this Agreement, all
Lenders), provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
9.6 Non-Reliance on the Administrative Agent and Other Lenders. Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act by
the Administrative Agent hereafter taken, including any review of the affairs of
a Loan Party or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Administrative
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Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Loan Parties and their affiliates. Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of any Loan Party or any
affiliate of a Loan Party which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
9.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their pro rata share of the aggregate Revolving Credit
Exposure, Term Loans outstanding and unused Commitments in effect on the date on
which indemnification is sought under this subsection 9.7 (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such share immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of, the Commitments, this Agreement, any of the
other Loan Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent under or in connection with any of the
foregoing, provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements which are found by a final
and nonappealable decision of a court of competent jurisdiction to have resulted
from the Administrative Agent's gross negligence or willful misconduct. The
agreements in this subsection 9.7 shall survive the payment of the Loans and all
other amounts payable hereunder.
9.8 Agent in Its Individual Capacity. The Administrative Agent and
its affiliates may make loans to, accept deposits from and generally engage in
any kind of business with any Loan Party as though the Administrative Agent were
not an Agent. With respect to its Loans made or renewed by it and with respect
to any Letter of Credit issued or participated in by it, the Administrative
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not an
Agent, and the terms "Lender" and "Lenders" shall include the Administrative
Agent in its individual capacity.
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9.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent shall be
approved by the Borrower (which approval shall not be unreasonably withheld or
delayed), whereupon such successor agent shall succeed to the rights, powers and
duties of the Administrative Agent, and the term "Administrative Agent" shall
mean such successor agent effective upon such appointment and approval, and the
former Administrative Agent's rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
SECTION 10. MISCELLANEOUS
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10.1 Amendments and Waivers. Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection 10.1. The
Required Lenders and each Loan Party to the relevant Loan Documents may, or,
with the written consent of the Required Lenders, the Administrative Agent and
each Loan Party to the relevant Loan Document may, from time to time, (a) enter
into written amendments, supplements or modifications hereto and to the other
Loan Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights of the Lenders or of
the Loan Parties hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement or
the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) forgive the principal amount or extend the
final scheduled date of maturity of any Loan, extend the scheduled date of any
amortization payment in respect of any Term Loan, reduce the stated rate of any
interest, fee or letter of credit commission payable hereunder or extend the
scheduled date of any payment thereof, or increase the amount or extend the
expiration date of any Lender's Revolving Credit Commitment or Delayed Tranche A
Term Loan Commitment, in each case without the consent of each Lender directly
affected thereby; (ii) amend, modify or waive any provision of this subsection
10.1 or reduce any percentage specified in the definition of Required Lenders,
consent to the assignment or transfer by Holdings or the Borrower of any of its
rights and obligations under this Agreement and the other Loan Documents,
release all or substantially all of the collateral or release all or
substantially all of the Subsidiary Guarantors or Holdings from their
obligations under the Guarantee and Collateral Agreement other than pursuant to
a transaction permitted by this Agreement, in each case without the written
consent of all Lenders; (iii) amend, modify or waive any condition precedent to
any extension of credit under the Revolving Credit Facility set forth in
subsection 5.2 without the written consent of the Majority Revolving Credit
Facility Lenders; (iv) change the allocation of payments among the Tranche A
Term Loan Facilities, the Tranche B Term Loan Facilities and the Incremental
Term Loan Facilities, as applicable, specified in subsection 2.15(b) or the
allocation of payments between the Facilities pursuant to subsection 2.9(d), in
each case without the consent of the Majority Facility Lenders in respect of
each Facility adversely affected thereby; (v) amend the definition of the term
"Majority Facility Lenders", "Majority Revolving Credit Facility Lenders" or
"Majority Tranche A Term Facility Lenders" or modify in any other manner the
number, percentages or class of Lenders required to make any determinations or
waive any rights hereunder or to modify any provision hereof without the consent
