EXHIBIT 10.3
AMENDED AND RESTATED CREDIT AGREEMENT
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THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 10, 1998,
among (1) KSMS-TV, INC., a Delaware corporation ("KSMS-TV"), TIERRA ALTA
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BROADCASTING, INC., a Delaware corporation ("Tierra Alta"), CABRILLO
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BROADCASTING CORPORATION, a California corporation ("Cabrillo"), GOLDEN HILLS
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BROADCASTING CORPORATION, a Delaware corporation ("Golden Hills"), LAS TRES
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PALMAS CORPORATION, a Delaware corporation ("Las Tres Palmas"), VALLEY CHANNEL
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48, INC., a Texas corporation ("Valley Channel"), TELECORPUS, INC., a Texas
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corporation ("Telecorpus"), and ENTRAVISION COMMUNICATIONS COMPANY, L.L.C., a
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Delaware limited liability company ("Entravision") (each a "Borrower," and
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collectively, the "Borrowers"), whose obligations hereunder shall be joint and
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several, (2) the several banks and other financial institutions from time to
time parties to this Agreement (the "Lenders") and (3) UNION BANK OF CALIFORNIA,
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N.A., as agent for the Lenders hereunder (in such capacity, the "Agent").
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RECITALS
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A. KSMS-TV, Tierra Alta, Cabrillo, Golden Hills, Las Tres Palmas, Valley
Channel and Entravision (collectively, the "Original Borrowers") are party to
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that certain Credit Agreement dated as of December 31, 1996 among the lenders
referred to therein and the Agent, as agent for such lenders, as amended by the
Consent and First Amendment to Credit Agreement dated as of January 23, 1997,
the Consent and Second Amendment to Credit Agreement dated as of June 4, 1997,
the Third Amendment to Credit Agreement dated as of December 31, 1997, the
Fourth Amendment to Credit Agreement and Waiver dated as of April 21, 1998, the
Fifth Amendment to Credit Agreement and Waiver dated as of May 12, 1998, the
Sixth Amendment to Credit Agreement dated as of July 31, 1998 and the Seventh
Amendment to Credit Agreement dated as of September 17, 1998 (the "Original
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Credit Agreement").
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B. Pursuant to the Original Credit Agreement, such lenders made available
to the Original Borrowers term loan facilities in the maximum principal amount
of $20,000,000 and a revolving loan facility in the maximum principal amount of
$70,100,000.
C. In connection with the Original Credit Agreement, Telecorpus executed
certain documents in favor of the Agent for the benefit of such lenders,
including a Nonrecourse Guarantee and a Pledge Agreement, each dated as of April
21, 1998. Telecorpus now desires to become a Borrower hereunder and to become
jointly and severally liable for the Obligations (as defined below).
D. The Borrowers have requested that the Lenders amend and restate the
Original Credit Agreement and increase the principal amount of the credit
facility available thereunder and the Lenders have agreed, subject to the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall
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have the following meanings:
"Accountants": McGladrey & Xxxxxx, LLP, or such other firm of independent
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certified public accountants of recognized national standing as shall be
selected by the Borrowers and satisfactory to the Agent.
"Activation Date": the date set forth in the Activation Notice as the
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effective date of the Aggregate Incremental Loan Commitment, which date must be
during the period from and including the Closing Date to but excluding September
30, 2000.
"Activation Notice": a notice given by the Borrowers and each Incremental
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Loan Lender to the Agent, substantially in the form of Exhibit I.
"Acquisitions": the acquisition by, or investment in, (i) U.S. television
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or radio properties by Entravision or its Subsidiaries (provided that
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Entravision shall be permitted to consummate the foreign investment contemplated
by the Tecate Acquisition) and (ii) U.S. outdoor advertising properties, in each
case as permitted by Section 6.7(e).
"Additional Equity Rights": the right of Univision, pursuant to the
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Univision Option, to purchase up to an additional 2.0% Class A Membership
Interest in Entravision in connection with, and as partial consideration for,
the purchase by Entravision from Univision of television Station KLUZ, Channel
41, Albuquerque, New Mexico.
"Affiliate": as to any Person, (a) any other Person (other than a
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Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person or (b) any Person who is a
director, officer, shareholder or partner (i) of such Person, (ii) of any
Subsidiary of such Person or (iii) of any Person described in the preceding
clause (a). For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (i) vote securities having 5% or more
of the ordinary voting power for the election of directors of such Person or
(ii) direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
"Affiliation Agreements": each affiliation or similar agreement between
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any Borrower or Subsidiary and Univision, or between any Borrower or Subsidiary
and another network or programmer, or between the licensee of any broadcast
station subject to a Program Services Agreement and Univision or another network
or programmer, and all sideletters or other agreements relating thereto, in each
case in form and substance satisfactory to the Agent and as such agreements may
be further amended from time to time in accordance with the terms hereof.
"Agent": as defined in the preamble hereto.
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"Aggregate Available Incremental Loan Commitment": the sum of the
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Available Incremental Loan Commitments of each Incremental Loan Lender.
"Aggregate Available Revolving Loan Commitment": the sum of the Available
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Revolving Loan Commitments of each Revolving Loan Lender.
"Aggregate Commitment": the sum of the Aggregate Revolving Loan Commitment
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and, if activated, the Aggregate Incremental Loan Commitment.
"Aggregate Incremental Loan Commitment": the sum of the Incremental Loan
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Commitments set forth in the Activation Notice, as the same may be adjusted from
time to time pursuant to the provisions hereof, provided that the Aggregate
Incremental Loan Commitment shall not exceed the Maximum Incremental Loan
Facility.
"Aggregate Revolving Loan Commitment": the sum of the Revolving Loan
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Commitments set forth on the signature pages hereto, as the same may be adjusted
from time to time pursuant to the provisions hereof.
"Agreement": this Amended and Restated Credit Agreement, as amended,
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waived, supplemented or otherwise modified from time to time.
"Applicable Lending Office": for any Lender, its offices for LIBOR Loans,
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Base Rate Loans and participations in Letters of Credit, specified below its
signature on the signature pages hereof or in the Assignment and Acceptance
pursuant to which it became a party hereto, as the case may be, any of which
offices may, upon 10 days' prior written notice to the Agent and the Borrowers,
be changed by such Lender.
"Applicable Revolving Loan Margin": with respect to Revolving Loans and
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Incremental Loans, for each LIBOR Loan and for each Base Rate Loan as set forth
below:
Revolving Loan
Leverage Level LIBOR Base Rate
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Revolving Loan
Leverage Level LIBOR Base Rate
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1(**6.50:1) 2.375% 1.125%
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2(**6.00:1 - *6.50:1) 2.125% 0.875%
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3(**5.50:1 - *6.00:1) 1.875% 0.625%
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4(**5.00:1 - *5.50:1) 1.625% 0.375%
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5(**4.50:1 - *5.00:1) 1.375% 0.125%
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6(**4.00:1 - *4.50:1) 1.125% 0.000%
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7(*4.00:1) 0.875% 0.000%
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* Less than
** Greater than or equal to
"Asset Disposition": the sale, sale and leaseback, transfer, conveyance,
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exchange, long-term lease accorded sales treatment under GAAP or similar
disposition (including by means of a merger, consolidation, amalgamation, joint
venture or other substantive combination) of any of
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the Properties, business or assets (other than marketable securities, including
"margin stock" within the meaning of Regulation U, liquid investments and other
financial instruments but, including, without limitation, the assignment of any
lease, license or permit relating to the Properties) of the Borrowers or any of
their Subsidiaries to any Person or Persons other than to the Borrowers or any
of their Subsidiaries; provided that Asset Dispositions shall not include the
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sale in the ordinary course of business of equipment.
"Assignment and Acceptance": an Assignment and Acceptance in the form of
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Exhibit C to this Agreement.
"Available Incremental Loan Commitment": with respect to each Lender
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having an Incremental Loan Commitment on the date of determination thereof, the
amount by which (a) the Incremental Loan Commitment of such Lender exceeds (b)
the principal amount of such Lender's Incremental Loans outstanding on such
date.
"Available Revolving Loan Commitment": with respect to each Lender having
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a Revolving Loan Commitment on the date of determination thereof, the amount by
which (a) the Revolving Loan Commitment of such Lender on such date exceeds (b)
the principal sum of such Lender's (i) Revolving Loans outstanding, (ii)
Revolving Loan Commitment Percentage of the aggregate Letter of Credit Amount of
all Letters of Credit outstanding and (iii) Revolving Loan Commitment Percentage
of the aggregate amount of unreimbursed drawings under all Letters of Credit on
such date.
"Base Rate": for any day, a rate per annum (rounded upwards, if necessary,
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to the next 1/16 of 1%) equal to the greater of (a) the Reference Rate in effect
on such day and (b) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%. "Reference Rate" shall mean the rate of interest per annum publicly
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announced from time to time by Union Bank of California, N.A. as its "reference
rate" in effect at its office in Los Angeles, California. "Federal Funds
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Effective Rate" shall mean, for any day, the weighted average of the rates on
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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 Agent from three federal funds
brokers of recognized standing selected by it. If, for any reason, the Agent
shall have determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Federal Funds Effective Rate for any
reason, including, without limitation, the inability or failure of the Agent to
obtain sufficient quotations in accordance with the terms hereof, the Base Rate
shall be determined without regard to clause (b) of the first sentence of this
definition until the circumstances giving rise to such inability no longer
exist. Any change in the Base Rate due to a change in the Reference Rate or the
Federal Funds Effective Rate shall be effective on the effective date of such
change in the Reference Rate or the Federal Funds Effective Rate, respectively.
"Base Rate Loans": Loans the rate of interest applicable to which is based
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upon the Base Rate.
"Borrower" or "Borrowers": as defined in the preamble hereto.
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"Business Day": a day other than a Saturday, Sunday or other day on which
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commercial banks in the State of California are authorized or required by law to
close and which, in the case of a LIBOR Loan, is a Eurodollar Business Day.
"Capital Expenditures": for any period, collectively, for any Person, the
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aggregate of all expenditures which are made during such period (whether paid in
cash or accrued as liabilities), and all contractual commitments for such
expenditures which are entered into during such period (provided that if any
such commitment is included in one fiscal year, the actual payment in a later
fiscal year shall not be included in such later fiscal year), by such Person,
for property, plant or equipment and which would be reflected as additions to
property, plant or equipment on a balance sheet of such Person prepared in
accordance with GAAP (including, without limitation, all Capitalized Lease
Obligations); provided, however, that Capital Expenditures shall exclude any
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expenditures which arise from Program Obligations.
"Capitalized Lease Obligations": obligations for the payment of rent for
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any real or personal property under leases or agreements to lease that, in
accordance with GAAP, have been or should be capitalized on the books of the
lessee and, for purposes hereof, the amount of any such obligation shall be the
capitalized amount thereof determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or other
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equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation), any and
all warrants, options or rights to purchase, or any other securities convertible
into, any of the foregoing.
"Cash Collateral Deposit": cash deposits made by the Borrowers to the
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Agent, to be held by the Agent as Collateral pursuant to the Security Agreement,
for the reimbursement of drawings under Letters of Credit.
"Cash Income Taxes": cash income taxes paid by the Borrowers and their
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Subsidiaries during the fiscal quarter most recently ended and the immediately
preceding three fiscal quarters.
"Change in Control": the occurrence of any of the following:
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(a) Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxxxxxx and Univision (in the event
Univision exercises the Univision Option) cease collectively to have, directly
or indirectly, Voting Control of each class of membership units of Entravision
having voting power; or
(b) So long as Entravision is a limited liability company, Xxxxxx X. Xxxxx
and Xxxxxx X. Xxxxxxxxx cease to (i) be the Managing Members thereof, (ii) have
the veto rights with regard to decisions of the Executive Committee set forth in
Section 16(a)(i) of the Operating Agreement and (iii) have the power to appoint
the Executive Committee thereof.
"Closing Date": the date on which the conditions precedent set forth in
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Section 4.1 have been satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to time.
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"Collateral": all of the property (tangible or intangible) purported to be
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subject to the lien or security interest purported to be created by any
mortgage, deed of trust, security agreement, pledge agreement, assignment or
other security document heretofore or hereafter executed by the Borrowers as
security for all or part of the Obligations.
"Collateral Documents": the Mortgages, the Security Agreement, all notices
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of security interests in deposit accounts requested by the Agent pursuant to the
Security Agreement, Form UCC-1 Financing Statements and amendments thereto and
any other document encumbering the Collateral or evidencing or perfecting a
security interest therein for the benefit of the Lenders executed by the
Borrowers.
"Commitment Percentage": as to any Lender at any time, the percentage of
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the Aggregate Commitment then constituted by such Lender's Commitments.
"Commitments": as to any Lender, any Revolving Loan Commitment and any
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Incremental Loan Commitment held by it hereunder.
"Commonly Controlled Entity": as to any Person, an entity, whether or not
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incorporated, which is under common control with such Person within the meaning
of Section 4001 of ERISA or is part of a group which includes such Person and
which is treated as a single employer under Section 414 of the Code.
"Communications Act": the Communications Act of 1934, as amended, and the
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rules and regulations issued thereunder, as from time to time in effect.
"Consents to Assign": the following consents, each executed in favor of
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the Agent, for the benefit of the Lenders: (i) Consent to Assign and Encumber
dated as of "May __, 1997" executed by Park Place Broadcasting with respect to
the K06MB LMA and the K06MB LMA Option Agreement and (ii) Consents to Assign and
Encumber executed by Univision with respect to each Univision Affiliation
Agreement, and any other written consent required in connection herewith with
respect to any Material Contract, in each case as such consents may be amended
or modified from time to time in accordance with the terms hereof.
"Consideration": with respect to any Acquisition, the aggregate
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consideration, in whatever form (including, without limitation, cash payments,
the principal amount of promissory notes and Indebtedness assumed, the aggregate
amounts payable to acquire, extend and exercise any option, the aggregate amount
payable under Non-Compete Agreements and management agreements, and the fair
market value of other property delivered) paid, delivered or assumed by any
Borrower for such Acquisition and the expenses associated therewith, including
all brokerage commissions, legal fees and similar expenses.
"Continuation Notice": a request for continuation or conversion of a Loan
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as set forth in Section 2.6, substantially in the form of Exhibit F.
"Contractual Obligation": as to any Person, any provision of any security
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issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
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"Corporate Overhead": for any period, all general and administrative
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expenses of the Borrowers and their Subsidiaries for such period not solely
attributable to an individual Station or group of Stations. For the purpose of
illustration (and not for the purpose of limiting the foregoing), Corporate
Overhead shall include the general and administrative expenses of the
headquarters office of Entravision, the salaries of its officers, lease expenses
for its headquarters office and the legal and accounting expenses relating to
Entravision, and Acquisitions by Entravision, and not relating solely to any
Station or group of Stations.
"Covenant Compliance Certificate": a certificate of the Chief Financial
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Officer of Entravision substantially in the form of Exhibit E hereto.
"Default": any of the events specified in Section 7, whether or not any
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requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States.
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"Drawing Lender": as defined in Section 2.3(c).
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"El Centro Radio Station Acquisition": the acquisition by Entravision of
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the following radio stations: (i) KWST-FM, Brawley, California, (ii) KMXX-FM,
Imperial California and (iii) XXXX(AM), El Centro, California.
"El Paso Headquarters Deed of Trust": the Mortgage described in item 6 on
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Schedule 1.1.
"El Paso Mortgage Modification": the Mortgage Modification to the El Paso
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Headquarters Deed of Trust.
"Entravision License Subsidiary": Entravision Holdings, LLC, a California
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limited liability company, which is owned 99.999% by Entravision, 0.0005% by
Xxxxxx X. Xxxxx and 0.0005% by Xxxxxx X. Xxxxxxxxx, formed solely for the
purpose of holding Media Licenses and FCC files and records with respect
thereto.
"Environmental Control Statutes": as defined in Section 3.16.
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"Equity Offering": the sale or issuance (or reissuance) by any Borrower or
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Subsidiary of any equity interest (common stock, preferred stock, partnership
interests, member interests or otherwise) or any options, warrants, convertible
securities or other rights to purchase such beneficial or equity interests.
"Equityholder Agreements" each shareholder agreement, member agreement,
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partner agreement, voting agreement, buy-sell agreement, option, warrant, put,
call, right of first refusal, and any other agreement or instrument with
conversion rights into equity of any Borrower or Subsidiary either (a) between
any Borrower or Subsidiary and any holder or prospective holder of any equity
interest of any Borrower or Subsidiary (including interests convertible into
such equity) or (b) otherwise between any two or more such holders of equity
interests.
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"ERISA": the Employee Retirement Income Security Act of 1974, as amended
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from time to time.
"ERISA Affiliate": as to any Person, each trade or business including such
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Person, whether or not incorporated, which together with such Person would be
treated as a single employer under Section 4001(a)(14) of ERISA.
"Escrow Deposit": any escrow deposit made by any Borrower in connection
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with an Acquisition.
"Eurodollar Business Day": shall mean any day on which banks are open for
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dealings in Dollar deposits in the London Interbank Market.
"Event of Default": any of the events specified in Section 7, provided
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that any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Excess Cash Flow": for any period, for the Borrowers and their
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Subsidiaries on a consolidated basis, an amount equal to Operating Cash Flow
(provided that Program Payments deducted in the calculation thereof shall be
limited to Program Payments actually made) for such period, less, during such
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period (in each case, without duplication), (i) Total Debt Service, (ii)
permitted Cash Income Taxes, (iii) Capital Expenditures, (iv) and increases (or
plus decreases) in Net Working Investment.
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"Excluded Taxes": all taxes imposed on or by reference to the net income
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of the Agent or any Lender or its Applicable Lending Office by any Governmental
Authority and all franchise taxes, taxes on doing business or taxes measured by
capital or net worth imposed on the Agent or on any Lender or its Applicable
Lending Office by any Governmental Authority and any taxes imposed by any
Governmental Authority arising as a consequence of the failure of any Lender to
provide accurate documentation required to be provided by such Lender pursuant
to Section 2.14(b).
"Existing Mortgages": each mortgage, deed of trust or similar instrument
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referred to on Schedule 1.1, as modified to date (including as respectively
modified by the Mortgage Modifications) and as each may be further amended or
modified from time to time in accordance with this Agreement.
"FCC": the Federal Communications Commission or any successor thereto.
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"Federal Funds Effective Rate": as defined in the definition of "Base
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Rate" contained in this Section 1.1.
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"Fixed Charge Coverage Ratio": for the Borrowers and their Subsidiaries on
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a consolidated basis, the ratio of Operating Cash Flow for the fiscal quarter
most recently ended and the immediately preceding three fiscal quarters to the
sum of (i) Total Debt Service for the fiscal quarter most recently ended and the
immediately preceding three fiscal quarters, (ii) Capital Expenditures for the
fiscal quarter most recently ended and the immediately
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preceding three fiscal quarters and (iii) permitted Cash Income Taxes for the
fiscal quarter most recently ended and the immediately preceding three fiscal
quarters.
"GAAP": generally accepted accounting principles in the United States in
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effect from time to time. If, at any time, GAAP changes in a manner which will
materially affect the calculations determining compliance by the Borrowers with
any of the covenants in Section 6.1, such covenants shall continue to be
calculated in accordance with GAAP in effect prior to such changes in GAAP.
"Governmental Authority": any nation or government, any federal, state or
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other political subdivision thereof and any federal, state or local entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"), any
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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")
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of any other third Person (the "primary obligor") in any manner, whether
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directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds for the purchase or payment of any such primary
obligation or to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv) otherwise
to assure or hold harmless the owner of any such primary obligation against loss
in respect thereof; provided, however, that the term Guarantee Obligation shall
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not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lesser of (a) an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation shall be
such guaranteeing person's maximum reasonably anticipated liability in respect
thereof as determined by the Borrowers in good faith.
"Guarantees": the guarantees made by each of the Guarantors and all other
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guarantees executed by a Guarantor in favor of the Agent for the benefit of the
Lenders, in form and substance substantially identical to those executed in
connection with the Original Credit Agreement, as the same may be amended or
modified from time to time in accordance with the terms hereof.
"Guarantor Collateral": all of the property (tangible or intangible)
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purported to be subject to the lien or security interest purported to be created
by any mortgage, deed of trust, security agreement, pledge agreement, assignment
or other security document heretofore or
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hereafter executed by any Guarantor as security for all or part of the
Obligations or the Guarantees.
"Guarantor Collateral Documents": the Guarantor Security Agreements, all
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notices of security interests in deposit accounts requested by the Agent
pursuant to the Guarantor Security Agreements, Form UCC-1 Financing Statements
and amendments thereto and any other document encumbering the Guarantor
Collateral or evidencing or perfecting a security interest therein in favor of
the Agent for the benefit of the Lenders executed by any Guarantor.
"Guarantor Security Agreements": (i) each security agreement, in form and
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substance substantially identical to those executed in connection with the
Original Credit Agreement, made by each Subsidiary in favor of the Agent, for
the benefit of the Lenders and (ii) the Pledge Agreements, as the same may be
amended from time to time in accordance with the terms hereof.
"Guarantors": (i) each License Subsidiary, (ii) each Pledgor and (iii)
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each Subsidiary of each Borrower (to the extent not referred to in clause (i)).
"Incremental Loan": as defined in Section 2.2(a).
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"Incremental Loan Commitment": with respect to each Lender having an
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Incremental Loan Commitment, the commitment listed as its "Incremental Loan
Commitment" in the Activation Notice to make Incremental Loans hereunder through
its Applicable Lending Office, as the same may be adjusted pursuant to the
provisions hereof.
"Incremental Loan Commitment Expiration Date": November 10, 2006 or such
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earlier date as the Aggregate Incremental Loan Commitment shall expire (whether
by acceleration, reduction to zero or otherwise).
"Incremental Loan Commitment Percentage": with respect to each Incremental
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Loan Lender, the percentage equivalent of the ratio which such Incremental Loan
Lender's Incremental Loan Commitment bears to the Aggregate Incremental Loan
Commitment.
"Incremental Loan Lenders": each Lender having an Incremental Loan
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Commitment and/or which shall have Incremental Loans outstanding.
"Incremental Note" and "Incremental Notes": as defined in Section 2.2(c).
"Indebtedness": of any Person at any date, without duplication, (a) all
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indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than (i) current trade liabilities incurred
in the ordinary course of business and payable in accordance with customary
practices and (ii) current income taxes) or which is evidenced by a note, bond,
debenture or similar instrument, excluding Program Obligations, (b) all
obligations of such Person under Capitalized Lease Obligations, (c) all
obligations of such Person in respect of acceptances issued or created for the
account of such Person, (d) all liabilities secured by any Lien on any property
owned by such Person even though such Person has not assumed or otherwise become
liable for the payment thereof, (e) all obligations of such Person, whether
absolute or contingent, in respect of letters of credit opened for the account
of such Person (other
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than any letters of credit opened for the purpose of facilitating the purchase
of goods and services in the ordinary course of business and having a term of
not more than 360 days), (f) all obligations of such Person under Non-Compete
Agreements and (g) all Guarantee Obligations of such Person in respect of any
indebtedness, obligations or liabilities of any other Person of the type
referred to in clauses (a) through (g) of this definition.
"Insolvency": with respect to any Multiemployer Plan, the condition that
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such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
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"Intellectual Property": as defined in Section 3.5.
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"Interest Expense": as of any date, for the fiscal quarter most recently
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ended and the immediately preceding three fiscal quarters, (A) the sum of (i)
the amount of all interest on Total Debt which was paid, payable and/or accrued
for such period (without duplication of previous amounts), (ii) all commitment,
letter of credit or line of credit fees paid, payable and/or accrued for such
period (without duplication of previous amounts) to any lender in exchange for
such lender's commitment to lend and (iii) net amounts payable (or receivable)
under all Interest Rate Agreements, less (B) all interest income.
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"Interest Payment Date": (a) as to any Base Rate Loan, the last day of
---------------------
each March, June, September and December to occur while the Loans are
outstanding, (b) as to any LIBOR Loan having an Interest Period of three months
or less, the last day of such Interest Period, (c) as to any LIBOR Loan having
an Interest Period longer than three months, each day which is at the end of
each three month-period within such Interest Period after the first day of such
Interest Period and the last day of such Interest Period and (d) for each of
(a), (b) and (c) above, on the day on which the Loans become due and payable in
full or are paid or prepaid in full.
"Interest Period": with respect to any LIBOR Loan:
---------------
(a) initially, the period commencing on the borrowing or conversion date,
as the case may be, with respect to such LIBOR Loan and ending one, two, three
or six months thereafter, as selected by the Borrowers in their notice of
borrowing or Continuation Notice, as the case may be, given with respect
thereto; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such LIBOR Loan and ending one, two,
three or six months thereafter, as selected by the Borrowers by irrevocable
notice to the Agent not less than three Eurodollar 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 pertaining to a LIBOR Loan would
otherwise end on a day that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless the result of
such extension would be to carry such
-11-
Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
(ii) any Interest Period that would otherwise extend beyond the date
final payment is due on the Revolving Loans or the Incremental Loans, as
applicable, shall end on the date of such final payment;
(iii) any Interest Period pertaining to a LIBOR Loan that begins on
the last Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar month;
and
(iv) the Borrowers shall select Interest Periods so as not to require
a payment or prepayment of any LIBOR Loan during an Interest Period for the
Revolving Loans or the Incremental Loans.
"Interest Rate Agreement": any interest rate protection agreement,
-----------------------
interest rate future, interest rate option, interest rate swap, interest rate
cap or other interest rate hedge or arrangement entered into pursuant to Section
5.13 with any Lender or any Affiliate of a Lender under which any Borrower is a
party or a beneficiary.
"Investment Company Act": as defined in Section 3.22.
----------------------
"XXXX-FM": XXXX-FM, El Paso, Texas.
-------
"KNVO Mortgage Indebtedness": that certain debt of Entravision to the KNVO
--------------------------
Mortgage Lender, in a principal amount not exceeding $2,000,000, secured by the
KNVO Purchase Money Mortgage.
"KNVO Mortgage Lender": the commercial mortgage lender extending the KNVO
--------------------
Mortgage Indebtedness to Entravision.
"KNVO Purchase Money Mortgage": that certain first-priority mortgage
----------------------------
executed by Entravision in favor of the KNVO Mortgage Lender, encumbering the
KNVO Real Property.
"KNVO Real Property": that certain real property to be owned by
------------------
Entravision and known as Xxx 0-X, Xxxxx Xxx (0), Xxxxxx Xxxxxx Subdivision,
McAllen, Xxxxxxx County, Texas for use in connection with the operation of KNVO-
TV, McAllen, Texas.
"K06MB LMA": that certain Local Marketing Agreement dated as of September
---------
29, 1995 between Park Place Broadcasting, as licensee, and Las Tres Palmas, as
operator, with regard to station K05MB, Indio, California, as it may be amended
or modified from time to time in accordance with the Loan Documents.
"K06MB Option Agreement": that certain Option Agreement dated as of
----------------------
September 29, 1995 between Park Place Broadcasting, as licensee and Las Tres
Palmas, as operator, with regard to station K05MB, Indio, California, as it may
be amended or modified from time to time in accordance with the Loan Documents.
-12-
"KSMS": KSMS-TV, Monterey, California.
----
"KSVE(AM)": KSVE(AM), El Paso, Texas.
--------
"Lease Expense": for any period, the aggregate minimum rental obligations
-------------
payable in respect of such period under leases of real and/or personal property
(net of income from subleases thereof), whether or not such obligations are
reflected as liabilities or commitments on a consolidated balance sheet or in
the notes thereto.
"Lenders": as defined in the preamble hereto and Section 8.8 hereof. When
-------
used in any Collateral Document, Guarantee or Guarantor Collateral Document such
term shall be deemed to include Affiliates of Lenders (and any Person that was a
Lender or an Affiliate of a Lender at the time of its entry into an Interest
Rate Agreement), to the extent the Borrowers have Obligations to such Person
arising under an Interest Rate Agreement, it being understood that such
documents shall secure such Obligations ratably with all other Obligations.
"Letter of Credit": as defined in Section 2.1(a).
----------------
"Letter of Credit Amount": the stated maximum amount available to be drawn
-----------------------
under a particular Letter of Credit, as such amount may be reduced or reinstated
from time to time in accordance with the terms of such Letter of Credit.
"Letter of Credit Request": a request by the Borrowers for the issuance of
------------------------
a Letter of Credit, on the Agent's standard form of Application for Irrevocable
Standby Letter of Credit, the current form of which is attached hereto as
Exhibit G, and containing terms and conditions satisfactory to the Agent in its
sole discretion.
"LIBOR": with respect to each day during each Interest Period pertaining
-----
to a LIBOR Loan, the rate of interest determined by the Agent to be the rate per
annum at which deposits in dollars would be offered to the Agent by leading
banks in the London Interbank Market at or about 9:00 a.m., Los Angeles time,
two Eurodollar Business Days prior to the beginning of such Interest Period, 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 LIBOR Loan to
be outstanding during such Interest Period.
"LIBOR Adjusted Rate": with respect to each day during each Interest
-------------------
Period pertaining to a LIBOR Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward to the nearest 1/100th of
1%):
LIBOR
-----------------------
1.00 - LIBOR Reserve Requirements
"LIBOR Loans": Loans the rate of interest applicable to which is based
-----------
upon LIBOR.
"LIBOR Reserve Requirements": for any day as applied to a LIBOR Loan, the
--------------------------
aggregate (without duplication) of the maximum rates (expressed as a decimal
fraction) of reserve requirements in effect on such day (including, without
limitation, basic, supplemental, marginal and emergency reserves under any
regulations of the Board of Governors of the Federal Reserve
-13-
System or other Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of such Board)
maintained by a member bank of such Federal Reserve System.
"License Subsidiaries": the Entravision License Subsidiary and one or more
--------------------
additional wholly-owned Subsidiaries of the Borrowers or any Subsidiary formed
solely for the purpose of holding Media Licenses and FCC files and records with
respect thereto.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, encumbrance, lien (statutory or other), or preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any Capitalized Lease Obligation having substantially the
same economic effect as any of the foregoing, and the filing of any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction in respect of any of the foregoing).
"Loan": a Revolving Loan or an Incremental Loan.
----
"Loan Documents": this Agreement, the Notes, any Letter of Credit Requests
--------------
that are executed by the Borrowers, the Letters of Credit, the Collateral
Documents, the Subordination Agreement, the Guarantor Collateral Documents, the
Consents to Assign, the Guarantees, any Interest Rate Agreements and any other
agreement executed by an Obligor in connection therewith and herewith including,
but not limited to, UCC-1 Financing Statements, as such agreements and documents
may be amended, supplemented and otherwise modified from time to time in
accordance with the terms hereof.
"Luery Trust": Xxxxx Xxxxxxxxxx Xxxxx TTE, Xxxxx X. Xxxxx Revocable Trust
-----------
UA Dated 7/27/89.
"Majority Incremental Loan Lenders": Incremental Loan Lenders having
---------------------------------
Incremental Loan Commitments equal to or more than 51% of the Aggregate
Incremental Loan Commitment, or, if the Incremental Loan Commitments have
terminated, Lenders with outstanding Incremental Loans having an unpaid
principal balance equal to or more than 51% of the unpaid principal balance of
all Incremental Loans outstanding, excluding from such calculation Incremental
Loan Lenders which have failed or refused to fund an Incremental Loan when
required to do so.
"Majority Lenders": Lenders having Commitments equal to or more than 51%
----------------
of the Aggregate Commitment, or, if any Commitment has terminated, with respect
to such Commitment, Lenders with outstanding Loans and/or participations in
Letters of Credit (if applicable) having an unpaid principal balance equal to or
more than 51% of the sum of (i) the unpaid principal balance of all Loans
outstanding and (ii) the aggregate Letter of Credit Amount (if applicable),
excluding from such calculation Lenders which have failed or refused to fund a
Loan when required to do so.
