<PAGE>
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTER ENDED JUNE 30, 1999
COMMISSION FILE NUMBERS:
BENEDEK COMMUNICATIONS CORPORATION 333-09529
--------------------
BENEDEK COMMUNICATIONS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
--------------------
<TABLE>
<S> <C> <C>
DELAWARE BENEDEK COMMUNICATIONS CORPORATION 36-4076007
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
INCORPORATION OR ORGANIZATION)
</TABLE>
--------------------
100 PARK AVENUE 61101
ROCKFORD, ILLINOIS (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: 815-987-5350
--------------------
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
<TABLE>
<CAPTION>
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH REGISTERED:
------------------- --------------------
<S> <C>
NONE NONE
</TABLE>
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
NONE
Indicate by check mark whether the registrants (1) have filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months, and (2) have been subject to such filing
requirements for the past 90 days. Yes X No
_____ _____
100% of the voting common stock of Benedek Communications Corporation is
owned by affiliates.
Indicate the number of shares outstanding of each of Benedek Communications
Corporation's classes of common stock, as of the latest practicable date: At
July 30, 1999, there were outstanding 7,400,000 shares of Class B common stock,
$0.01 par value, and no shares of Class A common stock, $0.01 par value.
- --------------------------------------------------------------------------------
<PAGE>
BENEDEK COMMUNICATIONS CORPORATION AND SUBSIDIARIES
INDEX TO FORM 10-Q
<TABLE>
<CAPTION>
ITEM PAGE
NUMBER PART I - FINANCIAL STATEMENTS ----
------
<S> <C> <C>
Item 1. Financial Statements
Introductory Comments .................................................................. 2
Benedek Communications Corporation and Subsidiaries Consolidated Balance Sheets
as of December 31, 1998 and June 30, 1999 .......................................... 3
Consolidated Statements of Operations for the Three Months Ended June 30, 1998
and 1999 ........................................................................... 4
Consolidated Statements of Operations for the Six Months Ended June 30, 1998
and 1999 ........................................................................... 5
Consolidated Statements of Stockholders' (Deficit) for the Six Months Ended
June 30, 1999 ...................................................................... 6
Consolidated Statements of Cash Flows for the Six Months Ended June 30, 1998
and 1999 ........................................................................... 7
Notes to Consolidated Financial Statements ............................................ 9
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations . 12
PART II - OTHER INFORMATION
Item 1. Legal Proceedings ..................................................................... 21
Item 6. Exhibits and Reports on Form 8-K ...................................................... 21
Signatures ........................................................................................ 22
</TABLE>
-1-
<PAGE>
BENEDEK COMMUNICATIONS CORPORATION AND SUBSIDIARIES
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
IMPORTANT EXPLANATORY NOTE:
This Form 10-Q is filed, without audit, pursuant to the Securities Exchange
Act of 1934, as amended, for Benedek Communications Corporation ("Benedek
Communications"). Unless the context otherwise requires, references to the
"Company" refer to Benedek Communications and its wholly-owned subsidiaries,
Benedek Broadcasting Corporation ("Benedek Broadcasting"), Benedek License
Corporation ("BLC"), The WMTV Trust and its subsidiary, WMTV License Co., LLC
("WMTV LLC") and Benedek Cable, Inc. ("BCI"), a non-recourse subsidiary. Benedek
Communications is a holding company with minimal separate operations from its
operating subsidiary, Benedek Broadcasting. All significant intercompany
accounts and transactions have been eliminated.
The accompanying unaudited consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and the instructions for Form 10-Q and Article 10 of
Regulation S-X. Certain information and footnote disclosures normally included
in financial statements prepared in accordance with generally accepted
accounting principles have been omitted pursuant to such rules and regulations.
It is suggested that these Financial Statements be read in conjunction with the
financial information set forth in the Annual Reports on Form 10-K of Benedek
Communications and Benedek Broadcasting, for the fiscal year ended December 31,
1998.
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<PAGE>
BENEDEK COMMUNICATIONS CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31, 1998 JUNE 30, 1999
------------------ -------------------
ASSETS (UNAUDITED)
(IN THOUSANDS, EXCEPT SHARE AND PER
SHARE DATA)
<S> <C> <C>
Current Assets
Cash and cash equivalents .................... $ 4,291 $ 6,797
Receivables
Trade, net ................................. 25,984 27,298
Other ...................................... 1,389 1,287
Current portion of program broadcast rights .. 4,878 2,449
Prepaid expenses ............................. 1,623 2,005
Deferred income taxes ........................ 1,191 947
---------------- -----------------
TOTAL CURRENT ASSETS .......... 39,356 40,783
---------------- -----------------
Property and equipment ....................... 62,627 62,480
---------------- -----------------
Intangible assets ............................ 335,634 350,324
---------------- -----------------
Other assets
Program broadcast rights, less current
portion .................................. 1,198 1,702
Deferred loan costs ........................ 8,475 7,140
Land held for sale ......................... 109 109
Other ...................................... 63 63
---------------- -----------------
9,845 9,014
---------------- -----------------
$ 447,462 $ 462,601
================ =================
LIABILITIES AND STOCKHOLDERS' (DEFICIT)
Current Liabilities
Current maturities of notes payable .......... $ 15,911 $ 1,124
Current program broadcast rights payable ..... 6,994 4,347
Accounts payable and accrued expenses ........ 11,977 7,414
Deferred revenue ............................. 644 556
---------------- -----------------
TOTAL CURRENT LIABILITIES ..... 35,526 13,441
---------------- -----------------
Long-Term Obligations
Notes and leases payable ................... 358,905 415,538
Program broadcast rights payable ........... 891 1,500
Deferred revenue ........................... 2,994 2,688
Deferred income taxes ...................... 33,765 24,937
---------------- -----------------
396,555 444,663
---------------- -----------------
Exchangeable redeemable senior preferred
stock ...................................... 107,596 114,760
---------------- -----------------
Seller junior discount preferred stock ....... 55,048 57,250
---------------- -----------------
Stockholders' (Deficit)
Common stock, Class A $0.01 par value, 10,000,000
authorized none issued or outstanding ..... -- --
Common stock, Class B $0.01 par value, 10,000,000
authorized 7,400,000 issued and outstanding 74 74
Additional paid-in capital .................. (59,549) (60,433)
Accumulated deficit ......................... (87,200) (106,550)
Stockholder's note receivable ............... (588) (604)
---------------- -----------------
(147,263) (167,513)
---------------- -----------------
$ 447,462 $ 462,601
================ =================
</TABLE>
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<PAGE>
BENEDEK COMMUNICATIONS CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30,
---------------------------------------
1998 1999
------------------ ------------------
(UNAUDITED)
(IN THOUSANDS, EXCEPT SHARE
AND PER SHARE DATA)
<S> <C> <C>
Net revenues .................................... $ 36,312 $ 37,238
---------------- ---------------
Operating expenses:
Selling, technical and program expenses ...... 15,992 15,908
General and administrative .................... 5,069 5,451
Depreciation and amortization ................. 7,645 6,759
Corporate ..................................... 1,214 1,086
---------------- ---------------
29,920 29,204
---------------- ---------------
Operating income ............................ 6,392 8,034
---------------- ---------------
Financial income (expense):
Interest expense:
Cash interest ............................... (6,826) (7,227)
Other interest .............................. (4,235) (3,692)
---------------- ---------------
(11,061) (10,919)
Interest income ............................... 389 35
---------------- ---------------
(10,672) (10,884)
---------------- ---------------
Gain on sale of station ......................... -- 13,523
---------------- ---------------
Income (loss) before income tax benefit and
extraordinary item .......................... (4,280) 10,673
Income tax benefit (expense) .................... 1,281 (3,164)
---------------- ---------------
Income (loss) before extraordinary item ....... (2,999) 7,509
---------------- ---------------
Extraordinary item, loss on early
extinguishment of debt less applicable
income taxes of $8,120. ..................... -- (12,180)
---------------- ---------------
Net (loss) .................................... (2,999) (4,671)
Preferred stock dividends and accretion ......... (16,668) (4,808)
---------------- ---------------
Net (loss) applicable to common stock ........... $ (19,667) $ (9,479)
================ ===============
Basic earnings (loss) per common share:
Income (loss) before extraordinary item ....... $ (2.66) $ 0.37
Extraordinary item ............................ -- (1.65)
---------------- ---------------
(Loss) per common share ....................... $ (2.66) $ (1.28)
================ ===============
Weighted-average common shares outstanding-basic 7,400,000 7,400,000
================ ===============
Diluted earnings (loss) per common share:
Income (loss) before extraordinary item ....... $ (2.47) $ 0.74
Extraordinary item ............................ -- (1.53)
---------------- ---------------
(Loss) per common share ....................... $ (2.47) $ (0.79)
================ ===============
Weighted-average common shares - diluted ........ 7,950,000 7,950,000
================ ===============
</TABLE>
-4-
<PAGE>
BENEDEK COMMUNICATIONS CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30,
-------------------------------------
1998 1999
----------------- -----------------
(UNAUDITED)
(IN THOUSANDS, EXCEPT SHARE
AND PER SHARE DATA)
<S> <C> <C>
Net revenues ..................................$ 67,007 $ 69,519
--------------- ---------------
Operating expenses:
Selling, technical and program expenses .... 31,392 31,095
General and administrative .................. 10,302 12,111
Depreciation and amortization ............... 15,433 14,573
Corporate ................................... 2,591 2,327
--------------- ---------------
59,718 60,106
Operating income .......................... 7,289 9,413
--------------- ---------------
Financial income (expense):
Interest expense:
Cash interest ............................. (13,677) (13,570)
Other interest ............................ (8,256) (8,232)
--------------- ---------------
(21,933) (21,802)
Interest income ............................. 423 73
--------------- ---------------
(21,510) (21,729)
--------------- ---------------
Gain on sale of station ....................... -- 13,523
--------------- ---------------
Income before income tax benefit and
extraordinary item ........................ (14,221) 1,207
Income tax benefit ............................ 5,091 90
--------------- ---------------
Income (loss) before extraordinary item ..... (9,130) 1,297
--------------- ---------------
Extraordinary item, loss on early
extinguishment of debt less
applicable income taxes of $8,120 ......... -- (12,180)
--------------- ---------------
Net (loss) .................................. (9,130) (10,883)
Preferred stock dividends and accretion ....... (21,877) (9,366)
--------------- ---------------
Net (loss) applicable to common stock .........$ (31,007) $ (20,249)
=============== ===============
Basic and diluted (loss) per common share:
(Loss) before extraordinary item ..........$ (4.19) $ (1.09)
Extraordinary item ........................ -- (1.65)
--------------- ---------------
(Loss) per common share ...................$ (4.19) $ (2.74)
=============== ===============
Weighted-average common shares outstanding .... 7,400,000 7,400,000
=============== ===============
</TABLE>
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<PAGE>
BENEDEK COMMUNICATIONS CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' (DEFICIT)
SIX MONTHS ENDED JUNE 30, 1999
<TABLE>
<CAPTION>
ADDITIONAL STOCKHOLDER'S
COMMON PAID-IN ACCUMULATED NOTE
STOCK CAPITAL DEFICIT RECEIVABLE TOTAL
------------ ---------- -------------- -------------- ---------
(UNAUDITED)
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1998 ........................ $ 74 $ (59,549) $ (87,200) $ (588) $(147,263)
Accretion to exchangeable redeemable
senior preferred stock .......................... -- (899) -- -- (899)
Dividends on preferred stock ...................... -- -- (8,467) -- (8,467)
Financial costs related to the sale
of preferred stock .............................. -- (1) -- -- (1)
Accrued interest on note receivable ............... -- 16 -- (16) --
Net (loss) ........................................ -- -- (10,883) -- (10,883)
--------- --------- --------- --------- ---------
Balance at June 30, 1999 ............................ $ 74 $ (60,433) $(106,550) $ (604) $(167,513)
========= ========= ========= ========= =========
</TABLE>
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<PAGE>
BENEDEK COMMUNICATIONS CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30,
---------------------------------
1998 1999
--------- ---------
(UNAUDITED)
(IN THOUSANDS)
<S> <C> <C>
Cash flows from operating activities
Net (loss) ......................................................................... $ (9,130) $ (10,883)
Adjustments to reconcile net (loss) to net cash provided by (used in)
operating activities:
Amortization of program broadcast rights ..................................... 3,320 3,883
Depreciation and amortization ................................................ 10,622 9,741
Amortization and write-off of intangibles and deferred loan costs ............ 5,843 5,839
Loss on early extinguishment of debt ......................................... -- 20,300
Gain on sale of station ...................................................... -- (13,523)
Amortization of note discount ................................................ 7,242 8,232
Deferred income taxes ........................................................ (5,044) (8,584)
Other ........................................................................ (553) --
Changes in operating assets and liabilities, net of effects of acquisitions:
Receivables ...................................................................... (559) (1,211)
Prepaid expenses and other ....................................................... (583) (383)
Payments on program broadcast rights payable ..................................... (3,526) (3,989)
Accounts payable and accrued expenses ............................................ (1,004) (4,607)
Deferred revenue ................................................................. (346) (400)
--------- ---------
Net cash provided by operating activities .................................... 6,282 4,415
--------- ---------
Cash flows from investing activities
Purchase of property and equipment ................................................. (3,609) (3,493)
Payment for acquisition of station ................................................. -- (9,498)
Other .............................................................................. 66 19
--------- ---------
Net cash (used in) investing activities .......................................... (3,543) (12,936)
--------- ---------
Cash flows from financing activities
Principal payments on notes payable ................................................ (648) (614)
Net borrowings (payments) on long-term revolver .................................... (3,000) 55,000
Proceeds from senior preferred stock ............................................... 100,000 --
Payoff of senior preferred stock ................................................... (92,769) --
Issuance of term loan .............................................................. -- 220,000
Redemption of Senior Secured Notes ................................................. -- (149,933)
Payment of existing term loan ...................................................... -- (108,317)
Payment of debt and preferred stock acquisition costs .............................. (4,144) (5,073)
--------- ---------
Net cash provided by (used in) financing activities .............................. (561) 11,063
--------- ---------
Increase in cash and cash equivalents ............................................ 2,178 2,506
Cash and cash equivalents:
Beginning .......................................................................... 2,648 4,291
--------- ---------
Ending ............................................................................. $ 4,826 $ 6,797
========= =========
</TABLE>
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<PAGE>
BENEDEK COMMUNICATIONS CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (CONTINUED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30,
-----------------------------
1998 1999
-------- --------
(UNAUDITED)
(IN THOUSANDS)
<S> <C> <C>
Supplemental Disclosure of Cash Flow Information:
Cash payments for interest ....................... $ 13,667 $ 18,057
Cash payments for income taxes ................... 146 408
======== ========
Supplemental Schedule of Noncash Investing and
Financing Activities:
Acquisition of program broadcast rights .......... $ 176 $ 1,591
Notes payable incurred for purchase of equipment . 1,171 2,544
Equipment acquired by barter transactions ........ 603 90
Dividends accrued on redeemable preferred stock .. 7,828 8,467
Accrued interest on note receivable stockholder
added to additional paid in capital ............ -- 16
Accretion to exchangeable redeemable
senior preferred stock ......................... 14,049 899
Stock options exercised in exchange for
note receivable ................................ 571 --
======== ========
Total Purchase Price ............................... $ -- $ 33,829
Less:
Amount paid in 1998 ............................ -- (59)
Fair market value of KCOY-TV ................... -- (24,272)
-------- --------
Payment for acquisition of station ........... $ -- $ 9,498
======== ========
Property and equipment acquired at fair market value $ -- $ 6,255
Intangible assets acquired ......................... -- 27,574
-------- --------
Less: ............................................ -- 33,829
Amount paid in 1998 ............................ -- (59)
Fair market value of KCOY ...................... -- (24,272)
-------- --------
$ -- $ 9,498
======== ========
</TABLE>
-8-
<PAGE>
BENEDEK COMMUNICATIONS CORPORATION AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
(NOTE A) - NATURE OF BUSINESS AND BASIS OF PRESENTATION
NATURE OF BUSINESS
Benedek Communications is a holding company with minimal operations other
than from its wholly-owned subsidiary, Benedek Broadcasting. Benedek
Broadcasting owns and operates twenty-three television stations (the "Stations")
located throughout the United States. The operating revenues of the Stations are
derived primarily from the sale of advertising time and, to a lesser extent,
from compensation paid by the networks for broadcasting network programming and
barter transactions for goods and services. The Stations sell commercial time
during the programs to national, regional and local advertisers. The networks
also sell commercial time during the programs to national advertisers. Credit
arrangements are determined on an individual customer basis. Segment information
is not presented since all of the Company's revenue is attributed to a single
reportable segment.