of each Lender directly affected thereby; (vi) amend, modify or waive any
provision of Section 9 without the written consent of the Administrative Agent;
(vii) amend, modify or waive any provision of Section 3 without the written
consent of the Issuing Lender or (viii) amend, modify or waive any provision of
subsection 2.4(c) without the written consent of the Swingline Lender. In
furtherance of clause (iii) of this subsection 10.1, no amendment to or waiver
of any representation or warranty or any covenant contained in this Agreement or
any other Loan Document, or of any Default or Event of Default, shall be deemed
to be effective for purposes of determining whether the conditions precedent set
forth in subsection 5.2 to the making of any Revolving Credit Loan have been
satisfied unless the Majority Revolving Credit Facility Lenders shall have
consented to such amendment or waiver. Any waiver and any amendment, supplement
or modification in accordance with this subsection 10.1 shall apply equally to
each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of
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the Loans. In the case of any waiver, the Loan Parties, the Lenders and the
Administrative Agent shall be restored to their former position and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower, Holdings and the
Administrative Agent, and as set forth on the signature pages hereto or in any
Assignment and Acceptance in the case of the Lenders, or to such other address
as may be hereafter notified by the respective parties hereto:
The Borrower: LIN Television Corporation
0 Xxxxxxxx Xxxxxx, Xxxxx 000X
Providence, Rhode Island 02906
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: 000-000-0000
with copies to: Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopy: 000-000-0000
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxx
Telecopy: 000-000-0000
with a copy to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Telecopy: 000-000-0000
Holdings: Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopy: 000-000-0000
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with a copy to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Telecopy: 000-000-0000
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxx
Telecopy: 000-000-0000
The Administrative
Agent: Chase Agency Services
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy: 000-000-0000
with a copy to: The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy: 212-270-1264
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay
or reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent, (b) to
pay or
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reimburse each Lender and the Administrative Agent for all its reasonable costs
and expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the reasonable fees and disbursements
of counsel to the Administrative Agent and, at any time after and during the
continuance of an Event of Default, of one counsel of all the Lenders, (c) to
pay, indemnify, and hold harmless each Lender and the Administrative Agent from
and against any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
similar taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation or administration
of any of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement, the other Loan Documents and any such other documents, and (d) to
pay, indemnify and hold harmless each Lender and the Administrative Agent and
their respective officers, directors, trustees, professional advisors,
employees, affiliates, agents and controlling persons (each, an "indemnitee")
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents and
any such other documents, including, without limitation, any of the foregoing
relating to the use of proceeds of the Loans or the violation of, noncompliance
with or liability under, any Environmental Law applicable to the operations of
the Borrower, any of its Subsidiaries or any of the Properties (all the
foregoing in this clause (d), collectively, the "indemnified liabilities"),
provided that the Borrower shall have no obligation hereunder to any indemnitee
with respect to indemnified liabilities to the extent such indemnified
liabilities are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such indemnitee or, in the case of indemnified liabilities arising
under this Agreement, any Notes and the other documents, from material breach by
the indemnitee of this Agreement, any Notes or the other Loan Documents, as the
case may be. The agreements in this subsection 10.5 shall survive repayment of
the Loans and all other amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Administrative Agent, all future holders of the Loans and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
(b) Any Lender may in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a "Participant") participating interests
in any Loan owing to such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and the other Loan Documents, and the
Borrower and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement and the other Loan Documents. No Lender shall
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permit any Participant to have (and no participant shall have) the right to
approve any amendment or waiver of any provision of any Loan Document, or any
consent to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Loans or any fees payable hereunder, or postpone the date of the final
maturity of the Loans, in each case to the extent subject to such participation.