"Majority Revolving Loan Lenders": Revolving Loan Lenders having Revolving
-------------------------------
Loan Commitments equal to or more than 51% of the Aggregate Revolving Loan
Commitment, or, if
-14-
the Revolving Loan Commitments have terminated, Lenders with outstanding
Revolving Loans and/or participations in Letters of Credit having an unpaid
principal balance equal to or more than 51% of the sum of (i) the unpaid
principal balance of all Revolving Loans outstanding and (ii) the aggregate
Letter of Credit Amount, excluding from such calculation Lenders which have
failed or refused to fund a Revolving Loan when required to do so.
"Management Fees": as defined in Section 6.13.
---------------
"Managing Members": with respect to Entravision, Xxxxxx X. Xxxxx and
----------------
Xxxxxx X. Xxxxxxxxx.
"Margin Stock": as defined in Regulation U.
------------
"Material Adverse Effect": a material adverse effect on (a) the business,
-----------------------
operations, property, condition or prospects (financial or otherwise) of
Entravision and its Subsidiaries (taken as a whole), (b) the ability of
Entravision and its Subsidiaries (taken as a whole) to perform their respective
obligations under the Loan Documents or (c) the validity or enforceability of
the Loan Documents or the rights or remedies of the Agent and the Lenders
hereunder or thereunder.
"Material Contracts": as defined in Section 3.8.
------------------
"Material Lease": each lease referred to on Schedule 1.1.
--------------
"Maximum Incremental Loan Facility": $100,000,000 in principal amount of
---------------------------------
Incremental Loans.
"Maximum Total Debt Ratio": for the Borrowers and their Subsidiaries on a
------------------------
consolidated basis, the ratio of Total Debt to Operating Cash Flow.
"Media Licenses": any franchise, license, permit, certificate, ordinance,
--------------
approval or other authorization, or any renewal or extension thereof, from any
federal, state or local government or governmental agency, department or body
that is necessary for the broadcast or other operations of the Borrowers or any
Subsidiaries.
"Member": (a) any Person who at the time of execution hereof is a member
------
of any Borrower that is organized as a limited liability company or any
successor, heir, personal representative, executor, administrator or authorized
assignee thereof and (b) any other Person subsequently added as a Member of any
such Borrower (with the consent of Lenders) or any successor, heir, personal
representative, executor, administrator or authorized assignee thereof.
"Minority Shareholders": the Luery Trust (as to the 10.20% interest in
---------------------
Cabrillo owned by it) and Univision, if Univision shall exercise the Univision
Option.
"Mortgage Modifications": modifications to the Existing Mortgages, each in
----------------------
form and substance satisfactory to the Agent.
-15-
"Mortgages": the Existing Mortgages, and each other mortgage, deed of
---------
trust, collateral assignment of leases and related documents made from time to
time by any Borrower or any Subsidiary in favor of the Agent, for the benefit of
the Lenders, in respect of certain of the Properties, securing the Obligations
to the extent provided therein, in form and substance satisfactory to the Agent,
as the same may be amended from time to time in accordance with the terms
hereof.
"Multiemployer Plan": a plan which is a multiemployer plan as defined in
------------------
Section 4001(a)(3) of ERISA.
"Net Asset Value": as of any date of determination, with respect to the
---------------
Borrowers and their Subsidiaries on a consolidated basis, Operating Cash Flow
for the fiscal quarter most recently ended and the immediately preceding three
fiscal quarters multiplied by eight, less Total Debt.
----
"Net Income": for the Borrowers and their Subsidiaries on a consolidated
----------
basis, net income as determined in accordance with GAAP.
"Net Operating Revenue": with respect to the Stations for any period (i)
---------------------
all times sales, including barter and trade and television subscription revenue
and all affiliate compensation received from Univision less (ii) advertising
----
commissions, music license fees and all similar commissions and fees paid by the
Borrowers, calculated in accordance with GAAP. Unless otherwise agreed in
writing by the Agent, barter and trade sales shall be valued at the fair market
value of the goods or services received by the Borrowers.
"Net Proceeds": (A) with respect to any Asset Disposition, the net amount
------------
equal to the aggregate amount received in cash (including any cash received by
way of deferred payment pursuant to a note receivable, other non-cash
consideration or otherwise, but only as and when such cash is so received) in
connection with such Asset Disposition minus the sum of (a) the reasonable fees,
-----
commissions and other out-of-pocket expenses incurred by the Borrowers or any of
their Subsidiaries in connection with such Asset Disposition (other than amounts
payable to Affiliates of the Person making such disposition), (b) Indebtedness,
other than the Loans, required to be paid as a result of such Asset Disposition
and (c) federal, state and local taxes incurred and paid in connection with such
Asset Disposition; and (B) with respect to any Equity Offering, the net amount
equal to the aggregate amount received in cash (including any cash received by
way of deferred payment pursuant to a note receivable, other non-cash
consideration or otherwise, but only as and when such cash is so received) in
connection with such Equity Offering minus the reasonable fees, commissions and
-----
other out-of-pocket expenses incurred by the Borrowers in connection with such
Equity Offering (other than amounts payable to Affiliates of the Person making
such Equity Offering).
"Net Working Investment": for the Borrowers and their Subsidiaries on a
----------------------
consolidated basis, (i) current assets (excluding cash and permitted liquid
investments) less (ii) current liabilities (excluding the current portion of
Total Debt).
-16-
"Non-Compete Agreements": all agreements pursuant to which any Borrower or
----------------------
any Station has agreed to make payments (whether in cash or in kind) to another
Person for the agreement of such Person not to compete with such Borrower or
such Station in a given area.
"Nonrecourse Guarantee": each nonrecourse guarantee in form and substance
---------------------
substantially identical to those executed in connection with the Original Credit
Agreement, made by each Pledgor in favor of the Agent, for the benefit of the
Lenders, as the same may be amended from time to time in accordance with the
terms hereof.
"Note": a Revolving Note or an Incremental Note, as the case may be, and
----
"Notes" shall mean the Revolving Notes and/or the Incremental Notes, as the case
------
may be.
"Note Purchase Agreement": the Subordinated Note Purchase and Option
-----------------------
Agreement dated as of December 30, 1996, among Univision, the Borrowers and the
Managing Members, as the same may be amended from time to time in accordance
with the terms hereof.
"Obligations": the unpaid principal of and interest on (including, without
-----------
limitation, interest accruing after the maturity of the Incremental Loans and
the Revolving Loans and interest accruing on or after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrowers, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding and whether or not at a
default rate) the Notes, the obligation to reimburse drawings under Letters of
Credit (including the contingent obligation to reimburse any drawings under
outstanding Letters of Credit), all obligations of the Borrowers to any Lender
or Affiliate of a Lender (or any Person that was a Lender or Affiliate of a
Lender at the time of its entry into an Interest Rate Agreement) arising under
any Interest Rate Agreement, and all other obligations and liabilities of the
Borrowers to the Agent and the Lenders, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, this Agreement, the Notes, the
Letters of Credit, any other Loan Document and any other document made,
delivered or given in connection herewith or therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all reasonable fees and disbursements
of counsel, and the allocated reasonable cost of internal counsel, to the Agent
or the Lenders that are required to be paid by the Borrowers pursuant to the
terms of this Agreement) or otherwise.
"Obligor": each Borrower, each Subsidiary, each Guarantor and any other
-------
Person (other than a Lender) obligated under any Loan Document.
"Occupancy Agreements": as defined in Section 5.15.
--------------------
"Operating Agreement": that certain First Amended and Restated Operating
-------------------
Agreement for Entravision Communications Company, L.L.C. dated December 30,
1996, as amended by Amendment No. 1 to Amended and Restated Operating Agreement
dated to be effective as of January 23, 1997, Second Amendment to the First
Amended and Restated Operating Agreement dated to be effective as of December
31, 1997 and Third Amendment to the First Amended and Restated Operating
Agreement dated to be effective as of November [10], 1998 and as such Agreement
may be further amended from time to time in accordance with the terms hereof.
-17-
"Operating Cash Flow": for any period, for the fiscal quarter most
-------------------
recently ended and the immediately preceding three fiscal quarters, Net Income
after eliminating extraordinary gains and losses, plus (i) provisions for taxes,
----
(ii) depreciation and amortization (including amortization of Program Payments),
(iii) Interest Expense, (iv) permitted termination payments owing by the
Borrowers resulting from early termination of a time brokerage agreement, local
marketing agreement or similar agreement and (v) other non-cash charges, all to
the extent deducted from the computation of Net Income, but after deducting,
without duplication, (A) Program Payments made or scheduled to be made, (B) non-
cash revenues, (C) Management Fees and (D) Corporate Overhead, all to the extent
included in the calculation of Net Income.
"Option Agreement": any option or similar agreement providing for any
----------------
Borrower or its Subsidiaries to purchase the stock or assets of any Person
owning any radio or television station or assets used or useful in the operation
of any radio or television station, including the KO6MB Option Agreement.
"Organic Documents": relative to any entity, its certificate and articles
-----------------
of incorporation or organization, its by-laws or operating agreements, and all
Equityholder Agreements, voting agreements and similar arrangements applicable
to any of its authorized shares of capital stock, its partnership interests or
its member interests, and any other arrangements relating to the control or
management of any such entity (whether existing as corporation, a partnership, a
limited liability company or otherwise).
"Participant": as defined in Section 9.6(b).
-----------
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
----
Subtitle A of Title IV of ERISA or any successor thereto.
"Person": any individual, firm, partnership, joint venture, corporation,
------
association, limited liability company, business enterprise trust,
unincorporated organization, government or department or agency thereof or other
entity, whether acting in an individual, fiduciary or other capacity.
"Plan": as to any Person, any plan (other than a Multiemployer Plan)
----
subject to Title IV of ERISA maintained for employees of such Person or any
ERISA Affiliate of such Person (and any such plan no longer maintained by such
Person or any of such Person's ERISA Affiliates to which such Person or any of
such Person's ERISA Affiliates has made or was required to make any
contributions within any of the five preceding years).
"Pledge Agreements": each pledge agreement in form and substance
-----------------
substantially identical to those executed in connection with the Original Credit
Agreement, made by each Pledgor in favor of the Agent, for the benefit of the
Lenders, as the same may be amended from time to time in accordance with the
terms hereof.
"Pledgor": each holder of an equity interest in any Borrower, other than
-------
(i) any Borrower or (ii) the Minority Shareholders.
"Program Contracts": all contracts for television, film, programs, music
-----------------
and related audio rights and syndicated series exhibition rights acquired under
license agreements.
-18-
"Program 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 operations of the Borrowers.
"Program Payments": for any period the sum (determined on a consolidated
----------------
basis and without duplication) of all payments by the Borrowers made or
scheduled to be made during such period in respect of Program Obligations.
"Program Services Agreements": any local marketing agreement, time
---------------------------
brokerage agreement, program services agreement or similar agreement providing
for any Borrower or its Subsidiaries (other than License Subsidiaries) to
program or sell advertising on all or any portion of the broadcast time of any
television or radio station, including the K06MB LMA.
"Prohibited Transaction": with respect to any Plan, a prohibited
----------------------
transaction (as defined in Section 406 of ERISA) with respect to such Plan.
"Properties": the collective reference to the real and personal property
----------
owned, leased, used, occupied or operated, under license or permit, (i) by the
Borrowers and the Guarantors (other than the Pledgors) and (ii) by the Pledgors,
to the extent encumbered by a Pledge Agreement.
"Purchasing Lenders": as defined in Section 9.6(c).
------------------
"Register": as defined in Section 9.6(d).
--------
"Regulation D": Regulation D of the Board of Governors of the Federal
------------
Reserve System, as the same is from time to time in effect, and all official
rulings and interpretations thereunder or thereof and any successor regulation
thereto.
"Regulation U": Regulation U of the Board of Governors of the Federal
------------
Reserve System, as the same is from time to time in effect, and all official
rulings and interpretations thereunder or thereof and any successor regulation
thereto.
"Reorganization": with respect to any Multiemployer Plan, the condition
--------------
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
----------------
ERISA, other than those events as to which the thirty day notice period is
waived under PBGC regulations.
"Requirement of Law": as to any Person, the Organic Documents of such
------------------
Person, and any law, treaty, rule or regulation, determination or policy
statement or interpretation of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
"Responsible Officer": with respect to any Person, the chief executive
-------------------
officer, the president, the managing member or members (as applicable, with
respect to any limited liability company), any executive vice president, any
senior vice president or any vice president or, with respect to financial
matters, the chief financial officer, treasurer or controller; provided that,
-------- ----
with
-19-
respect to any Borrower (other than Entravision), a "Responsible Officer" shall
be a Responsible Officer of Entravision to the extent such authority has been so
delegated pursuant to resolutions of such Borrower delivered to the Agent.
"Restricted Payments": as defined in Section 6.6.
-------------------
"Revolving Loan": as defined in Section 2.1(a).
--------------
"Revolving Loan Commitment": with respect to each Lender having a
-------------------------
Revolving Loan Commitment, its commitment listed as its "Revolving Loan
Commitment" on the signature pages hereto to make Revolving Loans and
participate in Letters of Credit hereunder through its Applicable Lending
Office, as the same shall be adjusted from time to time pursuant to this
Agreement.
"Revolving Loan Commitment Expiration Date": November 10, 2006 or such
-----------------------------------------
earlier date as the Aggregate Revolving Loan Commitment shall expire (whether by
acceleration, reduction to zero or otherwise).
"Revolving Loan Commitment Percentage": with respect to each Revolving
------------------------------------
Loan Lender, the percentage equivalent of the ratio which such Revolving Loan
Lender's Revolving Loan Commitment bears to the Aggregate Revolving Loan
Commitment, as such Revolving Loan Lender's Revolving Loan Commitment and the
Aggregate Revolving Loan Commitment may be adjusted from time to time pursuant
to the terms hereof.
"Revolving Loan Lender": each Lender having a Revolving Loan Commitment
---------------------
and/or which shall have (i) Revolving Loans outstanding and/or (ii)
participations in Letters of Credit which are outstanding.
"Revolving Loan Leverage Level": if the Maximum Total Debt Ratio shall be
-----------------------------
greater than or equal to 6.50:1, the Revolving Loan Leverage Level shall be 1;
if the Maximum Total Debt Ratio shall be less than 6.50:1 and greater than or
equal to 6.00:1, the Revolving Loan Leverage Level shall be 2; if the Maximum
Total Debt Ratio shall be less than 6.00:1 and greater than or equal to 5.50:1,
the Revolving Loan Leverage shall be 3; if the Maximum Total Debt Ratio shall be
less than 5.50:1 and greater than or equal to 5.00:1, the Revolving Loan
Leverage Level shall be 4; if the Maximum Total Debt Ratio shall be less than
5.00:1 and greater than or equal to 4.50:1, the Revolving Loan Leverage Level
shall be 5; if the Maximum Total Debt Ratio shall be less than 4.50:1 and
greater than or equal to 4.00:1, the Revolving Loan Leverage Level shall be 6;
if the Maximum Total Debt Ratio shall be less than 4.00:1, the Revolving Loan
Leverage Level shall be 7.
"Revolving Note" and "Revolving Notes": as defined in Section 2.1(c).
------------------------------------
"Security Agreement": the Amended and Restated Security Agreement in form
------------------
and substance reasonably satisfactory to the Majority Lenders, made by the
Borrowers in favor of the Agent, for the benefit of the Lenders, in respect of
the tangible and intangible personal property of the Borrowers described
therein, as the same may be amended from time to time in accordance with the
terms hereof.
-20-
"Senior Debt": Total Debt other than Subordinated Indebtedness.
-----------
"Single Employer Plan": any Plan which is covered by Title IV of ERISA,
--------------------
but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, that:
-------
(i) the present fair salable value of such Person's assets is
in excess of the total amount of the probable liability on such Person's
liabilities;
(ii) such Person is able to pay its debts as they become due;
and
(iii) such Person does not have unreasonably small capital to
carry on such Person's business as theretofore operated and all businesses
in which such Person is about to engage.
"Station": any radio station, any full power television station, low power
-------
television station, any translator and any other television system now or
hereafter owned, leased or operated by the Borrowers or any of their
Subsidiaries.
"Subordinated Indebtedness": the sum of (i) Indebtedness of the Borrower
-------------------------
under the Univision Investment Documents and (ii) all other Indebtedness of the
Borrowers which is subordinated to the payment of the Obligations on terms and
conditions satisfactory to the Majority Lenders as evidenced by their written
consent thereto prior to the incurrence of such Indebtedness.
"Subordination Agreement": the Univision Subordination Agreement.
-----------------------
"Subsidiary": as to any Person at any time of determination, a
----------
corporation, partnership or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries or Subsidiaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries" in
this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrowers.
"Taxes": as defined in Section 2.14(a).
-----
"Tecate Acquisition": the investment by Entravision, pursuant to the
------------------
Tecate Letter Agreement, in (i) a minority interest in a Mexican entity which is
to own the Mexican concession for XHTEB-TV, Channel 49, Tecate, Mexico (which
is, as of the Closing Date, in the process of being constructed), and (ii) 100%
ownership of a Mexican entity which is to have the right to program such
station.
"Tecate Letter Agreement": that certain letter agreement dated as of May
-----------------------
6, 1998 among Entravision, Televisora Alco, S.A. de C.V., a Mexican corporation,
Comercializadora Frontera
-21-
Norte S.A. de C.V., a Mexican corporation, and the other parties referred to
therein, as amended from time to time in accordance with the terms of this
Agreement.
"Termination Event": (i) a Reportable Event, (ii) the institution of
-----------------
proceedings to terminate a Single Employer Plan by the PBGC under Section 4042
of ERISA, (iii) the appointment by the PBGC of a trustee to administer any
Single Employer Plan or (iv) the existence of any other event or condition that
would reasonably be expected to constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment by the PBGC of a trustee to
administer, any Single Employer Plan.
"Total Debt": the aggregate principal amount of all Indebtedness
----------
(including Subordinated Indebtedness and Capitalized Lease Obligations) of the
Borrowers (but excluding the Univision Subordinated Note).
"Total Debt Service": as of any date, for the fiscal quarter most recently
------------------
ended and the immediately preceding three fiscal quarters, the sum of (i)
Interest Expense and (ii) regularly scheduled principal payments due on Total
Debt (excluding optional and mandatory prepayments but including principal
payments on Revolving Loans due in connection with reductions in the Revolving
Loan Commitment).
"Total Interest Coverage Ratio": the ratio of Operating Cash Flow to
-----------------------------
Interest Expense.
"Tranche": the collective reference to LIBOR Loans the Interest Periods
-------
with respect to all of which begin on the same date and end on the same later
date (whether or not such LIBOR Loans shall originally have been made on the
same day).
"Transferee": as defined in Section 9.6(f).
----------
"Type": as to any Incremental Loan or any Revolving Loan, its nature as a
----
Base Rate Loan or a LIBOR Loan.
"Univision": as applicable, Univision Communications, Inc., a Delaware
---------
corporation, or The Univision Network Limited Partnership, a Delaware limited
partnership.
"Univision Investment Documents": the Note Purchase Agreement, the
------------------------------
Univision Subordinated Note, and such other documents as may relate to the
Univision Subordinated Note, in form and substance acceptable to the Agent, as
the same may be amended from time to time in accordance with the terms hereof.
"Univision Option": Univision's option, pursuant to Section 3 of the
----------------
Univision Subordinated Note, to purchase Class A Membership Units in
Entravision.
"Univision Subordinated Note": that certain Non-Negotiable Subordinated
---------------------------
Note dated December 30, 1996, executed by Entravision in favor of Univision in
the principal amount of $10,000,000, as the same may be amended from time to
time in accordance with the terms hereof.
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"Univision Subordination Agreement": that certain Amended and Restated
---------------------------------
Subordination Agreement in form and substance satisfactory to the Agent, made by
Univision in favor of the Agent, for the benefit of the Lenders, with regard to
the Univision Investment Documents, as the same may be amended from time to time
in accordance with the terms hereof.
"Voting Control": (i) with respect to any corporation, the power to elect
--------------
a majority of the board of directors of such corporation and (ii) with respect
to Entravision, ownership of a Majority in Interest (as defined in the Operating
Agreement) of each class of membership units of Entravision having voting power.
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 Notes, any other Loan
Document or any certificate or other document made or delivered pursuant hereto
or thereto.
(b) As used herein, in the Notes, in any other Loan Document, and in any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms not defined in Section 1.1 and accounting terms partly defined
in Section 1.1, to the extent not defined, shall have the respective meanings
given to them under GAAP.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
(e) For the purpose of determining financial covenant compliance hereunder
for any period, acquisitions, divestitures, and asset sales occurring during
such period will be included in the calculations for such period on a pro forma
basis, and will be deemed to have occurred on the first day of such period.
SECTION 2. AMOUNT AND TERMS OF LOANS AND LETTERS OF CREDIT; COMMITMENT
AMOUNTS
2.1 Revolving Loans and Letters of Credit; Revolving Loan Commitment
----------------------------------------------------------------
Amounts.
-------
(a) Subject to the terms and conditions hereof, each Lender having a
Revolving Loan Commitment severally agrees to (i) make loans on a revolving
credit basis through its Applicable Lending Office to the Borrowers from time to
time from and including the Closing Date to but excluding the Revolving Loan
Commitment Expiration Date (each a "Revolving Loan", and collectively, the
"Revolving Loans") in accordance with the provisions of this Agreement and (ii)
participate through its Applicable Lending Office in letters of credit issued
for the account of the Borrowers pursuant to Section 2.3 from time to time from
and including the Closing Date to but excluding the Revolving Loan Commitment
Expiration Date (each a "Letter of Credit", and collectively, the "Letters of
Credit"); provided, however, that the sum of (A) the aggregate
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principal amount of all Revolving Loans outstanding, (B) the aggregate Letter of
Credit Amount of all Letters of Credit outstanding and (C) the aggregate amount
of unreimbursed drawings under all Letters of Credit shall not exceed the
Aggregate Revolving Loan Commitment at any time; and provided, further, that the
sum of (x) the aggregate Letter of Credit Amount of all Letters of Credit
outstanding and (y) the aggregate amount of unreimbursed drawings under all
Letters of Credit shall not exceed $10,000,000 at any time. Within the limits of
each Revolving Loan Lender's Revolving Loan Commitment, the Borrowers may
borrow, have Letters of Credit issued for the Borrowers' account, prepay
Revolving Loans, reborrow Revolving Loans, and have additional Letters of Credit
issued for the Borrowers' account after the expiration of previously issued
Letters of Credit.
The principal amount of each Revolving Loan Lender's (A) Revolving Loan and
(B) participation in a Letter of Credit shall be in an amount equal to the
product of (i) such Revolving Loan Lender's Revolving Loan Commitment Percentage
(expressed as a fraction) and (ii) the total amount of the Revolving Loan or
Revolving Loans, or the Letter of Credit or Letters of Credit, requested;
provided that, in no event shall any Revolving Loan Lender be obligated to make
-------- ----
a Revolving Loan or participate in a Letter of Credit if after giving effect to
such Revolving Loan or such participation the sum of such Revolving Loan
Lender's (x) Revolving Loans outstanding, (y) Revolving Loan Commitment
Percentage of the aggregate Letter of Credit Amount of all Letters of Credit
outstanding and (z) Revolving Loan Commitment Percentage of the aggregate amount
of unreimbursed drawings under all Letters of Credit would exceed its Revolving
Loan Commitment or if the amount of such requested Revolving Loan or such
Revolving Loan Lender's Revolving Loan Commitment Percentage of such Letter of
Credit is in excess of such Revolving Loan Lender's Available Revolving Loan
Commitment.
(b) Subject to Sections 2.10 and 2.12, the Revolving Loans may from time
to time be (i) LIBOR Loans, (ii) Base Rate Loans or (iii) a combination thereof,
as determined by the Borrowers and notified to the Agent in accordance with
either Section 2.1(d) or 2.6. Each Revolving Loan Lender may make or maintain
its Revolving Loans or participate in Letters of Credit to or for the account of
the Borrowers by or through any Applicable Lending Office.
(c) The Revolving Loans made by each Revolving Loan Lender to the
Borrowers shall be evidenced by a promissory note of the Borrowers,
substantially in the form of Exhibit A (a "Revolving Note"), with appropriate
--------------
insertions therein as to payee, date and principal amount, payable to the order
of such Revolving Loan Lender and representing the obligations of the Borrowers
to pay the aggregate unpaid principal amount of all Revolving Loans made by such
Revolving Loan Lender to the Borrowers pursuant to Section 2.1(a) or 2.3(c),
with interest thereon as prescribed in Sections 2.8 and 2.9. Each Revolving Loan
Lender is hereby authorized (but not required) to record the date and amount of
each payment or prepayment of principal of its Revolving Loans made to the
Borrowers, each continuation thereof, each conversion of all or a portion
thereof to another Type and, in the case of LIBOR Loans, the length of each
Interest Period with respect thereto, in the books and records of such Revolving
Loan Lender, and any such recordation shall constitute prima facie evidence of
----- -----
the accuracy of the information so recorded. The failure of any Revolving Loan
Lender to make any such recordation or notation in the books and records of the
Revolving Loan Lender (or any error in such recordation or notation) shall not
affect the obligations of the Borrowers hereunder or under the Revolving Notes.
Each Revolving Note shall (i) be dated the Closing Date, (ii) provide for the
payment of
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interest in accordance with Sections 2.8 and 2.9 and (iii) be stated to be
payable on the Revolving Loan Commitment Expiration Date.
(d) The Borrowers shall give the Agent irrevocable written notice (which
notice must be received by the Agent prior to 10:00 A.M., Los Angeles time, one
Business Day prior to each proposed borrowing date or, if all or any part of the
Revolving Loans are requested to be made as LIBOR Loans, three Eurodollar
Business Days prior to each proposed borrowing date) requesting that the
Revolving Loan Lenders make the Revolving Loans on the proposed borrowing date
and specifying (i) the aggregate amount of Revolving Loans requested to be made,
(ii) subject to Section 2.1(b), whether the Revolving Loans are to be LIBOR
Loans, Base Rate Loans or a combination thereof and (iii) if the Revolving Loans
are to be entirely or partly LIBOR Loans, the respective amounts of each such
Type of Revolving Loan and the respective lengths of the initial Interest
Periods therefor. On receipt of such notice, the Agent shall promptly notify
each Revolving Loan Lender thereof not later than 11:00 A.M., Los Angeles time,
on the date of receipt of such notice. On the proposed borrowing date, not later
than 12:00 noon, Los Angeles time, each Revolving Loan Lender shall make
available to the Agent at its office specified in Section 9.2 the amount of such
Revolving Loan Lender's pro rata share of the aggregate borrowing amount (as
determined in accordance with the second paragraph of Section 2.1(a)) in
immediately available funds. The Agent may, in the absence of notification from
any Revolving Loan Lender that such Revolving Loan Lender has not made its pro
rata share available to the Agent, on such date, credit the account of the
Borrowers on the books of such office of the Agent with the aggregate amount of
Revolving Loans.
(e) On each date set forth below, the Aggregate Revolving Loan Commitment
shall automatically reduce to the corresponding amount set forth below:
Reduced Aggregate
Effective Date of Reduction Revolving Loan Commitment
--------------------------- -------------------------
December 31, 2000 $147,000,000
March 31, 2001 $145,500,000
June 30, 2001 $144,000,000
September 30, 2001 $139,500,000
December 31, 2001 $135,000,000
March 31, 2002 $131,250,000
June 30, 2002 $127,500,000
September 30, 2002 $123,750,000
December 31, 2002 $120,000,000
March 31, 2003 $114,750,000
June 30, 2003 $109,500,000
September 30, 2003 $104,250,000
December 31, 2003 $ 99,000,000
March 31, 2004 $ 92,250,000
June 30, 2004 $ 85,500,000
September 30, 2004 $ 78,750,000
December 31, 2004 $ 72,000,000
March 31, 2005 $ 64,500,000
-25-
June 30, 2005 $ 57,000,000
September 30, 2005 $ 49,500,000
December 31, 2005 $ 42,000,000
March 31, 2006 $ 31,500,000
June 30, 2006 $ 21,000,000
September 30, 2006 $ 10,500,000
All outstanding Revolving Loans shall be due and payable, to the extent not
previously paid in accordance with the terms hereof, on the Revolving Loan
Commitment Expiration Date.
(f) Reductions of the Aggregate Revolving Loan Commitment pursuant to this
Section 2.1 or Section 2.5 shall automatically effect a reduction of the
Revolving Loan Commitment of each Revolving Loan Lender to an amount equal to
the product of (i) the Aggregate Revolving Loan Commitment of all Revolving Loan
Lenders, as reduced pursuant to this Section 2.1 or Section 2.5 and (ii) the
Revolving Loan Commitment Percentage of such Revolving Loan Lender, in each case
determined immediately prior to such reduction of the Aggregate Revolving Loan
Commitment on such date.
(g) Upon each reduction of the Aggregate Revolving Loan Commitment, the
Borrowers shall (i) pay the unused commitment fee, payable pursuant to Section
2.16, accrued on the amount of the Aggregate Revolving Loan Commitment so
reduced through the date of such reduction, (ii) prepay the amount, if any, by
which the sum of (A) the aggregate unpaid principal amount of the Revolving
Loans, (B) the aggregate Letter of Credit Amount of all Letters of Credit
outstanding and (C) the aggregate amount of unreimbursed drawings under all
Letters of Credit exceeds the amount of the Aggregate Revolving Loan Commitment
as so reduced, together with accrued interest on the amount being prepaid to the
date of such prepayment (or, with respect to outstanding Letters of Credit, make
a Cash Collateral Deposit in an amount equal to such excess to the extent such
excess is not corrected by the foregoing prepayment) and (iii) compensate the
Revolving Loan Lenders for their funding costs, if any, in accordance with
Section 2.15.
(h) Neither the Agent nor any Revolving Loan Lender shall be responsible
for the obligation or Available Revolving Loan Commitment of any other Revolving
Loan Lender hereunder, nor will the failure of any Revolving Loan Lender to
comply with the terms of this Agreement relieve any other Revolving Loan Lender
or the Borrowers of their obligations under this Agreement and the Revolving
Notes. Nothing herein shall be deemed to relieve any Revolving Loan Lender from
its obligation to fulfill its Commitments hereunder or to prejudice any rights
which the Borrowers may have against any Revolving Loan Lender as a result of
any default by such Revolving Loan Lender hereunder.
(i) The Revolving Loan Commitment of each Revolving Loan Lender and the
Aggregate Revolving Loan Commitment shall terminate on the Revolving Loan
Commitment Expiration Date.
2.2 Incremental Loan Facility.
-------------------------
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(a) The Borrowers, and all or certain of the Lenders who agree in writing
to participate in such facility and who are selected by the Borrowers may, with
the consent of the Agent, such consent not to be unreasonably withheld, at any
one time during the period from and including the Closing Date to but excluding
September 30, 2000, agree that such Lenders shall become Incremental Loan
Lenders by executing and delivering to the Agent an Activation Notice specifying
the respective Incremental Loan Commitments of the Incremental Loan Lenders and
the Activation Date, and otherwise duly completed. Each Incremental Loan Lender
severally agrees, on the terms and conditions of this Agreement, to make loans
on a revolving credit basis through its Applicable Lending Office to the
Borrowers from time to time from and including the Activation Date to but
excluding the Incremental Loan Commitment Expiration Date (each an "Incremental
Loan" and, collectively, the "Incremental Loans") in an aggregate principal
amount up to but not exceeding its Incremental Loan Commitment. Within the
limits of each Incremental Loan Lender's Incremental Loan Commitment, the
Borrowers may borrow and prepay Incremental Loans and reborrow Incremental Loans
hereunder. Only one Activation Notice may be given under this Agreement. Nothing
in this Section 2.2(a) shall be construed to obligate any Lender to execute an
Activation Notice.