BASIS OF PRESENTATION
The consolidated financial statements of Benedek Communications include the
accounts of Benedek Communications and its wholly-owned subsidiaries, Benedek
Broadcasting, BLC, BCI and The WMTV Trust and its subsidiary. All significant
intercompany items and transactions have been eliminated in the consolidated
financial statements.
The accompanying unaudited financial statements have been prepared in
accordance with generally accepted accounting principles for interim financial
information and with the instructions for Form 10-Q and Article 10 of Regulation
S-X. Accordingly, they do not include all of the information and footnotes
required by generally accepted accounting principles for complete financial
statements. In the opinion of management, all adjustments (consisting of normal
recurring accruals) considered necessary for the fair presentation of the
financial positions as of June 30, 1999 and the results of operations for the
three months and six months ended June 30, 1999 have been included. Operating
results for the three months and six months ended June 30, 1999 are not
necessarily indicative of the results that may be expected for the fiscal year
ending December 31, 1999. For further information, refer to the consolidated
financial statements and footnotes thereto included in the Annual Report on Form
10-K of the Company for the year ended December 31, 1998.
(NOTE B) - STATION SWAP
On December 30, 1998, the Company entered into an Asset Exchange Agreement
with The Ackerley Group, Inc. ("Ackerley") pursuant to which the Company
exchanged the television broadcast assets of KCOY-TV, in Santa Maria, California
("KCOY-TV") for the television broadcast assets of KKTV, Ackerley's station in
Colorado Springs, Colorado ("KKTV"). Both KCOY-TV and KKTV are CBS affiliates.
The exchange was completed on May 1, 1999.
The parties entered into a time brokerage agreement for each station, in
effect from January 1, 1999 until April 30, 1999. During the time brokerage
period, the revenue and expenses of each station went to the account of the
buyer, net of applicable time brokerage fees. The net time brokerage fee expense
was $508,000 for the six months ended June 30, 1999.
-9-
<PAGE>
The total purchase price for KKTV was $33,829,000 which consisted of the
fair market value of KCOY-TV of $24,272,000, cash payment of $9,000,000 and fees
of $557,000. The transaction was recorded as a purchase. The purchase price was
allocated to fixed assets in the amount of $6,255,000 and intangibles in the
amount of $27,574,000.
A gain on sale of station in the amount of $13,523,000 was recorded to
reflect the transfer of assets to Ackerley of KCOY-TV which consisted of the net
of the fair market value of the KCOY-TV assets of $24,272,000 less their book
value of $10,749,000.
(NOTE C) - LOSS ON EARLY EXTINGUISHMENT OF DEBT
On April 16, 1999, the Company commenced a tender offer and consent
solicitation (the "Offer") for any and all of the $135,000,000 in outstanding
principal amount of its 11 7/8% Senior Secured Notes due 2005 ("the Notes"). The
total consideration for each of $1,000 principal of Notes was $1,105.78 which
consisted of the Offer price per $1,000 principal of Notes of $1,075.78 and a
consent payment of $30 per $1,000 principal amount of Notes.
On May 20, 1999, the Company redeemed all of the outstanding Notes. The
offer was financed through a new senior credit facility. A total of $12,180,000
(net of $8,120,000 of applicable income taxes) was reflected as a loss on the
early extinguishment of debt which was comprised of prepayment premiums, consent
payments, expenses of the transaction and a write-off of unamortized fees
associated with the Notes.
(NOTE D) - REFINANCING
On May 20, 1999, the Company borrowed $275,000,000 against a new credit
facility (the "Credit Facility") with an aggregate borrowing limit of
$310,000,000. The proceeds were used by the Company to finance the tender Offer
of the Notes and pay-off its existing credit facility.
The Credit Facility includes a $220,000,000 term loan (the "Term Loan") and
a $90,000,000 revolver (the "Revolver") of which $35,000,000 was unused at June
30, 1999. The Term Loan and the Revolver bear interest initially at the
Company's option, at a base rate plus 2.25% and 1.75%, respectively or at a
LIBOR rate plus 3.25% and 2.75%, respectively. The margins above the base rate
and the LIBOR rate at which the Term Loans and the Revolver bear interest are
subject to reductions based on certain leverage ratios. The unused portion of
the Revolver is subject to a commitment fee ranging from 0.75% per annum to
0.375% per annum based on certain leverage ratios.
The Company is required to make scheduled amortization payments on the Term
Loan, as follows: 2002- $1,650,000; 2003-$2,200,000; 2004 - $2,200,000; 2005 -
$2,200,000; 2006 - $2,200,000 and 2007 - $209,550,000. In addition, the Company
is required to make prepayments on the Term Loan and the Revolver under certain
circumstances, including upon the sale of certain assets and the issuance of
certain debt or equity securities. Beginning in 2002, the Company is required to
make prepayments on the Term Loan and the Revolver in an amount equal to 50% of
excess cash flow (as defined).
The commitment under the Revolver will be permanently reduced over the
period from June 2002 to maturity in 2007, as follows: 2002 - $10,125,000; 2003
- - $13,500,000; 2004 - $16,875,000; 2005 - $21,375,000; 2006 - $22,500,000 and
2007 - $5,625,000. In addition, the commitment under the Revolver will be
permanently reduced in certain circumstances including upon the sales of certain
assets and the issuance of certain debt or equity securities and excess cash
flow (as defined). The Company has the right to pay the Revolver without penalty
in increments of $1,000,000, at which time the commitment will be permanently
reduced.
The Credit Facility contains certain financial covenants, including, but not
limited to, covenants related to interest coverage, total and senior leverage
ratios and fixed charge ratio. In addition, the Credit Facility contains other
affirmative and negative covenants relating to (among other things) liens,
payments on other
-10-
<PAGE>
debt, restricted junior payments (excluding distributions from Benedek
Broadcasting to Benedek Communications) transactions with affiliates, mergers
and acquisitions, sales of assets, guarantees and investments. The Credit
Facility contains customary events of default for highly-leveraged financings,
including certain changes in ownership or control of the Company.
The Credit Facility is secured by certain of the Company's present and
future property and assets. The Credit Facility is also guaranteed by BLC, a
wholly-owned subsidiary of Benedek Broadcasting that holds the FCC licenses and
authorizations for the stations, and is secured by all of the common stock of
BLC. The Credit Facility is also guaranteed by WMTV LLC, a wholly owned
subsidiary of the WMTV Trust. WMTV LLC holds the FCC license for WMTV, Madison,
Wisconsin.
(NOTE E) - STOCK OPTION PLAN
In December 1998, the Company's Board of Directors (the "Board") adopted the
1999 Stock Option Plan (the "Plan") whereby from time to time on or before
December 31, 2008, options to purchase shares of Class B Common Stock may be
granted to employees, directors or consultants and advisors of the Company and
its subsidiaries. The aggregate number of shares of common stock which may be
purchased pursuant to options granted at any time under the Plan shall not
exceed 240,000. The purchase price per share shall be the fair market value, as
defined by the Plan, or an amount determined by the Board. If options are
granted to an employee who, at the time of the grant, owns more that ten percent
of the voting stock of the Company, the purchase price per share shall be at
least one hundred and ten percent of the fair market value, as defined by the
Plan.
On January 1, 1999, the Board granted options to purchase a total of 165,000
shares of Class B Common Stock at a price of $15 per share to several key
employees. The options vest over six years at 10% for the first three years, 20%
in 2002 and 25% for each of 2003 and 2004.
(NOTE F) - EARNINGS (LOSS) PER COMMON SHARE
Basic earnings (loss) per common share for the three months and six months
ended June 30, 1998 and 1999 were computed by dividing income (loss) before
extraordinary item, extraordinary item and net loss after the reduction for
preferred stock dividends and accretion, by the weighted average number of
common shares outstanding during the period.
Diluted earnings (loss) per common share for the three months ended June 30,
1998 and 1999 were computed assuming the exercise of 550,000 warrants (the
"Warrants"). The Warrants were issued by the Company during 1996 in conjunction
with the issuance of the Company's 15.0% Exchangeable Senior Preferred Stock,
all of which was redeemed in 1998. Diluted earnings for the six months ended
June 30, 1998 and 1999 have not been presented because the effect of the
Warrants was anti dilutive.
(NOTE G) - PENDING ADOPTION OF ACCOUNTING STANDARD
The FASB (Financial Accounting Standards Board) has issued FASB statement
No. 133 "Accounting for Derivative Instruments and Hedging Activities" which the
Company will be required to adopt for its year ending December 31, 2001, as
amended by FASB statement No. 137. This pronouncement establishes accounting and
reporting standards for derivative instruments, including certain derivative
instruments embedded in other contracts, (collectively referred to as
derivatives) and for hedging activities. It requires that an entity recognize
all derivatives as either assets or liabilities in the statement of financial
position and measure those instruments at fair value. This pronouncement is not
expected to have a significant impact on the Company's financial statements.
-11-
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
OVERVIEW
This Quarterly Report on Form 10-Q contains forward-looking statements that
involve risks and uncertainties. Wherever possible, the Company has identified
these forward looking statements by words such as "anticipates," "believes,"
"estimates," " expects" and similar expressions. Actual results could differ
materially from those anticipated in these forward-looking statements as a
result of certain factors, including changes in national and regional economies,
competition in the television business, pricing fluctuations in local and
national advertising, program ratings and changes in programming costs, among
other factors. The Company assumes no obligation to update publicly any forward
looking statements, whether as a result of new information, future events or
otherwise.
Except as otherwise provided, the financial data set forth below is derived
from the historical financial statements of the Company prepared in accordance
with generally accepted accounting principles. Such historical financial data
includes the results of operations of KKTV which was operated under a time
brokerage agreement (a "TBA") with Ackerley from January 1, 1999 until closing,
net of the fees associated with such TBA. The historical financial data also
includes the limited operating results and TBA fee revenue of KCOY-TV which was
being operated by Ackerley under a TBA from January 1, 1999 until closing.
KCOY-TV was exchanged for KKTV in a transaction which closed on May 1, 1999. As
used herein, "Same Station" data refers to the historical results of operations
of all 23 television stations currently operated by the Company if such stations
were owned by the Company throughout the periods indicated with pro forma
adjustments only for TBA fees and revenue. Same Station information excludes the
results of BCI, a nonrecourse Subsidiary. Same Station information does not
purport to represent what the Company's results of operations would have been if
such transactions had been effected at the beginning of such periods and does
not purport to project results of operations of the Company in any future
period.
Broadcast cash flow is defined as operating income, excluding net income of
nonrecourse subsidiaries, before financial income as derived from the
consolidated statements of operations plus depreciation and amortization,
amortization of program broadcast rights, corporate expenses and noncash
compensation less payments for program broadcast rights. The Company has
included broadcast cash flow data because (i) the information is a measurement
utilized by lenders to measure the Company's ability to service its debt and pay
for capital expenditures, (ii) the information is a measurement utilized by
industry analysts to determine a market value of the Company's television
stations and (iii) the information is a measurement industry analysts utilize
when evaluating and comparing the operating performance of the Company.
Broadcast cash flow does not purport to represent cash provided by operating
activities as reflected in the Company's Consolidated Financial Statements, is
not a measure of financial performance under generally accepted accounting
principles and should not be considered in isolation or as a substitute for
measures of performance prepared in accordance with generally accepted
accounting principles. Broadcast cash flow is also not reflected in the
Company's consolidated statements of cash flows; but it is a common and
meaningful measure for comparison to other companies in the broadcast industry.
The amounts excluded from broadcast cash flow are significant components in
understanding and assessing the Company's results of operations and cash flows.
The term "broadcast cash flow" may not be the same terminology utilized by other
companies in the presentation of similar information.
Adjusted EBITDA is defined as operating income, excluding net income of
nonrecourse subsidiaries, before financial income as derived from the
consolidated statements of operations plus depreciation and amortization,
amortization of program broadcast rights and noncash compensation less payments
for program broadcast rights. The Company has included Adjusted EBITDA data
because (i) the information is a measurement utilized by lenders to measure the
Company's ability to service its debt and pay for capital expenditures, (ii) the
information is a measurement utilized by industry analysts to determine a
private market value of the Company's television stations and (iii) the
information is a measurement industry analysts utilize when evaluating and
comparing the operating performance of the Company. Adjusted
-12-
<PAGE>
EBITDA does not purport to represent cash provided by operating activities as
reflected in the Company's Consolidated Financial Statements, is not a measure
of financial performance under generally accepted accounting principles and
should not be considered in isolation or as a substitute for measures of
performance prepared in accordance with generally accepted accounting
principles. Adjusted EBITDA is also not reflected in the Company's consolidated
statements of cash flows; but it is a common and meaningful measure for
comparison to other companies in the broadcast industry. The amounts excluded
from Adjusted EBITDA are significant components in understanding and assessing
the Company's results of operations and cash flows. The term "Adjusted EBITDA"
may not be the same terminology utilized by other companies in the presentation
of similar information.
The Company believes that Adjusted EBITDA and broadcast cash flow
information discussed below provide meaningful information as to the performance
of the television stations owned by the Company, particularly information that
is presented on a Same Station basis. Changes from year to year indicate how the
Company has performed in its efforts to increase net sales and manage expenses
on an operating basis.
The Company owns 23 network-affiliated television stations (the "Stations")
in the United States. The Stations are diverse in geographic and network
affiliation, serve small to medium-sized markets and, in the aggregate, reach
communities in 24 states. The Company's broadcast signals reach approximately
2.9 million households, representing more than 20% of all television households
in the markets above 100. Twelve of the Stations are affiliated with CBS, six
are affiliated with ABC, four are affiliated with NBC, and one is affiliated
with Fox. Additionally, the Company has entered into agreements with Warner
Bros. Television Network to develop a local cable affiliate called the "WB 100+
Station Group" (the "WeB") in each of the Company's 20 markets which are outside
of the 100 largest in the U.S., as measured by A.C. Nielsen Company.