The Borrower agrees that if amounts outstanding under this Agreement and the
Loans are due or unpaid, or shall have been declared or shall have become due
and payable upon the occurrence of an Event of Default, each Participant shall,
to the maximum extent permitted by applicable law, be deemed to have the right
of setoff in respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement, provided that in
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in subsection
10.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that
each Participant shall be entitled to the benefits of subsections 2.16, 2.17 and
2.18 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if it were a Lender, provided that in the case
of subsection 2.17, such Participant shall have complied with the requirements
of said subsection and provided further that no Participant shall be entitled to
receive any greater amount pursuant to any such subsection than the transferor
Lender would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant had no
such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its
business and in accordance with applicable law, at any time and from time to
time assign to any Lender, affiliate or Approved Fund thereof or, with the
consent of the Borrower and the Administrative Agent (which, in each case, shall
not be unreasonably withheld or delayed), to an additional bank, financial
institution or other entity (an "Assignee") all or any part of its rights and
obligations under this Agreement pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit E, executed by such Assignee and such
Assignor (and, in the case of an Assignee that is not then a Lender, an
affiliate thereof or an Approved Fund, by the Borrower and the Administrative
Agent) and delivered to the Administrative Agent for its acceptance and
recording in the Register, provided, that no such assignment to an Assignee
(other than any Lender or any affiliate thereof or an Approved Fund) shall be in
an aggregate principal amount of less than $5,000,000 (other than in the case of
an assignment of all of a Lender's interests under this Agreement), unless
otherwise agreed by the Borrower and the Administrative Agent. Any such
assignment need not be ratable as among the Facilities. Upon such execution,
delivery, acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (A) the Assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder with a Commitment and/or
Loans as set forth therein, and (B) the Assignor thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of an Assignor's rights and obligations under this Agreement, such assigning
Lender shall cease to be a party hereto). Notwithstanding any provision of this
subsection 10.6, the consent of the Borrower shall not be required, and, unless
requested by the Assignee and/or the Assignor, Notes shall not be required to be
executed and delivered by the Borrower, for any assignment which occurs at any
time when any of the events described in Section 8(f) shall have occurred and be
continuing.
000
000
(x) The Administrative Agent shall maintain at its address referred
to in subsection 10.2 a copy of each Assignment and Acceptance delivered to it
and a register (the "Register") for the recordation of the names and addresses
of the Lenders and the Commitments of, and the principal amount of the Loans
owing to, each Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, each other Loan
Party, the Administrative Agent and the Lenders shall treat each Person whose
name is recorded in the Register as the owner of the Loan recorded therein for
all purposes of this Agreement. Any assignment of any Loan or other obligation
hereunder (whether or not evidenced by a Note) shall be effective only upon
appropriate entries with respect thereto being made in the Register. The
Register shall be available for inspection by the Borrower of any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
Assignor and an Assignee (and, in the case of an Assignee that is not then a
Lender, an affiliate thereof or an Approved Fund, by the Borrower and the
Administrative Agent) together with payment to the Administrative Agent of a
registration and processing fee of $3,500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) record the information
contained therein in the Register on the effective date determined pursuant
thereto and give notice of such acceptance and recordation to the Borrower.
On or prior to such effective date, upon request the Borrower, at
its own expense, shall execute and deliver to the Administrative Agent (in
exchange for any Revolving Credit Note, Term Note or Swingline Note of the
assigning Lender) a new Revolving Credit Note, Term Note or Swingline Note, as
the case may be, to the order of such Assignee in an amount equal to the
Revolving Credit Commitment, Delayed Tranche A Term Loan Commitment or portion
of the Tranche A Term Loans or Tranche B Term Loans or Incremental Term Loan, as
the case may be, assumed by it pursuant to such Assignment and Acceptance and,
if the assigning Lender has retained a Revolving Credit Commitment or Delayed
Tranche A Term Loan Commitment or portion of a Tranche A Term Loan, Tranche B
Term Loan or Incremental Term Loan hereunder, a new Revolving Credit Note,
Tranche A Term Note, Tranche B Term Note or Incremental Term Note, as the case
may be, to the order of the assigning Lender in an amount equal to the Revolving
Credit Commitment or Delayed Tranche A Term Loan Commitment or Tranche A Term
Loan, Tranche B Term Loan or Incremental Term Loan, as the case may be, retained
by it hereunder. Such new Notes shall be in the form of the Note replaced
thereby.