The principal amount of each Incremental Loan Lender's Incremental Loan
shall be in an amount equal to the product of (i) such Incremental Loan Lender's
Incremental Loan Commitment Percentage (expressed as a fraction) and (ii) the
total amount of the Incremental Loan or Incremental Loans requested; provided
that in no event shall any Incremental Loan Lender be obligated to make an
Incremental Loan if after giving effect to such Incremental Loan such
Incremental Loan Lender's Incremental Loans outstanding would exceed its
Incremental Loan Commitment or if the amount of such requested Incremental Loan
is in excess of such Incremental Loan Lender's Available Incremental Loan
Commitment.
(b) Subject to Sections 2.10 and 2.12, the Incremental Loans may from time
to time be (i) LIBOR Loans, (ii) Base Rate Loans or (iii) a combination thereof,
as determined by the Borrowers and notified to the Agent in accordance with
either Section 2.2(e) or 2.6. Each Incremental Loan Lender may make or maintain
its Incremental Loans to the Borrowers by or through any Applicable Lending
Office.
(c) The Incremental Loans made by each Incremental Loan Lender to the
Borrowers shall be evidenced by a promissory note of the Borrowers,
substantially in the form of Exhibit B (an "Incremental Note"), with appropriate
----------------
insertions therein as to payee, date and principal amount, payable to the order
of such Incremental Loan Lender and representing the obligations of the
Borrowers to pay the aggregate unpaid principal amount of all Incremental Loans
made by such Incremental Loan Lender to the Borrowers pursuant to Section
2.2(a), with interest thereon as prescribed in Sections 2.8 and 2.9. Each
Incremental Loan Lender is hereby authorized (but not required) to record the
date and amount of each payment or prepayment of principal of its Incremental
Loans made to the Borrowers, each continuation thereof, each conversion of all
or a portion thereof to another Type and, in the case of LIBOR Loans, the length
of each Interest Period with respect thereto, in the books and records of such
Incremental Loan Lender, and any such recordation shall constitute prima facie
----- -----
evidence of the accuracy of the information so recorded. The failure of any
Incremental Loan Lender to make any such recordation or notation in the books
and records of the Incremental Loan Lender (or any error in such recordation or
notation) shall not affect the obligations of the Borrowers hereunder or under
the Incremental
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Notes. Each Incremental Note shall (i) be dated the date of issuance thereof,
(ii) provide for the payment of interest in accordance with Sections 2.8 and 2.9
and (iii) be stated to be payable on the Incremental Loan Commitment Expiration
Date.
(d) The Borrowers shall give the Agent irrevocable written notice (which
notice must be received by the Agent prior to 10:00 A.M., Los Angeles time, one
Business Day prior each proposed borrowing date or, if all or any part of the
Incremental Loans are requested to be made as LIBOR Loans, three Eurodollar
Business Days prior to each proposed borrowing date) requesting that the
Incremental Loan Lenders make the Incremental Loans on the proposed borrowing
date and specifying (i) the aggregate amount of Incremental Loans requested to
be made, (ii) subject to Section 2.2(b), whether the Incremental Loans are to be
LIBOR Loans, Base Rate Loans or a combination thereof and (iii) if the
Incremental Loans are to be entirely or partly LIBOR Loans, the respective
amounts of each such Type of Incremental Loan and the respective lengths of the
initial Interest Periods therefor. Upon receipt of such notice the Agent shall
promptly notify each Incremental Loan Lender thereof not later than 11:00 A.M.,
Los Angeles time, on the date of receipt of such notice. On the proposed
borrowing date, not later than 12:00 noon, Los Angeles time, each Incremental
Loan Lender shall make available to the Agent at its office specified in Section
9.2 the amount of such Incremental Loan Lender's pro rata share of the aggregate
borrowing amount (as determined in accordance with the second paragraph of
Section 2.2(a)) in immediately available funds. The Agent may, in the absence
of notification from any Incremental Loan Lender that such Incremental Loan
Lender has not made its pro rata share available to the Agent, on such date,
credit the account of the Borrowers on the books of such office of the Agent
with the aggregate Incremental Loans.
(e) Neither the Agent nor any Incremental Loan Lender shall be responsible
for the obligations or Available Incremental Loan Commitment of any other
Incremental Loan Lender hereunder, nor will the failure of any Incremental Loan
Lender to comply with the terms of this Agreement relieve any other Incremental
Loan Lender or the Borrowers of their obligations under this Agreement and the
Incremental Notes. Nothing herein shall be deemed to relieve any Incremental
Loan Lender from its obligation to fulfill its Commitment hereunder or to
prejudice any rights which the Borrowers may have against any Incremental Loan
Lender as a result of any default by such Incremental Loan Lender hereunder.
(f) On each date set forth below, the Aggregate Incremental Loan Commitment
shall automatically reduce by that percentage of the initial Aggregate
Incremental Loan Commitment (as in effect on the Activation Date) set forth
below:
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Percent Reduction in
Aggregate
Effective Date of Reduction Incremental Loan Commitment
--------------------------- ---------------------------
September 30, 2001 3.750%
December 31, 2001 3.750%
March 31, 2002 4.375%
June 30, 2002 4.375%
September 30, 2002 4.375%
December 31, 2002 4.375%
March 31, 2003 4.375%
June 30, 2003 4.375%
September 30, 2003 4.375%
December 31, 2003 4.375%
March 31, 2004 5.000%
June 30, 2004 5.000%
September 30, 2004 5.000%
December 31, 2004 5.000%
March 31, 2005 5.625%
June 30, 2005 5.625%
September 30, 2005 5.625%
December 31, 2005 5.625%
March 31, 2006 5.000%
June 30, 2006 5.000%
September 30, 2006 5.000%
All outstanding Incremental Loans shall be due and payable, to the extent not
previously paid in accordance with the terms hereof, on the Incremental Loan
Commitment Expiration Date.
(g) Reductions of the Aggregate Incremental Loan Commitment pursuant to
this Section 2.2 or Section 2.5 shall automatically effect a reduction of the
Incremental Loan Commitment of each Incremental Loan Lender to an amount equal
to the product of (i) the Aggregate Incremental Loan Commitment of all
Incremental Loan Lenders, as reduced pursuant to this Section 2.2 or Section 2.5
and (ii) the Incremental Loan Commitment Percentage of such Incremental Loan
Lender, in each case determined immediately prior to such reduction of the
Aggregate Incremental Loan Commitment on such date.
(h) Upon each reduction of the Aggregate Incremental Loan Commitment, the
Borrowers shall (i) pay the unused commitment fee, payable pursuant to Section
2.16, accrued on the amount of the Aggregate Incremental Loan Commitment so
reduced through the date of such reduction, (ii) prepay the amount, if any, by
which the aggregate unpaid principal amount of the Incremental Loans exceeds the
amount of the Aggregate Incremental Loan Commitment as so reduced, together with
accrued interest on the amount being prepaid to the date of such
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prepayment and (iii) compensate the Incremental Loan Lenders for their funding
costs, if any, in accordance with Section 2.15.
(i) The Incremental Loan Commitment of each Lender and the Aggregate
Incremental Loan Commitment shall terminate on the Incremental Loan Commitment
Expiration Date.
2.3 Issuance of Letters of Credit.
-----------------------------
(a) The Borrowers shall be entitled to request the issuance of Letters of
Credit from time to time from and including the Closing Date to but excluding
the date which is two Business Days prior to the Revolving Loan Commitment
Expiration Date, by giving the Agent a Letter of Credit Request at least three
(3) Business Days before the requested date of issuance of such Letter of Credit
(which shall be a Business Day). Any Letter of Credit Request received by the
Agent later than 10:00 a.m., Los Angeles time, shall be deemed to have been
received on the next Business Day. Each Letter of Credit Request shall be made
in writing, shall be signed by a Responsible Officer, shall be irrevocable and
shall be effective upon receipt by the Agent. Provided that a valid Letter of
Credit Request has been received by the Agent and upon fulfillment of the other
applicable conditions set forth in Section 4.3, the Agent will issue the
requested Letter of Credit from its office specified in Section 9.2. No Letter
of Credit shall have an expiration date later than two Business Days prior to
the Revolving Loan Commitment Expiration Date.
(b) Immediately upon the issuance of each Letter of Credit, the Agent shall
be deemed to have sold and transferred to each Revolving Loan Lender, and each
Revolving Loan Lender shall be deemed to have purchased and received from the
Agent, in each case irrevocably and without any further action by any party, an
undivided interest and participation in such Letter of Credit, each drawing
thereunder and the obligations of the Borrowers under this Agreement in respect
thereof in an amount equal to the product of (i) such Revolving Loan Lender's
Revolving Loan Commitment Percentage and (ii) the maximum amount available to be
drawn under such Letter of Credit (assuming compliance with all conditions to
drawing). The Agent shall promptly advise each Revolving Loan Lender of the
issuance of each Letter of Credit, the Letter of Credit Amount of such Letter of
Credit, any change in the face amount or expiration date of such Letter of
Credit, the cancellation or other termination of such Letter of Credit and any
drawing under such Letter of Credit.
(c) The payment by the Agent of a draft drawn under any Letter of Credit
shall first be made from any Cash Collateral Deposit held by the Agent with
respect to such Letter of Credit. After any such Cash Collateral Deposit has
been applied, the payment by the Agent of a draft drawn under any Letter of
Credit shall constitute for all purposes of this Agreement the making by the
Agent in its individual capacity as a Lender hereunder (in such capacity, the
"Drawing Lender") of a Base Rate Loan in the amount of such payment (but
--------------
without any requirement of compliance with the conditions set forth in Section
4.3). In the event that any such Loan by the Drawing Lender resulting from a
drawing under any Letter of Credit is not repaid by the Borrowers by 12:00 noon,
Los Angeles time, on the day of payment of such drawing, the Agent shall
promptly notify each other Revolving Loan Lender. Each Revolving Loan Lender
shall, on the day of such notification (or if such notification is not given by
3:00 p.m., Los Angeles time, on such day, then on the next succeeding Business
Day), make a Base Rate Loan, which shall be used to repay the applicable portion
of the Base Rate Loan of the Drawing Lender with respect to such Letter of
Credit drawing, in an amount equal to the amount of such Revolving Loan Lender's
participation in such drawing for application to repay the Drawing Lender (but
without any requirement of compliance with the applicable conditions set forth
in Section 4.3) and shall deliver to the Agent for the account of the Drawing
Lender, on the day of such notification (or if such notification is not given by
-30-
3:00 p.m., Los Angeles time, on such day, then on the next succeeding Business
Day) and in immediately available funds, the amount of such Base Rate Loan. In
the event that any Revolving Loan Lender fails to make available to the Agent
for the account of the Drawing Lender the amount of such Base Rate Loan, the
Drawing Lender shall be entitled to recover such amount on demand from such
Revolving Loan Lender together with interest thereon at the Federal Funds
Effective Rate for each day such amount remains outstanding.
(d) The obligations of the Borrowers with respect to any Letter of Credit,
any Letter of Credit Request and any other agreement or instrument relating to
any Letter of Credit and any Base Rate Loan made under Section 2.3(c) shall be
absolute, unconditional and irrevocable and shall be paid strictly in accordance
with the terms of the aforementioned documents under all circumstances,
including the following:
(i) any lack of validity or enforceability of any Letter of Credit,
this Agreement or any other Loan Document;
(ii) the existence of any claim, setoff, defense or other right that
the Borrowers may have at any time against any beneficiary or transferee of
any Letter of Credit (or any Person for whom any such beneficiary or
transferee may be acting), the Agent, any Lender (other than the defense of
payment to a Lender in accordance with the terms of this Agreement) or any
other Person, whether in connection with this Agreement, any other Loan
Document, the transactions contemplated hereby or thereby or any unrelated
transaction;
(iii) any statement or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect, or any statement therein being untrue or inaccurate in any respect
whatsoever; and
(iv) any exchange, release or nonperfection of any Collateral or
other collateral, or any release, amendment or waiver of or consent to
departure from any Guarantee, other Loan Document or other guaranty, for
any of the Obligations of the Borrowers in respect of the Letters of
Credit.
(e) The Borrowers shall pay to the Agent for the account of the Revolving
Loan Lenders with respect to each Letter of Credit issued hereunder, for the
period from and including the day such Letter of Credit is issued to but
excluding the day such Letter of Credit expires, a letter of credit fee equal to
the product of (i) the Applicable Revolving Loan Margin for LIBOR Loans per
---
annum and (ii) the Letter of Credit Amount of such Letter of Credit from time
-----
to time, such letter of credit fee to be payable quarterly in arrears on the
last day of each March, June, September and December and on the expiration date
of such Letter of Credit.
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(f) The Borrowers shall pay to the Agent for its own account, with respect
to each Letter of Credit issued hereunder, from time to time such additional
fees and charges (including cable charges) as are generally associated with
letters of credit, in accordance with the Agent's standard internal charge
guidelines and the related Letter of Credit Request.
(g) The Borrowers agree to the provisions in the Letter of Credit Request
form; provided, however, that the terms of the Loan Documents shall take
-------- -------
precedence if there is any inconsistency between the terms of the Loan Documents
and the terms of said form.
(h) The Borrowers assume all risks of the acts or omissions of any
beneficiary or transferee of any Letter of Credit with respect to its use of
such Letter of Credit. Neither the Agent nor any Lender nor any of their
respective officers or directors shall be liable or responsible for (i) the use
that may be made of any Letter of Credit or any acts or omissions of any
beneficiary or transferee in connection therewith; or (ii) the validity,
sufficiency or genuineness of documents, or of any endorsement thereof, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged. In furtherance and not in limitation of the foregoing, the
Agent may accept any document that appears on its face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
2.4 Optional Prepayments. The Borrowers may on the last day of any
--------------------
Interest Period with respect thereto, in the case of LIBOR Loans, or at any time
and from time to time, in the case of Base Rate Loans, prepay the Loans, in
whole or in part, without premium or penalty, upon at least three Business Days'
irrevocable written notice, in the case of LIBOR Loans, and upon at least one
Business Day's irrevocable written notice, in the case of Base Rate Loans, from
the Borrowers to the Agent, specifying the date and amount of prepayment and
whether the prepayment is of LIBOR Loans, Base Rate Loans or a combination
thereof, and, if of a combination thereof, the amount allocable to each and
whether the prepayment is of Incremental Loans or Revolving Loans, or a
combination thereof, and, if a combination thereof, the amount allocable to
each. Upon receipt of any such notice from the Borrowers, the Agent shall
promptly notify each Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable by the Borrowers on the date
specified therein, together with accrued interest to such date on the amount
prepaid. Partial prepayments of Loans shall be in an aggregate principal amount
of $1,000,000 and integral multiples of $250,000 in excess thereof.
2.5 Mandatory Prepayments. (a) On the day of receipt by the Borrowers or
---------------------
any of their Subsidiaries of any Net Proceeds with respect to an Asset
Disposition, the Borrowers shall prepay the Loans (and such prepayment shall be
applied as set forth in Section 2.5(e)) and, after all Loans have been prepaid,
make a Cash Collateral Deposit, in an amount equal to 100% of such Net Proceeds;
provided that no prepayment shall be required with respect to an Asset
-------- ----
Disposition if (i) the consummation of such Asset Disposition would not result
in (x) the Operating Cash Flow attributable to the assets subject to such Asset
Disposition (based on the most recent financial statements received by the Agent
under Section 5.1(a) or (b) at the time of such Asset Disposition) plus (y) the
----
Operating Cash Flow attributable to the assets subject to all prior Asset
Dispositions consummated since the Closing Date (based, respectively, on the
most recent financial statements received by the Agent under Section 5.1(a) or
(b) at the time of such Asset Disposition) exceeding 15% of the Operating Cash
Flow of the Borrowers as of the date of
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such Asset Disposition and (ii) the Net Proceeds of any such Asset Dispositions
are used, within one year of such disposition, to invest in assets of the same
type and use as those disposed and with respect to which the Lenders shall have
a first-priority perfected Lien (subject to Section 6.3). On or prior to the
date of any Asset Disposition, the Borrowers agree to provide the Agent with
calculations used by the Borrowers in determining the amount of any such
prepayment (or in determining that a prepayment is not required) under this
Section 2.5(a).
(b) In the event that at the end of any fiscal year of the Borrowers
ending on and after December 31, 1999 there shall exist Excess Cash Flow with
respect to such fiscal year, then on the date which is ten Business Days after
the earlier to occur of (i) the date upon which the audited financial statements
of the Borrowers with respect to such fiscal year become available and (ii) the
120th day after the end of such fiscal year, the Borrowers shall prepay the
Loans (and such prepayment shall be applied as set forth in Section 2.5(e)) and,
after all Loans have been prepaid, make a Cash Collateral Deposit, in an amount
equal to 50% of such Excess Cash Flow; provided that no such prepayment shall
-------- ----
be required if the Maximum Total Debt Ratio as of the end of such fiscal year is
less than 4.50:1. On or prior to the date of any prepayment required by this
Section 2.5(b), the Borrowers agree to provide the Agent with the calculations,
substantially in the form of Exhibit H hereto, used by the Borrowers in
determining the amount of any such prepayment.
(c) If the Borrowers or any of their Subsidiaries receive insurance
proceeds or condemnation proceeds with respect to any of their Properties which
are not fully applied (or contractually committed pursuant to contract(s)
approved by the Agent in its reasonable discretion) toward the repair or
replacement of such damaged or condemned Property within 90 days of the receipt
thereof, the Borrowers shall, on such 90th day prepay the Loans and, after all
Loans have been prepaid, make a Cash Collateral Deposit, in an amount equal to
the amount of such proceeds not so applied (and such prepayment shall be applied
as set forth in Section 2.5(e)).
(d) In the event that the Borrowers or any of their Subsidiaries makes an
Equity Offering during any period in which a Default has occurred and is
continuing, the Borrowers shall immediately prepay the Loans and, after all
Loans have been prepaid, make a Cash Collateral Deposit, in an amount equal to
the Net Proceeds of such Equity Offering (and such prepayment shall be applied
as the Agent shall elect in its sole discretion). No such prepayment shall
limit or restrict the rights and remedies of the Lenders under the Loan
Documents upon the occurrence and during the continuance of a Default.
(e) (i) Each prepayment of the Loans pursuant to this Section 2.5 shall
be applied to the outstanding amounts of Incremental Loans and Revolving Loans
on a pro rata basis determined on the basis of the amount of Incremental Loans,
on the one hand, and Revolving Loans, on the other hand, outstanding at the time
of such prepayment. Each prepayment shall be accompanied by payment in full of
all accrued interest and accrued commitment fees thereon to and including the
date of such prepayment, together with any additional amounts owing pursuant to
Section 2.15.
(i) If, at any time, the Revolving Loans are repaid in full,
additional prepayments hereunder shall be applied first, to make a Cash
-----
Collateral Deposit and
-33-
thereafter, to permanently reduce the Aggregate Revolving Loan Commitment
----------
by an amount equal to what such prepayment would have been under this
Section 2.5 if Revolving Loans had been outstanding against which to apply
such prepayment. Each prepayment of the Revolving Loans and each Cash
Collateral Deposit under this Section 2.5 shall be applied to permanently
reduce the Aggregate Revolving Loan Commitment pro rata with respect to
each of the scheduled reduction dates set forth in Section 2.1(e) remaining
at such time.
(ii) Each prepayment of the Incremental Loans under this Section 2.5
shall be applied to permanently reduce the Aggregate Incremental Loan
Commitment pro rata with respect to each of the scheduled reduction dates
set forth in Section 2.2(f) remaining at such time.
(iii) Cash Collateral Deposits held by the Agent shall be applied to
reimburse drawings on Letters of Credit in the order in which such drawings
are presented to the Agent. Upon written request of the Borrowers with
regard to any Letter of Credit for which the Agent is holding a Cash
Collateral Deposit, the Agent shall release to the Borrowers any portion of
such Deposit not applied to reimburse drawings thereunder upon the earliest
of (i) fourteen days following expiration of such Letter of Credit
according to its terms, (ii) receipt by the Agent of written
acknowledgement from the beneficiary of such Letter of Credit (a
"Beneficiary Acknowledgement") requesting the cancellation thereof and
---------------------------
relinquishing all its rights thereunder, which Beneficiary Acknowledgement
shall be accompanied by the original of such Letter of Credit and (iii)
receipt by the Agent of a Beneficiary Acknowledgement and a certificate of
a Responsible Officer of the Borrowers stating that thirty days have
elapsed since the beneficiary of such Letter of Credit received a written
request from the Borrowers to cancel and return the original of such Letter
of Credit, and such beneficiary has failed to respond to such request
(provided that, with respect to the preceding clause (iii), the Agent shall
-------- ----
not be required to release such Deposit if the Letter of Credit to which it
relates by its terms permits the transfer thereof to a successive
beneficiary without the prior written consent of the Agent); provided that,
-------- ----
in any case, no Default has occurred and is continuing.
2.6 Conversion and Continuation Options
-----------------------------------
(a) The Borrowers may elect from time to time to convert LIBOR Loans to
Base Rate Loans, by the Borrowers giving the Agent at least two Business Days'
prior irrevocable written notice of such election pursuant to a Continuation
Notice, provided that any such conversion of LIBOR Loans may only be made on the
last day of an Interest Period with respect thereto. The Borrowers may elect
from time to time to convert Base Rate Loans to LIBOR Loans by the Borrowers
giving the Agent at least three Eurodollar Business Days' prior irrevocable
written notice of such election pursuant to a Continuation Notice. Any such
notice of conversion to LIBOR Loans shall specify the length of the initial
Interest Period or Interest Periods therefor. Upon receipt of any such notice
the Agent shall promptly notify each Lender thereof. All or any part of
outstanding LIBOR Loans and Base Rate Loans may be converted as provided herein,
provided that (i) any such conversion may only be made if, after giving effect
thereto, Section 2.7 shall not have been contravened, (ii) no Incremental Loan
may be converted into a LIBOR
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Loan after the date that is one month prior to the Incremental Loan Commitment
Expiration Date, (iii) no Revolving Loan may be converted into a LIBOR Loan
after the date that is one month prior to the Revolving Loan Commitment
Expiration Date and (iv) the Borrowers shall not have the right to elect to
continue at the end of the applicable Interest Period, or to convert to, a LIBOR
Loan if a Default shall have occurred and be continuing.
(b) Any LIBOR Loan may be continued as such upon the expiration of the
then current Interest Period with respect thereto by the Borrowers giving notice
to the Agent, in accordance with the applicable provisions of the term "Interest
Period" set forth in Section 1.1, of the length of the next Interest Period to
be applicable to such LIBOR Loan, provided that no LIBOR Loan may be continued
--------
as such (i) if, after giving effect thereto, Section 2.7 would be contravened,
(ii) after the date that is one month prior to the Incremental Loan Commitment
Expiration Date, (iii) after the date that is one month prior to the Revolving
Loan Commitment Expiration Date or (iv) if a Default shall have occurred and be
continuing and provided, further, that if the Borrowers shall fail to give any
-------- -------
required notice as described above in this Section or if such continuation is
not permitted pursuant to the preceding proviso, such Loans shall be
automatically converted to Base Rate Loans on the last day of such then-expiring
Interest Period.
2.7 Minimum Amounts of Tranches. All borrowings, conversions and
---------------------------
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the Loans
comprising each Tranche (except Loans made pursuant to Section 2.3(c)) shall be
equal to $1,000,000 or a whole multiple of $100,000 in excess thereof and, in
any case, there shall not be more than 12 Tranches.
2.8 Interest Rates and Payment Dates.
--------------------------------
(a) Each LIBOR Loan shall bear interest for each day during each Interest
Period with respect thereto at a rate per annum equal to the LIBOR Adjusted Rate
plus the Applicable Revolving Loan Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum equal to
the Base Rate plus the Applicable Revolving Loan Margin.
(c) If any Default shall have occurred and be continuing, all amounts
outstanding shall bear interest at a rate per annum which is the rate described
in paragraph (b) of this Section plus 2% from the date of the occurrence of such
Default until such Default is no longer continuing (after as well as before
judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date,
provided that interest accruing pursuant to paragraph (c) of this Section shall
be payable on demand.
(e) For purposes of determining (i) the Applicable Margin for all Loans,
(ii) the Applicable Margin for the letter of credit fees referred to in Section
2.3(e) and (iii) the Maximum Total Debt Ratio for the commitment fees referred
to in Section 2.16, interest rates on the Loans and such fees shall be
calculated on the basis of the Maximum Total Debt Ratio set forth in the most
recent Covenant Compliance Certificate received by the Agent in accordance with
Section 5.1(b). For accrued and unpaid interest and fees only (no changes being
made for interest or fee
-35-
payments previously made), changes in interest rates on the Loans, or in such
fees, attributable to changes in the Applicable Margin (with respect to Loans
and letter of credit fees) and changes in the Maximum Total Debt Ratio (with
respect to commitment fees) caused by changes in the applicable Covenant
Compliance shall be calculated upon the delivery of a Covenant Compliance
Certificate and such change shall be effective (y) in the case of a Base Rate
Loan or such fees, from the first day subsequent to the last day covered by the
Covenant Compliance Certificate and (z) in the case of a LIBOR Loan , from the
first day of the Interest Period applicable to such LIBOR Loan subsequent to the
last day covered by the Covenant Compliance Certificate. If, for any reason,
Entravision shall fail to deliver a Covenant Compliance Certificate when due in
accordance with Section 5.1(b), and such failure shall continue for a period of
ten days, the Revolving Loan Leverage Level shall be deemed to be Revolving Loan
Leverage Level 1 (for purposes of determining the Applicable Margin on Loans or
letter of credit fees) and the applicable rate shall be deemed to be the highest
rate set forth in Section 2.16 (for purposes of determining commitment fees), as
applicable, in each case retroactive to the date on which Entravision should
have delivered such Covenant Compliance Certificate and shall continue until a
Covenant Compliance Certificate indicating a different Revolving Loan Leverage
Level is delivered to the Agent.
2.9 Computation of Interest and Fees.
--------------------------------
(a) Interest on Base Rate Loans (other than Base Rate Loans based on the
Federal Funds Effective Rate) shall be calculated on the basis of a 365- (or
366-, as the case may be), day year for the actual days elapsed and interest on
LIBOR Loans, unused commitment fees and all other Obligations of the Borrowers
shall be calculated on the basis of a 360-day year for the actual days elapsed.
The Agent shall as soon as practicable notify the Borrowers and the Lenders of
each determination of a LIBOR Adjusted Rate. Any change in the interest rate on
a Loan resulting from a change in the Base Rate or the LIBOR Reserve
Requirements shall become effective as of the opening of business on the day on
which such change in the Base Rate is announced or such change in the LIBOR
Reserve Requirements becomes effective, as the case may be. The Agent shall as
soon as practicable notify the Borrowers and the Lenders of the effective date
and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrowers and
the Lenders in the absence of manifest error.
2.10 Inability to Determine Interest Rate. In the event that prior to the
------------------------------------
first day of any Interest Period:
(a) the Agent shall have determined (which determination shall be
conclusive and binding upon the Borrowers absent manifest error) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the LIBOR Adjusted Rate for such Interest Period, or
(b) the Agent shall have received notice from the Majority Lenders acting
in good faith that the LIBOR Adjusted Rate determined or to be determined for
such Interest Period will not adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such
-36-
Lenders) of making or maintaining their affected Loans during such Interest
Period, the Agent shall give telecopy or telephonic notice thereof to the
Borrowers and the Lenders as soon as practicable thereafter. If such notice is
given (x) any LIBOR Loans requested to be made on the first day of such Interest
Period shall accrue interest at the Base Rate, (y) Loans that were to have been
converted on the first day of such Interest Period to LIBOR Loans shall be
continued as Base Rate Loans and (z) any outstanding LIBOR Loans shall be
converted, on the first day of such Interest Period, to Base Rate Loans. Until
such notice has been withdrawn by the Agent, no further LIBOR Loans shall be
made or continued as such, nor shall the Borrowers have the right to convert
Base Rate Loans to LIBOR Loans.
2.11 Pro Rata Treatment and Payments. Each borrowing by the Borrowers
-------------------------------
from the Lenders hereunder, and any reduction of the Aggregate Revolving Loan
Commitment or the Aggregate Incremental Loan Commitment, shall be made pro rata
according to the respective Commitment Percentages of the applicable Lenders.
Each payment (including each prepayment) by the Borrowers on account of
principal of and interest on the Loans shall be made pro rata according to the
respective outstanding principal and interest amounts of such Loans then held by
the Lenders. All payments (including prepayments) to be made by the Borrowers
hereunder and under the Notes, whether on account of principal, interest, fees
or otherwise, shall be made without set off or counterclaim and shall be made
prior to 12:00 Noon, Los Angeles time, on the due date thereof to the Agent, for
the account of the applicable Lenders, at the Agent's office specified in
Section 9.2, in Dollars and in immediately available funds. The Agent shall
distribute such payments to the applicable Lenders promptly upon receipt in like
funds as received. If any payment hereunder (other than payments on the LIBOR
Loans) becomes due and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day, and, with respect to
payments of principal, interest thereon shall be payable at the then applicable
rate during such extension. If any payment on a LIBOR Loan becomes due and
payable on a day other than a Eurodollar Business Day, the maturity thereof
shall be extended to the next succeeding Eurodollar Business Day (and interest
shall continue to accrue thereon at the applicable rate) unless the result of
such extension would be to extend such payment into another calendar month, in
which event such payment shall be made on the immediately preceding Eurodollar
Business Day.
2.12 Illegality. Notwithstanding any other provision herein, if any
----------
change after the Closing Date in any Requirement of Law or in the interpretation
or application thereof shall make it unlawful for any Lender or Applicable
Lending Office to make or maintain LIBOR Loans as contemplated by this
Agreement, (a) the commitment of such Lender hereunder to make LIBOR Loans,
continue LIBOR Loans as such and convert Base Rate Loans to LIBOR Loans shall
forthwith be suspended during such period of illegality and (b) the Loans of
such Lender or Applicable Lending Office then outstanding as LIBOR Loans, if
any, shall be converted automatically to Base Rate Loans on the respective last
days of the then current Interest Periods with respect to such Loans or within
such earlier period as required by law. If any such conversion of a LIBOR Loan
occurs on a day which is not the last day of the then current Interest Period
with respect thereto, the Borrowers shall pay to such Lender such amounts, if
any, as may be required pursuant to Section 2.15. To the extent that a Lender's
LIBOR Loans have been converted to Base Rate Loans pursuant to this Section
2.12, all payments and prepayments of principal that otherwise would be applied
to such Lender's LIBOR Loans shall be applied instead to its Base Rate Loans.
-37-
2.13 Increased Costs.
---------------
(a) In the event that any change after the Closing Date in any Requirement
of Law or in the interpretation or application thereof or compliance by any
Lender with any request or directive (whether or not having the force of law
but, if not having the force of law, generally applicable to and complied with
by banks and financial institutions of the same general type as such Lender in
the relevant jurisdiction) from any central bank or other Governmental Authority
made subsequent to the date hereof:
(i) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirements against assets held by,
letters of credit or guarantees issued by, deposits or other liabilities in
or for the account of, advances, loans or other extensions of credit by, or
any other acquisition of funds by, any office of such Lender or Applicable
Lending Office which is not otherwise included in the determination of the
LIBOR Adjusted Rate hereunder; or
(ii) shall impose on such Lender or Applicable Lending Office any
other condition;
and the result of any of the foregoing is to increase the cost to the Agent of
issuing or maintaining any Letter of Credit by an amount which the Agent deems
to be material, or to such Lender or Applicable Lending Office, by an amount
which such Lender deems to be material, of making, converting into, continuing
or maintaining LIBOR Loans, or purchasing or maintaining any participation in a
Letter of Credit, or to reduce any amount receivable hereunder in respect
thereof then, in any such case, the Borrowers shall immediately pay to the
Agent, for its own account or on behalf of such Lender or Applicable Lending
Office, as applicable, upon the demand of the Agent for itself or at the request
of such Lender, as applicable, any additional amounts necessary to compensate
such Lender or the Agent, as applicable, for such increased cost or reduced
amount receivable. If the Agent, any Lender or any Applicable Lending Office
becomes entitled to claim any additional amounts pursuant to this Section, it
shall promptly notify the Borrowers, through the Agent, of the event by reason
of which it has become so entitled. A certificate as to any additional amounts
payable pursuant to this Section submitted by the Agent or such Lender or
Applicable Lending Office, through the Agent, to the Borrowers shall be
conclusive evidence of the accuracy of the information so recorded, absent
manifest error. This covenant shall survive the termination of this Agreement,
expiration of the Letters of Credit and the payment of the Notes and all other
amounts payable hereunder.