During September 1998, the Company began delivering The Warner Bros.
Television Network programming to local cable companies in 15 of the Company's
20 markets which rank above market 100 as measured by Nielsen surveys. These
local affiliates are called the "WeB" and are operated by a newly-formed
wholly-owned subsidiary of Benedek Broadcasting called BCI. The WeB is a 24
hour, seven day a week television channel which broadcasts The Warner Bros.
Television Network prime time programming, WB Kids children's programming and
syndicated programming of Warner Bros. and others. The Company is continuing its
negotiations with cable systems in its markets for the carriage of WeB
programming to all households within its WeB markets. The WeB's impact on the
Company's operations for the three months and the six months ended June 30, 1999
was insignificant and is expected to be insignificant for the balance of 1999.
For purposes of the Company's Adjusted EBITDA, the results of operations of BCI
are excluded due to its status as a nonrecourse subsidiary.
On December 30, 1998, the Company entered into an Asset Exchange Agreement
with Ackerley pursuant to which it agreed to exchange the television broadcast
assets of KCOY-TV for the television broadcast assets of KKTV. Both KCOY-TV and
KKTV are CBS affiliates. The exchange was completed on May 1, 1999. The
transaction was structured, to the extent feasible, as a tax-free exchange
pursuant to Section 1031 of the Internal Revenue Code. The parties also entered
into a time brokerage agreement for each station, in effect from January 1, 1999
until the closing. During the time brokerage period, the revenues and expenses
of each station went to the account of the buyer, net of applicable time
brokerage fees. The net time brokerage fee expense was $0.5 million for the six
months ended June 30, 1999. The total purchase price for KKTV was $33.8 million
which consisted of the fair market value of KCOY-TV of $24.3 million, cash
payment of $9.0 million, and fees of $0.5 million. The transaction was recorded
as a purchase. The purchase price was allocated to fixed assets in the amount of
$6.2 million and intangibles in the amount of $27.6 million. A gain in the
amount of $13.5 million was recorded to reflect the transfer of assets to
Ackerley of KCOY-TV which consisted of the fair market value of the KCOY-TV
assets of $24.3 million less their book value of $10.8 million.
-13-
<PAGE>
During October 1998, the Company transferred WMTV-TV, the Company's station
in Madison, Wisconsin to a trust (the "WMTV Trust") due to the Grade A broadcast
signal overlap between WMTV-TV and WIFR-TV, the Company's station in Rockford,
Illinois. Under the trust arrangement, the Company relinquished control of
WMTV-TV to a trustee while retaining the economic risks and benefits of
ownership. On August 5, 1999, the FCC approved new duopoly rules which will
enable the company to own both. WMTV-TV and WIFR-TV. As a result, the Company
anticipates terminating the WMTV Trust during the third quarter 1999.
The operating revenues of the Company are derived primarily from the sale of
advertising time and, to a lesser extent, from compensation paid by the networks
for broadcasting network programming and barter transactions for goods and
services. Revenue depends on the ability of the Company to provide popular
programming which attracts audiences in the demographic groups targeted by
advertisers, thereby allowing the Company to sell advertising time at
satisfactory rates. Revenue also depends significantly on factors such as the
national and local economy and the level of local competition.
The Company's primary operating expenses are employee compensation,
programming, depreciation and amortization. Changes in compensation expense
result primarily from adjustments to fixed salaries based on employee
performance and inflation and, to a lesser extent, from changes in sales
commissions paid based on levels of advertising revenues. Programming expense
consists primarily of amortization of program rights. The Company purchases
first run and off-network syndicated programming on an ongoing basis. Under its
contract with the network, a network-affiliated station receives approximately
two-thirds of its daily programming from its network and in turn is compensated,
in most cases, by its network for carrying such programming with the network's
commercial content intact.
For the three months ended June 30, 1999, the Company reported net revenues
of $37.2 million compared to net revenues of $36.3 million for the three months
ended June 30, 1998. The Company had a net loss of $4.7 million for the three
months ended June 30, 1999, compared to a net loss of $3.0 million for the three
months ended June 30, 1998. Adjusted EBITDA for the three months ended June 30,
1999 was $15.0 million as compared to $13.9 million for the three months ended
June 30, 1998.
For the six months ended June 30, 1999, the Company reported net revenues of
$69.5 million compared to net revenues of $67.0 million for the six months ended
June 30, 1998. The Company had a net loss of $10.9 million for the six months
ended June 30, 1999, compared to a net loss of $9.1 million for the six months
ended June 30, 1998. Adjusted EBITDA for the six months ended June 30, 1999 was
$24.0 million as compared to $22.5 million for the six months ended June 30,
1998.
-14-
<PAGE>
The following table sets forth certain historical results of the operations
and operating data for the periods indicated. The table reflects the operating
effects of the TBA's associated with the exchange of KCOY-TV for KKTV (the
"Station Swap") only since January 1, 1999.
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30, SIX MONTHS ENDED JUNE 30,
------------------------------ ------------------------------
1998 1999 1998 1999
---- ---- ---- ----
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Operating income ................................... $ 6,392 $ 8,034 $ 7,289 $ 9,413
Add:
Amortization of program broadcast rights ..... 1,622 1,944 3,320 3,883
Depreciation and amortization ................ 7,645 6,759 15,433 14,573
Corporate expenses ........................... 1,214 1,086 2,591 2,327
Operating loss of nonrecourse subsidiary -- 33 -- 93
Less:
Payment for program broadcast liabilities .... (1,774) (1,771) (3,526) (3,989)
-------- -------- -------- --------
Broadcast cash flow(1) ............................. $ 15,099 $ 16,085 $ 25,107 $ 26,300
======== ======== ======== ========
</TABLE>
(1) Excludes BCI, a nonrecourse subsidiary
THREE MONTHS ENDED JUNE 30, 1999 COMPARED TO THREE MONTHS ENDED JUNE 30, 1998
The following table provides both historical information and Same Station
information for the three months ended June 30, 1998 and 1999. The Same Station
information gives effect to the Station Swap as if the exchange was consummated
on January 1, 1998.
<TABLE>
<CAPTION>
HISTORICAL SAME STATION
THREE MONTHS ENDED JUNE 30, THREE MONTHS ENDED JUNE 30,
-------------------------------- ----------------------------------
% %
1998 1999 CHANGE 1998 1999 CHANGE
-------- ---- ------ ---- ---- ------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Local/regional ............... $ 23,290 $ 24,383 4.7% $ 24,056 $ 24,329 1.1%
National ..................... 11,665 13,745 17.8 12,487 13,736 10.0
Political .................... 1,343 201 (85.0) 1,035 201 (80.6)
Other ........................ 5,435 4,817 (11.4) 5,389 4,673 (13.3)
-------- -------- -------- -------- -------- --------
41,733 43,146 3.4 42,967 42,939 (0.1)
-------- -------- -------- -------- -------- --------
Direct costs ................. 5,421 5,908 9.0 5,631 5,887 4.5
-------- -------- -------- -------- -------- --------
Net revenues ................. 36,312 37,238 2.6 37,336 37,052 (0.8)
Operating expenses:
Selling, technical and
program expenses ......... 15,992 15,908 (0.5) 16,636 15,815 (4.9)
General and administrative . 5,069 5,451 7.5 5,170 5,162 (0.2)
Depreciation and amortization 7,645 6,759 (11.6) 7,511 6,661 (11.3)
Corporate .................. 1,214 1,086 (10.5) 1,220 1,087 (10.9)
-------- -------- -------- -------- -------- --------
29,920 29,204 (2.4) 30,537 28,725 (5.9)
-------- -------- -------- -------- -------- --------
Operating income .... $ 6,392 $ 8,034 25.7% $ 6,799 $ 8,327 22.5%
======== ======== ======== ======== ======== ========
Broadcast cash flow(1) ....... $ 15,099 $ 16,085 6.5% $ 15,371 $ 16,249 5.7%
Broadcast cash flow margin(1) 41.6% 43.3% 41.2% 43.9%
Adjusted EBITDA(1) ........... $ 13,885 $ 14,998 8.0% $ 14,151 $ 15,162 7.1%
Adjusted EBITDA margin(1) .... 38.2% 40.4% 37.9% 40.9%
</TABLE>
(1) Excludes BCI, a nonrecourse subsidiary
-15-
<PAGE>
Net revenues for the three months ended June 30, 1999 increased $0.9
million or 2.6% to $37.2 million from $36.3 million for the three months ended
June 30, 1998. Net revenues excluding political advertising revenue increased
$2.0 million or 5.9% to $37.0 million from $35.0 million for the three months
ended June 30, 1999. The increase was primarily caused by the effect of the
TBA's associated with the Station Swap. On a Same Station basis, net revenues
for the three months ended June 30, 1999 were $37.0 million as compared to $37.3
million for the three months ended June 30, 1998.
Operating expenses for the three months ended June 30, 1999 decreased $0.7
million or 2.4% to $29.2 million from $29.9 million for the three months ended
June 30, 1998. The decrease in operating expenses was attributable primarily to
reductions in depreciation and amortization and decreased payroll-related costs
which were offset in part by the effect of the Station Swap. On a Same Station
basis, operating expenses for the three months ended June 30, 1999 decreased
$1.8 million or 5.9% to $28.7 million from $30.5 million for the three months
ended June 30, 1998 resulting primarily from decreased payroll-related costs and
depreciation and amortization.
Operating income for the three months ended June 30, 1999 increased $1.6
million or 25.7% to $8.0 million from $6.4 million for the three months
ended June 30, 1998. On a Same Station basis, operating income for the three
months ended June 30, 1999 increased $1.5 million or 22.5% to $8.3 million
from $6.8 million for the three months ended June 30, 1998.
Financial (expenses), net for the three months ended June 30, 1999
increased $0.2 million or 2.0% to $10.9 million from $10.7 million for the three
months ended June 30, 1998.
Gain on station sale of $13.5 million was the result of the Station Swap
where the fair market value of the assets of KCOY-TV in the amount of $24.3
million was exchanged for the assets of KKTV. The book value of the KCOY-TV
assets were $10.8 million.
Income tax expense for the Company for the three months ended June 30, 1999
was $3.2 million compared to a $1.3 million income tax benefit for the three
months ended June 30, 1998. The expense for the three months ended June 10, 1999
is due to the $13.5 million gain on the sale of KCOY-TV.
Extraordinary loss was $12.2 million for the three months ended June 30,
1999 net of applicable income taxes of $8.1 million. The loss was reflected as a
result of the early extinguishment of debt associated with the completion of the
tender offer for $135.0 million of outstanding Notes. Total consideration of
$149.9 million, fees of the transaction and a write-off of deferred loan costs
caused the loss.
Net loss for the Company for the three months ended June 30, 1999 was $4.7
million as compared to $3.0 million net loss for the three months ended June 30,
1998.
Broadcast cash flow for the three months ended June 30, 1999 increased $1.0
million or 6.5% to $16.1 million from $15.1 million for the three months ended
June 30, 1998. As a percentage of net revenues, broadcast cash flow margin
increased to 43.3% for the three months ended June 30, 1999 from 41.6% for the
three months ended June 30, 1998.
On a Same Station basis, broadcast cash flow for the three months ended
June 30, 1999 increased $0.8 million or 5.7% to $16.2 million from $15.4 million
for the three months ended June 30, 1998. As a percentage of net revenues,
broadcast cash flow margin on a Same Station basis increased to 43.9% for the
three months ended June 30, 1999 from 41.2% for the three months ended June 30,
1998.
-16-
<PAGE>
SIX MONTHS ENDED JUNE 30, 1999 COMPARED TO SIX MONTHS ENDED JUNE 30, 1998
The following table provides both historical information and Same Station
information for the three months ended June 30, 1998 and 1999. The Same Station
information gives effect to the Station Swap as if the exchange was consummated
on January 1, 1998.
<TABLE>
<CAPTION>
HISTORICAL SAME STATION
THREE MONTHS ENDED JUNE 30, THREE MONTHS ENDED JUNE 30,
-------------------------------- ----------------------------------
% %
1998 1999 CHANGE 1998 1999 CHANGE
-------- ---- ------ ---- ---- ------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Local/regional ................... $43,049 $45,110 4.8% $44,478 $45,036 1.3%
National ......................... 21,842 24,775 13.4 23,404 24,765 5.8
Political ........................ 2,105 374 (82.2) 1,448 374 (74.2)
Other ............................ 10,006 9,971 0.3 9,972 9,138 (8.4)
--------- -------- --------- --------- --------- ---------
77,002 80,230 4.2 79,302 79,313 0.0
Direct costs ..................... 9,995 10,711 7.2 10,377 10,684 3.0
--------- -------- --------- --------- --------- ---------
Net revenues ..................... 67,007 69,519 3.7 68,925 68,629 (0.4)
Operating expenses:
Selling, technical & program
expenses ..................... 31,392 31,095 (0.9) 32,629 31,187 (4.4)
General and administrative...... 10,302 12,111 17.6 10,483 10,447 0.3
Depreciation and amortization... 15,433 14,573 (5.6) 15,152 14,245 (6.0)
Corporate ...................... 2,591 2,327 (10.2) 2,603 2,327 (10.6)
--------- -------- --------- --------- --------- ---------
59,718 60,106 0.6 60,867 58,206 (4.4)
--------- -------- --------- --------- --------- ---------
Operating income ......... $ 7,289 $ 9,413 29.1% $ 8,058 $10,423 29.3%
========= ======== ========= ========= ========= =========
Broadcast cash flow(1) ........... $25,107 $26,300 4.8% $25,618 $26,939 5.2%
Broadcast cash flow margin(1) .... 37.5% 37.9% 37.2% 39.3%
Adjusted EBITDA(1) ............... $22,516 $23,972 6.5% $23,015 $24,612 6.9%
Adjusted EBITDA margin(1) ........ 33.6% 34.5% 33.4% 35.9%
</TABLE>
(1) Excludes BCI, a nonrecourse subsidiary
Net revenues for the six months ended June 30, 1999 increased $2.5 million
or 3.7% to $69.5 million from $67.0 million for the six months ended June 30,
1998. Net revenues excluding political advertising revenue increased $4.2
million or 6.5% to $69.1 million from $64.9 million for the six months ended
June 30, 1999. On a Same Station basis, net revenues for the six months ended
June 30, 1999 were $68.6 million as compared to $68.9 million for the six months
ended June 30, 1998. Net revenues for the six months ended June 30, 1999
reflected an increase in advertising demand which offset the absence of Winter
Olympics on the Company's 12 CBS stations and a decline in political advertising
both of which positively affected the six months ended June 30, 1998.
Operating expenses for the six months ended June 30, 1999 increased $0.4
million or 0.6% to $60.1 million from $59.7 million for the six months ended
June 30, 1998. The increase in operating expenses was attributable to the effect
of the TBA's associated with the Station Swap which was offset in part by
decreases in depreciation and amortization and payroll-related costs. On a Same
Station basis, operating expenses for the six months ended June 30, 1999
decreased $2.7 million or 4.4% to $58.2 million from $60.9 million for the six
months ended June 30, 1998 resulting primarily from decreased payroll-related
costs and a reduction in depreciation and amortization.