(f) The Borrower agrees that, upon request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender (i) a
promissory note of the Borrower evidencing the Revolving Credit Loans of such
Lender, substantially in the form of Exhibit I-1 (each as amended, supplemented,
replaced or otherwise modified from time to time, a "Revolving Credit Note"),
and/or (ii) a promissory note of the Borrower evidencing the applicable Term
Loan of such Lender, substantially in the form of Exhibit I-2 (each as amended,
supplemented, replaced or otherwise modified from time to time, a "Term Note"),
and/or (iii) a promissory note of the Borrower evidencing the Swingline Loans of
the Swingline Lender, substantially in the form of Exhibit I-3) (as amended,
supplemented, replaced or otherwise modified from time to time, the "Swingline
Note").
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(g) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information concerning the Loan Parties and their
respective affiliates which has been delivered to such Lender by or on behalf of
any Loan Party pursuant to this Agreement or any other Loan Document or which
has been delivered to such Lender by or on behalf any Loan Party in connection
with such Lender's credit evaluation of the Loan Parties and their respective
affiliates, under the condition that such Transferee or prospective Transferee
shall previously have agreed to be bound by the provisions of subsection 10.15.
(h) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection 10.6 concerning assignments
of Loans and Notes relate only to absolute assignments and that such provisions
do not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law, provided that no such
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or assignee for such
lender as a party hereunder.
10.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement provides for payments to be allocated to the Lenders under a
particular Facility, if any Lender (a "Benefitted Lender") shall at any time
receive any payment of all or part of its Loans or the Reimbursement Obligations
owing to it, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 8(f), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans or the Reimbursement
Obligations owing to such other Lender, or interest thereon, such Benefitted
Lender shall purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender's Loans and/or of the Reimbursement
Obligations owing to each such other Lender, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such Benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to set
off and appropriate and apply against such amount any and all deposits (general
or special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such setoff and application made
by such Lender, provided that the failure to give such notice shall not affect
the validity of such setoff and application.
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10.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
10.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan Documents
represent the entire agreement of Holdings, the Borrower, the Administrative
Agent and the Lenders with respect to the subject matter hereof and thereof, and
there are no promises, undertakings, representations or warranties by the
Administrative Agent or any Lender relative to subject matter hereof or thereof
not expressly set forth or referred to herein or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers. Each of Holdings and the
Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts
of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in subsection 10.2 or at such other
address of which the Administrative Agent shall have been notified
pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
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109
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this subsection 10.12 any special, exemplary, punitive or
consequential damages.
10.13 Acknowledgments. Each of Holdings and the Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and
Holdings and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among Holdings and the Borrower and the
Lenders.
10.14 WAIVERS OF JURY TRIAL. HOLDINGS, THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.15 Confidentiality. Each Lender agrees to keep information
obtained by it pursuant hereto and the other Loan Documents identified as
confidential in writing at the time of delivery confidential in accordance with
such Lender's customary practices and agrees that it will only use such
information in connection with the transactions contemplated by this Agreement
and not disclose any of such information other than (a) to such Lender's
employees, representatives, directors, attorneys, auditors, agents, professional
advisors, trustees or affiliates who are advised of the confidential nature of
such information or to any direct or indirect contractual counterparty in swap
agreements or such contractual counterparty's professional advisor (so long as
such contractual counterparty or professional advisor to such contractual
counterparty agrees to be bound by the provision of this Section 10.15), (b) to
the extent such information presently is or hereafter becomes available to such
Lender on a non-confidential basis from any source or such information that is
in the public domain at the time of disclosure, (c) to the extent disclosure is
required by law (including applicable securities laws), regulation, subpoena or
judicial order or process (provided that notice of such requirement or order
shall be promptly furnished to the Borrower unless such notice is legally
prohibited) or requested or required by bank, securities, insurance or
investment company regulations or auditors or any administrative body or
commission (including the Securities Valuation Office of the National
Association of Insurance Commissioners) to whose jurisdiction such Lender may be
subject, (d) to any rating agency to the extent required in connection with any
rating to be assigned to such Lender, (e) to Transferees or prospective
Transferees who agree to be bound by the provisions of this subsection 10.15,
(f) to the extent required in connection with any litigation
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110
between any Loan Party and any Lender with respect to the Loans or this
Agreement and the other Loan Documents or (g) with the Borrower's prior written
consent. The agreements in this subsection 10.15 shall survive repayment of the
Loans and all other amounts payable hereunder.