(b) If, after the date of this Agreement, the introduction of or any
change in any applicable law, rule, regulation or guideline regarding capital
adequacy, or any change in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration
thereof, affects the amount of capital required or expected to be maintained by
any Lender or any corporation controlling any Lender, and such Lender (taking
into consideration such Lender's or such corporation's policies with respect to
capital adequacy) determines that the amount of capital maintained by such
Lender or such corporation which is attributable to or based upon the Loans, the
Letters of Credit, the Commitments or this Agreement must be increased as a
consequence of such introduction or change by an amount deemed by such Lender to
be material, then, upon demand of the Agent at the request of such
-38-
Lender, the Borrowers shall immediately pay to the Agent on behalf of such
Lender, additional amounts sufficient to compensate such Lender or such
corporation for the increased costs to such Lender or corporation of such
increased capital. Any such demand shall be accompanied by a certificate of such
Lender setting forth in reasonable detail the computation of any such increased
costs, which certificate shall be conclusive, absent manifest error. This
obligation of the Borrowers under this Section 2.13(b) shall survive repayment
of the Loans, expiration of the Letters of Credit and all other amounts
hereunder in full and the termination of this Agreement.
2.14 Taxes.
-----
(a) All payments made by the Borrowers in respect of the Obligations shall
be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority or any
political subdivision or taxing authority thereof or therein, other than
Excluded Taxes (all such non-Excluded Taxes being hereinafter called "Taxes").
If any Taxes are required to be withheld from any amounts payable to the Agent
or any Lender in respect of the Obligations, the amounts so payable to the Agent
or such Lender shall be increased to the extent necessary to yield to the Agent
or such Lender (after payment of all Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement and
the Notes. The Agent or a Lender, as the case may be, shall deliver to the
Borrowers a certificate in good faith setting forth the amount of such Taxes,
the calculation of such Taxes and an explanation of the requirement therefor,
all in reasonable detail and such certificate shall be conclusive, absent
manifest error. Whenever any Taxes are payable by the Borrowers, as promptly as
possible thereafter, the Borrowers shall send to the Agent, for its own account
or for the account of such Lender, as the case may be, a copy of an original
official receipt received by the Borrowers showing payment thereof or such other
evidence of payment reasonably satisfactory to the Agent. If the Borrowers fail
to pay any Taxes when due to the appropriate taxing authority or fail to remit
to the Agent the required receipts or other required documentary evidence, the
Borrowers shall indemnify the Agent and the Lenders for any incremental taxes,
interest or penalties (and related reasonable fees and expenses of counsel) that
may become payable by the Agent or any Lender as a result of any such failure.
The agreements in this Section shall survive the termination of this Agreement,
the expiration of the Letters of Credit and the payment of the Notes and all
other amounts payable hereunder.
(b) Each Lender that is not organized under the laws of the United States
of America or a state thereof agrees that it will deliver to the Borrowers and
the Agent (i) two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224 or successor applicable form, as the case may be, and
(ii) an Internal Revenue Service Form W-8 or W-9 or successor applicable form.
Each such Lender also agrees to deliver to the Borrowers and the Agent two
further copies of the said Form 1001 or 4224 and Form W-8 or W-9, or successor
applicable forms or other manner or certification, as the case may be, on or
before the date that any such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to the Borrowers and the Agent, and such extensions or renewals
thereof as may reasonably be requested by the Borrowers or the Agent, unless in
any such case an event beyond the control of such Lender (including, without
limitation, any change in treaty, law or regulation) has occurred prior to the
date on which any
-39-
such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advised the
Borrowers and the Agent. Each such Lender shall certify (i) in the case of a
Form 1001 or 4224, that it is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes and
(ii) in the case of a Form W-8 or W-9, that it is entitled to an exemption from
United States backup withholding tax.
2.15 Indemnity. The Borrowers agree to indemnify each Lender and to hold
---------
each Lender harmless from and to pay each Lender within 5 Business Days of such
Lender's demand the amount of any liability, loss or expense arising from the
reemployment of funds obtained by it or from fees payable to terminate the
deposits from which such funds were obtained (including reasonable fees and
expenses of counsel) which such Lender may sustain or incur as a consequence of
(a) default by the Borrowers in payment when due of the principal amount of or
interest on any LIBOR Loan, (b) default by the Borrowers in making a borrowing
of, conversion into or continuation of LIBOR Loans after the Borrowers have
given a notice requesting the same in accordance with the provisions of this
Agreement, (c) default by the Borrowers in making any prepayment after the
Borrowers have given a notice thereof in accordance with the provisions of this
Agreement or (d) the making by the Borrowers of a prepayment or conversion of
LIBOR Loans on a day which is not the last day of an Interest Period with
respect thereto. A Lender's certificate as to such liability, loss or expense
shall be deemed conclusive, absent manifest error. This covenant shall survive
the termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder.
2.16 Unused Commitment Fees.
----------------------
(a) The Borrowers agree to pay to the Revolving Loan Lenders an unused
commitment fee to be shared pro rata among the Revolving Loan Lenders with
respect to the Revolving Loan Commitments for the period from and including the
Closing Date to but excluding the Revolving Loan Commitment Expiration Date,
based on the average daily aggregate amount of the unused Aggregate Revolving
Loan Commitment from time to time in effect and computed at the applicable per
annum rate set forth below:
-40-
Maximum Total Commitment
Debt Ratio Fee
------------ ----------
*6.00:1 0.500%
**6.00:1 - *5.00:1 0.375%
**5.00:1 0.250%
Such fee shall be payable quarterly in arrears on the last day of each March,
June, September and December and on the Revolving Loan Commitment Expiration
Date, commencing on the first such date to occur after the Closing Date.
(b) The Borrowers agree to pay to the Incremental Loan Lenders following
activation of the Aggregate Incremental Loan Commitment, an unused commitment
fee to be shared pro rata among the Incremental Loan Lenders with respect to the
Incremental Loan Commitments for the period from and including the Activation
Date to but excluding the Incremental Loan Commitment Expiration Date, based on
the average daily aggregate amount of the unused Aggregate Incremental Loan
Commitment from time to time in effect and computed at the applicable per annum
rate set forth below:
Maximum Total Commitment
Debt Ratio Fee
------------- -----------
*6.00:1 0.500%
**6.00:1 - *5.00:1 0.375%
**5.00:1 0.250%
Such fee shall be payable quarterly in arrears on the last day of each March,
June, September and December and the Incremental Loan Commitment Expiration
Date, commencing on the first such date to occur after the Activation Date.
2.17 Mitigation of Costs. If any Lender, by changing its Applicable
-------------------
Lending Office or taking any other reasonable action, so long as making such
change or taking such other action is not disadvantageous to it in any
financial, regulatory or other respect, can mitigate any adverse effect on the
Borrowers under Section 2.10, 2.12, 2.13, or 2.14, such Lender shall take such
action.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the Loans
and participate in the Letters of Credit, and to induce the Agent to issue the
Letters of Credit, each Borrower hereby represents and warrants to the Agent and
each Lender that:
3.1 Organization and Good Standing. Each Borrower and each Subsidiary (a)
------------------------------
is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization, (b) has all requisite power and authority
(corporate, partnership, limited liability company and otherwise) to own its
properties and to conduct its business as now conducted and as currently
proposed to be conducted and (c) is duly qualified to conduct business as a
foreign organization and is currently in good standing in each state and
jurisdiction in which it conducts business.
* greater than or equal to.
** less than.
-41-
Each state and jurisdiction in which any Borrower or any Subsidiary is organized
or is (or should be) qualified to conduct business is listed on Schedule 3.1
hereto.
3.2 Power and Authority. Each Borrower has all requisite power and
-------------------
authority under applicable law and under its Organic Documents to borrow
hereunder. Each Borrower and each Subsidiary has all requisite power and
authority under applicable law and under its Organic Documents to execute,
deliver and perform the obligations under the Loan Documents to which it is a
party. Except as disclosed on Schedule 3.2 hereto, all actions, waivers and
consents (corporate, regulatory and otherwise) necessary or appropriate for each
Borrower and each Subsidiary to execute, deliver and perform the Loan Documents
to which it is a party have been taken and/or received.
3.3 Validity and Legal Effect. This Agreement constitutes, and the other
-------------------------
Loan Documents to which any Borrower or any Subsidiary is a party constitute (or
will constitute when executed and delivered), the legal, valid and binding
obligations of each Borrower (jointly and severally) and each Subsidiary
enforceable against it in accordance with the terms thereof.
3.4 No Violation of Laws or Agreements. The execution, delivery and
----------------------------------
performance of the Loan Documents, (a) will not violate or contravene any
Requirement of Law, (b) will not result in any material breach or violation of,
or constitute a material default under, any agreement or instrument by which any
Borrower, any Subsidiary or any of its respective property may be bound, and (c)
will not result in or require the creation of any Lien (other than pursuant to
the Loan Documents ) upon or with respect to any properties of any Borrower or
any Subsidiary, whether such properties are now owned or hereafter acquired.
3.5 Title to Assets; Existing Encumbrances; Intellectual and Real
-------------------------------------------------------------
Property. Each Borrower and each Subsidiary has good and marketable title to all
--------
of its real and personal properties and assets, free and clear of any Liens,
except the security interests granted to the Agent for the benefit of the
Lenders under the Loan Documents. Schedule 3.5A hereto lists each trademark,
service xxxx, copyright, patent, database, customized application software and
systems integration software, trade secret and other intellectual property
owned, licensed, leased, controlled or applied for by any Borrower or any
Subsidiary (the "Intellectual Property"). To the Borrowers' knowledge, no claim
---------------------
has been asserted and is pending by any Person challenging or questioning the
use of any such Intellectual Property or the validity or effectiveness of any
such Intellectual Property, nor do the Borrowers know of any valid basis for any
such claim. To each Borrower's knowledge, the use of such Intellectual Property
by the Borrowers and their Subsidiaries does not infringe on the rights of any
Person, nor, to the Borrowers' knowledge, do the use by other Persons of such
Intellectual Property infringe on the rights of the Borrowers and their
Subsidiaries. Schedule 3.5B hereto lists each real property interest and license
owned, leased or otherwise used by any Borrower or any Subsidiary, together with
relevant identifying information describing, among other things, the location
and use of each such real property interest or license, whether such interest is
owned or leased. Each such property and asset is in good order and repair
(ordinary wear and tear excepted) and is fully covered by the insurance required
under the Loan Documents. Each such property and asset owned by any Borrower is
titled in the current legal name of such Borrower. Each such property and asset
owned by any Subsidiary is titled in the current legal name of such Subsidiary.
No Borrower and no Subsidiary has used (or permitted the filing of any financing
statement under) any legal or operating name at
-42-
any time during the twelve consecutive calendar months immediately preceding the
execution of this Agreement, except as identified on Schedule 3.5C hereto.
3.6 Capital Structure and Equity Ownership. Schedule 3.6 hereto
--------------------------------------
accurately and completely discloses (a) the number of shares and classes of
equity ownership rights and interests of each Borrower (whether existing as
common or preferred stock, general or limited partnership interests, or limited
liability company membership interests, or warrants, options or other
instruments convertible into such equity) and (b) the ownership thereof. All
such shares and interests are validly existing, fully paid and non-assessable.
In addition to the equity interests in the Borrowers set forth on Schedule 3.6,
Univision is entitled to purchase Class A Membership Interests in Entravision by
exercising the Univision Option. If the Univision Option were exercised on the
Closing Date, Univision would be entitled to purchase an approximately 25.86%
interest in Entravision. Pursuant to the terms of the Univision Investment
Documents and the Operating Agreement, such interest may increase or decrease
over time.
3.7 Subsidiaries, Affiliates and Investments. Schedule 3.7 hereto
----------------------------------------
accurately and completely discloses (a) each Subsidiary and Affiliate of each
Borrower (other than its officers and directors) and (b) each investment in or
loan to any other Person by any Borrower.
3.8 Material Contracts. Schedule 3.8 hereto accurately and completely
------------------
discloses each contract and agreement material to the financial condition or
operation of any Borrower or any Subsidiary (each, a "Material Contract," and
-----------------
collectively, the "Material Contracts"). No Borrower and no Subsidiary has
------------------
committed any unwaived breach or default under any Material Contract, and no
Borrower has any knowledge or reason to believe that any other party to any
Material Contract has or might have committed any unwaived breach or default
thereof. For purposes of this Section 3.8, Program Contracts, Affiliation
Agreements, Option Agreements, Material Leases and Program Services Agreements
are "Material Contracts" and each Program Contract, Affiliation Agreement,
Option Agreement, Material Lease and Program Services Agreement to which any
Borrower or any Subsidiary is a party is described on Schedule 1.1 or 3.8, as
applicable. Each of the Material Contracts is a legal, valid and binding
obligation of each Borrower and Subsidiary party thereto, enforceable in
accordance with its terms. The Agent has received a complete and correct copy of
each of the Material Contracts (including in each case all exhibits, schedules
and disclosure letters referred to therein or delivered pursuant thereto, if
any) and all amendments thereto and other side letters or agreements affecting
the terms thereof. The Borrowers represent that the expiration dates for the
Material Leases set forth on Schedule 1.1 are accurate as of the Closing Date.
3.9 Media Licenses. Each Borrower and each Subsidiary possesses all Media
--------------
Licenses necessary or required in the conduct of its businesses and/or the
operation of its properties. Each Media License is valid, binding and
enforceable on, against and by such Borrower or such Subsidiary, as applicable.
Each Media License is subsisting without any defaults thereunder or enforceable
adverse limitations thereon, and no Media License is subject to any proceedings
or claims opposing the issuance, renewal, development or use thereof or
contesting the validity thereof. Schedule 3.9 hereto accurately and completely
lists each material Media License directly or indirectly owned by each Borrower
(including, whether or not otherwise "material", each Media License issued by
the FCC, and further including all pending applications and renewals therefor),
together with relevant identifying information describing
-43-
such Media License. With respect to each FCC license listed on Schedule 3.9
hereto, the description includes, among other things, the call sign, frequency,
location, file number, issuance date (original or most recent renewal), and
expiration date.
3.10 Taxes and Assessments. Except as disclosed on Schedule 3.10 hereto,
---------------------
each Borrower and each Subsidiary has timely filed all required tax returns and
reports (federal, state and local) or has properly filed for extensions of the
time for the filing thereof. No Borrower has knowledge of any deficiency,
penalty or additional assessment due or appropriate in connection with any such
taxes. All taxes (federal, state and local) imposed upon any Borrower or any
Subsidiary or any of its properties, operations or income have been paid and
discharged prior to the date when any interest or penalty would accrue for the
nonpayment thereof, except for those taxes being contested in good faith by
appropriate proceedings diligently prosecuted and with adequate reserves
reflected on the financial statements in accordance with GAAP (all as also
disclosed on Schedule 3.10 hereto). There are no taxes imposed on the Borrowers
or their Subsidiaries by any political subdivision or taxing authority due or
payable either on or by virtue of the execution and delivery by the Borrowers,
the Agent, or the Lenders of this Agreement or any other Loan Document to which
the Borrowers or the Subsidiaries are party, or on any payment to be made by the
Borrowers pursuant hereto or thereto.
3.11 Litigation and Legal Proceedings. Except as disclosed on Schedule
--------------------------------
3.11 hereto, there is no litigation, claim, investigation, administrative
proceeding, labor controversy or similar action that is pending or, to the best
of each Borrower's knowledge and information after due inquiry, threatened (i)
with respect to any Loan Document or the transactions contemplated thereby or
(ii) against any Borrower, any Subsidiary or any Property that, if adversely
resolved, could have a Material Adverse Effect.
3.12 Accuracy of Financial Information.
---------------------------------
(a) All information previously furnished to the Agent and the Lenders
that was prepared by or on behalf of any Borrower concerning the financial
condition and operations of any one or more Borrowers, including (i) the
unaudited combined and combining financial statements of the Borrowers as of
June 30, 1998 for the quarter then ended as well as for the 12 months ended as
of the end of such quarter and (ii) the audited combined and combining financial
statements of each Borrower as of December 31, 1997, (A) have been prepared in
accordance with GAAP consistently applied (except as described in Schedule 3.12
hereto), (B) are true, accurate and complete in all material respects, (C)
fairly present the financial condition of the organizations covered thereby as
of the dates and for the periods covered thereby and (D) disclose all material
liabilities (contingent and otherwise) of each Borrower; provided, that, with
-------- ----
regard to clause (i), to the extent such financial statements relate to an
Acquisition (and to periods prior to the date such Acquisition was consummated
by Entravision), the foregoing representations shall be given to the best of
each Borrower's knowledge.
(b) Since December 31, 1997 there has been no event or condition
resulting in a Material Adverse Effect.
3.13 Accuracy of Other Information. All information contained in any
material application, schedule, report, certificate, or any other document given
to the Agent or any Lender
-44-
by any Borrower or any other Person in connection with the Loan Documents is in
all material respects true, accurate and complete, and no such Person has
omitted to state therein (or failed to include in any such document) any
material fact or any fact necessary to make such information not misleading. All
projections given to the Agent or any Lender by any Borrower or any other Person
on behalf of any Borrower have been prepared with a reasonable basis and in good
faith making use of such information as was available at the date such
projection was made. The projections and pro forma financial information
contained in such materials are based upon good faith estimates and assumptions
believed by the Borrowers to be reasonable at the time made and as of the
Closing Date, it being recognized that such projections as to future events are
not to be viewed as facts and that actual results during the period or periods
covered by any such projections may differ from the projected results.
3.14 Compliance with Laws Generally. Each Borrower and each Subsidiary is
------------------------------
in compliance in all material respects with all Requirements of Law applicable
to it, its operations and its properties.
3.15 ERISA Compliance.
-----------------
(a) Each Borrower and each Subsidiary is in compliance in all material
respects with all applicable provisions of ERISA, and all rules, regulations and
orders implementing ERISA.
(b) None of the Borrowers, any Subsidiary or any ERISA Affiliate thereof
maintains or contributes to (or has maintained or contributed to) any
Multiemployer Plan under which any Borrower, any Subsidiary or any ERISA
Affiliate thereof could have any withdrawal liability.
(c) None of the Borrowers, any Subsidiary or any ERISA Affiliate thereof
sponsors or maintains any defined benefit pension plan under which there is an
accumulated funding deficiency within the meaning of Section 412 of the Code,
whether or not waived.
(d) The liability for accrued benefits under each defined benefit pension
plan that will be sponsored or maintained by any Borrower, any Subsidiary or any
ERISA Affiliate thereof (determined on the basis of the actuarial assumptions
utilized by the PBGC) does not exceed the aggregate fair market value of the
assets under each such defined benefit pension plan.
(e) The aggregate liability of each Borrower, each Subsidiary and each
ERISA Affiliate thereof arising out of or relating to a failure of any employee
benefit plan within the meaning of Section 3(2) of ERISA to comply with
provisions of ERISA or the Code will not have a Material Adverse Effect.
(f) There does not exist any unfunded liability (determined on the basis
of actuarial assumptions utilized by the actuary for the plan in preparing the
most recent annual report) of any Borrower, any Subsidiary or any ERISA
Affiliate thereof under any plan, program or arrangement providing post-
retirement, life or health benefits.
(g) No Reportable Event and no Prohibited Transaction (as defined in
ERISA) has occurred or is occurring with respect to any plan with which any
Borrower or any Subsidiary is associated.
-45-
3.16 Environmental Compliance.
------------------------
(a) Each Borrower and each Subsidiary has received all permits and filed
all notifications necessary under and is otherwise in compliance in all material
respects with all federal, state and local laws, rules and regulations governing
the control, removal, storage, transportation, spill, release or discharge of
hazardous or toxic wastes, substances and petroleum products, including, without
limitation, as provided in the provisions of and the regulations under (i) the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended by the Superfund Amendment and Reauthorization Act of 1986, (ii) the
Solid Waste Disposal Act, (iii) the Clean Water Act and the Clean Air Act, (iv)
the Hazardous Materials Transportation Act, (v) the Resource Conservation and
Recovery Act of 1976 and (vi) the Federal Water Pollution Control Act Amendments
of 1972 (all of the foregoing enumerated and non-enumerated statutes, including
without limitation any applicable state or local statutes, all as amended,
collectively, the "Environmental Control Statutes").
------------------------------
(b) No Borrower or Subsidiary has given any written or oral notice to the
Environmental Protection Agency ("EPA") or any state or local agency with regard
---
to any actual or imminently threatened removal, storage, transportation, spill,
release or discharge of hazardous or toxic wastes, substances or petroleum
products either (i) on properties owned or leased by such Borrower or such
Subsidiary or (ii) otherwise in connection with the conduct of its business and
operations.
(c) No Borrower or Subsidiary has received notice that it is potentially
responsible for costs of clean-up of any actual or imminently threatened spill,
release or discharge of hazardous or toxic wastes or substances or petroleum
products pursuant to any Environmental Control Statute.
(d) No judicial proceedings or governmental or administrative action is
pending, or, to the knowledge of the Borrowers, threatened, under any
Environmental Control Statute to which the Borrowers or any of their
Subsidiaries is named as a party with respect to the Properties or the business
conducted at the Properties, 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 Control Statute
with respect to the Properties or such business.
3.17 Federal Regulations. No Letter of Credit and no part of the proceeds
-------------------
of any Loans are intended to be or will be used, directly or indirectly for any
purpose which violates the provisions of the Regulations of the Board of
Governors of the Federal Reserve System. If requested by any Lender or the
Agent, and in any event upon consummation of any acquisition involving the
purchase of stock by the Borrowers or any Subsidiary, the Borrowers will furnish
to the Agent and each Lender a statement to the foregoing effect in conformity
with the requirements of Form U-1 referred to in Regulation U.
3.18 Fees and Commissions. Except as disclosed on Schedule 3.18 hereto or
--------------------
as required by Section 2.16 hereof or the letter referred to in Section 4.1(f),
no Borrower or Subsidiary owes or will owe any fees or commissions of any kind
in connection with this Agreement or the transactions contemplated hereby
(including any acquisition consummated
-46-
under Section 6.7(e)), and no Borrower knows of any claim (or any basis for any
claim) for any fees or commissions in connection with this Agreement or such
transactions.
3.19 [Intentionally Omitted].
-----------------------
3.20 Solvency. Immediately prior to and upon the execution of this
--------
Agreement and the funding of the Loans and the issuance of any Letters of Credit
to be funded or issued on the Closing Date, each Borrower and each Guarantor not
an individual was, is and will be Solvent.
3.21 FCC-Related Representations. Without limiting the generality of the
---------------------------
foregoing representations and warranties, each Borrower further represents and
warrants as follows:
(a) Except as described on Schedule 3.21 hereto, there is no outstanding
or unresolved (i) application by any Borrower or any Subsidiary for any Media
License (except for those applications described on Schedule 3.9, if any, for
modifications of facilities or licenses to cover construction permits),
including any renewal of any Media License, (ii) to the best of such Borrower's
knowledge, material complaint to the FCC regarding any Borrower or any
Subsidiary or any Media License, (iii) litigation, investigation or other
inquiry by or before the FCC involving any Borrower, any Subsidiary or any Media
Licenses, or (iv) FCC enforcement proceeding against any Borrower, any
Subsidiary or any Media License, including without limitation, any notice of
violation, any notice of apparent liability for forfeiture, or any forfeiture.
(b) The Media Licenses identified on Schedule 3.9 hereto constitute all
of the Media Licenses required by the Communications Act for the operation of
each Borrower's and each Subsidiary's business as it is currently being
operated. Each such Media License is validly outstanding and effective and has
been renewed by the FCC without condition for a full term in accordance with the
Communications Act. There are no modifications, amendments or revocations
(pending or, to the best knowledge of each Borrower after due inquiry,
threatened) that could materially and adversely affect the operations or
financial condition of any Borrower, any Subsidiary or any Station. After due
inquiry, no Borrower knows of any reason why the FCC would not routinely grant,
for a full term and without condition, the application by such Borrower or such
Subsidiary, as applicable, for the renewal of each such Media License over which
the FCC has jurisdiction, when and as such application shall become due to be
filed with the FCC.
(c) Except as described on Schedule 3.21 hereto, after due inquiry, no
Borrower knows of any application currently pending before, or to be filed with,
the FCC, the grant of which application would result in the authorization of a
new or modified station whose authorized transmissions would materially and
impermissibly interfere with any of the operations, signals, transmission or
receptions of such Borrower or its Subsidiaries (as such impermissible
interference is described in the FCC's rules, regulations and policies,
including, without limitation, the FCC's rules relating to Receiver Induced
Third Order Intermodulation Effect, Blanketing, Antenna Separation, Desired-to-
Undesired Signal Ratios, and Prohibited Contour Overlap).
(d) The execution, delivery and performance of the Univision Investment
Documents, including the exercise of the Univision Option in accordance with the
terms thereof, do not and
-47-
will not result in a violation of the Communications Act or any rule,
regulation or policy of the FCC; provided that a waiver of the FCC will be
-------- ----
required, prior to exercise of the Univision Option, with regard to the Grade B
contour overlap between KSMS and KDTV(TV) Channel 14, San Francisco, California
("KDTV"), owned and operated by Univision. No Grade A contour overlap exists
----
between KSMS and KDTV and KSMS and KDTV are located in different "Xxxxxxx
DMA's," as defined by the FCC in the Second Further Notice of Proposed Rule
--------------------------------------
Making Docket No. 91-221 et al., FCC 96-438 (released November 7, 1996) (the
------
"Second Further Notice") at Paragraph 4, so as to be eligible for waiver
---------------------
pursuant to paragraphs 56-57 of the Second Further Notice.
3.22 Investment Company Act; Other Regulations. None of the Borrowers or
-----------------------------------------
the Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended (the "Investment Company Act").
----------------------
3.23 Copyright Act Requirements. Each Borrower and each Subsidiary has
--------------------------
recorded or deposited with and paid to the United States Copyright Office, the
Registrar of Copyrights, the Patent and Trademark Office, the American Society
of Composers, Authors and Publishers, Broadcast Music, Inc. and/or any other
licensors of copyrighted materials, all notices, statements of account, royalty
fees and other documents and instruments required under the terms and conditions
of any patent, trademark, service xxxx, trade name and copyright used in the
operation of a Station and/or the Copyright Act of 1976, as amended from time to
time, and the rules and regulations promulgated thereunder and, except as
disclosed in writing to the Agent, is not liable in a material amount to any
Person for copyright infringement under any law, rule, regulation, contract or
license as a result of its business operation.
3.24 Nature of Business. Neither the Borrowers nor any of their
------------------
Subsidiaries is engaged in any material business other than (i) the ownership
and operation of primarily Spanish-language television and radio stations and
translators, (ii) the outdoor advertising business, (iii) the acquisition,
financing, production and exploitation of programming and (iv) the ownership of
stock of or other interests in companies that own and operate such facilities
and businesses.
3.25 Ranking of Loans. This Agreement and the other Loan Documents to
----------------
which the Borrowers are party, when executed, and the Loans, when borrowed are
and will be the direct and general obligations of the Borrowers. The Borrowers
obligations hereunder and thereunder rank and will rank at least pari passu in
---- -----
priority of payment to all other Senior Debt.
3.26 Condemnation. To the Borrowers knowledge, no taking of any of the
------------
Properties or any part thereof through eminent domain, conveyance in lieu
thereof, condemnation or similar proceeding is pending or, to the knowledge of
the Borrowers, threatened by any Governmental Authority.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Closing Date. The agreement of each Lender to make the
--------------------------
Loans requested to be made by it on the Closing Date and participate in any
Letters of Credit issued on
-48-
the Closing Date and the agreement of the Agent to issue any Letters of Credit
requested to be issued on the Closing Date are subject to the satisfaction,
immediately prior to or concurrently with the making of such Loans and/or the
issuance of and participation in such Letters of Credit on the Closing Date, of
the following conditions precedent:
(a) Credit Agreement. The Agent shall have received this Agreement,
----------------
executed and delivered by an officer of each of the Borrowers as of the Closing
Date.
(b) Other Loan Documents. The Agent shall have received the Revolving
--------------------
Notes, the Guarantees, the Guarantor Security Agreements, the Mortgage
Modifications, the Security Agreement, the Univision Subordination Agreement,
such spousal consents as the Agent shall require and all UCC-1 Financing
Statements, amendments to UCC-1 Financing Statements, and other agreements or
instruments required to create or perfect a security interest in the Collateral
executed in connection herewith, in each case executed and delivered by an
officer of the relevant Obligor.
(c) Incumbency Certificates. The Agent shall have received an incumbency
-----------------------
certificate of each Borrower, each corporate or limited liability company
Guarantor and Univision, in each case dated the Closing Date, executed by one of
its Responsible Officers or its Secretary or Assistant Secretary.
(d) Corporate/Limited Liability Company Proceedings. The Agent shall have
-----------------------------------------------
received a copy of the resolutions of the Board of Directors of each of the
corporate Borrowers and Guarantors, and a copy of the resolutions of the
Executive Committee of each limited liability company Borrower and Guarantor,
each dated as of the Closing Date authorizing (i) the execution, delivery and
performance of the Loan Documents to which it is or will be a party, (ii) the
borrowings contemplated hereunder (in the case of the Borrowers), and (iii) the
execution and delivery by the Managing Members on behalf of each Borrower of all
notices, certificates and other documents to be delivered under the Loan
Documents from time to time, in each case certified by the Secretary or an
Assistant Secretary of such Obligor or the Managing Members of such Obligor, as
applicable, as of the Closing Date, which certificate states that such
resolutions thereby certified have not been amended, modified, revoked or
rescinded and are in full force and effect.
(e) Organic Documents. The Agent shall have received copies of the
-----------------
Organic Documents of each Borrower and each corporate or limited liability
company Guarantor, certified as of the Closing Date as complete and correct
copies thereof (or, with respect to copies of Organic Documents which have not
been amended since their delivery to the Agent under the Original Credit
Agreement, a certificate stating that such copies remain complete and correct
and such documents have not been amended) by the Secretary or an Assistant
Secretary of such Obligor.
(f) Fees and Costs. The Agent shall have received payment of all fees,
--------------
costs and expenses, including legal fees (if requested by the Agent) and the
fees set forth in the fee side letter executed by the Borrowers and the Agent in
connection herewith, accrued and unpaid and otherwise due and payable on or
before the Closing Date by the Borrowers in connection with this Agreement.
-49-
(g) Legal Opinions. The Agent shall have received, with a counterpart for
--------------
each Lender, the following executed legal opinions:
(i) the executed legal opinion of Xxxxxx Xxxxxx Xxxxxxx XxXxxxxx
Xxxxxx & Fognani, L.L.P., counsel to the Borrowers and the Guarantors, in
form and substance satisfactory to the Agent;
(ii) the executed legal opinion of Xxxxxxxx, Xxxx & Xxxxx, LLP,
FCC counsel to the Borrowers and the Guarantors, in form and substance
satisfactory to the Agent; and
(iii) such other legal opinions as the Agent may reasonably
request.