Operating income for the six months ended June 30, 1999 increased $2.1
million or 29.1% to $9.4 million from $7.3 million for the six months ended June
30, 1998. On a Same Station basis, operating income for the six months ended
June 30, 1999 increased $2.3 million or 29.3% to $10.4 million from $8.1 million
for the six months ended June 30, 1998.
-17-
<PAGE>
Financial (expenses), net for the six months ended June 30, 1999 increased
$0.2 million or 1.0 % to $21.7 million from $21.5 million for the six months
ended June 30, 1998.
Gain on station sale of $13.5 million was the result of the Station Swap
where the fair market value of the assets of KCOY-TV in the amount of $24.3
million was exchanged for the assets of KKTV. The book value of the KCOY-TV
assets were $10.8 million.
Income tax benefit for the Company for the six months ended June 30, 1999
was $0.1 million compared to $5.1 million for the six months ended June 30,
1998. The decrease in the income tax benefit is due to the $13.5 million gain on
the sale of KCOY-TV.
Extraordinary loss was $12.2 million for the six months ended June 30, 1999
net of applicable income taxes of $8.1 million. The loss was reflected as a
result of the early extinguishment of debt associated with the completion of the
tender offer for $135.0 million of outstanding Notes. Total consideration of
$149.9 million, fees of the transaction and a write-off of deferred loan costs
caused the loss.
Net loss for the Company for the six months ended June 30, 1999 was $10.9
million as compared to $9.1 million net loss for the six months ended June 30,
1998.
Broadcast cash flow for the six months ended June 30, 1999 increased $1.2
million or 4.8% to $26.3 million from $25.1 million for the six months ended
June 30, 1998. As a percentage of net revenues, broadcast cash flow margin
increased to 37.9% for the six months ended June 30, 1999 from 37.5% for the six
months ended June 30, 1998.
On a Same Station basis, broadcast cash flow for the six months ended June
30, 1999 increased $1.3 million or 5.2% to $26.9 million from $25.6 million for
the six months ended June 30, 1998. As a percentage of net revenues, broadcast
cash flow margin on a Same Station basis increased to 39.3% for the six months
ended June 30, 1999 from 37.2% for the six months ended June 30, 1998.
LIQUIDITY AND CAPITAL RESOURCES
Cash Flows from Operating Activities is the primary source of liquidity for
the Company and were $4.4 million for the six months ended June 30, 1999
compared to $6.3 million for the six months ended June 30, 1998. The change in
cash flows from operating activities was the result primarily of increased
operating income offset by cash payments for interest. Cash payments for
interest totaled $18.1 million for the six months ended June 30, 1999 as
compared to $13.7 million for the six months ended June 30, 1998, as a result of
the interest payments associated with the completion of the Offer.
Cash Flows from Investing Activities were $(13.0) million for the six
months ended June 30, 1999, as compared to $(3.5) million for the six months
ended June 30, 1998. The change in cash flows from investing activities for the
six months ended June 30, 1999, was the result of a $9.5 million cash outlay for
the purchase of KKTV.
Cash Flows from Financing Activities were $11.1 million for the six months
ended June 30, 1999 compared to $(0.6) million for the six months ended June 30,
1998. For the six months ended June 30, 1999, the Company issued the Term Loan
in the amount of $220.0 million, drew on the Revolver in the amount of $55.0
million, paid off the existing term loans for $108.3 million and redeemed the
Notes for $149.9 million. For the six months ended June 30, 1998, cash flows
from financing activities included $100.0 million of proceeds from the
Company's 111/2% Exchangeable Senior Preferred Stock issued during the quarter
-18-
<PAGE>
ended June 30, 1998. The proceeds were used to redeem the Company's 15.0%
Exchangeable Redeemable Senior Preferred Stock due 2007 totaling $92.8 million
and to pay fees and expenses totaling $4.1 million associated with the offering.
At June 30, 1999, the Company had available to it a maximum of $90.0
million under the Revolver which is limited based on the Company's ability to
meet certain leverage ratios. At June 30, 1999, the Company could have borrowed
approximately an additional $20.0 million under the Revolver. During the six
months ended June 30, 1999, the highest outstanding balance under the Revolver
was $55.0 million.
On April 16, 1999, the Company commenced the Offer for any and all of the
$135.0 million in outstanding principal amount of its Notes. The total
consideration for each of $1,000 principal of Notes was $1,105.78 which
consisted of the offer price per $1,000 of principal of $1,075.78 and a consent
payment of $30 per $1,000 amount of Notes. On May 20, 1999, the Company redeemed
all of the outstanding Notes.
On May 20, 1999, the Company borrowed $275.0 million against a new credit
facility (the "Credit Facility") with an aggregate borrowing limit of $310.0
million. The proceeds were used to finance the Offer of the Notes and pay off
its existing credit facility.
The Credit Facility includes a $220.0 million Term Loan and a $90.0 million
Revolver. The Term Loan and the Revolver bear interest initially at the
Company's option, at a base rate plus 2.25% and 1.75%, respectively or at a
LIBOR rate plus 3.25% and 2.75%, respectively. The margins above the base rate
and the LIBOR rate at which the Term Loan and the Revolver bear interest are
subject to reductions based on certain leverage ratios. The unused portion of
the Revolver is subject to a commitment fee ranging from 0.75% per annum to
0.375% per annum based on certain leverage ratios.
The Company is required to make scheduled amortization payments on the Term
Loan, as follows: 2002 - $1.7 million; 2003-$2.2 million; 2004 - $2.2 million;
2005 - $2.2 million; 2006 - $2.2 million and 2007 - $209.6 million. In addition,
the Company is required to make prepayments on the Term Loan and the Revolver
under certain circumstances, including upon the sale of certain assets and the
issuance of certain debt on equity securities. Beginning in 2002, the Company is
required to make prepayments on the Term Loan and the Revolver in an amount
equal to 50% of excess cash flow (as defined).
The commitment under the Revolver will be permanently reduced over the
period from June 2002 to maturity in 2007, as follows: 2002 - $10.1 million;
2003 - $13.5 million; 2004 - $16.9 million; 2005 - $21.4 million; 2006 - $22.5
million and 2007 - $5.6 million. In addition, the commitment under the Revolver
will be permanently reduced in certain circumstances including upon the sales of
certain assets and the issuance of certain debt or equity securities and excess
cash flow (as defined). The Company has the right to pay the Revolver without
penalty in increments of $1.0 million at which time the commitment will be
permanently reduced.
The Credit Facility contains certain financial covenants, including, but
not limited to, covenants related to interest coverage, total and senior
leverage ratios and fixed charge ratio. In addition, Credit Facility contains
other affirmative and negative covenants relating to (among other things) liens,
payments on other debt, restricted junior payments (excluding distributions from
Benedek Broadcasting to Benedek Communications) transactions with affiliates,
mergers and acquisitions, sales of assets, guarantees and investments. The
Credit Facility contains customary events of default for highly-leveraged
financings, including certain changes in ownership or control of Benedek
Broadcasting or the Company.
-19-
<PAGE>
YEAR 2000
The Year 2000 ("Y2K") issue is a result of computer programs using a two
digit format, as opposed to four digits, to indicate the year. These computer
systems will then be unable to read dates beyond the year 1999, which could
cause a system failure or other computer errors. The worst case scenario for the
Company is that its Stations would be unable to broadcast their daily
programming in which advertising revenue is generated.
The Company is currently in the process of evaluating potential Y2K issues
for its internal information technology ("IT") and non-IT ("non-IT") systems
which include but are not limited to systems such as broadcast equipment,
editing equipment, cameras, microphones, telephone/PBX systems, fax machines and
certain other equipment. It is also in the process of evaluating potential Y2K
issues that would involve third parties with which the Company has material
relationships (suppliers and customers).
All internal software and hardware is purchased or leased from third party
vendors. The Company does not employ or contract for computer programmers to
write Company-specific applications. The Company believes that the sales systems
are Y2K compliant due to their recent implementation. The Company's core
financial system is not Y2K compliant and is in the process of being upgraded to
a Y2K compliant version to be completed during the third quarter of 1999. Non-IT
systems that are not critical to operations are being replaced or upgraded in
the normal course of business so that they will be Y2K compliant systems. At
this time, the Company is not aware of any additional significant upgrades or
changes that will need to be made to its internal software and hardware to
become Y2K ready, but this is subject to change as the evaluation and compliance
testing process continues. The Company expects to be able to successfully
implement any software or hardware changes that may be necessary to address Y2K
IT and non-IT readiness issues. Based upon preliminary estimates, the Company
does not believe that the costs associated with such actions will have a
material effect on the Company's results of operations or financial condition.
There can be no assurance however that there will not be increased costs
associated with the implementation of any such changes.
The Company has begun the process of polling key suppliers and customers to
gain an understanding of their Y2K readiness. The Company cannot guarantee that
Y2K compliance problems of third parties with which it has a material
relationship will not have a material adverse effect on the Company's business,
results of operations and financial condition. The Company has not yet
formulated a contingency plan to address difficulties that may arise from Y2K
noncompliance of its IT and non-IT systems or those of key third parties,
however, a contingency plan will be developed during third quarter 1999.
PENDING ADOPTION OF ACCOUNTING STANDARD
The FASB (Financial Accounting Standards Board) has issued FASB statement
No. 133 "Accounting for Derivative Instruments and Hedging Activities" which the
Company will be required to adopt for its year ending December 31, 2001, as
amended by FASB statement No. 137. This pronouncement establishes accounting and
reporting standards for derivative instruments, including certain derivative
instruments embedded in other contracts, (collectively referred to as
derivatives) and for hedging activities. It requires that an entity recognize
all derivatives as either assets or liabilities in the statement of financial
position and measure those instruments at fair value. This pronouncement is not
expected to have a significant impact on the Company's financial statements
since the Company currently has no derivative instruments.
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<PAGE>
PART II -- OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company currently and from time to time is involved in litigation
incidental to the conduct of its business. The Company (including in its
capacity as successor of Brissette) is not currently a party to any lawsuit or
proceeding which, in the opinion of management, is likely to have a material
adverse effect on the Company.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a)(3) Exhibits.
*10.1 -- Loan agreement dated as of May 20, 1999 by and among Benedek
Communications Corporation, as parent; Benedek Broadcasting
Corporation, as borrower; the financial institutions signatory
thereto, as lenders; and Toronto Dominion (Texas), Inc. as
administrative agent and collateral agent for the Lenders with TD
Securities (USA) Inc., as lead arranger.
*10.2 -- First Amendment to loan agreement dated as of June 18, 1999 by and
among Benedek Communications Corporation, as parent; Benedek
Broadcasting Corporation, as borrower; the lender (as defined) and
Toronto Dominion (Texas), Inc., as administrative agent and collateral
agent.
*27 -- Financial Data Schedule pursuant to Article 5 of Regulation S-X with
respect to Benedek Communications Corporation.
*Filed herewith
(b) Reports on Form 8-K
The Company filed a report on Form 8-K on April 23, 1999, announcing the
commencement of a tender offer and consent solicitation for all of its
outstanding 11 7/8% Senior Secured Notes due 2005.
The Company filed a report on Form 8-K on July 8, 1999, announcing the
amendment of the terms of its tender offer and consent solicitation, the
completion of the tender offer and consent solicitation and the completion of
the swap transaction with respect to the assets of KCOY-TV for the assets of
KKTV.
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<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, the Registrant has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly authorized.
BENEDEK COMMUNICATIONS CORPORATION
(REGISTRANT)
By: /s/ RONALD L. LINDWALL
-------------------------
RONALD L. LINDWALL
SENIOR VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
(Authorized Officer and Principal
Accounting Officer)
DATE: August 6, 1999
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STATEMENT OF DIFFERENCES
The section symbol shall be expressed as ..........................'SS'
<PAGE>
EXHIBIT 10.1
JUNE 30, 1999 10-Q
EXECUTION COPY
LOAN AGREEMENT
DATED AS OF MAY 20, 1999
BY AND AMONG
BENEDEK COMMUNICATIONS CORPORATION,
AS PARENT;
BENEDEK BROADCASTING CORPORATION,
AS BORROWER;
THE FINANCIAL INSTITUTIONS SIGNATORY HERETO,
AS LENDERS;
AND
TORONTO DOMINION (TEXAS), INC.,
AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT
FOR THE LENDERS
WITH
TD SECURITIES (USA) INC.