10.16 FCC Compliance. Notwithstanding anything to the contrary
contained herein or in any other agreement, instrument or document executed in
connection herewith, no party hereto shall take any actions hereunder that would
constitute or result in a transfer or assignment of any Station License, permit
or authorization or a change of control over such Station License, permit or
authorization requiring the prior approval of the FCC without first obtaining
such prior approval of the FCC.
10.17 Filing of Mortgages. Notwithstanding anything to the contrary
contained in this Agreement, it is understood and agreed that (a) the Mortgages
will not be filed on the Closing Date and (b) at any time after the Closing
Date, at the request of the Administrative Agent or the Required Lenders, the
Mortgages delivered on the Closing Date and each Mortgage delivered pursuant to
subsection 6.10(b) shall be filed, at the Borrower's expense, in the offices
specified in Schedule 4.19(b) and each other jurisdiction reasonably requested
by the Administrative Agent or the Required Lenders, as applicable.
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.
LIN HOLDINGS CORP.,
By:
Name:
Title:
LIN ACQUISITION COMPANY,
By:
Name:
Title:
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
Swingline Lender and Issuing Lender,
116
By:
Name:
Title:
THE BANK OF NOVA SCOTIA,
individually and as Co-Documentation
Agent,
By:
Name:
Title:
BANK OF AMERICA, N.A., individually and
as Co-Documentation Agent,
By:
Name:
Title:
THE BANK OF NEW YORK, individually and
as Co-Syndication Agent,
By:
Name:
Title:
FLEET NATIONAL BANK, individually and
as Co-Syndication Agent,
By:
Name:
Title:
117
[OTHER LENDERS]
By:
Name:
Title:
118
Schedule 0.xX
LOANS AND COMMITMENTS AS OF JUNE 29, 2001
REVOLVING CREDIT
LENDER COMMITMENTS
------ -----------
The Chase Manhattan Bank $ 26,333,333.18
Dresdner Bank AG, New York and
Grand Cayman Branches 23,972,222.22
Fleet National Bank 23,972,222.22
The Bank of Nova Scotia 23,305,555.56
Bankers Trust Company 21,750,000.00
First Hawaiian Bank 3,111,111.12
The Bank of New York 3,111,111.11
National Westminister Bank, Plc 3,111,111.11
BankBoston, N.A. (merged into Fleet National Bank) 2,222,222.22
Bank of America, N.A. 2,222,222.22
The Fuji Bank, Limited 2,222,222.22
General Electric Capital Corporation 2,222,222.22
The Mitsubishi Trust & Banking Corp. 2,222,222.22
Societe Generale, New York Branch 1,555,555.68
Bank of Hawaii 1,555,555.56
Bank of Tokyo-Mitsubishi Trust 1,555,555.56
BHF (USA) Capital Corporation 1,555,555.56
BNP Paribas 1,555,555.56
Citibank, N.A. 1,555,555.56
The Dai-Ichi Kangyo Bank, Ltd. 1,555,555.56
Natexis Banques Populaires 1,555,555.56
PNC Bank, National Association 1,555,555.56
Royal Bank of Canada 1,555,555.56
Suntrust Bank, Central Florida, N.A. 1,555,555.56
Sumitomo Mitsui Banking Corporation 1,555,555.55