(h) Material Contracts. The Agent shall have received, with a counterpart
------------------
for each Lender, copies of (i) each Affiliation Agreement, each Program Services
Agreement and each Option Agreement, each of which shall have been duly assigned
to the Agent, (ii) each other Material Contract, (iii) each Equityholder
Agreement, (iv) each employment agreement and non-compete agreement between any
Borrower and any director, officer or employee of any Borrower, (v) each written
agreement between any Borrower and any Affiliate of any Borrower and (vi) the
Univision Investment Documents, all of the foregoing in form and substance
satisfactory to the Agent and all as certified as true and correct by a
Responsible Officer of the Borrowers (or, with respect to copies of such
documents which have not been amended since their delivery to the Agent under
the Original Credit Agreement, a certificate stating that such copies remain
complete and correct and such documents have not been amended).
(i) Recording. The Agent shall have received as of the Closing Date
---------
evidence of the recording, or of the provision acceptable to the Agent for the
recording, of each Mortgage Modification and any other documents reasonably
necessary to be recorded in such office or offices as may be necessary or, in
the reasonable opinion of the Agent, desirable to perfect each Lien purported to
be created thereby or to otherwise protect the rights of the Agent and the
Lenders thereunder and evidence of the filing, or of provision acceptable to the
Agent for the filing, of appropriate financing statements on Form UCC-1 naming
the Agent, for the benefit of the Lenders, as secured party, in such office or
offices as may be necessary or, in the reasonable opinion of the Agent,
desirable to perfect the security interests purported to be created by any of
the Collateral Documents or the Guarantor Collateral Documents.
(j) Lien Searches. The Agent shall have received such UCC searches as it
-------------
shall deem necessary.
(k) Stock Certificates; Etc. The Agent shall have received, to the extent
------------------------
not previously delivered to the Agent under the Original Credit Agreement, (i)
original stock certificates representing all outstanding shares of stock of each
corporate Borrower (other than the shares of the Minority Shareholders) and each
corporate Subsidiary, together with an undated stock power for each of such
certificates, duly executed in blank by an authorized officer of the pledgor and
(ii) such Limited Liability Company Notices and Limited Liability Company
Acknowledgments as are required by the Security Agreement.
(l) Good Standing Certificates. With respect to each Borrower and each
--------------------------
corporate and limited liability company Guarantor, the Agent shall have received
a certificate, dated a
-50-
recent date, of the Secretary of State of the state of formation of such Obligor
and each other jurisdiction where such Obligor is required to be qualified to do
business under such jurisdiction's law, certifying as to the existence and good
standing of, and the payment of taxes by, each Obligor in such state.
(m) Univision Affiliation Agreements. A consent and acknowledgment, in
--------------------------------
form and substance acceptable to the Agent, executed by Univision with regard to
each of its Consents to Assign and Encumber.
(n) No Default/Representations. No Default shall have occurred and be
--------------------------
continuing on the Closing Date or would occur after giving effect to the Loans
requested to be made, or Letters of Credit requested to be issued, on the
Closing Date, and the representations and warranties contained in this Agreement
and each other Loan Document and certificate or other writing delivered to the
Lenders in satisfaction of the conditions set forth in this Section 4.1 prior to
or on the Closing Date shall be correct in all material respects on and as of
the Closing Date, and the Agent shall have received a certificate of the
Borrowers to such effect in the form of Exhibit D, dated as of the Closing Date
and executed by a Responsible Officer of each Borrower.
(o) No Prohibitions. No statute, rule, regulation, order, decree or
---------------
preliminary or permanent injunction of any court or administrative agency or, to
the best knowledge of the Borrowers, any such action threatened by any Person,
shall be in effect that prohibits the Lenders from consummating the transactions
contemplated by this Agreement or any other Loan Document, and the Agent shall
have received a certificate of a Responsible Officer of the Borrowers to such
effect.
(p) Solvency Certificate. The Agent shall have received (i) a certificate
--------------------
of the Chief Financial Officer of each Borrower and each Guarantor not an
individual, to the effect that each Borrower and each such Guarantor is Solvent
after giving effect to the funding of the Loans and the issuance of any Letters
of Credit to be made or issued on the Closing Date, the execution and delivery
of the Guarantees, and the payment of all estimated legal, investment banking,
accounting, and other fees related hereto and thereto and (ii) a certificate of
each individual Guarantor to the effect that such Guarantor is Solvent after
giving effect to the execution and delivery of such Guarantor's Guarantee.
(q) Flood Plain. The Agent shall have received and approved, with respect
-----------
to each Property referred to on Schedule 1.1, evidence whether such Property is
located in an area identified as a flood plain area as defined by the U.S.
Department of Housing and Urban Development pursuant to the Flood Disaster
Protection Act of 1973.
(r) Abstractor's Certificate. The Agent shall have received as of the
------------------------
Closing Date, with respect to the El Paso Headquarters Deed of Trust, an
abstractor's certificate evidencing the continued first-priority Lien of the El
Paso Headquarters Deed of Trust, subject only those exceptions reasonably
acceptable to the Agent.
(s) Insurance Policies. The Agent shall have received evidence that the
------------------
insurance policies provided for in Section 5.5 and in the other Loan Documents
are in full force and effect, certified by the insurance broker therefor,
together with appropriate evidence showing the Agent
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as an additional named insured or loss payee, as appropriate, for the benefit of
the Lenders, all in form and substance reasonably satisfactory to the Agent.
(t) Operational Consents; FCC Matters. The Agent shall have received
---------------------------------
evidence, in form and substance reasonably satisfactory to the Agent that (i)
the Borrowers and their Subsidiaries have obtained all FCC consents and licenses
required by law or necessary for the operation of the Borrowers and their
Subsidiaries and (ii) the Borrowers and their Subsidiaries have obtained all
other consents and licenses required by law or necessary for the operation of
the Borrowers and their Subsidiaries.
(u) Additional Proceedings. The Agent shall have received such other
----------------------
approvals, opinions and documents as any Lender, through the Agent, may
reasonably request and all legal matters incident to the making of such Loans
and issuance of such Letters of Credit shall be reasonably satisfactory to the
Agent.
4.2 Conditions to Incremental Loans. The agreement of each Incremental
-------------------------------
Loan Lender to make the initial Incremental Loans on or after the Activation
Date shall be subject to the satisfaction, immediately prior to or concurrently
with the making of such Loans of the following conditions precedent (in addition
to such other conditions precedent, including the payment of facility fees, as
shall be mutually agreed to by the Borrowers and the Incremental Loan Lenders
prior to the Activation Date), in each case to the satisfaction of the Agent and
the Majority Incremental Loan Lenders:
(a) Closing Date. The Closing Date shall have occurred.
------------
(b) Incremental Notes. The Agent shall have received, for each Incremental
-----------------
Loan Lender, an Incremental Note duly executed by the Borrowers in favor of such
Lender in a principal amount equal to such Incremental Loan Lender's Incremental
Loan Commitment.
(c) Corporate/Limited Liability Proceedings. The Agent shall have received
---------------------------------------
a copy of the resolutions of the Board of Directors of each of the corporate or
Borrowers and Guarantors and a copy of the resolutions of the Executive
Committee of each of the limited liability company Borrowers and Guarantors,
each dated as of the date of such initial borrowing authorizing the borrowing of
Incremental Loans pursuant to the Incremental Loan Commitments and certified by
the Secretary or an Assistant Secretary, or the Managing Members, of such
Obligor, which certificate states that such resolutions have not been amended,
modified, revoked or rescinded and are in full force and effect.
(d) Omnibus Certificate. The Agent shall have received an Omnibus
-------------------
Certificate of each Borrower and each corporate or limited liability company
Guarantor, dated the date of such borrowing, stating that (i) the Organic
Documents and Incumbency Certificate of such Borrower or Guarantor delivered to
the Agent on the Closing Date remain true and correct and in full force and
effect with no amendments thereto (or, if amended, attaching copies of such
amendments not previously delivered to the Agent), (ii) the copies of the
Material Contracts delivered to the Agent on the Closing Date remain true and
correct and in full force and effect with no amendments thereto (or, if amended,
attaching copies of such amendments not previously delivered to the Agent) and
such Material Contracts, together with the contracts and agreements delivered on
the Closing Date, constitute all contracts and agreements
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delivered on the Closing Date, constitute all contracts and agreements material
to the financial condition or operation of each Borrower and each Subsidiary and
(iii) no change in such Borrower's financial condition or otherwise has occurred
which would make any financial certificate delivered to the Agent in connection
with the Closing Date incorrect or misleading.
(e) Fees and Costs. The Agent shall have received payment of all fees,
--------------
costs and expenses, including legal fees, accrued and unpaid and otherwise due
and payable on or before such date by the Borrowers in connection with this
Agreement.
(f) Pro Forma Covenant Compliance Certificate. The Agent shall have
-----------------------------------------
received a Covenant Compliance Certificate showing compliance with the covenants
referred to therein, on a pro forma basis, as of such date.
--- -----
(g) No Default/Representations. No Default shall have occurred and be
--------------------------
continuing on such borrowing date or would occur after giving effect to the
Loans requested to be made on such borrowing date and the representations and
warranties contained in this Agreement and each other Loan Document and
certificate or other writing delivered to the Lenders in satisfaction of the
conditions set forth in this Section 4.2 prior to or on such borrowing date
shall be correct in all material respects on and as of such borrowing date, and
the Agent shall have received a certificate of the Borrowers to such effect in
the form of Exhibit D, dated as of such borrowing date and executed by a
Responsible Officer of each Borrower.
(h) Additional Proceedings. The Agent shall have received such other
----------------------
approvals, opinions and documents as any Incremental Loan Lender, through the
Agent, may reasonably request and all legal matters incident to the making of
such Incremental Loans shall be reasonably satisfactory to the Agent.
4.3 Conditions to Each Loan or Letter of Credit. The agreement of each
-------------------------------------------
Lender to make each Loan and to participate in each Letter of Credit, and the
agreement of the Agent to issue each Letter of Credit, requested to be made,
issued or participated in by it is subject to the satisfaction, immediately
prior to or concurrently with the making of such Loan or the issuance or
participation in such Letter of Credit, of the following conditions precedent:
(a) Representations and Warranties; No Default. The following statements
------------------------------------------
shall be true and the Borrowers' acceptance of the proceeds of such Loan or
their delivery of an executed Letter of Credit Request shall be deemed to be a
representation and warranty of each Borrower on the date of such Loan or as of
the date of issuance of such Letter of Credit, as applicable, that:
(i) The representations and warranties contained in this
Agreement and in each other Loan Document and certificate or other writing
delivered to the Lenders prior to, on or after the Closing Date pursuant
hereto and on or prior to the date for such Loan or the issuance of such
Letter of Credit are correct on and as of such date in all material
respects as though made on and as of such date except to the extent that
such representations and warranties expressly relate to an earlier date;
and
(ii) No Default has occurred and is continuing or would result
from the making of the Loan to be made on such date or the issuance of such
Letter of Credit as of such date.
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(b) Legality. The making of such Loan or the issuance of such Letter of
--------
Credit, as applicable, shall not contravene any law, rule or regulation
applicable to any Lender or the Borrowers or any other Obligor.
(c) Borrowing Notice/Letter of Credit Request. The Agent shall have
-----------------------------------------
received a borrowing notice or Letter of Credit Request, as applicable, pursuant
to the provisions of this Agreement from the Borrowers.
(d) Approvals. With respect to a borrowing in connection with an
---------
Acquisition, the Agent shall have received copies of all FCC and regulatory
approvals and licenses necessary in connection with any such Acquisition (if
such Acquisition shall be of a radio or television station), and all shareholder
approvals necessary in connection with any such acquisition.
(e) Collateral Documentation. With respect to a borrowing in connection
------------------------
with an Acquisition, the Agent shall have received, reviewed and approved all
documents reasonably necessary to insure that the Lenders have a first priority
security interest in, and assignment of, all assets and interests acquired,
unless the Majority Lenders shall otherwise consent with respect to any real
property interests acquired, including consents of third parties if reasonably
requested by the Agent.
4.4 Conditions Subsequent
---------------------
(a) Within 30 days after the Closing Date, the Borrowers shall deliver
to the Agent the following, in each case in form and substance satisfactory to
the Agent:
(i) an executed copy of a Shareholders Agreement among the
Telecorpus shareholders;
(ii) with respect to the Telecorpus stock pledged by Xxxxxx X.
Xxxxx, an original undated stock power (executed in blank);
(iii) an executed copy of the Univision Affiliation Agreement for
Station KORO, Corpus Chrisi, Texas; and
(iv) UCC Financing Statement amendments executed by the following
entities for filing in the jurisdictions indicated: Cabrillo (California),
Golden Hills (California, Colorado), KSMS (California), Las Tres Palmas
(California), Tierra Alta (California, Nevada) and Entravision Holdings,
L.L.C. (California).
(b) Within 45 days after the Closing Date, the Borrowers shall use best
efforts to deliver to the Agent the following, in each case in form and
substance satisfactory to the Agent:
(i) with respect to The Xxxxxx-Harvard Fund, a trust formed under
the laws of the State of California, with respect to all membership
interests owed by such trust in Entravision, the documents described in
clauses (A)-(C) of the first sentence of Section 6.14; and
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(ii) with respect to the Luery Trust, (A) original undated stock power
(executed in blank) with regard to the stock in Telecorpus pledged by the
Luery Trust, (B) original undated stock power (executed in blank) with
regard to the stock in Valley Channel 48 pledged by the Luery Trust, (C) a
UCC Financing Statement amendment for filing in the State of California and
(D) a Solvency Certificate.
SECTION 5. AFFIRMATIVE COVENANTS
Each Borrower hereby agrees that from and after the Closing Date, so long
as any Commitment remains in effect, any Note remains outstanding and unpaid or
any other amount is owing to any Lender or the Agent hereunder, or any Letter of
Credit remains outstanding:
5.1 Financial Statements
--------------------
(a) Within 120 days after the close of each fiscal year, the Borrowers
shall deliver to the Agent, for distribution to the Lenders, a complete set of
audited annual combined and combining financial statements of the Borrowers,
including a balance sheet, an income statement, a cash flow statement and a
reconciliation of consolidated net worth (with accompanying notes and
schedules). Such financial statements (i) must be prepared in accordance with
GAAP consistently applied and (ii) must be certified without qualification by
the Accountants. Together with the audited financial statements, the Agent must
also receive a certificate signed by such Accountants, at the time of the
completion of the annual audit, (A) stating that the financial statements fairly
present the combined and combining financial condition of the Borrowers as of
the date thereof and for the periods covered thereby and (B) that, to the
knowledge of such Accountants, no Default exists under Section 6.1, to the
extent such Section relates to accounting matters. In addition, such financial
statements shall be accompanied by a certificate of a Responsible Officer of
Entravision substantially in the form of Exhibit H hereto setting forth the
calculation of Excess Cash Flow for such fiscal year;
(b) Within 45 days of the end of each fiscal quarter, the Borrowers shall
deliver to the Agent, for distribution to the Lenders, (x) unaudited combined
and combining financial statements of the Borrowers for such quarter and (y)
unaudited combined and combining financial statements for the Borrowers for the
twelve months ended as of the end of such quarter, in each case in form and
substance acceptable to the Agent. Such financial statements shall include,
without limitation, a balance sheet, income statement and operating cash flow
statement (with appropriate notes and schedules). In the case of the financial
statements referred to in clause (x), such financial statements shall include a
comparison of the results of such period with the budgeted results set forth in
the budget referred to in Section 5.2(c)(or, prior to delivery of such budget,
the budget delivered under the Original Credit Agreement), and must be prepared
in accordance with GAAP consistently applied. In the case of the financial
statements referred to in clause (y), such financial statements shall be
prepared in accordance with GAAP consistently applied (except as required by
Section 1.2(e)). Together with the quarterly financial statements, the Agent
must also receive (i) a certificate executed by the Chief Financial Officer of
each Borrower (A) stating that the financial statements fairly present the
financial condition of each Borrower as of the date thereof and for the periods
covered thereby, (B) certifying that as of the date of such certificate such
officer has obtained no knowledge of any Default except as specified in such
certificate and (C) certifying that to the best of such officer's knowledge, no
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Default has occurred and the Borrowers are in compliance with their respective
covenants in the Loan Documents to which they are party and (ii) a Covenant
Compliance Certificate.
(c) Within 30 days of the end of each month, the Borrowers shall deliver
to the Agent, for distribution to the Lenders, an unaudited monthly combined and
combining income statement, along with a comparison of the results of such month
with the budgeted results set forth in the budget referred to in Section
5.2(c)(or, prior to delivery of such budget, the budget delivered under the
Original Credit Agreement), in each case in form and substance acceptable to the
Agent, certified by a Responsible Officer of each Borrower as fairly presenting
the financial condition of each Borrower as of the date thereof and for the
period covered thereby.
(d) Within 45 days of the end of each fiscal quarter, the Borrowers shall
deliver to the Agent, for distribution to the Lenders, a financial report, in
form and substance acceptable to the Agent, relating to the operations of each
Station (and to the outdoor advertising business, if any, operated by
Entravision or any Subsidiary) as at the end of such quarter and the portion of
the fiscal year through the end of such quarter, certified by a Responsible
Officer of each Borrower as fairly presenting the financial condition of each
Station (or such outdoor advertising business) as of the end of such quarter.
5.2 Certificates; Other Information. The Borrowers shall furnish to the
-------------------------------
Agent, for distribution to the Lenders:
(a) within five Business Days after the same are filed, copies of all
financial statements and reports which the Borrowers or any Subsidiary may make
to, or file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority;
(b) promptly but, in any event, within five Business Days after receipt
thereof, copies of all financial reports (including, without limitation,
management letters), if any, submitted to the Borrowers or any Subsidiary by the
Accountants in connection with any annual or interim audit of the books thereof;
(c) (i) by January 31 of each year, commencing with the fiscal year ending
on December 31, 1999, a copy of the annual operating budget for Entravision and
its Subsidiaries for such fiscal year, in form satisfactory to the Agent
(notwithstanding the foregoing, Entravision shall have until March 31 of such
year to amend the annual operating budget for such year to include the effect of
any Acquisition consummated during the fourth quarter of the prior year); and
(ii), upon the consummation of any Acquisition having a purchase price equal to
or greater than $15,000,000, a summary financial forecast for Entravision (which
forecast shall be based on the budget figures delivered under clause (i), with
such changes as are necessary to reflect such Acquisition on a pro forma basis)
covering the period from consummation of said Acquisition to the Revolving Loan
Commitment Expiration Date;
(d) as soon as possible and in any event within five Business Days after
the occurrence of a Default or, in the good faith determination of a Responsible
Officer of Entravision, a Material Adverse Effect, the written statement by a
Responsible Officer of Entravision, setting forth the details of such Default or
Material Adverse Effect and the action which Entravision proposes to take with
respect thereto;
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(e) promptly, but in any event within 30 days after any change in the
senior management personnel of Entravision (including any change in the title or
status of Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxxxxxx or Xxxxxxxx Xxxxx), written
notice of such change;
(f) promptly but, in any event, within five Business Days after the same
become available, copies of all statements, reports and other information which
any Borrower sends to any holder of an equity interest therein;
(g) (A) as soon as possible and in any event within 30 days after any
Borrower knows or has reason to know that any Termination Event with respect to
any Plan has occurred, a statement of a Responsible Officer of such Borrower
describing such Termination Event and the action, if any, which such Borrower
proposes to take with respect thereto, (B) promptly and in any event within ten
days after receipt thereof by any Borrower or any ERISA Affiliate of any
Borrower from the PBGC, copies of each notice received by such Borrower or such
ERISA Affiliate of the PBGC's intention to terminate any Plan or to have a
trustee appointed to administer any Plan, (C) promptly and in any event within
30 days after the filing thereof with the Internal Revenue Service, copies of
each Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
with respect to each Single Employer Plan maintained for or covering employees
of the Borrowers or any Subsidiary if the present value of the accrued benefits
under the Plan exceeds its assets by an amount in excess of $500,000 and (D)
promptly and in any event within ten days after receipt thereof by any Borrower
or any ERISA Affiliate of any Borrower from a sponsor of a Multiemployer Plan or
from the PBGC, a copy of each notice received by such Borrower or such ERISA
Affiliates concerning the imposition or amount of withdrawal liability under
Section 4202 of ERISA or indicating that such Multiemployer Plan may enter
reorganization status under Section 4241 of ERISA;
(h) promptly after the commencement thereof, but in any event not later
than five Business Days after service of process with respect thereto on, or the
obtaining of knowledge by, any Borrower or any Subsidiary, notice of each
material action, suit or proceeding before any Governmental Authority;
(i) promptly after the sending or filing thereof, but in any event not
later than ten Business Days following such sending or filing, copies of (A) all
Ownership Reports on FCC Form 323 (or any similar form which may be adopted by
the FCC from time to time) and any supplements thereto, and (B) all statements,
reports and other information filed by or on behalf of the Borrowers or any
Subsidiary with the FCC;
(j) promptly, but in any event within one Business Day after any period
during which the transmission at any Station or transmission site is interrupted
or curtailed for an aggregate of 12 hours or more (whether or not consecutive),
written notice thereof;
(k) promptly upon receipt thereof, but in any event not later than five
Business Days following such receipt, copies of all notices and other
communications that any Borrower or any Subsidiary shall have received from the
FCC with respect to any FCC hearing, order or dispute (A) directly concerning
the Borrowers, any Subsidiary, any Station or any Media License or (B) that may
have a Material Adverse Effect;
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(l) promptly upon receipt thereof, but in any event not later than ten
Business Days following such receipt, copies of all Nielsen or Arbitron rating
period reports; and
(m) promptly, such additional financial and other information as any
Lender, through the Agent, may from time to time reasonably request.
5.3 Payment of Obligations. Each Borrower shall, and shall cause each of
----------------------
its Subsidiaries to, pay, discharge or otherwise satisfy at or before maturity
or before they become delinquent, as the case may be, all its obligations of
whatever nature, except where the failure to so satisfy such obligations would
not have a Material Adverse Effect or except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of such Borrower or its Subsidiaries, as the case may be.
5.4 Conduct of Business and Maintenance of Existence. Each Borrower shall,
------------------------------------------------
and shall cause each of its Subsidiaries to, continue to engage in business of
the same general type as conducted by such Borrower and its Subsidiaries as of
the Closing Date and preserve, renew and keep in full force and effect its
corporate or limited liability company existence, as applicable, and take all
reasonable action to maintain all rights, registrations, licenses, privileges
and franchises necessary or desirable in the normal conduct of its business, and
comply with all Contractual Obligations and Requirements of Law except to the
extent that failure to comply therewith would not, in the aggregate, have a
Material Adverse Effect.
5.5 Maintenance of Property; Insurance. Each Borrower shall, and shall
----------------------------------
cause each of its Subsidiaries to, keep all property useful or necessary in its
business in good working order and condition (ordinary wear and tear excepted);
maintain with financially sound and reputable insurance companies or
associations insurance on such of its property in at least such amounts and
against such risks as are usually insured against in the same general area by
companies engaged in the same or a similar business (including casualty,
liability, fire, flood, business interruption, earthquake and workers'
compensation); and furnish to the Agent, upon written request, full information
as to the insurance carried. All such policies of insurance on the property of
the Borrowers and the Subsidiaries shall contain an endorsement, in form and
substance reasonably satisfactory to the Agent in its sole discretion, showing
the Agent, on behalf of the Lenders, as additional insured or loss payee, as
appropriate, or as its interests appear. Such endorsement, or an independent
instrument furnished to the Agent, shall provide that the insurance companies
will give the Agent at least 25 days' prior written notice before any such
policy or policies of insurance shall be altered or canceled. All policies of
insurance required to be maintained under this Agreement shall be in customary
form and with insurers reasonably acceptable to the Agent and all such policies
shall be in such amounts as shall be customary for similar companies in the same
or similar business in the same geographical area. Each Borrower shall deliver
to the Agent insurance certificates certified by such Borrower's insurance
brokers, as to the existence and effectiveness of each policy of insurance and
evidence of payment of all premiums then due and payable therefor. In addition,
the Borrowers shall notify the Agent promptly of any occurrence causing a
material loss of any insured Property and the estimated (or actual, if
available) amount of such loss. Further, the Borrowers and their Subsidiaries
shall maintain all insurance required under the other Loan Documents.
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(i) Each policy for liability insurance shall provide for all
losses to be paid on behalf of the Agent and such Borrower or Subsidiary
(as the case may be), as their respective interests may appear, and each
policy for property damage insurance shall, to the extent applicable to
equipment and inventory, provide for all losses (except for losses of less
than $500,000 per occurrence, which may be paid directly to such Borrower
or such Subsidiary, as applicable) to be paid directly to the Agent.
(ii) Reimbursement under any liability insurance maintained by the
Borrowers or their Subsidiaries pursuant to this Section 5.5 may be paid
directly to the Person who shall have incurred liability covered by such
insurance. In the case of any loss involving damage to equipment or
inventory as to which clause (iii) of this Section 5.5 is not applicable,
the Borrowers will make or cause to be made the necessary repairs to or
replacements of such equipment or inventory, and any proceeds of insurance
maintained by the Borrowers or their Subsidiaries pursuant to this Section
5.5 shall be paid by the Agent to the Borrowers or such Subsidiaries, upon
presentation of invoices and other evidence of obligations, as
reimbursement for the costs of such repairs or replacements.
(iii) Upon the occurrence and during the continuance of a Default,
all insurance proceeds in respect of such equipment or inventory shall be
paid to the Agent and applied in repayment of the Loans, as set forth in
Section 2.5.
5.6 Inspection of Property; Books and Records; Discussions. Each Borrower
------------------------------------------------------
shall, and shall cause each of its Subsidiaries to, keep proper books of records
and account in which full, true and correct entries in conformity with GAAP and
all Requirements of Law shall be made of all material dealings and transactions
in relation to its business and activities; and upon reasonable notice and at
such reasonable times during usual business hours, permit representatives of any
Lender to visit and inspect any of its properties and examine and make abstracts
from any of its books and records at any reasonable time and as often as may
reasonably be desired and to discuss the business, operations, properties and
financial and other condition of such Borrower and its Subsidiaries with
officers and employees of such Borrower and its Subsidiaries and with its
Accountants.
5.7 Environmental Laws. Each Borrower shall, and shall cause each of its
------------------
Subsidiaries to:
(a) Comply in all material respects with, and ensure compliance by all
tenants and subtenants, if any, with, all applicable Environmental Control
Statutes and obtain and comply in all material respects with any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Control Statutes;
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Control Statutes and promptly comply in all material respects with
all lawful orders and directives of all Governmental Authorities regarding
Environmental Control Statutes except to the extent that the same are being
contested in good faith by appropriate proceedings; and
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(c) Defend, indemnify and hold harmless the Agent and the Lenders, and
their respective employees, agents, officers and directors, from and against any
and all claims, demands, penalties, fines, liabilities, settlements, damages,
costs and expenses of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the violation of,
noncompliance with or liability under any Environmental Control Statutes
applicable to the operations of the Borrowers or any of their Subsidiaries, or
the Borrowers' or any of their Subsidiaries' interest in Properties, or any
orders, requirements or demands of Governmental Authorities related thereto,
including, without limitation, attorneys' and consultants' fees, investigation
and laboratory fees, response costs, court costs and litigation expenses, except
to the extent that any of the foregoing arise out of the gross negligence or
willful misconduct of the party seeking indemnification therefor. This indemnity
shall continue in full force and effect regardless of the termination of this
Agreement.
5.8 Use of Proceeds. The Borrowers will use the proceeds of the Loans, and
---------------
any Letters of Credit issued hereunder, as follows:
(i) the Revolving Loans shall be used (A) to finance the El
Centro Radio Stations Acquisition, and other Acquisitions in accordance
with Sections 6.7(e) and 4.3, and expenses associated therewith; (B) to
redeem shareholder interests of Minority Shareholders, (C) for the payment
of fees and expenses associated with the closing of the transaction set
forth in this Agreement, (D) to refinance Indebtedness under the Original
Credit Agreement, (E) for capital expenditures and general corporate
purposes, including the payment of fees and expenses due hereunder from
time to time and (F) to fund Escrow Deposits;
(ii) the Incremental Loans shall be used (A) to finance
Acquisitions in accordance with Sections 6.7(e) and 4.3 and (B) for capital
expenditures and general corporate purposes; and
(iii) any Letters of Credit shall be used for general corporate
purposes and for Escrow Deposits.
Notwithstanding anything herein to the contrary, no Loan or Letter of Credit
will be used for the purchasing or carrying of any Margin Stock.
5.9 Compliance With Laws, Etc. Each Borrower shall comply, and shall cause
-------------------------
each of its Subsidiaries to comply, in all material respects with all applicable
Requirements of Law, such compliance to include, without limitation (i) paying
before the same become delinquent all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or upon any of
its Properties and (ii) paying all lawful claims which if unpaid might become a
Lien upon any of its Properties; provided, however, that neither such Borrower
-------- -------
nor any of such Subsidiaries shall be required to pay and discharge or to cause
to be paid and discharged any such tax, assessment, charge, levy or claim so
long as (A) the validity or applicability thereof is being contested in good
faith by appropriate proceedings or the failure to pay such tax, assessment,
charge, levy or claim would not (in the reasonable judgment of the Majority
Lenders) have a Material Adverse Effect and (B) such Borrower or such Subsidiary
shall, to the extent required by GAAP, have set aside on its books adequate
reserves with respect thereto.
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5.10 Media Licenses. Each Borrower will obtain, maintain and preserve, and
--------------
cause each of its Subsidiaries to obtain, maintain and preserve, all Media
Licenses, including without limitation, by filing with the FCC (i) those of the
Loan Documents required to be filed under the FCC's rules and regulations within
30 days after the Closing Date and (ii) all reports (including Ownership Reports
on FCC Form 323) and other documents required to be filed by the Communications
Act in connection with the transactions contemplated hereby and maintaining
public records and files in accordance with Communications Act and the rules and
regulations of the FCC.
5.11 Guarantees, Etc. Each Borrower will cause each of its Subsidiaries
---------------
hereafter formed or acquired to execute and deliver to the Agent promptly upon
the formation or acquisition thereof (i) a Guarantee in form and substance
satisfactory to the Agent, guaranteeing the Obligations, (ii) a Guarantor
Security Agreement, in form and substance satisfactory to the Agent, granting to
the Agent, for the benefit of the Lenders, a security interest in the tangible
and intangible personal property of such Subsidiary, together with appropriate
Lien searches requested by the Agent indicating the Lenders' first priority Lien
on such personal property and (iii) UCC-1 Financing Statements, duly executed by
such Subsidiary, in form and substance satisfactory to the Agent and, in
connection with such deliveries, cause to be delivered to the Agent (A) the
stock certificates representing the issued and outstanding shares of stock of
such Subsidiaries, together with undated stock powers executed in blank, (B) a
favorable written opinion of counsel satisfactory to the Agent as to such
matters relating thereto as any Lender through the Agent may reasonably request,
in form and substance satisfactory to the Agent and (C) such other agreements,
instruments, approvals or other documents as any Lender through the Agent may
reasonably request.
5.12 License Subsidiaries. Each Borrower will cause each Media License
--------------------
owned by it to be held in the Entravision License Subsidiary at all times until
the Obligations have been paid in full and all Commitments and Letters of Credit
have expired. The Borrowers will not permit the Entravision License Subsidiary
to (i) own any right, franchise or other asset except for Media Licenses (and
FCC files and records with respect thereto) or (ii) engage in any business other
than holding such Media License, files and records.
5.13 Interest Rate Protection. Within 30 days after the Closing Date, the
------------------------
Borrowers will enter into and maintain, for at least a two-year period ending on
the second anniversary of the Closing Date, at any time during which the Maximum
Total Debt Ratio is greater than or equal to 4.50 to 1, Interest Rate
Agreements, each in form and substance reasonably satisfactory to the Agent,
covering a minimum of 50% of the outstanding Loans from time to time (including
Incremental Loans).