AS LEAD ARRANGER
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
ATLANTA, GEORGIA
<PAGE>
LOAN AGREEMENT
AMONG
BENEDEK COMMUNICATIONS CORPORATION,
As Parent;
BENEDEK BROADCASTING CORPORATION,
As Borrower;
THE FINANCIAL INSTITUTIONS SIGNATORY HERETO,
As Lenders;
AND
TORONTO DOMINION (TEXAS), INC.,
As Administrative Agent and Collateral Agent
for the Lenders
INDEX
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE 1 -DEFINITIONS. 1
SECTION 1.1 DEFINED TERMS..............................................................1
SECTION 1.2 INTERPRETATION............................................................24
SECTION 1.3 CROSS REFERENCE...........................................................24
SECTION 1.4 FINANCIAL PROJECTIONS.....................................................24
ARTICLE 2 -LOANS. 24
SECTION 2.1 THE LOANS.................................................................24
SECTION 2.2 MANNER OF BORROWING AND DISBURSEMENT......................................25
SECTION 2.3 INTEREST..................................................................27
SECTION 2.4 COMMITMENT FEES...........................................................29
SECTION 2.5 MANDATORY COMMITMENT REDUCTIONS...........................................29
SECTION 2.6 OPTIONAL COMMITMENT REDUCTIONS............................................30
SECTION 2.7 PREPAYMENTS AND REPAYMENTS................................................31
SECTION 2.8 NOTES; LOAN ACCOUNTS......................................................34
SECTION 2.9 MANNER OF PAYMENT.........................................................34
SECTION 2.10 REIMBURSEMENT.............................................................36
SECTION 2.11 PRO RATA TREATMENT........................................................36
SECTION 2.12 CAPITAL ADEQUACY..........................................................37
SECTION 2.13 LENDER TAX FORMS..........................................................37
ARTICLE 3 - CONDITIONS PRECEDENT 38
SECTION 3.1 CONDITIONS PRECEDENT TO EFFECTIVENESS OF AGREEMENT........................38
SECTION 3.2 CONDITIONS PRECEDENT TO EACH ADVANCE......................................41
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES 42
SECTION 4.1 REPRESENTATIONS AND WARRANTIES............................................42
SECTION 4.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC...........................52
ARTICLE 5 - GENERAL COVENANTS 52
SECTION 5.1 PRESERVATION OF EXISTENCE AND SIMILAR MATTERS.............................52
SECTION 5.2 BUSINESS; COMPLIANCE WITH APPLICABLE LAW..................................52
SECTION 5.3 MAINTENANCE OF PROPERTIES.................................................52
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
SECTION 5.4 ACCOUNTING METHODS AND FINANCIAL RECORDS..................................53
SECTION 5.5 INSURANCE.................................................................53
SECTION 5.6 PAYMENT OF TAXES AND CLAIMS...............................................53
SECTION 5.7 COMPLIANCE WITH ERISA.....................................................54
SECTION 5.8 VISITS AND INSPECTIONS....................................................55
SECTION 5.9 PAYMENT OF INDEBTEDNESS; LOANS............................................56
SECTION 5.10 USE OF PROCEEDS...........................................................56
SECTION 5.11 INDEMNITY.................................................................56
SECTION 5.12 INTEREST RATE HEDGING.....................................................57
SECTION 5.13 COVENANTS REGARDING FORMATION OF SUBSIDIARIES AND ACQUISITIONS;
PARTNERSHIP, SUBSIDIARIES.................................................57
SECTION 5.14 PAYMENT OF WAGES..........................................................58
SECTION 5.15 FURTHER ASSURANCES........................................................58
SECTION 5.16 LICENSE SUBS..............................................................58
SECTION 5.17 YEAR 2000 COMPLIANCE......................................................59
SECTION 5.18 MAINTENANCE OF NETWORK AFFILIATIONS; MATERIAL CONTRACTS...................59
SECTION 5.19 OWNERSHIP REPORTS.........................................................59
SECTION 5.20 BUSINESS OF THE PARENT; IMMEDIATE CONTRIBUTIONS TO THE BORROWER...........59
SECTION 5.21 ENVIRONMENTAL COMPLIANCE AND INDEMNITY....................................59
SECTION 5.22 LIEN SEARCHES AND UCC FINANCING STATEMENTS AND MORTGAGES..................61
ARTICLE 6 - INFORMATION COVENANTS 61
SECTION 6.1 QUARTERLY FINANCIAL STATEMENTS AND INFORMATION............................61
SECTION 6.2 ANNUAL FINANCIAL STATEMENTS AND INFORMATION...............................62
SECTION 6.3 PERFORMANCE CERTIFICATES..................................................62
SECTION 6.4 COPIES OF OTHER REPORTS...................................................62
SECTION 6.5 NOTICE OF LITIGATION AND OTHER MATTERS....................................64
ARTICLE 7 - NEGATIVE COVENANTS 65
SECTION 7.1 INDEBTEDNESS OF THE PARENT, THE BORROWER, AND ITS SUBSIDIARIES............65
SECTION 7.2 LIMITATION ON LIENS.......................................................66
SECTION 7.3 AMENDMENT AND WAIVER......................................................67
SECTION 7.4 LIQUIDATION, MERGER OR DISPOSITION OF ASSETS..............................67
SECTION 7.5 LIMITATION ON GUARANTIES..................................................67
SECTION 7.6 INVESTMENTS AND ACQUISITIONS..............................................68
SECTION 7.7 RESTRICTED PAYMENTS.......................................................69
SECTION 7.8 SENIOR LEVERAGE RATIO.....................................................70
SECTION 7.9 INTEREST COVERAGE RATIO...................................................70
SECTION 7.10 FIXED CHARGES COVERAGE RATIO..............................................71
SECTION 7.10 TOTAL LEVERAGE RATIO......................................................71
SECTION 7.12 AFFILIATE TRANSACTIONS....................................................71
SECTION 7.13 REAL ESTATE...............................................................71
SECTION 7.14 ERISA LIABILITIES.........................................................71
SECTION 7.15 UNRESTRICTED SUBSIDIARIES.................................................71
SECTION 7.16 NO LIMITATION ON UPSTREAM DIVIDENDS BY SUBSIDIARIES.......................72
SECTION 7.17 DESIGNATION OF............................................................72
ARTICLE 8 - DEFAULT 72
SECTION 8.1 EVENTS OF DEFAULT.........................................................72
</TABLE>
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<PAGE>
<TABLE>
<S> <C> <C>
SECTION 8.2 REMEDIES..................................................................75
SECTION 8.3 PAYMENTS SUBSEQUENT TO DECLARATION OF EVENT OF DEFAULT....................77
ARTICLE 9 - THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT 77
SECTION 9.1 APPOINTMENT AND AUTHORIZATION.............................................77
SECTION 9.2 INTEREST HOLDERS..........................................................78
SECTION 9.3 CONSULTATION WITH COUNSEL.................................................78
SECTION 9.4 DOCUMENTS.................................................................78
SECTION 9.5 ADMINISTRATIVE AGENT AND AFFILIATES.......................................78
SECTION 9.6 RESPONSIBILITY OF THE ADMINISTRATIVE AGENT................................78
SECTION 9.7 ACTION BY THE ADMINISTRATIVE AGENT........................................78
SECTION 9.8 NOTICE OF DEFAULT OR EVENT OF DEFAULT.....................................79
SECTION 9.9 RESPONSIBILITY DISCLAIMED.................................................80
SECTION 9.10 INDEMNIFICATION...........................................................80
SECTION 9.11 CREDIT DECISION...........................................................80
SECTION 9.12 SUCCESSOR ADMINISTRATIVE AGENT............................................81
SECTION 9.13 COLLATERAL AGENT..........................................................81
SECTION 9.14 SUCCESSOR COLLATERAL AGENT................................................82
SECTION 9.14 COLLATERAL ACTIONS........................................................83
SECTION 9.16 DELEGATION OF DUTIES......................................................83
ARTICLE 10 -CHANGE IN CIRCUMSTANCES AFFECTING LIBOR ADVANCES 83
SECTION 10.1 LIBOR BASIS DETERMINATION INADEQUATE OR UNFAIR............................83
SECTION 10.2 ILLEGALITY................................................................83
SECTION 10.3 INCREASED COSTS...........................................................84
SECTION 10.4 EFFECT ON OTHER ADVANCES..................................................85
ARTICLE 11 - MISCELLANEOUS 85
SECTION 11.1 NOTICES...................................................................85
SECTION 11.2 EXPENSES..................................................................87
SECTION 11.3 WAIVERS...................................................................87
SECTION 11.4 SET-OFF...................................................................87
SECTION 11.5 ASSIGNMENT................................................................88
SECTION 11.6 ACCOUNTING PRINCIPLES.....................................................91
SECTION 11.7 COUNTERPARTS..............................................................91
SECTION 11.8 GOVERNING LAW.............................................................91
SECTION 11.9 SEVERABILITY..............................................................91
SECTION 11.10 INTEREST..................................................................92
SECTION 11.11 TABLE OF CONTENTS AND HEADINGS............................................92
SECTION 11.12 AMENDMENT AND WAIVER......................................................92
SECTION 11.13 ENTIRE AGREEMENT..........................................................93
SECTION 11.14 OTHER RELATIONSHIPS.......................................................93
SECTION 11.15 DIRECTLY OR INDIRECTLY....................................................93
SECTION 11.16 RELIANCE ON AND SURVIVAL OF VARIOUS PROVISIONS............................93
SECTION 11.17 SENIOR DEBT...............................................................93
SECTION 11.18 OBLIGATIONS SEVERAL.......................................................93
ARTICLE 12 - WAIVER OF JURY TRIAL 94
SECTION 12.1 WAIVER OF JURY TRIAL......................................................94
</TABLE>
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<PAGE>
EXHIBITS
<TABLE>
<S> <C>
Exhibit A - Form of Assignment and Assumption Agreement
Exhibit B - Form of Borrower's Pledge Agreement
Exhibit C - Form of Borrower's Security Agreement
Exhibit D - Form of Certificate of Financial Condition
Exhibit E-1 - Form of Revolving Loan Note
Exhibit E-2 - Form of Term Loan Note
Exhibit F - Form of Parent Guaranty
Exhibit G - Form of Parent Pledge Agreement
Exhibit H - Form of Parent Security Agreement
Exhibit I - Form of Request for Advance
Exhibit J - Form of Subsidiary Guaranty
Exhibit K - Form of Subsidiary Pledge Agreement
Exhibit L - Form of Subsidiary Security Agreement
Exhibit M - Form of Trademark Security Agreement
Exhibit N-1 - Form of Borrower Loan Certificate
Exhibit N-2 - Form of Subsidiary Loan Certificate
Exhibit N-3 - Form of Parent Loan Certificate
Exhibit O- - Form of Performance Certificate
Exhibit P- - Form of Mortgage
</TABLE>
SCHEDULES
<TABLE>
<S> <C>
Schedule 1 Liens
Schedule 2 Subsidiaries
Schedule 3 Affiliate Transactions
Schedule 4 Indebtedness
Schedule 5 Trademarks, Patents, Copyrights
Schedule 6 Stations and Licenses
Schedule 7 Lender's Commitment Ratios and Notice Addresses
Schedule 8 Environmental Matters
Schedule 9 Litigation
Schedule 10 Real Property Assets
Schedule 11 Labor Matters
Schedule 12 Mortgages and Title Policies
</TABLE>
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<PAGE>
LOAN AGREEMENT
THIS LOAN AGREEMENT is entered into as of this 20th day of May, 1999 by
and among BENEDEK COMMUNICATIONS CORPORATION, a Delaware corporation (the
"Parent"), BENEDEK BROADCASTING CORPORATION, a Delaware corporation (the
"Borrower"), THE FINANCIAL INSTITUTIONS SIGNATORY HERETO (the "Lenders"), and
TORONTO DOMINION (TEXAS), INC., as administrative agent (the "Administrative
Agent") and collateral agent (the "Collateral Agent") for itself and on behalf
of the Lenders,
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make available to
the Borrower certain credit facilities as more fully described herein; and
WHEREAS, the Lenders are willing to extend such financing to the
Borrower subject to the terms and conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto, the
parties hereby agree as follows:
ARTICLE 1
Definitions
Section 1.1 Defined Terms. The following terms when used in this
Agreement shall have the following meanings:
"Acquisition" shall mean (whether by purchase, lease, exchange, issuance
of stock or other equity or debt securities, merger, reorganization or any other
method) (a) any acquisition by the Borrower or any Subsidiary of the Borrower of
any other Person, which Person shall then become consolidated with the Borrower
or any such Subsidiary in accordance with GAAP; (b) any acquisition by the
Borrower or any Subsidiary of the Borrower of all or substantially all of the
assets of any other Person; or (c) any other acquisition by the Borrower or any
Subsidiary of the Borrower of the assets of another Person which acquisition is
not in the ordinary course of business for the Borrower or such Subsidiary.
"Adjusted Operating Cash Flow" shall mean Operating Cash Flow minus cash
income taxes paid for the most recently completed four (4) fiscal quarters.
"Administrative Agent" shall mean Toronto Dominion (Texas), Inc., in its
capacity as Administrative Agent for the Lenders or any successor Administrative
Agent appointed pursuant to Section 9.12 hereof.
<PAGE>
"Administrative Agent's Office" shall mean the office of the
Administrative Agent located at 909 Fannin Street, Suite 1700, Houston, Texas
77010, or such other office as may be designated pursuant to the provisions of
Section 11.1 hereof.
"Advance" shall mean amounts advanced by the Lenders to the Borrower
pursuant to Article 2 hereof on the occasion of any borrowing and having the
same Interest Rate Basis and Interest Period; and "Advances" shall mean more
than one Advance.
"Affiliate" shall mean, with respect to a Person, any other Person
directly or indirectly controlling, controlled by, or under common control with,
such first Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. "Affiliate" shall also
mean any beneficial owner of Ownership Interests representing ten percent (10%)
or more of the total voting power of the Voting Stock (on a fully diluted basis)
of the Borrower or of rights or warrants to purchase such Voting Stock (whether
or not currently exercisable) and any Person who would be an Affiliate of any
such beneficial owner pursuant to the first sentence hereof. Unless otherwise
specified, "Affiliate" shall mean an Affiliate of the Borrower.
"Agreement" shall mean this Loan Agreement, as amended, supplemented,
restated or otherwise modified from time to time.
"Agreement Date" shall mean the date as of which this Agreement is
dated.
"Annualized Operating Cash Flow" shall mean, as of any calculation date,
the sum of Operating Cash Flow for the most recently completed four (4) fiscal
quarters.
"Applicable Law" shall mean, in respect of any Person, all provisions of
constitutions, statutes, rules, regulations and orders of governmental bodies or
regulatory agencies applicable to such Person, including, without limiting the
foregoing, the Communications Act, zoning ordinances and all Environmental Laws,
and all orders, decisions, judgments and decrees of all courts and arbitrators
in proceedings or actions to which the Person in question is a party or by which
it is bound.
"Applicable Margin" shall mean the interest rate margin applicable to
Base Rate Advances and LIBOR Advances, as the case may be, in each case
determined in accordance with Section 2.3(f) hereof.
"Approved Fund" shall mean, with respect to any Lender that is a fund
that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"Asset Sale" shall mean the sale, lease, transfer or other disposition
by the Parent or any of its Subsidiaries to any Person other than the Borrower
or any of its wholly owned Subsidiaries
-2-
<PAGE>
of (i) any of the stock of any of the Parent's Subsidiaries, (ii) substantially
all of the assets of any division or line of business of the Parent or any of
its Subsidiaries, or (iii) any other assets (whether tangible or intangible) of
the Parent or any of its Subsidiaries other than any such other assets to the
extent that the aggregate fair market value of such assets sold in any single
transaction or related series of transactions is equal to or greater than
$200,000.
"Assignment and Assumption Agreement" shall mean any Assignment and
Assumption Agreement substantially in the form of Exhibit A attached hereto
pursuant to which any Lender, as further provided in Section 11.5 hereof, sells
a portion of its Commitments and/or Loans.
"Authorized Signatory" shall mean such senior personnel of a Person as
may be duly authorized and designated in writing from time to time by such
Person to execute documents, agreements and instruments on behalf of such
Person.
"Available Revolving Loan Commitment" shall mean, as of any date, the
difference between (a) the Revolving Loan Commitment in effect on such date, and
(b) the Revolving Loans then outstanding.
"Base Rate" shall mean, at any time, a fluctuating interest rate per
annum equal to the higher of (a) the rate of interest quoted from time to time
by the Administrative Agent as its "prime rate" or "base rate" or (b) the
Federal Funds Rate plus one-half of one percent (1/2%). The Base Rate is not
necessarily the lowest rate of interest charged by the Administrative Agent in
connection with extensions of credit.
"Base Rate Advance" shall mean an Advance which the Borrower requests to
be made as a Base Rate Advance or is reborrowed as a Base Rate Advance, in
accordance with the provisions of Section 2.2 hereof, and which shall be in a
principal amount of at least $1,000,000, and in an integral multiple of
$1,000,000.
"Base Rate Basis" shall mean a simple interest rate equal to the sum of
(i) the Base Rate and (ii) the Applicable Margin applicable to Base Rate
Advances. The Base Rate Basis shall be adjusted automatically as of the opening
of business on the effective date of each change in the Base Rate to account for
such change, and shall also be adjusted to reflect changes of the Applicable
Margin applicable to Base Rate Advances.
"Benedek" shall mean A. Richard Benedek.
"Borrower" shall mean Benedek Broadcasting Corporation, a Delaware
corporation.
"Borrower's Pledge Agreement" shall mean any Borrower's Pledge Agreement
between the Borrower and the Collateral Agent, substantially in the form of
Exhibit B attached hereto, pursuant to which the Borrower has pledged to the
Collateral Agent for the ratable benefit of the Lenders all of the Borrower's
equity ownership and/or any partnership interests in each of its Subsidiaries.
-3-
<PAGE>
"Borrower's Security Agreement" shall mean that certain Borrower's
Security Agreement dated as of even date herewith, made by the Borrower in favor
of the Collateral Agent for the ratable benefit of the Lenders, substantially in
the form of Exhibit C attached hereof.
"BLC" shall mean Benedek License Corporation, a Delaware corporation and
a Wholly Owned Subsidiary of the Borrower.