Summit Bank (merged into Fleet National Bank) 1,555,555.55
===============
TOTAL LENDERS $160,000,000.00
119
INCREMENTAL TERM LOANS
LENDER MADE NOVEMBER 10, 2000
------ ----------------------
The Bank of Nova Scotia $ 6,862,693.12
The Chase Manhattan Bank 6,862,693.12
NationsBank of Texas (Bank of America, N.A.) 6,862,693.12
The Bank of New York 4,575,128.75
The Dai-Ichi Kangyo Bank, Ltd. 4,575,128.75
Fleet National Bank 4,575,128.75
Suntrust Bank, Central Florida, N.A 4,575,128.75
Natexis Banques Populaires 3,431,346.56
SEQUILS IV, Ltd. 3,431,346.56
Xxxxx Xxxxx CDO III, Ltd. 2,287,564.37
Senior Debt Portfolio 1,830,051.50
Winged Foot Funding Trust 2,287,564.37
KZH Crescent 3 LLC 1,143,782.19
KZH Crescent LLC 1,143,782.19
Xxxxx Xxxxx Senior Income Trust 1,143,782.19
Xxxxxxx & Co 686,269.31
United of Omaha Life Insurance Co. 686,269.31
Xxxxx Xxxxx Institutional Senior Loan Fund 457,512.87
Continental Assurance Company 457,512.87
Oxford Strategic Income Fund 457,512.87
==============
TOTAL: $58,332,891.52
120
INCREMENTAL TERM LOANS
LENDER MADE OCTOBER 19, 1999
------ ---------------------
The Bank of New York $ 6,750,688.07
The Bank of Nova Scotia 4,500,458.72
TCW Select Loan Fund, Limited 3,439,946.43
BankBoston, N.A. (merged into
Fleet National Bank) 2,250,229.36
NationsBank of Texas
(Bank of America, N.A.) 2,250,229.36
Captiva III Finance, Ltd. 2,207,161.10
The Chase Manhattan Bank 2,164,092.83
Fidelity II: Advanced Floating Rate
High Income Fund 1,834,638.10
Captiva II Finance Ltd. 1,146,648.81
Variable Insurance Products Fund II:
Asset Manager Portfolio 458,659.52
==============
TOTAL: $27,002,752.30
LENDER TRANCHE A TERM LOANS
------ --------------------
n.a. $0.00
000
XXXXXX XXXXXXX X TERM LOANS
------ --------------------
Senior Debt Portfolio $31,246,437.90
Metropolitan Life Insurance Co. 7,247,137.33
Xxx Xxxxxx Prime Rate Income Trust 7,247,137.33
General Motors Employee Global Group
Pension Trust 7,247,137.33
Xxxxxxx & Co. 4,989,248.81
Addison CDO, Limited 3,623,568.67
Balanced High Yield Fund I Ltd. 3,623,568.67
Captiva IV Finance Ltd. 3,623,568.67
General Motors Welfare Benefits Trust 3,623,568.67
KZH CNC LLC 3,623,568.67
KZH Crescent 2 LLC 3,623,568.67
Xxxxx Xxxxx CDO IV, Ltd. 3,070,306.96
Jissekikun Funding, Ltd. 1,449,427.47
Athena CDO, Limited 1,449,427.47
Xxxxx Xxxxx Institutional Senior Loan Fund 724,713.73
Xxxxx Xxxxx Senior Income Trust 553,261.71
==============
TOTAL $86,965,648.06
122
Schedule 1.1E
APPLICABLE MARGIN ON
INCREMENTAL TERM LOANS OUTSTANDING AS OF JUNE 29, 2001
Applicable Margin Applicable Margin
Consolidated Leverage Ratio For Eurodollar Loans For ABR Loans
--------------------------- -------------------- -------------
Level 1: Greater than or equal to 6.5 3.25% 2.25%
Level 2: Greater than or equal to 5.5
But less than 6.5 3.00% 2.00%
Level 3: Less than 5.5 2.75% 1.75%