5.14 Acquisition of Real Property in Fee Simple.
------------------------------------------
(a) The Borrowers and their Subsidiaries shall submit to the Agent for its
prior approval any documents relating to any fee simple real property interest
to be acquired by the Borrowers or any of their Subsidiaries having a purchase
price (together with the assumption of Indebtedness or purchase money
Indebtedness relating thereto) in excess of $2,000,000. Each such acquisition,
and the documents governing such acquisition, shall be subject to the approval
of the Agent. The Agent may require that any such fee simple property interest
become part of
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the Collateral or the Guarantor Collateral and the Borrowers and their
Subsidiaries shall provide or cause to be provided any and all information
relating to such real property interest and any and all Collateral Documents or
Guarantor Collateral Documents and other documents to be executed in connection
therewith requested by the Agent and provide the Agent with title insurance as a
condition to approval.
(b) Notwithstanding the foregoing, Entravision shall be entitled to
acquire the KNVO Real Property without complying with Section 5.14(a).
5.15 Leases and Licenses. The Borrowers shall or shall cause their
-------------------
Subsidiaries to perform and carry out, in all material respects, all of the
provisions of all of the leases, licenses, permits and any other occupancy
agreements relating to real property or real property interests (the "Occupancy
---------
Agreements") to be performed by the Borrowers or any of their Subsidiaries and
----------
shall appear in and defend any action in which the validity of any of the
Occupancy Agreements relating to any real property or real property interests is
at issue and shall commence and maintain any action or proceeding necessary to
establish or maintain the validity of any of such Occupancy Agreements and to
enforce the provisions thereof.
5.16 Lease and License Approvals. The Borrowers and their Subsidiaries
---------------------------
shall submit to the Agent for its prior approval any leases, licenses, permits
or other Occupancy Agreements relating to real property or real property
interests that the Borrowers or any of their Subsidiaries may desire to execute
or obtain which provide for the payment of rent or license fees in excess of
$100,000 in any fiscal year. Each such agreement shall be subject to the
approval of the Agent, such approval not to be unreasonably withheld. The Agent
may require that any lease, license or other similar agreement become part of
the Collateral or the Guarantor Collateral and the Borrowers and their
Subsidiaries shall provide or cause to be provided any and all Collateral
Documents or Guarantor Collateral Documents or other documents to be executed in
connection therewith requested by the Agent and provide the Agent with title
insurance (to the extent applicable) as a condition to approval.
5.17 Notices. The Borrowers will provide, and will cause their Subsidiaries
-------
to provide to the Agent, within 5 Business Days following receipt by any
Borrower or Subsidiary, copies of all notices received by such Borrower or
Subsidiary (i) under any Material Contract or any instrument, document or
agreement relating to any Subordinated Indebtedness, relating to any material
default, any claimed force majeure or any other material provision thereof and
(ii) from the Internal Revenue Service or other taxing authority relating to any
material dispute regarding deductions, audits or any other material matter
which, if adversely determined against the Borrowers or such Subsidiary, would
have a Material Adverse Effect.
5.18 Additional Material Contracts and Media Licenses. Each Borrower (a)
------------------------------------------------
will notify the Agent in writing within 90 calendar days after executing,
entering into, becoming bound by or subject to or otherwise obtaining any
contract, agreement or Media License that should have been listed on Schedule
3.8 hereto or Schedule 3.9 hereto if it had existed as of the Closing Date, (b)
will concurrently update Schedule 3.8 hereto or Schedule 3.9 hereto (as
appropriate) and (c) will, with respect to any replacement or additional
Affiliation Agreements entered into with Univision, cause Univision to execute
and deliver a Consent to Assign, in substantially the form previously delivered
by Univision under the Original Credit Agreement.
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5.19 Status of Certain Borrowers. Each Borrower agrees that (i) each
---------------------------
Borrower (other than Entravision) shall have no assets other than its ownership
interest in Entravision (provided that and (ii) each Borrower (other than
-------- ----
Entravision) shall conduct no operations or business other than the holding of
its ownership interest in Entravision.
5.20 Las Tres Campanas Acquisition. In the event that Entravision (or any
-----------------------------
other Borrower) acquires any stock or assets of Las Tres Campanas Television,
Inc., pursuant to Section 7(e) of the Operating Agreement for Entravision or
otherwise, Entravision (or such other Borrower) will (i) promptly notify the
Agent thereof and (ii) execute all documents reasonably requested by the Agent
to grant to the Agent a perfected security interest in, and pledge of, all such
stock and personal property assets.
5.21 Year 2000. The Borrowers will take, and will cause their Subsidiaries
---------
to take, all those actions reasonably necessary to assure that each Borrower's
and each Subsidiary's computer-based systems are able to operate effectively and
process data effectively, including data composed of or including dates on and
after January 1, 2000. At the request of any Lender, the Borrowers will provide
the Lenders assurances reasonably acceptable to the Agent of the Borrowers' and
each Subsidiary's capacity to deal with the foregoing.
SECTION 6. NEGATIVE COVENANTS
Each Borrower hereby agrees that from and after the Closing Date, so
long as any Commitments remain in effect, any Note remains outstanding and
unpaid or any other amount is owing to any Lender or the Agent hereunder, or any
Letter of Credit remains outstanding:
6.1 Financial Condition Covenants. The Borrowers shall not:
-----------------------------
(a) Maximum Total Debt Ratio. Permit the Maximum Total Debt Ratio as of the
------------------------
end of any fiscal quarter of the Borrowers and their Subsidiaries on a
consolidated basis to exceed the following levels for the periods indicated:
Period Ratio
----- -----
Closing Date to and including September 30, 1999 7.00:1
October 1, 1999 to and including March 31, 2000 6.50:1
April 1, 2000 to and including September 30, 2000 6.00:1
October 1, 2000 to and including March 31, 2001 5.50:1
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April 1, 2001 to and including September 30, 2001 5.00:1
October 1, 2001 and thereafter 4.50:1
(b) Total Interest Coverage Ratio. Permit the Total Interest Coverage Ratio
-----------------------------
as of the end of any fiscal quarter of the Borrowers and their Subsidiaries on a
consolidated basis to be less than the following levels for the periods
indicated:
Period Ratio
------------
Closing Date to and including
December 31, 1999 1.75:1
January 1, 2000 to and including
December 31, 2000 2.00:1
January 1, 2001 and thereafter 2.25:1
(c) Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage Ratio as
---------------------------
of the end of any fiscal quarter of the Borrowers and their Subsidiaries on a
consolidated basis to be less than 1.05:1.
(d) Maximum Capital Expenditures. Permit Capital Expenditures of the
----------------------------
Borrowers and their Subsidiaries on a consolidated basis for any fiscal year of
the Borrowers to be more than the following levels for the periods indicated:
Period Maximum Amount
------ --------------
Fiscal Year Ending
December 31, 1998 $4,000,000
Fiscal Year Ending
December 31, 1999 $7,500,000
Fiscal Years Ending
December 31, 2000
and thereafter $3,000,000
; provided that, in the event the Borrowers and the Subsidiaries do not, in any
-------- ----
fiscal year, exhaust such amount with respect to such fiscal year, such excess
amount may be used to make, or commit to make, Capital Expenditures in the
immediately following fiscal year (provided no Default has occurred and is
continuing), but not thereafter. Notwithstanding the foregoing,
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expenditures made by Entravision for the purchase of the KNVO Real Property
shall not be included as Capital Expenditures for determining compliance with
this Section 6.1(d).
6.2 Limitation on Indebtedness. The Borrowers shall not create, incur,
--------------------------
assume or suffer to exist any Indebtedness, and shall not permit any of their
Subsidiaries to create, incur, assume or suffer to exist any Indebtedness,
except for:
(a) Indebtedness created hereunder and under the Notes;
(b) Indebtedness of the Borrowers or any of their Subsidiaries secured by
Liens permitted with respect to the Borrowers or their Subsidiaries by Section
6.3;
(c) Indebtedness of Golden Hills and Entravision, in an aggregate
principal amount not exceeding $500,000, to make payments to Xxxxxx X. Xxxxxx
under that certain Stock Purchase Agreement dated as of September 30, 1998 among
Entravision, Golden Hills and Xxxxxx X. Xxxxxx;
(d) Indebtedness of the Borrowers outstanding on the Closing Date and
listed on Schedule 6.2;
(e) the Subordinated Indebtedness;
(f) Indebtedness (i) under any Interest Rate Agreement required pursuant
to Section 5.13, (ii) evidenced by performance bonds or letters of credit issued
in the ordinary course of business or reimbursement obligations in respect
thereof, (iii) evidenced by a letter of credit facility related to insurance
associated with claims for work-related injuries or (iv) for bank overdrafts
incurred in the ordinary course of business that are promptly repaid;
(g) trade credit incurred to acquire goods, supplies, services and
incurred in the ordinary and normal course of business;
(h) Lease Expenses;
(i) the KNVO Mortgage Indebtedness;
(j) Indebtedness of any Borrower to the Luery Trust, Xxxxxxx Xxxxxx and/or
Xxxx Xxxx in connection with the purchase by such Borrower of such minority
shareholder's interests in the Borrowers, provided that (i) the Majority Lenders
-------------
have given their prior written consent (such consent not to be unreasonably
withheld) to such Indebtedness (including, without limitation the principal,
interest, repayment terms and other terms of such Indebtedness) and (ii) such
Indebtedness shall, if requested by the Majority Lenders, be fully subordinated
to the prior payment in full of the Obligations pursuant to a subordination
agreement in form and substance satisfactory to the Majority Lenders; and
(k) other Indebtedness in an amount not exceeding $7,500,000 at any time
outstanding (less the amount of Escrow Deposits under Section 6.7(f)).
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Notwithstanding the foregoing, the License Subsidiaries shall not be permitted,
under any circumstances, to create, incur, assume or suffer to exist any
Indebtedness, other than the Indebtedness created under the Loan Documents.
6.3 Limitation on Liens. The Borrowers shall not, and shall not permit any
-------------------
of their Subsidiaries to, create, incur, assume or suffer to exist any Lien upon
any of its property, assets or revenues, whether now owned or hereafter
acquired, except for:
(a) Liens created hereunder or under any of the other Loan Documents;
(b) Liens existing on any Property at the time of its acquisition and not
created in anticipation of such acquisition;
(c) Liens arising pursuant to any order of attachment, distraint or
similar legal process arising in connection with court proceedings so long as
the execution or other enforcement thereof is effectively stayed and claims
secured thereby are being contested in good faith by appropriate proceedings;
(d) Liens for taxes not yet due or which are being contested in good faith
by appropriate proceedings, provided that adequate reserves with respect thereto
--------
are maintained on the books of the Borrowers or their Subsidiaries, as the case
may be, in conformity with GAAP;
(e) Liens created by operation of law not securing the payment of
Indebtedness for money borrowed or guaranteed, including carriers',
warehousemen's, mechanics', materialmen's, repairmen's or other like Liens
arising in the ordinary course of business which are not overdue for a period of
more than 45 days or which are being contested in good faith by appropriate
proceedings;
(f) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(g) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(h) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate, would not
cause a Material Adverse Effect;
(i) the KNVO Purchase Money Mortgage, provided that (x) it shall secure
only the KNVO Mortgage Indebtedness and (y) it shall not be spread to cover any
other property; and
(j) Liens on Property or assets securing leases referred to in Section
3.5A.
Notwithstanding the foregoing, the License Subsidiaries shall not be permitted,
under any circumstances, to incur any consensual Liens or Liens securing the
payment of Indebtedness for money borrowed or guaranteed, other than Liens
created by the Loan Documents.
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6.4 Limitation on Fundamental Changes. The Borrowers shall not, and shall
---------------------------------
not permit any of their Subsidiaries to, enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or create or acquire any Subsidiary or Affiliate
(unless the documents required by Section 5.11 are executed and delivered) or
convey, sell, lease, assign, transfer or otherwise dispose of (including by
making any Station subject to any local marketing or similar agreement) all or
substantially all of its property, business or assets, except that, so long as
no Default has occurred and is continuing or would result therefrom, (i) the
Borrowers may consummate the Acquisitions permitted by Section 6.7 and (ii) one
or more Borrowers may merge with one or more other Borrowers (provided that the
-------- ----
Agent receives at least twenty Business Days' prior written notice thereof and
the Borrowers execute and deliver to the Agent such documents as the Agent shall
reasonably request in connection therewith, including but not limited to UCC-1
Financing Statements).
Notwithstanding the foregoing, the License Subsidiaries shall not merge,
consolidate, amalgamate or liquidate, wind up or dissolve or convey, sell,
lease, assign (except pursuant to the Loan Documents), transfer or otherwise
dispose of, all or substantially all of their respective property or assets.
6.5 Limitation on Sale of Assets. The Borrowers shall not, and shall not
----------------------------
permit any of their Subsidiaries to, make any Asset Disposition, unless (i) the
Borrowers make the mandatory prepayment, if any, required in connection
therewith pursuant to Section 2.5(a) and (ii) no Default has occurred and is
continuing or would result from such Asset Disposition. In any case, the
Borrowers may not sell, and will not permit any of their Subsidiaries to sell,
any Station or the ownership interests of any License Subsidiary without the
prior written consent of the Majority Lenders, such consent not to be
unreasonably withheld.
6.6 Limitation on Dividends. No Borrower shall, or shall permit any of its
-----------------------
Subsidiaries to (a) if a corporation, declare or pay any dividend (other than
dividends payable solely in common stock of such Borrower or its Subsidiaries)
on, or make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, defeasance, retirement or
other acquisition of, any shares of any class of Capital Stock of such Borrower
or its Subsidiaries or any warrants or options to purchase any such Capital
Stock, whether now or hereafter outstanding, and (b) if a partnership or a
limited liability company, make any distribution with respect to the ownership
interests therein, or, in either case, any other distribution in respect
thereof, either directly or indirectly, whether in cash or property or in
obligations of the Borrowers or any Subsidiary (such declarations, payments,
setting apart, purchases, redemptions, defeasance, retirements, acquisitions and
distributions being herein called "Restricted Payments"), except for Restricted
-------------------
Payments by Entravision to its members, and by each corporate Borrower to its
shareholders, in each case to permit such members and shareholders to pay their
respective income tax liabilities attributable to the income of Entravision or
such corporate Borrower, respectively (provided that no Default has occurred and
-------- ----
is continuing or would result from the making of such Restricted Payment).
6.7 Limitation on Investments, Loans and Advances. The Borrowers shall
---------------------------------------------
not, and shall not permit any of their Subsidiaries to, make any advance, loan,
extension of credit or capital contribution to, or purchase any stock, bonds,
notes, debentures or other securities of or
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any assets constituting a business unit of, or make any other investment in (any
of the foregoing, an "investment"), any Person, except for:
----------
(a) each of the following Acquisitions, provided that (i) no Default has
-------- ----
occurred and is continuing or would result from the consummation of such
Acquisition (and Entravision shall have delivered to the Agent a Covenant
Compliance Certificate showing pro forma calculations assuming such Acquisition
had been consummated), (ii) the Borrowers shall have delivered to the Agent a
certificate of an Authorized Officer of Entravision stating that such investment
does not violate the Univision Investment Documents and (iii) the Agent shall
have received, reviewed and reasonably approved all material documents
reasonably requested by the Agent to insure that the Lenders have a first
priority security interest in, and assignment of, all personal property assets
and interests acquired, including consents of third parties if reasonably
requested: (A) the El Centro Radio Stations Acquisition (provided that the
-------- ----
Consideration therefor does not exceed $2,900,000), (B) the Tecate Acquisition
(provided that the Consideration therefor (including investments therein made
-------- ----
prior to the Closing Date and referred to on Schedule 6.7) does not exceed an
aggregate of $20,500,000), (C) the purchase by Entravision of television station
WBSV, Channel 62, Venice, Florida (provided that the Consideration therefor does
-------- ----
not exceed $17,500,000), (D) the purchase by Entravision of television station
KPMR, Channel 38, Santa Barbara, California (provided that the Consideration
-------- ----
therefor does not exceed $5,250,000) and (E) the purchase by Entravision of
television station KLUZ, Channel 41, Albuquerque, New Mexico (provided that the
-------- ----
Consideration therefor does not exceed $1,000,000 plus the Additional Equity
Rights);
(b) the Borrowers' ownership interest in their Subsidiaries;
(c) investments in marketable securities, liquid investments and other
financial instruments that are acquired for investment purposes and may be
readily sold or otherwise liquidated, that have a value which may be readily
established and which are investment grade;
(d) extensions of trade credit in the ordinary course of business;
(e) Acquisitions (other than those referred to in clause (a) above) having
a maximum Consideration in an aggregate amount during the term of this Agreement
not to exceed the greater of (A) $5,000,000 and (B) ten percent of Net Asset
Value as of the date of consummation of the proposed Acquisition (or such
greater amount as the Majority Lenders may agree to in writing, in their sole
discretion, and provided that such amount is authorized by the Univision
Investment Documents); provided that (i) no Default has occurred and is
-------- ----
continuing or would result from the consummation of such Acquisition (and
Entravision shall have delivered to the Agent a Covenant Compliance Certificate
showing pro forma calculations assuming such Acquisition had been consummated);
--- -----
and (ii) the Agent shall have received, reviewed and approved all documents
reasonably requested by the Agent to insure that the Lenders have a first
priority security interest in, and assignment of, all personal property assets
and interests acquired, including consents of third parties if reasonably
requested;
(f) Escrow Deposits in an aggregate amount not to exceed $7,500,000 during
the term of this Agreement (less Indebtedness outstanding under Section 6.2(k)),
provided that no Default has occurred and is continuing or would result from the
-------- ----
making of such investment; and
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(g) investments existing on the Closing Date and listed on Schedule 6.7;
Notwithstanding the foregoing, the License Subsidiaries shall not be permitted,
under any circumstances, to make any investments.
6.8 Limitation on Modifications of Certain Documents and Instruments
----------------------------------------------------------------
(a) No Borrower shall, and no Borrower shall permit its Subsidiaries to,
(i) terminate, amend or modify any provision of any document, instrument or
agreement relating to the Subordinated Indebtedness (provided that the Borrowers
may, (A) with the prior written consent of the Majority Lenders, amend the
Tecate Letter Agreement and (B) amend the Univision Investment Documents to
permit the Additional Equity Rights), any Material Contract, any Equityholder
Agreement or any Organic Document or (ii) change its official name, its
operating names or the names under which it executes contracts and conducts
business, in each case without the prior written consent of the Majority
Lenders, which consent shall not be unreasonably withheld.
(b) In furtherance of Section 6.8(a)(i), Entravision will not consent to
any assignment of the Univision Option pursuant to the Note Purchase Agreement,
or consent to any assignment of the Univision Subordinated Note, without the
prior written consent of the Majority Lenders.
6.9 Transactions with Affiliates. The Borrowers shall not, and shall not
----------------------------
permit any of their Subsidiaries to, enter into any transaction, including,
without limitation, any purchase, sale, lease or exchange of property or the
rendering of any service, with any Affiliate or any Subsidiary less than wholly-
owned, directly or indirectly, by the Borrowers, unless such transaction (i) is
otherwise permitted under this Agreement or (ii) is in the ordinary course of
the Borrowers' or such Subsidiary's business and is upon terms no less favorable
to the Borrowers or such Subsidiary, as the case may be, than it would obtain in
a comparable arm's length transaction with a Person not an Affiliate.
6.10 Fiscal Year. No Borrower shall permit its fiscal year or the fiscal
-----------
year of any of its Subsidiaries to end on a day other than December 31.
6.11 Lease Obligations. The Borrowers shall not, and shall not permit any
-----------------
of its Subsidiaries to, sell, assign or otherwise transfer any of its
Properties, rights or assets (whether now owned or hereafter acquired) to any
Person and thereafter directly or indirectly lease back the same or similar
property.
6.12 Unfunded Liabilities. The Borrowers shall not permit unfunded
--------------------
liabilities for any and all Plans maintained for or covering employees of the
Borrowers or any Subsidiary to exceed $500,000 in the aggregate at any time.
6.13 Management Fees. The Borrowers shall not, and shall not permit any of
---------------
their Subsidiaries to, incur any management fees for services rendered; provided
--------
that, if no Default has occurred and is continuing or would result therefrom,
----
Entravision may pay management fees (the "Management Fees") to Xxxxxx X. Xxxxx
---------------
and Xxxxxx X. Xxxxxxxxx for services rendered to Entravision (which Management
Fees may be paid in the form of bonuses under employment agreements to which
Xxxxxx X. Xxxxx and Xxxxxx X. Xxxxxxxxx are party), on an annual basis, in
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an aggregate amount not to exceed 2% of Net Operating Revenue of Entravision for
such fiscal year. The Management Fees shall accrue quarterly but be payable
annually, following the Lenders' receipt of the financial statements (which must
be unqualified) and Covenant Compliance Certificate referred to in Section
5.1(b).
6.14 Equity Offerings. No Borrower shall, or shall permit any of their
----------------
Subsidiaries to, consummate or agree to consummate any Equity Offering unless
(i) such Borrower has given the Agent (who shall promptly give copies of such
notice to the Lenders) 30 days prior written notice thereof and (ii) except as
set forth in the proviso below, each Person becoming an equityholder as a result
of such Equity Offering shall have executed (A) a Nonrecourse Guarantee in form
and substance satisfactory to the Agent, guaranteeing the Obligations, (B) a
Pledge Agreement, in form and substance satisfactory to the Agent, granting to
the Agent, for the benefit of the Lenders, a security interest in such equity
interest and all rights associated therewith, together with appropriate Lien
searches requested by the Agent indicating the Lenders' first priority Lien on
such interests and rights and (C) UCC-1 Financing Statements, duly executed by
such equityholder, in form and substance satisfactory to the Agent and, in
connection with such deliveries, cause to be delivered to the Agent (1) such
stock certificates or limited liability company interest certificates as may
exist with regard to such equity interest, together with undated stock powers
executed in blank, (2) a favorable written opinion of counsel satisfactory to
the Agent as to such matters relating thereto as any Lender through the Agent
may reasonably request, in form and substance satisfactory to the Agent and (3)
such other agreements, instruments, approvals or other documents as any Lender
through the Agent may reasonably request; provided that compliance with the
-------- ----
foregoing clause (ii) shall not be required with regard to an initial public
offering of equity interests, the issuance of membership interests in
Entravision having no voting power or the Equity Offering to Univision
contemplated by the Univision Option. Notwithstanding any provision in this
Agreement to the contrary, (a) there shall at all times be pledged to the Agent,
for the benefit of the Lenders, pursuant to Nonrecourse Guarantees, Pledge
Agreements and related documentation required by this Agreement, direct or
indirect Voting Control of each Borrower. In addition, the Borrowers shall not
permit the aggregate equity interest of any Minority Shareholder in any Borrower
or any Guarantor to increase, whether through the purchase of shares of stock,
the receipt of shares of stock as dividends, or otherwise, unless such Minority
Shareholder has executed and delivered to the Agent a Nonrecourse Guarantee,
Pledge Agreement and such other documents as the Agent shall reasonably request
in connection therewith; provided that nothing in this sentence shall be
construed to prohibit the exercise of the Univision Option or any increase in
Univision's equity interest in Entravision in accordance with the Univision
Investment Documents and the Operating Agreement.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrowers shall fail to pay any principal on any Note when due or
the Borrowers shall fail to pay any interest on any Note, any fee referred to in
Section 2.3(e), Section 2.16 or the letter referred to in Section 4.1(f) within
two Business Days after any such interest or fee becomes due in accordance with
the terms thereof and hereof or the Borrowers shall fail to
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pay any other amount payable hereunder within five Business Days after written
notice that such other amount is due; or
(b) Any representation or warranty made or deemed made by any Obligor
herein or in any other Loan Document or which is contained in any certificate,
document or financial or other statement furnished at any time under or in
connection with this Agreement or any other Loan Document shall prove to have
been incorrect in any material respect when made or deemed made; provided that
-------- ----
representations and warranties of any Pledgor and any Borrower other than
Entravision shall be limited to those the incorrectness of which could
reasonably be expected to have a Material Adverse Effect; or
(c) The Borrowers shall default in the observance or performance of any
agreement contained in Section 4.4, 5.2(d), 5.3, 5.4, 5.8, 5.9, 5.10, 5.12,
5.13, or any provision of Section 6; or
(d) (i) Any Obligor shall default in the observance or performance of any
other material agreement contained in this Agreement or the other Loan Documents
(other than as provided in paragraphs (a) through (c) of this Section), and such
default shall continue unremedied for a period of 30 days after the earlier of
(y) notice thereof from the Agent to the Borrowers and (z) actual knowledge
thereof by a senior officer of such Obligor (unless such default is of such a
nature that it cannot reasonably be cured within 30 days after the date
described in clause (y) or (z), as applicable, in which case the defaulting
Obligor has not commenced the cure thereof within such 30 day period and/or has
not thereafter diligently pursued the completion of the same), provided that any
-------- ----
default referred to in this clause (i) by a Borrower other than Entravision
shall be limited to those which could reasonably be expected to have a Material
Adverse Effect; or (ii) any material provision of any Loan Document shall at any
time for any reason be declared null and void, or the validity or enforceability
of any Loan Document shall at any time be contested by any Obligor, or a
proceeding shall be commenced by any Obligor, or by any Governmental Authority
or other Person having jurisdiction over any Obligor, seeking to establish the
invalidity or unenforceability thereof, or any Obligor shall deny that it has
any liability or obligation purported to be created under any Loan Document; or
(e) Any Guarantee shall cease, for any reason, to be in full force and
effect, and such occurrence shall have a Material Adverse Effect; or
(f) The Borrowers or any other Obligor shall (i) default in any payment of
principal or interest, regardless of the amount, due in respect of any (A)
Indebtedness (other than the Notes), issued under the same indenture or other
agreement, if the original principal amount of Indebtedness covered by such
indenture or agreement is $500,000 or greater or (B) any Guarantee Obligation
with respect to an amount of $500,000 or greater, beyond the period of grace, if
any, provided in the instrument or agreement under which such Indebtedness or
Guarantee Obligation was created, whether or not such default has been waived by
the holders of such Indebtedness or Guarantee Obligation; or (ii) default in the
observance or performance of any other material agreement or condition relating
to any such Indebtedness or Guarantee Obligation or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
or beneficiary or
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beneficiaries of such Guarantee Obligation (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to become due prior to its
stated maturity or such Guarantee Obligation to become payable or such
Indebtedness to be required to be defeased or purchased; provided that, any
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default referred to in this Section 7(f) by a Pledgor or any Borrower other than
Entravision, shall be limited to those which could reasonably be expected to
have a Material Adverse Effect; or
(g) (i) Any Borrower or any other Obligor (other than a Pledgor) shall
commence any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its assets, or any
Borrower or any other Obligor (other than a Pledgor) shall make a general
assignment for the benefit of its creditors; or (ii) there shall be commenced
against any Borrower or any other Obligor (other than a Pledgor) any case,
proceeding or other action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged, unstayed or unbonded for a
period of 60 days; or (iii) there shall be commenced against any Borrower or any
other Obligor (other than a Pledgor) any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in the
entry of an order for any such relief which shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the entry
thereof; or (iv) any Borrower or any other Obligor (other than a Pledgor) 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) any Borrower or any other Obligor (other than a Pledgor) shall generally
not, or shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due or there shall be a general assignment for the benefit
of creditors; or
(h) (i) Any Person shall engage in any non-exempt "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302 of
ERISA), whether or not waived, shall exist with respect to any Plan, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence to
have a trustee appointed, or a trustee shall be appointed, to administer or to
terminate any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee would reasonably be expected to result
in the termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA (other
than a standard termination) or (v) any Borrower or any Commonly Controlled
Entity would reasonably be expected to incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan;
and in each case regarding clauses (i) through (v) above, such event or
condition, together with all other such events or conditions, if any, would
reasonably be expected to subject such Borrower or any other Obligor to any tax,
penalty or other liabilities in the aggregate to exceed $500,000; or
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(i) One or more judgments or decrees shall be entered against the
Borrowers or any other Obligor (other than a Pledgor) involving in the aggregate
a liability (not paid or fully covered by insurance) of $250,000 or more, and
all such judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 60 days from the entry thereof or in any event five
days before the date of any sale pursuant to such judgment or decree or any non-
monetary judgment or order shall be entered against the Borrowers or any other
Obligor (other than a Pledgor) that is reasonably likely to have a Material
Adverse Effect and either (i) enforcement proceedings shall have been commenced
by any Person upon such judgment which has not been stayed pending appeal or
(ii) there shall be any period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; provided that, judgments and decrees referred
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to in this Section 7(i) entered against any Borrower other than Entravision
shall be limited to those which could reasonably be expected to have a Material
Adverse Effect; or
(j) There shall occur any default in the material observance or material
performance of any Material Contract (other than those referred to in Section
7(p)) or any such Material Contract shall terminate or otherwise no longer be in
full force and effect, in each case to the extent such default or termination
could reasonably be expected to have a Material Adverse Effect; or
(k) (A) any designation by any Governmental Authority (including the FCC)
of an evidentiary hearing with regard to any application of any Borrower (or any
Affiliate thereof) requesting any authorization from such Governmental Authority
shall fail to be dismissed within 120 days after such designation and the Agent,
in its reasonable judgment after consultation with its FCC counsel, believes
that it is more likely than not that the result thereof will be the termination,
revocation, suspension, non-renewal or material (and adverse) modification of
any material Media License held by any Borrower (or any Affiliate thereof), or
(B) any Governmental Authority (including the FCC) shall terminate, revoke or
substantially and adversely modify any material Media License of any Borrower
(or any Affiliate thereof), or (C) any action or proceeding commenced by any
Governmental Authority (including the FCC) seeking the termination, suspension,
revocation, non-renewal or substantial and adverse modification of any material
Media License shall fail to be dismissed within 120 days after such commencement
and the Agent, in its reasonable judgment after consultation with its FCC
counsel, believes that such proceeding will more likely than not result in such
termination, suspension, revocation, non-renewal or substantial and adverse
modification, or (D) any material Media License shall expire by its terms and is
not renewed in a timely manner, or any material agreement which is necessary to
the operation of any broadcast facility or transmission site shall expire or is
revoked or terminated and is not replaced by a comparable substitute or a
substitute reasonably acceptable to the Agent. (For purposes of this Section
7(k), a "material" Media License is (1) any Media License (other than a Media
License issued by the FCC), alone or in conjunction with other Media Licenses
then subject to any of the circumstances described in this Section, the loss of
which (in the Agent's reasonable judgment) could have a Material Adverse Effect
and (2) any Media License issued by the FCC. Notwithstanding the foregoing, with
respect to the type of event described in clause (A) or clause (C) above, the
occurrence of such event will not constitute an Event of Default under and for
purposes of clause (A) or clause (C) of this Section 7(k) only, provided that
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(and so long as) each of the following conditions is satisfied to the Agent's
satisfaction:
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(i) the Borrowers provide the Agent with written notice of such
event within five Business Days after being notified by the FCC of such
designation (and also provide a copy of any such notice received from the
FCC), and
(ii) the notice of designation affirmatively indicates that it
relates only to the licenses or applications of a single Station rather
than to the licenses and/or applications of more than one Station, and
(iii) if an adverse ruling in the proceeding would threaten
Entravision's ability to continue providing the same level of underlying
service by such Station as theretofore provided, then (A) the Borrowers
shall make a prepayment of the Loans (within 30 Business Days after
receiving notice of such designation from the FCC) in an amount sufficient
for Borrowers to remain in compliance with each of the financial covenants
under Section 6.1 hereof without including any of the Operating Cash Flow
attributable to such Station and (B) the Borrowers shall thereafter exclude
the Operating Cash Flow attributable to such Station from the calculation
of the Borrowers' consolidated Operating Cash Flow. Any such prepayment and
exclusion from Operating Cash Flow will be permanent unless and until the
FCC proceeding regarding such license or application is finally resolved to
the Agent's satisfaction in a manner favorable to Entravision and without
any divestiture of assets required by the FCC or otherwise voluntarily
accomplished by the Borrowers pursuant to the next sentence. Once the
Borrowers have made such prepayment and exclusion from Operating Cash Flow
under the circumstances contemplated by this clause (iii), then Entravision
may thereafter sell the assets relating to such Station (and only such
Station) pursuant to a transaction with an unrelated third party (i.e., a
----
non-Affiliate) for value received provided that (1) Entravision gives the
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Agent written notice of such transaction at least 30 days (but not more
than 60 days) prior to consummation of such transaction, (2) the
representation under Section 3.20 regarding solvency of the Borrowers is
true immediately prior to and following any such disposition, (3) such
transaction does not cause a Material Adverse Effect or otherwise violate
any covenant hereunder or otherwise cause a Default hereunder, (4)
Entravision provides the Agent with a certificate renewing the
representations and warranties in the Loan Documents and (if and to the
extent appropriate) updating the various schedules to the Loan Documents to
make the representations and warranties therein true, accurate and complete
following such transaction and (5) the proceeds of such transaction are
promptly used to prepay the Loans in accordance with the terms of Section
2.5(e); or
(l) Any material provision of any Loan Document, after delivery thereof
pursuant to the provisions hereof, shall, for any reason other than an act or
omission by the Agent, cease to be valid or enforceable in accordance with its
terms and such cessation shall have a Material Adverse Effect, or any security
interest created under any Loan Document shall for any reason other than an act
or omission by the Agent, cease to be a valid and perfected first priority
security interest or Lien (except as otherwise stated or permitted herein or
therein) in any material portion of the Collateral, the Guarantor Collateral or
the property purported to be covered thereby; or
(m) A Change in Control shall have occurred; provided that, the occurrence
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of any event which would constitute a Change in Control shall not constitute an
Event of Default under
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this Section 7(m) if such event is by reason of the death or disability of
either or both of Xxxxxx X. Xxxxx and Xxxxxx X. Xxxxxxxxx and (i) no other
Default has occurred and is continuing and (ii) there has been presented to the
Lenders within 120 days of such death or disability a plan for reorganization
of, and operation of the business of, the Borrowers (which plan shall include
compliance with the terms of this Agreement) in the absence of such individual
or individuals (as applicable) which is satisfactory to the Majority Lenders in
their reasonable discretion; or
(n) The operations of any Station shall be interrupted or curtailed at any
time for a period in excess of 96 hours (whether or not consecutive) during any
period of seven consecutive days; or
(o) (i) Any Borrower that is organized as a limited liability company
shall lose its qualification for treatment as a partnership for income tax
purposes (i.e., its right to utilize pass-through taxation) or if the Internal
----
Revenue Service or any state revenue service with taxing jurisdiction over such
Borrower otherwise shall make a determination (which is no longer being
diligently contested in good faith) that such Borrower no longer qualifies for
treatment as a partnership for income tax purposes, in each case to the extent
such loss or determination could reasonably be expected to have a Material
Adverse Effect;
(ii) With respect to any Borrower or any other Obligor that is
organized as a limited liability company, any member thereof (A)
experiences an event described in Section 7(g) hereof, (B) dies, dissolves
or otherwise terminates its existence, or (C) withdraws from membership in
such limited liability company. Notwithstanding the foregoing, such event
will not constitute an Event of Default hereunder if (1) within 15 Business
Days of the occurrence such event, the Agent is notified thereof in writing
and (2) within 30 days of the occurrence of such event (or within such
shorter period as may be required by applicable law or the applicable
Organic Documents for such limited liability company), the remaining
members of such limited liability company take all action necessary, if any
(in a manner reasonably acceptable to the Agent) to continue the existence
of such limited liability company as an operating organization liable to
the Agent for its obligations under the Loan Documents; or
(p) (i) Any Univision Affiliation Agreement with respect to any broadcast
facility of any Borrower or any Subsidiary, or any broadcast facility subject to
a Program Services Agreement, is at any time terminated, revoked or not renewed
upon expiration; or (ii) any Affiliation Agreement with a network or programmer
other than Univision which relates to any broadcast facility of any Borrower or
any Subsidiary, or any broadcast facility subject to a Program Services
Agreement, is at any time terminated, revoked or not renewed upon expiration
(and not replaced, within 30 days of such termination, revocation or expiration,
with a new Affiliation Agreement reasonably acceptable to the Majority Lenders),
in either case in this clause (ii) relating to a broadcast facility accounting
for more than 5% of the Borrowers' combined Operating Cash Flow as of the
quarter ending immediately prior to such termination, revocation or non-renewal;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (g) above, automatically the Commitments to the Borrowers and the
commitment to issue Letters of Credit shall immediately terminate and the Loans
made to the Borrowers hereunder (with
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accrued interest thereon) and all other Obligations shall immediately become due
and payable, and (B) if such event is any other Event of Default, with the
consent of the Majority Lenders, the Agent may, or upon the request of the
Majority Lenders, the Agent shall, take any or all of the following actions: (i)
by notice to the Borrowers declare the Commitments to the Borrowers and the
commitment to issue Letters of Credit to be terminated forthwith, whereupon such
Commitments and the commitment to issue Letters of Credit shall immediately
terminate; and (ii) by notice of default to the Borrowers, declare the Loans
(with accrued interest thereon) and all other Obligations under this Agreement
and the Notes to be due and payable forthwith, whereupon (x) the same shall
immediately become due and payable and (y) to the extent any Letters of Credit
are then outstanding, the Borrowers shall make a Cash Collateral Deposit in an
amount equal to the aggregate Letter of Credit Amount. In all cases, with the
consent of the Majority Lenders, the Agent may enforce any or all of the Liens
and security interests and other rights and remedies created pursuant to any
Loan Document or available at law or in equity. Except as expressly provided
above in this Section, presentment, demand, protest and all other notices of any
kind are hereby expressly waived by the Borrowers.