"Business Day" shall mean a day on which banks and foreign exchange
markets are open for the transaction of business required for this Agreement in
Houston, Texas, New York, New York and London, England, as relevant to the
determination to be made or the action to be taken.
"Capital Expenditures" shall mean, for any period, expenditures
(including the aggregate amount of Capitalized Lease Obligations charged during
such period) incurred by any Person to acquire or construct fixed assets, plant
and equipment (including renewals, improvements and replacements, but excluding
repairs and maintenance) during such period, which would be required to be
capitalized on the balance sheet of such Person in accordance with GAAP.
"Capital Stock" shall mean, as applied to any Person, any ownership
interests or capital stock of such Person, regardless of class or designation,
and all warrants, options, purchase rights, conversion or exchange rights,
voting rights, calls or claims of any character with respect thereto.
"Capitalized Lease Obligation" shall mean that portion of any obligation
of a Person as lessee under a lease which at the time would be required to be
capitalized on the balance sheet of such lessee in accordance with GAAP.
"Cash Equivalents" shall mean (a) marketable securities (i) issued or
directly and unconditionally guaranteed as to interest and principal by the
United States government or (ii) issued by any agency of the United States
government the obligations of which are backed by the full faith and credit of
the United States of America, in each case maturing within one (1) year after
such date; (b) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within one (1) year after such
date and having, at the time of the acquisition thereof, the highest rating
obtainable from either Standard & Poor's Ratings Group ("S&P") or Moody's
Investors Service, Inc. ("Moody's"); (c) commercial paper, money-market funds
and business savings accounts issued by corporations, each of which shall have a
combined net worth of at least $100,000,000 and each of which conducts a
substantial part of its business in the United States of America, maturing
within two hundred seventy (270) days from the date of the original issue
thereof, and rated "P-2" or better by Moody's or "A-2" or better by S&P; (d)
certificates of deposit or bankers' acceptances maturing within one (1) year
after such date and issued or accepted by and Lender or by any commercial bank
organized under the laws of the United States of America or any state thereof or
the District of Columbia that (i) is at least "adequately capitalized" (as
defined in the regulations of its primary Federal banking regulator) and (ii)
has Tier 1 capital (as defined in the regulations) of not less than
$100,000,000; and (e) shares of any money market mutual fund that (i) has at
least ninety-five percent (95%) of its assets invested continuously in the types
of investments referred to in clauses (a), (b) and (c)
-4-
<PAGE>
above, (ii) has net assets of not less than $500,000,000, and (iii) has the
highest rating obtainable from either S&P or Moody's.
"Certificate of Financial Condition" shall mean a certificate dated the
Agreement Date, substantially in the form of Exhibit D attached hereto, signed
by the chief financial officer of the Borrower, together with any schedules,
exhibits or annexes appended thereto.
"Change of Control" shall mean the occurrence of any of the following
events:
(a) Benedek or his estate or family members or trusts for the
benefit of his family members shall cease to beneficially own at least fifty-one
percent (51%) or more of the economic value of the Parent;
(b) Benedek or his estate or family members or trusts for the
benefit of his family members shall cease to have a presently exercisable right
to vote at least fifty-one percent (51%) of all issued and outstanding Voting
Stock of the Parent entitled (without regard to the occurrence of any
contingency) to vote for the election of the members of the board of directors
of the Parent;
(c) A "Change of Control" under the Parent Discount Note
Indenture;
(d) The Borrower shall cease to own one hundred percent (100%) of
the Ownership Interests of any License Sub (except for the WMTV Trust License
Sub);
(e) The Parent shall cease to own one hundred percent (100%) of
the Borrower; or
(f) Both Benedek and K. James Yager, or any successor to either
Person satisfactory to the Majority Lenders hereunder, shall cease, for any
reason whatsoever, to continuously perform their receptive present duties as
executive officers of the Borrower, without a successor satisfactory to the
Majority Lenders in their reasonable discretion having commenced to perform the
duties of such executive officer within one hundred twenty (120) days after such
cessation.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean any property of any kind constituting collateral
for the Obligations under any of the Security Documents.
"Collateral Agent" shall mean Toronto Dominion (Texas), Inc. in its
capacity as Collateral Agent for the Lenders or any successor Collateral Agent
appointed pursuant to Section 9.14 hereof.
"Colorado Station Swap" shall mean that certain station swap completed
on April 30, 1999 pursuant to the Asset Exchange Agreement of December 30, 1998
by and among the Borrower and BLC and AK Media Group, Inc., by which the
Borrower acquired KKTV-TV of
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Colorado Springs, Colorado and ceased to own KCOY-TV of Santa Barbara, Santa
Maria and San Luis Obispo, California.
"Commitments" shall mean, collectively, the Revolving Loan Commitment
and the Term Loan Commitment, and "Commitment" shall mean any one of the
foregoing Commitments.
"Commitment Ratio" shall mean, with respect to any Lender for any
Commitment, the percentage equivalent of the ratio which such Lender's portion
of such Commitment bears to the aggregate amount of such Commitment (as each may
be adjusted from time to time as provided herein); and "Commitment Ratios" shall
mean, with respect to any Commitment, the Commitment Ratios of all of the
Lenders with respect to such Commitment. As of the Agreement Date, the
Commitment Ratios of the Lenders party to this Agreement are as set forth on
Schedule 7 attached hereto.
"Communications Act" shall mean the Communications Act of 1934, and any
similar or successor federal statute, and the rules and regulations of the FCC
thereunder, all as the same may be in effect from time to time.
"Debt Service" shall mean the sum of (a) all principal paid (excluding
any principal paid under the Prior Loan Agreement) in respect of Indebtedness of
the Parent, the Borrower and its Subsidiaries on a consolidated basis (other
than voluntary principal payments of the Revolving Loans which are not required
to be accompanied by an identical reduction in the Revolving Loan Commitment or
voluntary principal repayments of the Term Loans or mandatory prepayments made
pursuant to Sections 2.7(b)(iii) and 2.7(b)(v) hereof) for the most recently
completed four (4) fiscal quarters, and (b)(I) with respect to the Agreement
Date and the fiscal quarter ended June 30, 1999, the product of (A) projected
Interest Expense for the quarter ended September 30, 1999 times (B) four (4);
(ii) with respect to the quarter ending September 30, 1999 times (B) four (4);
(iii) with respect to the fiscal quarter ended December 31, 1999, the product of
(A) Interest Expense for the most recently completed two (2) fiscal quarters
times (B) (2); (iv) with respect to the fiscal quarter ended March 31, 2000, the
product of (A) Interest Expense for the most recently competed three (3) fiscal
quarters times (B) four-thirds (4/3); and (v) with respect to the fiscal quarter
ended June 30, 2000 and to each fiscal quarter ending thereafter, Interest
Expense for the most recently completed four (4) fiscal quarters; all calculated
in accordance with GAAP.
"Default" shall mean any Event of Default, and any of the events
specified in Section 8.1 hereof, regardless of whether there shall have occurred
any passage of time or giving of notice, or both, that would be necessary in
order to constitute such event an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to the
sum of (a) the applicable Interest Rate Basis, plus (b) the Applicable Margin
for such Advances plus (c) two percent (2%).
"Employee Pension Plan" shall mean any Plan which is maintained by the
Borrower, any of its Subsidiaries or any ERISA Affiliate.
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"Environmental Claim" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any governmental authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law, (ii) in connection with any
Hazardous Materials or any actual or alleged Hazardous Materials Activity, or
(iii) in connection with any actual or alleged damage, injury, threat or harm to
health, safety, natural resources or the environment.
"Environmental Laws" shall mean all applicable federal, state or local
laws, statutes, rules, regulations or ordinances, codes, common law, consent
agreements, orders, decrees, judgments or injunctions issued, promulgated,
approved or entered thereunder relating to public health, safety or the
pollution or protection of the environment, including, without limitation, those
relating to releases, discharges, emissions, spills, leaching, or disposals to
air, water, land or ground water, to the withdrawal or use of ground water, to
the use, handling or disposal of polychlorinated biphenyl's, asbestos or urea
formaldehyde, to the treatment, storage, disposal or management of hazardous
substances (including, without limitation, petroleum, crude oil or any fraction
thereof, or other hydrocarbons), pollutants or contaminants, to exposure to
toxic, hazardous or other controlled, prohibited, or regulated substances,
including, without limitation, any such provisions under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. 'SS'. 9601 et seq.), the Hazardous Materials Transportation Act
(49 U.S.C. 'SS'.1801 et seq.), the Resource Conservation and Recovery Act of
1976, as amended (42 U.S.C. 'SS'. 6901 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. 'SS'. 1251 et seq.), the Clean Air Act (42 U.S.C.
'SS'. 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. 'SS'. 2601 et
seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C.
'SS'. 136 et seq.), the Occupational Safety and Health Act (29 U.S.C.
'SS'. 651 et seq.), the Oil Pollution Act (33 U.S.C. 'SS'. 2701 et seq.) and
the Emergency Planning and Community Right-to-Know Act (42 U.S.C. 'SS'. 11001
et seq.), each as amended or supplemented, any analogous present or future
state or local statutes or laws, and any regulations promulgated pursuant to
any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as in effect from time to time.
"ERISA Affiliate" shall mean any Person, including a Subsidiary or an
Affiliate of the Borrower, that is a member of any group of organizations of
which the Borrower is a member and which is covered by a Plan.
"Eurodollar Reserve Percentage" shall mean the percentage which is in
effect from time to time under Regulation D of the Board of Governors of the
Federal Reserve System, as such regulation may be amended from time to time, as
the maximum reserve requirement applicable with respect to Eurocurrency
Liabilities (as that term is defined in Regulation D), whether or not any Lender
has any such Eurocurrency Liabilities subject to such reserve requirement at
that time.
"Event of Default" shall mean any of the events specified in Section 8.1
hereof, provided that any requirement for notice or lapse of time, or both, has
been satisfied.
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"Excess Cash Flow" shall mean with respect to the Parent, the Borrower
and its Subsidiaries on a consolidated basis as of the end of any fiscal year of
the Borrower and based on the audited financial statements provided under
Section 6.2 hereof for such fiscal year, the excess, if any, without
duplication, of (a) Operating Cash Flow for such fiscal year, minus (b) the sum
of the following (i) Capital Expenditures (excluding Capital Expenditures
financed through barter agreements in an aggregate amount not to exceed
$1,000,000 per fiscal year or through promotional arrangements) by the Parent,
the Borrower and its Subsidiaries during such fiscal year, (ii) Debt Service for
such fiscal year and (iii) cash income taxes paid by the Parent, the Borrower
and its Subsidiaries during such fiscal year; in each case, as determined in
accordance with GAAP.
"Excess Cash Flow Repayment Amounts" shall mean, as of any calculation
date, the aggregate amount of the Borrower's repayment obligations under Section
2.7(b)(iv) hereof.
"FCC" shall mean the Federal Communications Commission and any successor
or substitute governmental commission, agency, department, board or authority
performing functions similar to those performed by the Federal Communications
Commission on the date hereof.
"FCC License" shall mean any license, authorization, waiver or permit
required under the Communications Act or from the FCC.
"FCC Regulations" shall mean all rules, regulations, written policies,
orders and decisions of the FCC under the Communications Act.
"Federal Funds Rate" shall mean, as of any date, the weighted average of
the rates on overnight federal funds transactions with the members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding 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 such day
on such transactions received by the Administrative Agent from three (3) federal
funds brokers of recognized standing selected by the Administrative Agent.
"Fixed Charges" shall mean for the Parent, the Borrower and its
Subsidiaries on a consolidated basis, the sum of (a) Capital Expenditures
(excluding Capital Expenditures financed through barter agreements in an
aggregate amount not to exceed $1,000,000 per fiscal year or through promotional
arrangements) for the most recently completed four (4) fiscal quarters, and as
calculated in accordance with GAAP and (b) Debt Service.
"Fixed Charge Coverage Ratio" shall mean, as of any date of
determination, the ratio of (a) Adjusted Operating Cash Flow to (b) Fixed
Charges.
"GAAP" shall mean, as in effect from time to time, generally accepted
accounting principles in the United States, consistently applied.
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"Guaranty" or "Guaranteed," as applied to an obligation, shall mean and
include (a) a guaranty, direct or indirect, in any manner, of all or any part of
such obligation, and (b) any agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, any
reimbursement obligations as to amounts drawn down by beneficiaries of
outstanding letters of credit or capital call requirements.
"Hazardous Materials" shall mean (i) any chemical, material or substance
at any time defined as or included in the definition of "hazardous substances,"
"hazardous wastes," "hazardous materials," "extremely hazardous waste," "acutely
hazardous waste," "radioactive waste," "biohazardous waste," "pollutant," "toxic
pollutant," "contaminant," "restricted hazardous waste," "infectious waste,"
"toxic substances," or any other term or expression intended to define, list or
classify substances by reason of properties harmful to health, safety or the
indoor or outdoor environment (including harmful properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive
toxicity, "TCLP toxicity" or "EP toxicity" or words of similar import under any
applicable Environmental Laws); (ii) any oil, petroleum, petroleum fraction or
petroleum derived substance; (iii) any drilling fluids, produced waters and
other wastes associated with the exploration, development or production of crude
oil, natural gas or geothermal resources; (iv) any flammable substances or
explosives; (v) any radioactive materials; (vi) any asbestos-containing
materials; (vii) urea formaldehyde foam insulation; (viii) electrical equipment
which contains any oil or dielectric fluid containing polychlorinated biphenyls;
(ix) pesticides; and (x) any other chemical, material or substance, exposure to
which is prohibited, limited or regulated by any governmental authority or which
may or could pose a hazard to the health and safety of the owners, occupants or
any Persons in the vicinity of any Real Property or to the indoor or outdoor
environment.
"Hazardous Materials Activity" shall mean any past, current, proposed or
threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"Indebtedness" shall mean, with respect to any Person, indebtedness for
money borrowed and indebtedness represented by notes payable and drafts accepted
representing extensions of credit, all obligations evidenced by bonds,
debentures, notes or other similar instruments, all indebtedness upon which
interest charges are customarily paid (other than trade payables arising in the
ordinary course of business, but only if and so long as such accounts are
payable on customary trade terms), all Capitalized Lease Obligations, all
reimbursement obligations with respect to outstanding letters of credit, all
indebtedness issued or assumed as full or partial payment for property or
services (other than trade payables arising in the ordinary course of business,
but only if and so long as such accounts are payable on customary trade terms),
whether or not any such notes, drafts, obligations or indebtedness represent
indebtedness for money borrowed, and, without duplication, Guaranties of any of
the foregoing and all obligations of such Persons under the Interest Rate Hedge
Agreements. For purposes of this definition,
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interest which is accrued but not paid on the scheduled due date for such
interest shall be deemed Indebtedness.
"Indemnitee" shall have the meaning ascribed thereto in Section 5.11
hereof.