SECTION 8. THE AGENT
8.1 Appointment. Each Lender hereby irrevocably designates and appoints
-----------
Union Bank of California, N.A. as Agent of such Lender under this Agreement and
the other Loan Documents, and each such Lender irrevocably authorizes Union Bank
of California, N.A., as the Agent for such Lender, to take such action on its
behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to
the Agent by the terms of this Agreement and the other Loan Documents, together
with such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, the 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 Agent.
8.2 Delegation of Duties. The 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 Agent shall not be responsible for the negligence
or misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
8.3 Exculpatory Provisions. Neither the Agent nor any of its officers,
----------------------
directors, employees, agents, attorneys-in-fact or Affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with this Agreement or any other Loan Document (except
for its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrowers, any Subsidiary or any other
Obligor or any officer thereof contained in this Agreement or any other Loan
Document or in any certificate, report, statement or other document referred to
or provided for in, or received by the 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 the Notes or any
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other Loan Document or for any failure of the Borrowers, any Subsidiary or any
other Obligor to perform its obligations hereunder or thereunder. The 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 the Borrowers, any Subsidiary or any other
Obligor.
8.4 Reliance by the Agent. The Agent shall be entitled to rely, and shall
---------------------
be fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
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 Borrowers), the Accountants and independent
accountants and other experts selected by the Agent. The 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 Agent. The 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 Majority Lenders or all
Lenders, as it deems appropriate, or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense (except to
the extent incurred as a result of the Agent's gross negligence or willful
misconduct) which may be incurred by it by reason of taking or continuing to
take any such action. The Agent shall in all cases be fully protected in acting,
or in refraining from acting, under this Agreement and the Notes and the other
Loan Documents in accordance with a request of the Majority Lenders or all
Lenders, as may be required, and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Notes.
8.5 Notice of Default. The Agent shall not be deemed to have knowledge or
-----------------
notice of the occurrence of any Default hereunder unless the Agent has received
notice from a Lender or the Borrowers referring to this Agreement, describing
such Default and stating that such notice is a "notice of default". In the event
that the Agent receives such a notice, the Agent shall give notice thereof to
the Lenders. The Agent shall take such action with respect to such Default as
shall be reasonably directed by the Majority Lenders or all Lenders as
appropriate; provided that unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it shall deem
advisable in the best interests of the Lenders or as the Agent shall believe
necessary to protect the Lenders' interests in the Collateral or the Guarantor
Collateral.
8.6 Non-Reliance on the Agent and Other Lenders. Each Lender expressly
-------------------------------------------
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by the Agent hereafter taken, including any
review of the affairs of the Borrowers, any Subsidiary or any other Obligor,
shall be deemed to constitute any representation or warranty by the Agent to any
Lender. Each Lender represents to the Agent that it has, independently and
without reliance upon the 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 Borrowers, any Subsidiary and the other
Obligors and made its own decision to make its Loans, and participate
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in Letters of Credit, hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the 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 Borrowers, their Subsidiaries and the other
Obligors. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Agent hereunder, the 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 the Borrowers, any Subsidiary or
any other Obligor which may come into the possession of the Agent or any of its
respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
8.7 Indemnification. The Lenders agree to indemnify the Agent in its
---------------
capacity as such (to the extent not reimbursed by the Borrowers, their
Subsidiaries or the other Obligors and without limiting the obligation of such
Persons to do so), ratably according to the respective amounts of their
Commitments, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs (including, without
limitation, the allocated cost of internal counsel), expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Notes) be imposed on, incurred by or
asserted against the Agent, in its capacity as Agent, but not as a Lender
hereunder, in any way relating to or arising out of this Agreement, any of the
other Loan Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by the 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 to the extent resulting from the Agent's gross
negligence or willful misconduct. The agreements in this Section shall survive
the payment of the Notes and all other amounts payable hereunder and the
expiration of the Letters of Credit.
8.8 The Agent in Its Individual Capacity. The Agent and its Affiliates
------------------------------------
may make loans to, accept deposits from and generally engage in any kind of
business with the Borrowers, any Subsidiary and the other Obligors as though the
Agent were not the Agent hereunder and under the other Loan Documents. With
respect to the Agent, the Loans made or renewed and the Letters of Credit issued
or participated in by the Agent, and any Note issued to the 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 the Agent, and the terms
"Lender" and "Lenders" shall include the Agent in its individual capacity.
8.9 Successor Agent. The Agent may resign as Agent upon 30 days' notice
---------------
to the Lenders. If the Agent shall resign as Agent under this Agreement and the
other Loan Documents, then the Majority Lenders shall appoint from among the
Lenders a successor agent for the Lenders, which successor agent shall be
approved by the Borrowers (which consent shall not be unreasonably withheld),
whereupon such successor agent shall succeed to the rights, powers and duties of
the Agent and the term "Agent" shall mean such successor agent, effective upon
its appointment, and the former Agent's rights, powers and duties as Agent shall
be
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terminated, without any other or further act or deed on the part of such former
Agent or any of the parties to this Agreement or any holders of the Notes. After
any retiring Agent's resignation as Agent, the provisions of this Section shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement and the other Loan Documents. Further, if the
Agent no longer has any Loans, Letter of Credit participations or Commitments
hereunder, the Agent shall immediately resign and shall be replaced, and have
the benefits, as set forth in this Section 8.9. In addition, after the
replacement of an Agent hereunder, the retiring Agent shall remain a party
hereto and shall continue to have all the rights and obligations of an Agent
under this Agreement with respect to Letters of Credit issued by it prior to
such replacement, but shall not be required to issue additional Letters of
Credit.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement, any Note, any other
----------------------
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section. With the
prior written consent of the Majority Lenders and the Borrowers (and, in the
case of any Loan Document other than this Agreement, the relevant Obligor), the
Borrowers may, from time to time, enter into written amendments, supplements or
modifications hereto and to the Notes and the other Loan Documents for the
purposes of adding any provisions to this Agreement or the Notes or the other
Loan Documents or changing in any manner the rights of the Lenders, the
Borrowers or any other Obligor hereunder or thereunder or waiving, on such terms
and conditions as may be specified in such instrument, any of the requirements
of this Agreement or the Notes or the other Loan Documents or any Default and
its consequences; provided, however, that no such waiver and no such amendment,
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supplement or modification shall (i) (a) reduce the amount or extend the
maturity of any Note or any installment due thereon, or reduce the rate or
extend the time of payment of interest thereon, or reduce the amount or extend
the time of payment of any fee, indemnity or reimbursement payable to any Lender
hereunder, or change the amount of any Lender's Commitment, or amend, modify or
waive any provision of Section 2.4 or 2.5(e), in each case without the written
consent of the Lender affected thereby; or (b) amend, modify or waive any
provision of this Section 9.1 or reduce the percentage specified in or otherwise
modify the definition of Majority Lenders, or consent to the assignment or
transfer by any Obligor of any of its rights and obligations under this
Agreement and the other Loan Documents (except as permitted under Section 6.4);
or (c) release any Obligor from any liability under its respective Loan
Documents; or (d) release any material portion of the Collateral or any material
portion of the Guarantor Collateral, except for any Asset Disposition or release
of Lien permitted by this Agreement or any other Loan Document; or (e) amend,
modify or waive, directly or indirectly, any of the provisions of Section
2.1(h), 2.2(e) or 2.11; or (f) amend, modify or waive any provision of this
Agreement requiring the consent or approval of all Lenders; or (g) increase the
amount of the Aggregate Commitment, in each case set forth in clauses (i)(b)
through (i)(g) above without the written consent of all the Lenders; or (ii)
amend, modify or waive any provision of Section 4.3 with respect to the making
of a Revolving Loan, or reduce the percentage specified in, or otherwise modify
the definition of, Majority Revolving Loan Lenders, without the written consent
of the Majority Revolving Loan Lenders; or (iii) amend, modify or waive any
provision of Section 4.2 or 4.3 with respect to the making of an Incremental
Loan, or reduce the percentage specified in, or otherwise modify the
determination of, Majority Incremental Loan Lenders, without the written consent
of the Majority Incremental Loan
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Lenders; or (iv) amend, modify or waive any provision of Section 8 without the
written consent of the then Agent, or any provision affecting the rights and
duties of the Agent as the issuer of Letters of Credit without the consent of
the then Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Borrowers, the other Obligors, the Lenders, the Agent and all future
holders of the Notes. In the case of any waiver, the Borrowers, the other
Obligors, the Lenders and the Agent shall be restored to their former position
and rights hereunder and under the outstanding Notes and any other Loan
Documents, and any Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default,
or impair any right consequent thereon.
9.2 Notices. All notices, requests and demands or other communications to
-------
or upon the respective parties hereto to be effective shall be in writing
(including by telecopy), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, or 3 days
after being deposited in the United States mail, certified and postage prepaid
and return receipt requested, or, in the case of telecopy notice, when received,
in each case addressed as follows in the case of the Borrowers and the Agent,
and as set forth on the signature page hereto, or in the Assignment and
Acceptance pursuant to which a Person becomes a party hereto, in the case of the
Lenders, or to such other address as may be hereafter notified by the respective
parties hereto and any future holders of the Notes:
The Borrowers:
Entravision Communications Company, L.L.C.
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxxx Xxxxx
Telecopy: (000) 000-0000
With a Copy to (which shall not constitute
notice to the Borrowers):
(i) Xxxxxxxx Xxxx & Xxxxx, LLP
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000, and
(ii) Xxxxxx Xxxxxx Xxxxxxx
XxXxxxxx Xxxxxx & Fognani, L.L.P.
000 Xxxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
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The Agent: Union Bank of California, N.A
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telecopy: (000) 000-0000
provided that any notice, request or demand to or upon the Agent or the Lenders
--------
pursuant to Section 2.1, 2.2, 2.3, 2.4 or 2.6 shall not be effective until
received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
------------------------------
exercising, on the part of the Agent or any Lender, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 Survival of Representations and Warranties. All representations and
------------------------------------------
warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the Notes.
9.5 Payment of Expenses and Taxes. The Borrowers agree (a) to pay or
-----------------------------
reimburse the Agent for all its reasonable costs and out-of-pocket expenses
(including travel and other expenses incurred by it or its agents in connection
with performing due diligence with regard hereto) incurred in connection with
the development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement and the Notes and the other Loan Documents and
any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby (including those contemplated to occur on the Closing Date), including,
without limitation, syndication efforts in connection with this Agreement and
the reasonable fees and disbursements of counsel to the Agent (including special
counsel with regard to FCC matters, special counsel with regard to Collateral or
Guarantor Collateral located outside of California and the allocated costs of
internal counsel to the Agent) and the Agent agrees to provide the Borrowers
with a good faith estimate of such counsel fees, which counsel fees shall be
subject to the approval of the Borrowers, such approval not to be unreasonably
withheld or delayed, (b) after the occurrence and during the continuance of a
Default, to pay or reimburse the Agent and each Lender for all its reasonable
costs and out-of-pocket expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the Notes, the other Loan
Documents and any such other documents or in connection with any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a "work-out" or of any insolvency or bankruptcy proceeding, including,
without limitation, reasonable legal fees and disbursements of counsel to the
Agent and each Lender (including the allocated costs of internal counsel to the
Agent), (c) to pay, and indemnify and hold harmless each Lender and the Agent
from any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or
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modification of, or any waiver or consent under or in respect of, this
Agreement, the Notes, the other Loan Documents and any such other documents and
(d) to pay, and indemnify and hold harmless each Lender and the Agent from and
against, any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs (including the allocated cost of internal
counsel and the reasonable legal fees and disbursements of outside counsel to
the Lenders and the Agent), expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the Notes and the other Loan Documents, the
Acquisitions or the use of the proceeds of the Loans or the Letters of Credit
and any such other documents (all the foregoing, collectively, the "indemnified
liabilities"), provided, that the Borrowers shall have no obligation hereunder
--------
to the Agent or any Lender with respect to indemnified liabilities arising from
the gross negligence or willful misconduct of the Agent or such Lender or their
agents or attorneys-in-fact. The agreements in this Section shall survive
repayment of the Notes and all other amounts payable hereunder. The Agent and
the Lenders agree to provide reasonable details and supporting information
concerning any costs and expenses required to be paid by the Borrowers pursuant
to the terms hereof.
9.6 Successors and Assigns; Participations; Purchasing Lenders.
----------------------------------------------------------
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrowers, the Lenders, the Agent, all future holders of the Notes and their
respective successors and assigns, except that the Borrowers may not assign,
transfer or delegate any of their rights or obligations under this Agreement
without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking or
finance business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("Participants") participating interests in any
------------
Loan owing to such Lender, any Letter of Credit participated in by such Lender,
any Note held by such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents; provided
--------
that the holder of any such participation, other than an Affiliate of such
Lender, shall not be entitled to require such Lender to take or omit to take any
action hereunder except action directly affecting the extension of the maturity
of any portion of the principal amount of a Loan or Commitment, the expiration
of a Letter of Credit or any portion of interest or fees related thereto
allocated to such participation or a reduction of the principal amount or
principal payment amount of or the rate of interest payable on the Loans or any
fees related thereto or reduction of the amount to be reimbursed under any
Letter of Credit, or a release of any Obligor or any substantial portion of the
Collateral or the Guarantor Collateral or any increase in participation amounts.
In the event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Note and the participant in any such Letter of Credit for all purposes
under this Agreement and the other Loan Documents, and the Borrowers and the
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and the other
Loan Documents. The Borrowers agree that if amounts outstanding under this
Agreement and the Notes 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 be deemed to have the right of
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setoff in respect of its participating interest in amounts owing under this
Agreement and any Note to the same extent as if the amount continuing of its
participating interest were owing directly to it as a Lender under this
Agreement or any Note, provided that such Participant shall only be entitled to
--------
such right of setoff if it shall have agreed in the agreement pursuant to which
it shall have acquired its participating interest to share with the Lenders the
proceeds thereof as provided in Section 9.7. The Borrowers also agree that each
--------
Participant shall be entitled to the benefits of Sections 2.13, 2.14 and 2.15
with respect to its participation in the Commitments and the Loans and the
Letters of Credit outstanding from time to time; provided, that no Participant
shall be entitled to receive any greater amount pursuant to such Sections than
the transferor Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Lender to such
Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to any of its
Affiliates or to any Lender, any Affiliate thereof or to one or more additional
lenders or financial institutions, which additional lenders shall be subject to
the consent of the Borrowers, such consent not to be unreasonably withheld and
not to be required if a Default has occurred and is continuing ("Purchasing
----------
Lenders") all or any part of its rights and obligations under this Agreement,
-------
the Notes and the other Loan Documents pursuant to an Assignment and Acceptance
substantially in the form of Exhibit C, executed by such Purchasing Lender and
such transferor Lender and delivered to the Agent for its acceptance and
recording in the Register (as defined in (d) below), provided, that any such
--------
sale must result in the Purchasing Lender having at least $5,000,000 in
aggregate amount of obligations under this Agreement, the Notes and the other
Loan Documents. Upon such execution, delivery, acceptance and recording, from
and after the transfer effective date determined pursuant to such Assignment and
Acceptance, (x) the Purchasing Lender thereunder shall be a party hereto and, to
the extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with a Commitment as set forth therein, and
(y) the transferor Lender thereunder shall, to the extent of such assigned
portion and as provided in such Assignment and Acceptance, be released from its
obligations under this Agreement and the other Loan Documents (and, in the case
of an Assignment and Acceptance covering all or the remaining portion of a
transferor Lender's rights and obligations under this Agreement, such transferor
Lender shall cease to be a party hereto). Such Assignment and Acceptance shall
be deemed to amend this Agreement to the extent, and only to the extent,
necessary to reflect the addition of such Purchasing Lender and the resulting
adjustment of Commitment Percentages arising from the purchase by such
Purchasing Lender of all or a portion of the rights and obligations of such
transferor Lender under this Agreement, the Notes and the other Loan Documents.
On or prior to the transfer effective date determined pursuant to such
Assignment and Acceptance, the Borrowers, at their own expense, shall execute
and deliver to the Agent in exchange for the surrendered Note or Notes a new
Note or Notes to the order of such Purchasing Lender in an amount equal to the
Commitments assumed by it pursuant to such Assignment and Acceptance, and if the
transferor Lender has retained a Commitment hereunder, new Notes to the order of
the transferor Lender in an amount equal to the Commitments retained by it
hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be
in the form of the Notes replaced thereby. The Notes surrendered by the
transferor Lender shall be returned by the Agent to the Borrowers marked
"canceled."
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(d) The Agent shall maintain at its address referred to in Section 9.2 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 principal amount of the Loans owing to, and, if
applicable, the Letters of Credit participated in by, each Lender from time to
time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrowers, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as the owner of the Loans and the
participant in the Letters of Credit, if applicable, recorded therein for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrowers or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by a
transferor Lender and Purchasing Lender (and, in the case of a Purchasing Lender
that is not then a Lender or an Affiliate thereof, by the Borrowers and the
Agent) together with payment to the Agent (except in the case of a Lender
assigning to its Affiliate) of a registration and processing fee of $2,500, the
Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record the information contained
therein in the Register and give notice of such acceptance and recordation to
the Lenders and the Borrowers.
(f) The Borrowers authorize each Lender to disclose to any Participant or
Purchasing Lender (each, a "Transferee") and any prospective Transferee any and
----------
all financial information in such Lender's possession concerning the Borrowers
and their Subsidiaries and Affiliates which has been delivered to such Lender by
or on behalf of the Borrowers pursuant to this Agreement or any other Loan
Document or which has been delivered to such Lender by or on behalf of the
Borrowers in connection with such Lender's credit evaluation of the Borrowers
and their Subsidiaries and Affiliates prior to becoming a party to this
Agreement.
(g) If, pursuant to this Section, any interest in this Agreement, any
Letter of Credit or any Note is transferred to any Transferee which is organized
under the laws of any jurisdiction other than the United States or any state
thereof, the transferor Lender shall cause such Transferee, concurrently with
the effectiveness of such transfer, (i) to represent to the transferor Lender
and the Agent (for the benefit of the transferor Lender, the Agent and the
Borrowers) that under applicable law and treaties no taxes will be required to
be withheld by the Agent, the Borrowers or the transferor Lender with respect to
any payments to be made to such Transferee in respect of the Loans or the
Letters of Credit, (ii) to furnish to the transferor Lender, the Agent and the
Borrowers either U.S. Internal Revenue Service Form 4224 or U.S. Internal
Revenue Service Form 1001 (wherein such Transferee claims entitlement to
complete exemption from U.S. federal withholding tax on all interest payments
hereunder) and (iii) to agree (for the benefit of the transferor Lender, the
Agent and the Borrowers) to provide the transferor Lender, the Agent and the
Borrowers a new Form 4224 or Form 1001 upon the expiration or obsolescence of
any previously delivered form and comparable statements in accordance with
applicable U.S. laws and regulations and amendments duly executed and completed
by such Transferee, and to comply from time to time with all applicable U.S.
laws and regulations with regard to such withholding tax exemption.
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(h) Nothing herein shall prohibit any Lender from pledging or assigning
any of its rights under its Notes, or, if applicable, its participation in any
Letter of Credit, to any Federal Reserve Bank in accordance with applicable law.
9.7 Adjustments; Set-Off.
--------------------
(a) If any Lender (a "benefitted Lender") shall at any time receive any
-----------------
payment of all or part of its Loans, its participations in Letters of Credit, or
interest thereon, or fees, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 7(g), 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, its participations in Letters of Credit,
or interest thereon, or fees, such benefitted Lender shall purchase for cash
from the other Lenders such portion of each such other Lender's Loans,
participations in Letters of Credit, or fees, or shall provide such other
Lenders with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefitted Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
-------- -------
is thereafter recovered from such benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest. The Borrowers agree that each Lender so
purchasing a portion of another Lender's Loan or its participations in Letters
of Credit may exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if such Lender were
the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by law,
with the prior consent of the Majority Lenders, each Lender shall have the
right, exercisable upon the occurrence and during the continuance of an Event of
Default and acceleration of the Obligations pursuant to Section 7, without prior
notice to the Borrowers, any such notice being expressly waived by the Borrowers
to the extent permitted by applicable law, to set-off and appropriate and apply
against any such Obligations any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims in any currency, in each case whether direct or indirect,
absolute or contingent, matured or unmatured, at any time held or owing by such
Lender or any branch or agency thereof or bank controlling such Lender to or for
the credit or the account of the Borrowers. Each Lender agrees promptly to
notify the Borrowers after any such set-off and application made by such Lender,
provided that the failure to give such notice shall not affect the validity of
--------
such set-off and application.
9.8 Counterparts. This Agreement may be executed by one or more of the
------------
parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
9.9 Severability. Any provision of this Agreement which is prohibited or
------------
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any
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such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
9.10 Integration. This Agreement represents the entire agreement of the
-----------
Borrowers, the Agent and the Lenders with respect to the subject matter hereof,
and there are no promises, undertakings, representations or warranties by the
Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND
-------------
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
CALIFORNIA (WITHOUT REFERENCE TO ITS CHOICE OF LAW RULES).
9.12 Alternative Dispute Resolution.
------------------------------
(a) Claims or Controversies Subject to Arbitration or Judicial Reference.
(i) Any Claim other than a Claim that arises out of or relates to
any obligation under any Loan Document that is secured, in whole or in
part, by an interest in real property shall, at the written request of any
Party, be determined by Arbitration.
(ii) Any Claim that arises out of or relates to any obligation under
any Loan Document that is secured, in whole or in part, by an interest in
real property shall be determined by Arbitration only with the consent of
both, (A) the Obligor party to the Loan Document under which such Claim
arises and (B) the Majority Lenders. If both such Parties do not consent to
the determination of any such Claim by Arbitration, then such Claim shall,
at the written request of either of such Parties, be determined by
Reference.
(iii) The determination as to whether or not a Claim arises out of or
relates to any obligation under any Loan Document that is secured, in whole
or in part, by an interest in real property shall be made at the time the
arbitrator or referee is selected pursuant to Section 9.12(b).
(b) Selection of Arbitrator or Referee. Within thirty (30) days after
----------------------------------
written demand, or within thirty (30) days after commencement by any Party of
any lawsuit subject to this Agreement, the parties shall select a single neutral
arbitrator pursuant to the Commercial Arbitration Rules of the AAA or a single
neutral referee pursuant to the Judicial Reference Procedures of the AAA.
However, the arbitrator or referee selected must be a retired state or federal
court judge with at least five years of judicial experience in civil matters. In
the event that the selection pursuant to such Commercial Arbitration Rules or
Judicial Reference Procedures does not result in the appointment of a single
neutral arbitrator or a single neutral referee within such thirty (30) day
period, any Party may petition the court to appoint a single neutral arbitrator
or a single neutral referee having such qualifications. The Parties shall
equally bear the fees and expenses of the arbitrator or referee unless the
arbitrator or referee otherwise provides in the award or statement of decision.
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(c) Conduct of Arbitration or Reference. The arbitrator shall have the
-----------------------------------
powers provided under Applicable State Law and the Commercial Arbitration Rules
of the AAA, and the referee shall have the powers provided under Applicable
State Law and the Judicial Reference Procedures of the AAA except as provided in
this Agreement, including without limitation the following:
(1) The arbitrator or referee shall determine all challenges to the
legality and/or enforceability of this Agreement.
(2) The arbitrator or referee shall apply the rules of evidence to
the same extent as they would be applied in a court of law.
(3) Subject to the provisions of this Agreement, the arbitrator may
award or the referee may report, a statement of decision providing for any
remedy or relief, including without limitation judicial foreclosure, a
deficiency judgment or equitable relief, and give effect to all legal and
equitable defenses, including without limitation statutes of limitation, the
statute of frauds, waiver and estoppel.
(4) A Party may not conduct discovery unless the arbitrator or
referee grants such party leave to do so upon a showing of good cause. All
discovery shall be completed within 90 days after the appointment of the
arbitrator or referee, except upon a showing of good cause by any Party. The
arbitrator or referee shall limit discovery to non-privileged material that is
relevant to the issues to be determined by the arbitrator or referee.
(5) The referee shall determine the time of the hearing. The hearing
shall take place in Los Angeles, California. The hearing must be commenced
within sixty (60) days after completion of discovery, unless the arbitrator or
referee grants a continuance upon a showing of good cause by any Party. At least
fourteen (14) days before the date set for hearing, the Parties shall exchange
copies of exhibits to be offered as evidence, and lists of witnesses who will
testify, at such hearing. Once commenced, the hearing shall proceed day to day
until completed, unless the arbitrator or the referee grants a continuance upon
a showing of good cause by any Party. Any Party may cause to be prepared, at its
expense, a written transcription or electronic recordation of such hearing.
(6) Any award of the arbitrator or the statement of decision of the
referee shall be supported by written findings of fact and conclusions of law
which the arbitrator or the referee shall concurrently deliver to the Parties.
(7) The arbitrator shall have the power to award or the referee shall
have the power to report a statement of decision providing for reasonable
attorneys' fees and costs (including a reasonable allocation for the costs of
in-house counsel) to the prevailing party.
(8) In the event that punitive damages are permitted under Applicable
State Law, the award of the arbitrator or the statement of decision of the
referee may provide for recovery of punitive damages provided that the
arbitrator or referee first makes written findings of fact that would satisfy
the requirements for recovery of punitive damages under Applicable State Law.
Any such punitive damages shall not exceed a sum equal to three times the amount
of actual damages as determined by the arbitrator or referee.
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(9) In the event that Applicable State Law provides that publications
or communications made in a judicial proceeding are subject to a litigation
privilege, such litigation privilege shall apply to the same extent to
publications or communications made in the Arbitration or Reference.
(d) Provisional Remedies, Self-Help and Foreclosure. No provision of this
-----------------------------------------------
Section 9.12 shall limit the right of any Party (i) to exercise any self-help
remedies or seek specific performance, (ii) to foreclose upon or sell any
collateral, by power of sale or otherwise, or (iii) to obtain or oppose
provisional remedies or necessary procedural orders from a court of competent
jurisdiction, including without limitation appointment of a receiver, before,
after or during the pendency of the Arbitration or Reference. The exercise of,
or opposition to, any such remedy does not waive the right of any Party to
Arbitration or Reference pursuant to this Agreement.
(e) Miscellaneous. Any court of competent jurisdiction shall, upon the
-------------
petition of any Party, confirm the award of the arbitrator and enter judgment in
conformity therewith. Any court of competent jurisdiction shall, upon the filing
of the statement of decision of the referee, enter judgment thereon. Any such
judgment shall be final, binding and non-appealable (subject to vacation or
correction in the amounts set forth, respectively, in California Code of Civil
Procedure Sections 1286.2, 1286.4, 1286.6 and 1286.8). No party shall take any
action to contest such award or judgment except as set forth above. In the event
that multiple claims are asserted, some of which are found not subject to this
Agreement, the Parties agree to stay the proceedings of the claims not subject
to this Agreement until all other claims are resolved in accordance with this
Agreement. In the event that claims are asserted against multiple parties, some
of whom are not subject to this Agreement, the Parties agree to sever the claims
subject to this Agreement and resolve them in accordance with this Agreement. In
the event that any provision of this Section 9.12 is found to be illegal or
unenforceable, the remainder of this Section 9.12 shall remain in full force and
effect. In the event of any challenge to the legality or enforceability of this
Section 9.12, the prevailing Party shall be entitled to recover the costs and
expenses, including reasonable attorneys' fees, incurred by it in connection
therewith. Applicable State Law shall govern the interpretation of this Section
9.12.
(f) Waiver of Right to Trial by Jury. IN CONNECTION WITH ANY ARBITRATION,
--------------------------------
ANY REFERENCE OR ANY OTHER ACTION, PROCEEDING OR COUNTERCLAIM, THE BORROWERS,
THE LENDERS AND THE AGENT HEREBY EXPRESSLY, INTENTIONALLY AND IRREVOCABLY WAIVE
ANY RIGHT THEY MAY OTHERWISE HAVE TO TRIAL BY JURY OF ANY CLAIM.
(g) Defined Terms. As used in this Section 9.12, the following terms
-------------
shall have the respective meanings set forth below:
(i) "AAA" shall mean the American Arbitration Association.
---
(ii) "Applicable State Law" shall mean the law of the State of
--------------------
California; provided, however, that if any Party seeks (A) to exercise
self-help remedies, including without limitation set-off, (B) to foreclose
against or sell any collateral, by power of sale or otherwise or (iii) to
obtain or oppose provisional or ancillary remedies from a court of
competent jurisdiction before, after or during the pendency of the
Arbitration or
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Reference, the law of the state where such collateral is located shall
govern the exercise of or opposition to such rights and remedies.
(iii) "Arbitration" shall mean an arbitration conducted pursuant to
-----------
this Agreement in accordance with Applicable State Law, and under the
Commercial Arbitration Rules of the AAA, as in effect at the time the
arbitrator is selected pursuant to Section 9.12(b).
(iv) "Claim" shall mean any claim, cause of action, action, dispute
-----
or controversy between or among the Parties, including any claim, cause of
action, action, dispute or controversy alleged in or subject to a lawsuit
between or among the Parties, which arises out of or relates to:
(1) any of the Loan Documents,
(2) any negotiations, correspondence or communications relating
to any of the Loan Documents, whether or not incorporated into the Loan
Documents or any indebtedness evidenced thereby,
(3) the administration or management of the Loan Documents or
any indebtedness evidenced thereby or
(4) any alleged agreements, promises, representations or
transactions in connection therewith, including but not limited to any
claim, cause of action, action, dispute or controversy which arises out of
or is based upon an alleged tort or other breach of legal duty.
(v) "Party" shall mean any Obligor, any Lender or the Agent.
-----
(vi) "Reference" shall mean a judicial reference conducted pursuant
---------
to this Agreement in accordance with Applicable State Law and under the
Judicial Reference Procedures of the AAA, as in effect at the time the
referee is selected pursuant to Section 9.12(b) of this Agreement.
9.13 Acknowledgements. The Borrowers hereby acknowledge that:
----------------
(a) they have been advised by counsel in the negotiation, execution and
delivery of this Agreement and the Notes and the other Loan Documents;
(b) neither the Agent nor any Lender has any fiduciary relationship to the
Borrowers solely by virtue of any of the Loan Documents, and the relationship
pursuant to the Loan Documents between the Agent and the Lenders, on one hand,
and the Borrowers on the other hand, is solely that of creditor and debtor; and
(c) no joint venture exists among the Lenders or among the Borrowers, on
one hand and the Lenders, on the other hand.
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9.14 Obligations Absolute. The obligations of each Borrower hereunder
--------------------
(which are joint and several) shall remain in full force and effect without
regard to, and shall not be affected or impaired by the following, any of which
may be taken without the consent of, or notice to, such Borrower (except as
otherwise required by this Agreement), nor shall any of the following give such
Borrower any recourse or right of action against the Agent or any Lender:
(a) Any express or implied amendment, modification, renewal, addition,
supplement, extension (including, without limitation, extensions beyond the
original term) or acceleration of or to any of the Loan Documents;
(b) Any exercise or non-exercise by any Lender of any right or privilege
under any of the Loan Documents;
(c) Any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to such Borrower, any
Obligor or any other guarantor of the Obligations (which term shall include any
other party at any time directly or contingently liable for any Borrower's
obligations under the Loan Documents) or any Affiliate of any Borrower, or any
action taken with respect to this Agreement by any trustee or receiver, or by
any court, in any such proceeding, whether or not such Borrower shall have had
notice or knowledge of any of the foregoing;
(d) Any release or discharge of any Borrower from its liability under any
of the Loan Documents or any release or discharge of any endorser or guarantor
or of any other party at any time directly or contingently liable for the
Obligations;
(e) Any subordination, compromise, release (by operation of law or
otherwise), discharge, compound, collection or liquidation of any or all of the
Collateral or the Guarantor Collateral described in any of the Loan Documents or
otherwise in any manner, or any substitution with respect thereto;
(f) Any assignment or other transfer of this Agreement in whole or in part
or of any of the Loan Documents;
(g) Any acceptance of partial performance of the Obligations by any
Obligor (and such Borrower waives any and all of its rights under California
Civil Code Section 2822(a));
(h) Any consent to the transfer of the Collateral or the Guarantor
Collateral or any portion thereof; and
(i) Any bid or purchase at any sale of the Collateral or the Guarantor
Collateral.
9.15 Waivers. Each Borrower unconditionally waives any defense to the
-------
enforcement of this Agreement and the other Loan Documents, including, without
limitation:
(a) All presentments, demands for performance, notices of nonperformance,
protests, notices of protest, notices of dishonor, and notices of acceptance of
this Agreement and the other Loan Documents;
-90-
(b) Any right to require the Agent and the Lenders to proceed against any
other Borrower or any guarantor at any time, or to proceed against or exhaust
any security held by the Agent and the Lenders at any time, or to pursue any
other remedy whatsoever at any time;
(c) The defense of any statute of limitations affecting the liability of
such Borrower hereunder, the liability of any other Borrower or any guarantor
under the Loan Documents, or the enforcement thereof, to the extent permitted by
law;
(d) Any defense arising by reason of any invalidity or unenforceability of
any of the Loan Documents or any provision thereof, or any disability of any
other Borrower or any guarantor or of any manner in which the Agent and the
Lenders have exercised their rights and remedies under the Loan Documents, or by
any cessation from any cause whatsoever of the liability of any other Borrower
or any guarantor;
(e) Any defense based upon an election of remedies by the Agent and the
Lenders, including, without limitation, any election to proceed by judicial or
nonjudicial foreclosure of any security, whether real property or personal
property security, or by deed in lieu thereof, and whether or not every aspect
of any foreclosure sale is commercially reasonable, or any election of remedies,
including but not limited to, remedies relating to real property or personal
property security, which destroys or otherwise impairs the subrogation rights of
such Borrower or the rights of such Borrower to proceed against any other
Borrower or any guarantor for reimbursement, or both (including, without
limitation, Code of Civil Procedure Sections 580a, 580b, 580d and 726);
(f) Any right such Borrower may have under Code of Civil Procedure Section
580a including, without limitation, a right to a hearing with respect to the
fair market value of any Collateral or Guarantor Collateral, either before or
after foreclosure, and any right such Borrower may have to require the Agent and
the Lenders to proceed against any Collateral or Guarantor Collateral before
seeking to obtain a judgment against such Borrower hereunder;
(g) Any duty of the Agent or the Lenders to advise such Borrower of any
information known to the Agent or the Lenders regarding the financial condition
of any other Borrower and all other circumstances affecting any other Borrower's
ability to perform its obligations to the Agent and the Lenders, it being agreed
that such Borrower assumes the responsibility for being and keeping informed
regarding such condition or any such circumstances;
(h) Any rights of subrogation, reimbursement, exoneration, contribution
and indemnity, and any rights or claims of any kind or nature against any other
Borrower which arise out of or are caused by this Agreement, and any rights to
enforce any remedy which the Agent or the Lenders now have or may hereafter have
against any other Borrower, and any benefit of, and any right to participate in,
any security now or hereafter held by the Agent or the Lenders;
(i) Any right such Borrower might have, under Section 2815 of the
California Civil Code or otherwise, to revoke its obligations under this
Agreement as to any advances made by the Lenders to or on behalf of any other
Borrower or pursuant to the terms of any of the Loan Documents, it being the
intention of such Borrower that its Obligations under this Agreement remain in
full force and effect and apply to all Obligations whenever incurred; and
-91-
(j) Without limiting the generality of the foregoing or any other
provision hereof, any rights and benefits which might otherwise be available to
such Borrower under California Civil Code Sections 2809, 2810, 2819, 2839, 2845,
2848, 2849, 2850, 2899 and 3433, or any successor sections.
9.16 Headings. Section headings herein are included for convenience of
--------
reference only and shall not constitute a part of this Agreement for any other
purpose.
9.17 Copies of Certificates, Etc. Whenever the Borrowers are required to
---------------------------
deliver notices, certificates, opinions, statements or other information
hereunder to the Agent for delivery to any Lender (including under Article 4),
it shall do so in such number of copies as the Agent shall reasonably specify.
9.18 Publicity. The Agent shall have the right to review and approve, in
---------
advance, any public announcements (in any form) and any filings describing or
quoting from the credit arrangements reflected in this Agreement and the other
Loan Documents, provided, however, that the Borrowers (i) shall be permitted to
-------- -------
file copies of any Loan Document with the FCC or any other governmental agency
as required by law and (ii) shall also be permitted to disclose information
concerning the Loan Documents if the Borrowers' attorneys reasonably believe
that such disclosure is required by law.
9.19 Confidentiality. The Lenders shall take normal and reasonable
---------------
precautions to maintain the confidentiality of all non-public information
obtained pursuant to the requirements of this Agreement which has been
identified as such by the Borrowers, but may, in any event, make disclosures (i)
reasonably required by any bona fide transferee, assignee or participant in
connection with the contemplated transfer or assignment of any of the
Commitments or Loans or participations therein or participations in Letters of
Credit or (ii) as required or requested by any governmental agency or
representative thereof or as required pursuant to legal process or (iii) to its
attorneys and accountants or (iv) as required by law or (v) in connection with
litigation involving any Lender; provided that (a) such transferee, assignee or
participant agrees to comply with the provisions of this Section 9.19 unless
specifically prohibited by applicable law or court order and (b) in no event
shall any Lender be obligated or required to return any materials furnished by
any Borrower or any Subsidiary.
9.20 Certain Powers of Managing Members. Notwithstanding any provision of
----------------------------------
this Agreement to the contrary, each Borrower hereby agrees that (i) at any
time, any notice (including borrowing notices, Letter of Credit Requests,
notices of prepayment and Continuation Notices) to be given by such Borrower, or
an officer of such Borrower (including a Responsible Officer or the Chief
Financial Officer of such Borrower) hereunder or under any other Loan Document
may be executed on behalf of such Borrower or such officer by the Managing
Members and such notice shall have the same force and effect, and be binding on
such Borrower, as if it were executed by an officer of such Borrower; (ii) any
consent, approval or agreement by such Borrower, or any certificate to be given
by such Borrower or by an officer of such Borrower (including a Covenant
Compliance Certificate but excluding a Solvency Certificate), required under the
terms of this Agreement (including pursuant to Sections 8.9, 9.1 and 9.6(c)) or
under any other Loan Document shall be deemed given if executed on behalf of
such Borrower by the Managing Members and such consent, approval, agreement or
certificate shall have the same
-92-
force and effect, and be binding on such Borrower, as if it had been executed by
an officer of such Borrower; and (iii) at any time, any notice or certificate to
be given by the Agent or the Lenders hereunder (including notices of changes in
Applicable Lending Offices and notices under Sections 2.9, 2.10, 2.13 and 2.14)
or under any other Loan Document may be given by the Agent or the Lenders to
Entravision only (such Borrower hereby appointing Entravision to accept and
receive all notices hereunder on its behalf) and the Agent and the Lenders shall
have no obligation to give such notice to any other Borrower hereunder.
9.21 Relationship with Prior Agreements. This Agreement amends and restates
----------------------------------
in its entirety the Original Credit Agreement. This Agreement renews and
continues the Original Credit Agreement without any novation, discharge or
satisfaction of the underlying obligations or indebtedness (or any guaranty or
collateral security therefor), all of which obligations, indebtedness and
security remain outstanding under the Credit Agreement and the Notes.
Notwithstanding anything herein to the contrary, (a) interest and other
obligations under the Original Credit Agreement accrued and payable prior to the
date of amendment and restatement hereof but remaining unpaid shall not be
discharged and shall be due and payable in accordance with the terms of the
Original Credit Agreement, (b) interest and other obligations under the Original
Credit Agreement accrued and payable on or after the date of amendment and
restatement hereof shall be due and payable in accordance with the terms of this
Agreement and (c) Letters of Credit outstanding under the Original Credit
Agreement shall be deemed, on and after the Closing Date, to be outstanding
under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Los Angeles, California by their proper and duly
authorized officers as of the day and year first above written.
BORROWERS
---------
KSMS-TV, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President & Treasurer
TIERRA ALTA BROADCASTING, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President & Treasurer
-93-
CABRILLO BROADCASTING CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: President & Chief Financial Officer
GOLDEN HILLS BROADCASTING CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President & Treasurer
LAS TRES PALMAS CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President & Treasurer
VALLEY CHANNEL 48, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chairman & Chief Executive Officer
TELECORPUS, INC.
By: /s/ Xxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxx Xxxxxx X. Xxxxxxxxx
Title: Chairman & Chief President & Chief
Executive Officer Operating Officer
ENTRAVISION COMMUNICATIONS COMPANY, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Managing Member
By: /s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Managing Member
AGENT
-----
UNION BANK OF CALIFORNIA, N.A., as Agent
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Assistant Vice President
LENDERS
-------
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Assistant Vice President
Revolving Loan Commitment:
$27,000,000
Address for Notices
-------------------
(a) For Credit:
----------
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) For Operations:
--------------
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Approved Lending Offices
------------------------
Applicable Lending Office for Base Rate Loans:
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Applicable Lending Office for LIBOR Loans:
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Applicable Lending Office for Participations
in Letters of Credit:
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
CIBC INC., as a Lender
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Executive Director CIBC Xxxxxxxxxxx
Corp., as Agent
Revolving Loan Commitment:
$22,000,000
Address for Notices
-------------------
(a) For Credit:
----------
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) For Operations/Administration:
-----------------------------
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
0 Xxxxx Xxxx, Xxxxxxxx 0
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx (Operations)
Telephone: (000) 000-0000 (X. Xxxxx)
Facsimile: (000) 000-0000 (X. Xxxxx)
Attention: Xxxxxx Xxxxxx (Admin.)
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Approved Lending Offices
------------------------
Applicable Lending Office for Base Rate Loans:
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
2 Paces West, Building 2
Xxxxxxx, Xxxxxxx 00000
Applicable Lending Office for LIBOR Loans:
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
2 Paces West, Building 2
Xxxxxxx, Xxxxxxx 00000
Applicable Lending Office for Participations in
Letters of Credit:
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
0 Xxxxx Xxxx, Xxxxxxxx 0
Xxxxxxx, Xxxxxxx 00000
ABN-AMRO BANK N.V.,
as a Lender
By: /s/ Xxxxx X. Xxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Sr. Vice President
Revolving Loan Commitment:
$17,000,000
Address for Notices:
-------------------
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
--------------
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Credit Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Approved Lending Offices
------------------------
Applicable Lending Office for Base Rate Loans:
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Loan Administration
Applicable Lending Office for LIBOR Loans:
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Loan Administration
Applicable Lending Office for Participations in
Letters of Credit:
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Loan Administration
THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ Xxx X. Xxxxxxx
Name: Xxx X Xxxxxxx
Title: Authorized Signature
Revolving Loan Commitment:
$9,000,000
Address for Notices
-------------------
(a) For Credit:
----------
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) For Operations:
--------------
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Approved Lending Offices
------------------------
Applicable Lending Office for Base Rate Loans:
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Applicable Lending Office for LIBOR Loans:
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Applicable Lending Office for Participations in
Letters of Credit:
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
THE CIT GROUP/EQUIPMENT FINANCING, INC.,
as a Lender
By: /s/ X.X. Xxxxxx
Name: X.X. Xxxxxx
Title: Assistant Vice President
Revolving Loan Commitment:
$12,000,000
Address for Notices
-------------------
(a) For Credit:
----------
000 Xxxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) For Operations:
--------------
000 Xxxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx X'Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Approved Lending Offices
------------------------
Applicable Lending Office for Base Rate Loans:
000 Xxxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Applicable Lending Office for LIBOR Loans:
000 Xxxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Applicable Lending Office for Participations in
Letters of Credit:
000 Xxxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
CITY NATIONAL BANK,
as a Lender
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
Revolving Loan Commitment:
$12,000,000
Address for Notices
-------------------
(a) For Credit:
----------
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) For Operations:
--------------
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Approved Lending Offices
------------------------
Applicable Lending Office for Base Rate Loans:
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Applicable Lending Office for LIBOR Loans:
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Applicable Lending Office for Participations in
Letters of Credit:
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
FIRST UNION NATIONAL BANK,
as a Lender
By: /s/ Xxx X. Xxxxxx
Name: Xxx X. Xxxxxx
Title: Senior Vice President
Revolving Loan Commitment:
$22,000,000
Address for Notices
-------------------
(a) For Credit:
----------
One First Union Place
301 South College Street, DC-5
Charlotte, North Carolina 28288-0735
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) For Operations:
--------------
One First Union Place
301 South College Street, DC-5
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Approved Lending Offices
------------------------
Applicable Lending Office for Base Rate Loans:
One First Union Place
301 South College Street, DC-5
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Applicable Lending Office for LIBOR Loans:
One First Union Place
301 South College Street, DC-5
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Applicable Lending Office for Participations in Letters
of Credit:
One First Union Place
301 South College Street, DC-5
Charlotte, North Carolina 28288-0735
FLEET BANK, N.A.,
as a Lender
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Vice President
Revolving Loan Commitment:
$17,000,000
Address for Notices
-------------------
(a) For Credit:
----------
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xx.
Media & Communications Group
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
819-6203
(b) For Operations:
--------------
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xx.
Media & Communications Group
Xxx Xxxx, Xxx Xxxx 00000
Attention: Yin Xxxx Xxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Approved Lending Offices
------------------------
Applicable Lending Office for Base Rate Loans:
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xx.
Media & Communications Group
Xxx Xxxx, Xxx Xxxx 00000
Applicable Lending Office for LIBOR Loans:
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xx.
Media & Communications Group
Xxx Xxxx, Xxx Xxxx 00000
Applicable Lending Office for Participations in Letters
of Credit:
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xx.
Media & Communications Group
Xxx Xxxx, Xxx Xxxx 00000
PARIBAS,
as a Lender
By: /s/ Xxxxxx X. Xxxxxx /s/ Xxxx Xxxxxxx
Name: Xxxxxx X. Xxxxxx/Xxxx Xxxxxxx
Title: Director/Assistant Vice President
Revolving Loan Commitment:
$12,000,000
Address for Notices
-------------------
(a) For Credit:
----------
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) For Operations:
--------------
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Approved Lending Offices
------------------------
Applicable Lending Office for Base Rate Loans:
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Applicable Lending Office for LIBOR Loans:
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Applicable Lending Office for Participations in Letters
of Credit:
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
SCHEDULE 1.1
Existing Mortgages
------------------
Lease Encumbered (If Expiration Date of Lease
--------------------- ------------------------
Instrument General Description Applicable) (If Applicable)
---------- ------------------- ----------- ---------------
1. Leasehold Deed of Transmitter site for Palm Lease dated 10/1/95 between September 30, 2000
Trust, Assignment of Springs/Indio Stations The Xxxxxxx & Xxxxx Xxxxxxx
Rents and Fixture Trust, Xxxxxx & Xxxxxx
Filing dated as of Xxxxxxx, and the Xxxxxx Xxxxx
12/31/96, as amended Trust, collectively, as
landlord, and KVER-TV, as
tenant (the tenant's interest
under which was assigned to
Entravision)
2. Leasehold Deed of Transmitter site for Las Lease dated 12/20/94 between March 19, 2005
Trust, Assignment of Vegas Station Tower Management, Inc. (as
Rents and Fixture successor in interest to Oak
Filing dated as of Hill Enterprises), as
12/26/96, as amended landlord, and Tierra Alta
Broadcasting, Inc. KZIR, Ch.
15, as tenant (the tenant's
interest under which was
assigned to Entravision)
3. Leasehold Deed of Transmitter site for Denver Lease and License Agreement October 31, 1999
Trust, Assignment of Station (WGN 10/1/89 Lease) dated 10/1/89 between WGN of
Rents and Fixture Colorado, Inc., as landlord,
Filing dated as of and Golden Hills Broadcasting
12/26/96, as amended Corporation, as tenant (the
tenant's interest under which
was assigned to Entravision)
4. Leasehold Deed of Transmitter site for San Industrial Lease dated 10/1/95 September 30, 2000
Trust, Assignment of Diego Station between Palomar Repeater,
Rents and Fixture Inc., as landlord, and
Filing dated as of Cabrillo Broadcasting
12/31/96, as amended Corporation, as tenant (the
tenant's interest under which
was assigned to Entravision)
5. Leasehold Deed of Xxxxxxx Lease Lease dated 2/89 between February 28, 1999
Trust, Security Sunland Farms, Inc., as
Agreement, Assignment landlord, and Mundo Vision
of Rents and Fixture Broadcasting Company, as
Filing dated as of tenant (the tenant's interest
1/24/97, as amended under which was assigned to
Valley Channel 48, Inc., then
to Entravision)
6. Deed of Trust, Security El Paso headquarters N/A N/A
Agreement, Assignment
of Rents and Fixture
Filing dated as of
6/4/97, as amended
7. Leasehold Deed of XXXX-TV Tower Site Sublease Agreement dated August 31, 2007
Trust, Security 3/31/82, between KDBC-TV,
Agreement, Assignment Ltd., as sublessor, and Paso
of Rents and Fixture del Norte Broadcasting
Filing dated as of Corporation, as sublessee (the
6/4/97, as amended sublessee's interest under
which was assigned to
Entravision)
8. Leasehold Deed of XXXX-FM Radio Station Sublease Sublease Agreement dated March 22, 2003, with one
Trust, Security 9/22/92, between KDBC-TV, 5 1/2 year optional extension
Agreement, Assignment Ltd., as sublessor, and Paso
of Rents and Fixture del Norte Broadcasting
Filing dated as of Corporation, as sublessee (the
9/25/97, as amended sublessee's interest under
which was assigned to
Entravision)
9. Leasehold Deed of XXXX-AM Radio Station Lease Lease Agreement dated 5/26/87, May 26, 2017, with one
Trust, Security between City of El Paso, as 10-year extension
Agreement, Assignment lessor, and Paso del Norte
of Rents and Fixture Communications, Incorporated,
Filing dated as of as lessee (the lessee's
9/25/97, as amended interest under which was
assigned to Entravision)
================================================================================
AMENDED AND RESTATED CREDIT AGREEMENT
among
KSMS-TV, INC.
TIERRA ALTA BROADCASTING, INC.
CABRILLO BROADCASTING CORPORATION
GOLDEN HILLS BROADCASTING CORPORATION
LAS TRES PALMAS CORPORATION
VALLEY CHANNEL 48, INC.
TELECORPUS, INC.
ENTRAVISION COMMUNICATIONS COMPANY, L.L.C.
THE LENDERS PARTIES HERETO,
and
UNION BANK OF CALIFORNIA, N.A.
as Agent
Dated as of November 10, 1998
================================================================================
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS.......................................................... 2
1.1 Defined Terms........................................................ 2
1.2 Other Definitional Provisions........................................ 23
SECTION 2. AMOUNT AND TERMS OF LOANS AND LETTERS OF CREDIT; COMMITMENT AMOUNTS.. 23
2.1 Revolving Loans and Letters of Credit; Revolving Loan
Commitment Amounts................................................... 23
2.2 Incremental Loan Facility............................................ 26
2.3 Issuance of Letters of Credit........................................ 30
2.4 Optional Prepayments................................................. 32
2.5 Mandatory Prepayments................................................ 32
2.6 Conversion and Continuation Options.................................. 34
2.7 Minimum Amounts of Tranches.......................................... 35
2.8 Interest Rates and Payment Dates..................................... 35
2.9 Computation of Interest and Fees..................................... 36
2.10 Inability to Determine Interest Rate................................. 36
2.11 Pro Rata Treatment and Payments...................................... 37
2.12 Illegality........................................................... 37
2.13 Increased Costs...................................................... 38
2.14 Taxes................................................................ 39
2.15 Indemnity............................................................ 40
2.16 Unused Commitment Fees............................................... 40
2.17 Mitigation of Costs.................................................. 41
SECTION 3. REPRESENTATIONS AND WARRANTIES....................................... 41
3.1 Organization and Good Standing....................................... 41
3.2 Power and Authority.................................................. 42
3.3 Validity and Legal Effect............................................ 42
3.4 No Violation of Laws or Agreements................................... 42
3.5 Title to Assets; Existing Encumbrances; Intellectual and Real
Property............................................................. 42
3.6 Capital Structure and Equity Ownership............................... 43
3.7 Subsidiaries, Affiliates and Investments............................. 43
3.8 Material Contracts................................................... 43
3.9 Media Licenses....................................................... 43
3.10 Taxes and Assessments................................................ 44
3.11 Litigation and Legal Proceedings..................................... 44
3.12 Accuracy of Financial Information.................................... 44
3.13 Accuracy of Other Information........................................ 44
3.14 Compliance with Laws Generally....................................... 45
3.15 ERISA Compliance..................................................... 45
3.16 Environmental Compliance............................................. 46
3.17 Federal Regulations.................................................. 46
3.18 Fees and Commissions................................................. 46
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3.19 [Intentionally Omitted].............................................. 47
3.20 Solvency............................................................. 47
3.21 FCC-Related Representations.......................................... 47
3.22 Investment Company Act; Other Regulations............................ 48
3.23 Copyright Act Requirements........................................... 48
3.24 Nature of Business................................................... 48
3.25 Ranking of Loans..................................................... 48
3.26 Condemnation......................................................... 48
SECTION 4. CONDITIONS PRECEDENT................................................. 48
4.1 Conditions to Closing Date........................................... 48
4.2 Conditions to Incremental Loans...................................... 52
4.3 Conditions to Each Loan or Letter of Credit.......................... 53
4.4 Conditions Subsequent................................................ 54
SECTION 5. AFFIRMATIVE COVENANTS................................................ 55
5.1 Financial Statements................................................. 55
5.2 Certificates; Other Information...................................... 56
5.3 Payment of Obligations............................................... 58
5.4 Conduct of Business and Maintenance of Existence..................... 58
5.5 Maintenance of Property; Insurance................................... 58
5.6 Inspection of Property; Books and Records; Discussions............... 59
5.7 Environmental Laws................................................... 59
5.8 Use of Proceeds...................................................... 60
5.9 Compliance With Laws, Etc............................................ 60
5.10 Media Licenses....................................................... 61
5.11 Guarantees, Etc...................................................... 61
5.12 License Subsidiaries................................................. 61
5.13 Interest Rate Protection............................................. 61
5.14 Acquisition of Real Property in Fee Simple........................... 61
5.15 Leases and Licenses.................................................. 62
5.16 Lease and License Approvals.......................................... 62
5.17 Notices.............................................................. 62
5.18 Additional Material Contracts and Media Licenses..................... 62
5.19 Status of Certain Borrowers.......................................... 63
5.20 Las Tres Campanas Acquisition........................................ 63
5.21 Year 2000............................................................ 63
SECTION 6. NEGATIVE COVENANTS................................................... 63
6.1 Financial Condition Covenants........................................ 63
6.2 Limitation on Indebtedness........................................... 65
6.3 Limitation on Liens.................................................. 66
6.4 Limitation on Fundamental Changes.................................... 67
6.5 Limitation on Sale of Assets......................................... 67
6.6 Limitation on Dividends.............................................. 67
6.7 Limitation on Investments, Loans and Advances........................ 67
6.8 Limitation on Modifications of Certain Documents and Instruments..... 69
6.9 Transactions with Affiliates......................................... 69
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6.10 Fiscal Year.......................................................... 69
6.11 Lease Obligations.................................................... 69
6.12 Unfunded Liabilities................................................. 69
6.13 Management Fees...................................................... 69
6.14 Equity Offerings..................................................... 70
SECTION 7. EVENTS OF DEFAULT.................................................... 70
SECTION 8. THE AGENT............................................................ 76
8.1 Appointment.......................................................... 76
8.2 Delegation of Duties................................................. 76
8.3 Exculpatory Provisions............................................... 76
8.4 Reliance by the Agent................................................ 77
8.5 Notice of Default.................................................... 77
8.6 Non-Reliance on the Agent and Other Lenders.......................... 77
8.7 Indemnification...................................................... 78
8.8 The Agent in Its Individual Capacity................................. 78
8.9 Successor Agent...................................................... 78
SECTION 9. MISCELLANEOUS........................................................ 79
9.1 Amendments and Waivers............................................... 79
9.2 Notices.............................................................. 80
9.3 No Waiver; Cumulative Remedies....................................... 81
9.4 Survival of Representations and Warranties........................... 81
9.5 Payment of Expenses and Taxes........................................ 81
9.6 Successors and Assigns; Participations; Purchasing Lenders........... 82
9.7 Adjustments; Set-Off................................................. 85
9.8 Counterparts......................................................... 85
9.9 Severability......................................................... 85
9.10 Integration.......................................................... 86
9.11 GOVERNING LAW........................................................ 86
9.12 Alternative Dispute Resolution....................................... 86
9.13 Acknowledgements..................................................... 89
9.14 Obligations Absolute................................................. 90
9.15 Waivers.............................................................. 90
9.16 Headings............................................................. 92
9.17 Copies of Certificates, Etc.......................................... 92
9.18 Publicity............................................................ 92
9.19 Confidentiality...................................................... 92
9.20 Certain Powers of Managing Members................................... 92
9.21 Relationship with Prior Agreements................................... 93
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Exhibits
A Form of Revolving Note
B Form of Incremental Note
C Form of Assignment and Acceptance
D Form of No Default/Representation Certificate
E Form of Covenant Compliance Certificate
F Form of Continuation Notice
G Form of Letter of Credit Request
H Form of Excess Cash Flow Certificate
I Form of Activation Notice
Schedules
1.1 Existing Mortgages
3.1 Good Standing/Foreign Qualification Jurisdictions
3.2 Missing Consents
3.5A Intellectual Property
3.5B Real Property Interests
3.5C Operating Names/Trade Names
3.6 Capital Structure/Equity Ownership
3.7 Subsidiaries, Affiliates and Investments
3.8 Material Contracts
3.9 Media Licenses
3.10 Taxes and Assessments
3.11 Material Litigation
3.12 Deviations from GAAP
3.18 Fees and Commissions
3.21 Pending FCC Matters
6.2 Permitted Additional Indebtedness
6.7 Permitted Additional Investments
The registrant hereby agrees to furnish a copy of any omitted schedule or
exhibit upon request.
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