"Interest Coverage Ratio" shall mean the ratio of (a) Annualized
Operating Cash Flow to (b) (i) with respect to the Agreement Date and the fiscal
quarter ended June 30, 1999, the product of (A) projected Interest Expense for
the quarter ended September 30, 1999 times (B) four (4); (ii) with respect to
the quarter ended September 30, 1999, the product of (A) Interest Expense for
the quarter ending September 30, 1999 times (B) four (4); (iii) with respect to
the fiscal quarter ended December 31, 1999, the product of (A) Interest Expense
for the most recently completed two (2) fiscal quarters times (B) two (2); (iv)
with respect to the fiscal quarter ended March 31, 2000, the product of (A)
Interest Expense for the most recently completed three (3) fiscal quarters times
(B) four-thirds (4/3); and (v) with respect to the fiscal quarter ended June 30,
2000 and to each fiscal quarter ending thereafter, Interest Expense for the most
recently completed four (4) fiscal quarters; all calculated in accordance with
GAAP.
"Interest Expense" shall mean, for any period, the sum of (a) all cash
interest expense (including imputed interest with respect to Capitalized Lease
Obligations) with respect to any Indebtedness of the Borrower and its
Subsidiaries on a consolidated basis during such period pursuant to the terms of
such Indebtedness, together with all unused commitment fees payable in respect
thereof, plus (b) aggregate distributions made to the Parent for the purpose of
paying cash interest on Indebtedness of the Parent and cash dividends on the
Parent Senior Preferred Stock and the Parent Junior Preferred Stock, if
permitted, all as calculated in accordance with GAAP.
"Interest Period" shall mean (a) in connection with any Base Rate
Advance, the period beginning on the date such Advance is made and ending on the
last day of the fiscal quarter in which such Advance is made, provided, however,
that if a Base Rate Advance is made on the last day of any fiscal quarter, it
shall have an Interest Period ending on, and its Payment Date shall be, the last
day of the following fiscal quarter, and (b) in connection with any LIBOR
Advance, the term of such Advance selected by the Borrower or otherwise
determined in accordance with this Agreement. Notwithstanding the foregoing,
however, (i) any applicable Interest Period which would otherwise end on a day
which is not a Business Day shall be extended to the next succeeding Business
Day unless, with respect to LIBOR Advances only, such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next
preceding Business Day, (ii) any applicable Interest Period, with respect to
LIBOR Advances only, which begins on a day for which there is no numerically
corresponding day in the calendar month during which such Interest Period is to
end shall (subject to clause (i) above) end on the last day of such calendar
month, and (iii) the Borrower shall not select an Interest Period which extends
beyond the Maturity Date, or such earlier date as would interfere with the
Borrower's repayment obligations under Section 2.5 or Section 2.7 hereof.
Interest shall be due and payable with respect to any Advance as provided in
Section 2.3 hereof.
"Interest Rate Basis" shall mean the Base Rate Basis or the LIBOR Basis,
as appropriate.
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"Interest Rate Hedge Agreements" shall mean the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"Investment" shall mean, with respect to the Borrower or any of its
Subsidiaries, (a) any loan, advance or extension of credit (other than to
customers in the ordinary course of business) by such Person to, or any Guaranty
or other contingent liability with respect to the capital stock, indebtedness or
other obligations of, or any contributions to the capital of, any other Person,
or any ownership, purchase or other acquisition by such Person of any interest
in any capital stock, limited partnership interests, general partnership
interest, or other securities of such other Person, other than an Acquisition,
and (b) all expenditures by the Borrower or any of its Subsidiaries relating to
the foregoing.
"Known to the Borrower" or "to the knowledge of the Borrower" shall mean
known by or reasonably should have been known by the executive officers of the
Borrower (which shall include, without limitation, the chief executive officer,
president, the chief operating officer, if any, the chief financial officer, the
controller, the general counsel, or any senior vice president of the Borrower).
"Leasehold Property" means any leasehold interest of the Parent or any
of its Subsidiaries as lessee of any main studio or tower.
"Lenders" shall mean the Persons whose names appear as "Lenders" on the
signature pages hereof and any other Person which becomes a "Lender" hereunder
after the Agreement Date; and "Lender" shall mean any one of the foregoing
Lenders.
"LIBOR" shall mean, for any Interest Period, the average of the interest
rates per annum at which deposits in United States Dollars for such Interest
Period are offered to the Administrative Agent in the Eurodollar market at
approximately 11:00 a.m. (London time) two (2) Business Days before the first
day of such Interest Period, in an amount approximately equal to the principal
amount of, and for a length of time approximately equal to the Interest Period
for, the LIBOR Advance sought by the Borrower.
"LIBOR Advance" shall mean an Advance which the Borrower requests to be
made as a LIBOR Advance or which is reborrowed as a LIBOR Advance, in accordance
with the provisions of Section 2.2 hereof, and which shall be in a principal
amount of at least $1,000,000 and in an integral multiple of $1,000,000.
"LIBOR Basis" shall mean a simple per annum interest rate (rounded
upward, if necessary, to the nearest one-hundredth (1/100th) of one percent)
equal to the sum of (a) the quotient of (i) the LIBOR divided by (ii) one minus
the Eurodollar Reserve Percentage, if any, stated as a decimal, plus (b) the
Applicable Margin. The LIBOR Basis shall apply to Interest
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Periods of one (1), two (2), three (3), or six (6), nine (9) and twelve (12)
months, and, once determined, shall remain unchanged during the applicable
Interest Period, except for changes to reflect adjustments in the Eurodollar
Reserve Percentage and the Applicable Margin as adjusted pursuant to Section
2.3(f) hereof. The LIBOR Basis for any LIBOR Advance shall be adjusted as of the
effective date of any change in the Eurodollar Reserve Percentage and the
Applicable Margin. The Borrower may not elect an Interest Period in excess of
six (6) months unless the Administrative Agent has notified the Borrower that
each of the Lenders has funds available to it for such Lender's portion of the
proposed Advance which are not required for other purposes, and that such funds
are available to each Lender at a rate (exclusive of reserves and other
adjustments) at or below the LIBOR Basis for such proposed Advance and Interest
Period.
"License Subs" shall mean, collectively, BLC, the WMTV Trust License Sub
and any other Wholly-Owned Subsidiary of the Borrower designated as a License
Sub by notice to the Administrative Agent, in each case, the Ownership Interests
of which are pledged to the Administrative Agent pursuant to a Borrower Pledge
Agreement or a Subsidiary Pledge Agreement, as appropriate; and "License Sub"
shall mean any one of the foregoing License Subs.
"Lien" shall mean, with respect to any property, any mortgage, lien,
pledge, negative pledge or other agreement not to pledge, assignment, charge,
security interest, title retention agreement, levy, execution, seizure,
attachment, garnishment or other encumbrance of any kind in respect of such
property, whether created by statute, contract, the common law or otherwise, and
whether or not choate, vested or perfected.
"Loan Documents" shall mean this Agreement, the Notes, the Security
Documents, all fee letters, all Requests for Advance, all Interest Rate Hedge
Agreements between the Borrower, on the one hand, and the Administrative Agent,
the Lenders or their Affiliates, or any of them, on the other hand, and all
other documents and agreements executed or delivered in connection with or
contemplated by this Agreement.
"Loans" shall mean, collectively, the Revolving Loans and the Term
Loans.
"Majority Lenders" shall mean, collectively, Lenders the total of whose
Commitments equals or exceeds fifty-one percent (51%) of the sum of the
Commitments of all Lenders entitled to vote hereunder.
"Material Contract" shall mean any of the Network Affiliation
Agreements, the employment agreements with Benedek and K. James Yager, any
acquisition agreement pertaining to any Television Station Asset Group entered
into by the Borrower as permitted hereunder, and any other contract or other
arrangement to which the Parent or any of its Subsidiaries is a party (other
than the Loan Documents) for which breach, nonperformance, cancellation or
failure to renew would reasonably be expected to have a Materially Adverse
Effect.
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"Material Fee Property" shall mean any fee interest in real property
used for main studios or towers reasonably determined by the Administrative
Agent to be of material value as Collateral or of material importance to the
operations of the Parent or any of its Subsidiaries.
"Material Leasehold Property" means a Leasehold Property reasonably
determined by the Administrative Agent to be of material value as Collateral or
of material importance to the operations of the Parent or any of its
Subsidiaries excluding any such Leasehold Property the encumbrancing of which
requires the consent of any applicable lessor, where the Borrower is unable to
obtain such lessor's consent.
"Materially Adverse Effect" shall mean (a) any material adverse effect
upon the business, assets, liabilities, financial condition, results of
operations, prospects or properties of the Parent and its Subsidiaries on a
consolidated basis, taken as a whole, or (b) a material adverse effect upon the
binding nature, validity, or enforceability of this Agreement and the Notes, or
upon the ability of the Parent, the Borrower and its Subsidiaries to perform the
payment obligations or other material obligations under this Agreement or any
other Loan Document, or upon the value of the Collateral taken as a whole or
upon the rights, benefits or interests of the Lenders in and to the Loans or the
rights of the Administrative Agent and the Lenders in the Collateral; in either
case, whether resulting from any single act, omission, situation, status, event
or undertaking, or taken together with other such acts, omissions, situations,
statuses, events or undertakings.
"Maturity Date" shall mean (a) the Revolving Loan Maturity Date or the
Term Loan Maturity Date, as appropriate, or (b) such earlier date as payment of
the Obligations shall be due (whether by acceleration, reduction of the
Commitments to zero, or otherwise).
"Mortgage" shall mean (i) a security instrument (whether designated as a
deed of trust or a mortgage or by any similar title) executed and delivered by
the Borrower or any of its Subsidiaries substantially in the form of Exhibit P
hereto, in each case with such changes thereto as may be recommended by the
Administrative Agent's local counsel based on local laws or customary local
mortgage or deed of trust practices, or (ii) at the Administrative Agent's
option, an amendment to an existing Mortgage, in form and substance reasonably
satisfactory to the Administrative Agent, adding such additional Mortgaged
Property to the Real Property Assets encumbered by such existing Mortgage.
"Mortgages" shall mean all such instruments, including the Mortgages encumbering
the Mortgaged Properties required by Section 5.22 hereof and any additional
Mortgages, collectively.
"Mortgaged Property" means a Mortgaged Property required by Section 5.22
hereof or added pursuant to Section 5.13 hereof.
"Multiemployer Plan" shall mean a multiemployer pension plan as defined
in Section 3(37) of ERISA to which Parent, the Borrower, any of its Subsidiaries
or any ERISA Affiliate is or has been required to contribute.
"Necessary Authorizations" shall mean all approvals and licenses from,
and all filings and registrations with, any governmental or other regulatory
authority, including, without
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limiting the foregoing, all approvals, FCC Licenses, filings and registrations
under the Communications Act.
"Net Income" shall mean, for the Parent, the Borrower and its
Subsidiaries on a consolidated basis, for any period, net income determined in
accordance with GAAP.
"Net Proceeds (Asset Sales)" shall mean, with respect to any Asset Sale
by the Parent, the Borrower or any of its Subsidiaries, the aggregate amount of
cash received for such assets (including, without limitation, any payments
received for non-competition covenants, any time brokerage fees, consulting or
management fees in connection with such sale, and any portion of the amount
received evidenced by a promissory note or other evidence of Indebtedness issued
by the purchaser), net of (a) amounts reserved, if any, for taxes payable with
respect to any such sale (after application (assuming application first to such
reserves) of any available losses, credits or other offsets), (b) reasonable and
customary transaction costs properly attributable to such transaction and
payable by the Parent, the Borrower or any of its Subsidiaries (other than to an
Affiliate) in connection with such Asset Sale including, without limitation,
commissions, and (c) until actually received by the Parent, the Borrower or any
of its Subsidiaries, any portion of the amount received held in escrow or
evidenced by a promissory note or other evidence of Indebtedness issued by a
purchase or non-compete, consulting or management agreement or covenant or
otherwise for which compensation is paid over time. Upon receipt by the Parent,
the Borrower or any of its Subsidiaries of (i) amounts referred to in item (c)
of the preceding sentence, or (ii) if there shall occur any reduction in the tax
reserves referred to in item (a) of the preceding sentence resulting in a
payment to the Parent, the Borrower or its Subsidiaries, such amounts shall then
be deemed to be "Net Proceeds (Asset Sales)."
"Net Proceeds (Asset Sales) Repayment Amount" shall mean, as of any
calculation date, the aggregate amount of the Borrower's obligations under
Section 2.7(b)(iii) hereof.
"Net Proceeds (Capital Sales)" shall mean, with respect to any sale,
issuance or other disposition of any Indebtedness or any Capital Stock of the
Parent or its Subsidiaries by the Parent or its Subsidiaries (other than to the
Parent or any Subsidiary of the Parent), the difference between (1) the
aggregate amount of cash or Cash Equivalents received in connection with the
sale, issuance or other disposition of such Indebtedness or such Capital Stock,
and (2) the aggregate amount of any reasonable and customary transaction costs
incurred in connection therewith, including, without limitation, all fees and
expenses of attorneys, accountants and other consultants, all underwriting or
placement agent fees, and fees and expenses of any trustee, registrar or
transfer agent.
"Net Proceeds (Capital Sales) Repayment Amount" shall mean, as of any
calculated date, the aggregate amount of the Borrower's obligations under
Section 2.7(b)(v) hereof.
"Network" shall mean one or more of National Broadcasting Company
Incorporated, American Broadcasting Company, CBS, Inc., Warner Brothers
Television Network, UPN Network or Fox Broadcasting Company, as the context
requires.
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"Network Affiliation" shall mean a relationship under a Network
Affiliation Agreement in full force and effect between a Network and the
applicable Station or between a Network and the Borrower in respect of the
applicable Station.
"Network Affiliation Agreements" shall mean, collectively, the
affiliation agreements between the Borrower or any Station, as the case may be,
and any of the Networks, as such agreement may be amended, supplemented or
otherwise modified from time to time, and including any replacement agreement.
"Notes" shall mean, collectively, the Revolving Loan Notes and the Term
Loan Notes.
"Obligations" shall mean all payment and performance obligations of
every kind, nature and description of the Parent, the Borrower, its
Subsidiaries, and any other obligors to the Lenders, or the Administrative
Agent, or any of them, under this Agreement and the other Loan Documents
(including any interest, fees and other charges on the Loans or otherwise under
the Loan Documents that would accrue but for the filing of a bankruptcy action
and including Obligations to the Administrative Agent, any of the Lenders or any
of their Affiliates under the Interest Rate Hedge Agreements) as they may be
amended from time to time, or as a result of making the Loans, whether such
obligations are direct or indirect, absolute or contingent, due or not due,
contractual or tortious, liquidated or unliquidated, arising by operation of law
or otherwise, now existing or hereafter arising.
"Operating Cash Flow" shall mean, with respect to the Parent, the
Borrower and its Subsidiaries on a consolidated basis for any fiscal quarter,
the sum of (a) Net Income for such quarter (after eliminating any extraordinary
gains and losses), and (b) to the extent deducted in determining Net Income, the
sum of the following for such period: (i) depreciation and amortization expense
(including, without duplication, the amortization of Program Obligations), (ii)
interest expense, (iii) income tax expense, and (iv) other non-cash charges
reducing Net Income, minus (x) Program Payments and (y) other non-cash charges
increasing Net Income (but excluding barter and any recognition of non-cash
income to the extent that such income is in respect of cash received in an
earlier period), in each case all as determined in accordance with GAAP. For
purposes of determining each of the Fixed Charge Ratio, the Total Leverage
Ratio, the Interest Coverage Ratio and the Senior Leverage Ratio, "Operating
Cash Flow" shall be further adjusted to (a) give effect to any Acquisition of a
Television Station Asset Group by the Borrower or any of its Subsidiaries
permitted hereunder for the fiscal period during which such transaction occurs,
as if such Acquisition had been consummated on the first day of such fiscal
period, and assuming that the Operating Cash Flow allocated to the Borrower or
the applicable Subsidiary with respect to any such Acquisition was equal to the
cash flow of the seller (calculated in the same manner as the Operating Cash
Flow hereunder) generated by such Acquisition for the portion of such period
preceding the Borrower's operation thereof; and (b) to give effect to the
Colorado Station Swap (excluding any time brokerage fees received or paid in
connection therewith) as if it had occurred on April 1, 1998. Additionally, for
purposes of determining the Total Leverage Ratio and the Senior Leverage Ratio,
"Operating Cash Flow" shall be further adjusted to give effect to any Asset Sale
of a Television Station Asset Group by the Borrower or any of its Subsidiaries
permitted hereunder for the fiscal period during which such transaction occurs,
as if such Asset Sale had been consummated on the first day of such
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fiscal period, and assuming that the Indebtedness allocated to the Borrower or
the applicable Subsidiary with respect to any such Asset Sale was paid down in
an amount equal to the Net Proceeds (Asset Sales) generated by such Asset Sale
for the portion of such period preceding the Borrower's operation thereof.
"Owned Television Station Asset Group" shall mean a Television Station
Asset Group owned by the Borrower.
"Ownership Interests" shall mean, with respect to any Person, the
Capital Stock, partnership interests, membership interest or other instruments
or securities evidencing ownership of such Person.
"Ownership Reports" shall mean, with respect to any Station, the reports
and certifications filed with the FCC pursuant to 47 C.F.R. 'SS'. 73.3615, or
any comparable reports filed pursuant to any successor regulation thereto.
"Parent" shall mean Benedek Communications Corporation, a Delaware
corporation.
"Parent Discount Note Indenture" shall mean that certain Indenture dated
as of May 15, 1996 for $170,000,000 13 1/4% Senior Subordinated Discount Notes
due 2006 entered into by the Parent as Issuer and the United States Trust
Company of New York as Trustee.
"Parent Discount Notes" shall mean $90,178,000 in initial aggregate
principal amount of 13 1/4% Senior Subordinated Discount Notes due 2006 issued
by the Parent pursuant to the Parent Discount Note Indenture.
"Parent Guaranty" shall mean that certain Parent Guaranty dated as of
even date herewith between the Parent and the Administrative Agent substantially
in the form of Exhibit F hereof.
"Parent Junior Preferred Stock" shall mean shares of Series C Junior
Discount Preferred Stock, par value $.01 per share, of the Parent.
"Parent Pledge Agreement" shall mean that certain Parent Pledge
Agreement dated as of even date herewith between the Parent and the
Administrative Agent substantially in the form of Exhibit G attached hereto,
pursuant to which the Parent has pledged to the Administrative Agent for the
ratable benefit of the Lenders all of the Parent's ownership interests in the
Borrower.
"Parent Security Agreement" shall mean that certain Parent Security
Agreement dated as of even date herewith, made by the Parent in favor of the
Collateral Agent for the ratable benefit of the Lenders, substantially in the
form of Exhibit H attached hereof.
"Parent Senior Preferred Stock" shall mean $100,000,000 issued amount of
11 1/2% Senior Exchangeable Preferred Stock due 2008 issued by the Parent.
"Payment Date" shall mean the last day of any Interest Period.
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"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted Liens" shall mean, as applied to any Person:
(a) any Lien in favor of the Collateral Agent or any Lender given
to secure the Obligations;
(b) (i) Liens on real estate or other property for taxes,
assessments, governmental charges or levies not yet delinquent and (ii) Liens
for taxes, assessments, judgments, governmental charges or levies or claims the
non-payment of which is being diligently contested in good faith by appropriate
proceedings and for which adequate reserves have been set aside on such Person's
books, but only so long as no foreclosure, distraint, sale or similar
proceedings have been commenced with respect thereto;
(c) Liens of carriers, warehousemen, mechanics, vendors, (solely
to the extent arising by operation of law) laborers and materialmen incurred in
the ordinary course of business for sums not yet due or being diligently
contested in good faith, if reserves or appropriate provisions shall have been
made therefor;
(d) Liens incurred in the ordinary course of business in
connection with worker's compensation and unemployment insurance, social
security obligations, assessments or government charges which are not overdue
for more than sixty (60) days;
(e) restrictions on the transfer of assets of the Borrower or its
Subsidiaries imposed by the Communications Act and any regulations thereunder;
(f) easements, rights-of-way, zoning restrictions, leases,
licenses, reservations or restrictions on use and other similar encumbrances on
the use of real property which do not materially interfere with the ordinary
conduct of the business of such Person or the use of such property;
(g) (i) Liens reflected by Uniform Commercial Code financing
statements filed in respect of Capitalized Lease Obligations permitted pursuant
to Section 7.1(f) hereof and true leases of the Borrower or any of its
Subsidiaries and (ii) Liens evidencing Indebtedness permitted by Section 7.1(g)
hereof;
(h) Liens to secure performance of statutory obligations, surety
or appeal bonds, performance bonds, bids, tenders or escrow deposits in
connection with Acquisitions and, in each case, in the ordinary course of
business;
(i) judgment Liens which do not result in an Event of Default
under Section 8.1(h) hereof;
(j) Liens existing on the Agreement Date as set forth in
Schedule 1 hereof; and
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(k) Liens approved by the Administrative Agent and set forth in
any title policy insuring the interest of the Collateral Agent in any
Collateral, or set forth in title report, title examination or similar document
with respect to any of the Collateral.
"Person" shall mean an individual, corporation, limited liability
company, association, partnership, joint venture, trust or estate, an
unincorporated organization, a government or any agency or political subdivision
thereof, or any other entity.
"Plan" shall mean an employee benefit plan within the meaning of Section
3(3) of ERISA or any other employee benefit plan maintained for employees of any
Person or any affiliate of such Person.
"Prior Loan Agreement" shall mean that certain Amended and Restated
Credit Agreement dated as of December 17, 1997, among Benedek Communications
Corporation, Benedek Broadcasting Corporation, as Borrower, the Lenders listed
therein, as Lenders, and Bankers Trust Company, as Agent, as amended by that
certain Limited Waiver and First Amendment to Credit Agreement of May 6, 1998,
the Second Amendment to Credit Agreement of October 31, 1998 and Limited Waiver
and Consent dated as of December 31, 1998.
"Program Obligations" shall mean all obligations of the Borrower under
all contracts for the acquisition of the right to broadcast films, series and
other programming material.
"Program Payments" shall mean aggregate cash payments actually made by
or on behalf of the Borrower and its Subsidiaries during such period with
respect to or on account of Program Obligations.
"Real Property" shall mean any and all real property (including all
buildings, fixtures or other improvements located thereon) now, hereafter or
heretofore owned, leased, operated or used by the Parent, the Borrower or any of
its Subsidiaries or any of their respective predecessors or Affiliates.
"Real Property Asset" shall mean, at any time of determination, any
interest then owned by the Parent, the Borrower or any of its Subsidiaries in
any real property. The Real Property Assets as of the Agreement Date are set
forth on Schedule 10 attached hereto.
"Register" shall have the meaning ascribed thereto in Section 11.5(g)
hereof.
"Registered Noteholder" shall mean each Non-U.S. Lender that holds a
Registered Note pursuant to Section 2.8(a) hereof or registers its Loans
pursuant to Section 11.5(g) hereof.
"Registered Notes" shall mean those certain Notes that have been issued
in registered form in accordance with Sections 2.8(a) and 11.5(g) hereof and
each of which bears the following legend: "This is a Registered Note, and this
Registered Note and the Loans evidenced hereby may be assigned or otherwise
transferred in whole or in part only by registration of such assignment or
transfer on the Register and in compliance with all other requirements provided
for in the Loan Agreement."
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"Related Documents" shall mean, collectively, the Parent Discount Note
Indenture, the Warrant Agreement, and the Certificates of Designation evidencing
the Parent Senior Preferred Stock and the Parent Junior Preferred Stock.
"Release" shall mean any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of Hazardous Materials into the indoor or outdoor
environment (including the abandonment or disposal of any barrels, containers or
other closed receptacles containing any Hazardous Materials), including the
movement of any Hazardous Materials through the air, soil, surface water or
groundwater.
"Reportable Event" shall mean, with respect to any Employee Pension
Plan, an event described in Section 4043(b) of ERISA.
"Request for Advance" shall mean a certificate designated as a "Request
for Advance," signed by an Authorized Signatory of the Borrower requesting an
Advance hereunder, which shall be in substantially the form of Exhibit I
attached hereto, and shall, among other things, (i) specify the date of the
Advance, which shall be a Business Day, the amount of the Advance, the type of
Advance (LIBOR or Base Rate), and, with respect to LIBOR Advances, the Interest
Period selected by the Borrower, (ii) state that there shall not exist, on the
date of the requested Advance and after giving effect thereto, a Default, and
(iii) the Applicable Margin then in effect.
"Restricted Payment" shall mean (a) any direct or indirect distribution,
dividend or other payment to any Person (other than to the Borrower or any
Subsidiary of the Borrower) on account of any general or limited partnership
interest in, or shares of Capital Stock or other securities of, the Parent or
any of its Subsidiaries (other than dividends payable solely in Stock of such
Person and stock splits), including, without limitation, any direct or indirect
distribution, dividend or other payment to any Person (other than to the
Borrower or any Subsidiary of the Borrower) on account of any warrants or other
rights or options to acquire shares of Capital Stock of the Parent, the Borrower
or any of its Subsidiaries, (b) any payment of principal of, or interest on, or
payment into a sinking fund for the retirement of, or any defeasance of
Subordinated Debt, or (c) any management, consulting or similar fees, or any
interest thereon, payable by the Borrower or any of its Subsidiaries to any of
their respective Affiliates (other than such fees and interest payable to the
Borrower or any of its Subsidiaries).
"Restricted Purchase" shall mean any payment (including, without
limitation, any sinking fund payment, prepayment or installment payment) on
account of the purchase, redemption, defeasance or other acquisition or
retirement of any general or limited partnership interest in, or shares of
Capital Stock of or other securities or Subordinated Debt or other Ownership
Interests of the Parent, the Borrower or any of its Subsidiaries, including,
without limitation, any warrants or other rights or options to acquire shares of
Capital Stock or other Ownership Interests of the Parent, the Borrower or of any
of its Subsidiaries or any loan, advance, release or forgiveness of Indebtedness
by the Parent, the Borrower or any of its Subsidiaries to any partner,
shareholder or Affiliate (other than to the Borrower or any of its Subsidiaries)
of any such Person.
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"Revolving Loan Commitment" shall mean the several obligations of the
Lenders to fund their respective portion of the Revolving Loans to the Borrower
in accordance with their respective Commitment Ratios in the aggregate sum as of
the Agreement Date of up to $35,000,000, pursuant to the terms hereof, as such
obligations may be reduced from time to time pursuant to the terms hereof.
"Revolving Loans" shall mean, collectively, those amounts advanced by
the Lenders to the Borrower under the Revolving Loan Commitment not to exceed
the Revolving Loan Commitment at any one time and evidenced by the Revolving
Loan Notes.
"Revolving Loan Maturity Date" shall mean May 20, 2007, or such earlier
date as payment of the Revolving Loans shall be due (whether by acceleration,
reduction of the Revolving Loan Commitment to zero or otherwise).
"Revolving Loan Notes" shall mean, collectively, those certain
promissory notes in the aggregate original principal amount of $35,000,000, and
issued to each of the Lenders by the Borrower with respect to the Revolving Loan
Commitment, each one substantially in the form of Exhibit E-1 attached hereto,
any other promissory note issued by the Borrower to evidence the Revolving Loans
pursuant to this Agreement, and any extensions, renewals, or amendments to, or
replacements of, the foregoing.
"Revolving Loan Repayment Proceeds" shall mean the product of (a) the
Revolving Loan Repayment Ratio, times (b) (i) with respect to a repayment
required by Section 2.7(b)(iii) hereof, the Net Proceeds (Asset Sales) Repayment
Amount; (ii) with respect to a repayment required by Section 2.7(b)(iv) hereof,
the Excess Cash Flow Repayment Amount; or (iii) with respect to a repayment
required by Section 2.7(b)(v) hereof, the Net Proceeds (Capital Sales) Repayment
Amount, as the case may be.
"Revolving Loan Repayment Ratio" shall mean, as of any date, the ratio
of (a) the Revolving Loan Commitment on such date to (b) the sum of the
Commitments hereunder on such date.
"Satellite Stations" shall mean, collectively, the following television
broadcast stations: KGWL-TV licensed to serve Lander, Wyoming; KGWR-TV licensed
to serve Rock Springs, Wyoming; KSTF(TV) licensed to serve Scottsbluff,
Nebraska; and KTVS(TV) licensed to serve Sterling, Colorado together with any
Satellite Stations acquired after the Agreement Date pursuant to Section 7.6
hereof.
"Security Documents" shall mean the Borrower's Pledge Agreement, the
Borrower's Security Agreement, the Parent Pledge Agreement, the Parent Guaranty,
the Parent Security Agreement, the Mortgages, any Subsidiary Guaranty, any
Subsidiary Pledge Agreement, any Subsidiary Security Agreement, any Trademark
Security Agreement, any other agreement or instrument providing Collateral for
the Obligations whether now or hereafter in existence, and any filings,
instruments, agreements, and documents related thereto or to this Agreement, and
providing the Administrative Agent, for the benefit of the Lenders, with
Collateral for the Obligations.
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"Security Interest" shall mean all Liens in favor of the Collateral
Agent, for the benefit of the Lenders, created hereunder or under any of the
Security Documents to secure the Obligations.
"Senior Debt" shall mean the sum (without duplication) of all
Indebtedness of the Borrower and its Subsidiaries on a consolidated basis other
than Subordinated Debt.
"Senior Leverage Ratio" shall mean, as of any date, the ratio of (a)
Senior Debt to (b) Annualized Operating Cash Flow.
"Senior Note Indenture" shall mean that certain Indenture dated as of
March 1, 1995 for $135,000,000 11 7/8% Senior Secured Notes due 2005 entered
into by the Borrower as Issuer, BLC (as successor by merger to Benedek
Broadcasting Company, LLC), the WMTV Trust and the WMTV License Co., LLC, as
Guarantors, and The Bank of New York as Trustee as supplemented as of June 6,
1996, as of October 31, 1998 and as of May 3, 1999.
"Senior Notes" shall mean those $135,000,000 11% Senior Secured Notes
due 2005 issued by the Borrower pursuant to the Senior Note Indenture.
"Stations" shall mean, collectively (i) each of the television broadcast
stations owned and operated by the Borrower and its Subsidiaries on the
Agreement Date as set forth in Schedule 6 attached hereto and (ii) any
television broadcast station acquired after the Agreement Date by the Borrower
or any of its Subsidiaries in accordance herewith.
"Subordinated Debt" shall mean (i) Indebtedness of the Parent evidenced
by the Parent Discount Notes, (ii) any Indebtedness of the Parent evidenced by
the Parent Senior Preferred Stock and the Parent Junior Preferred Stock; (iii)
Indebtedness of the Parent permitted by Section 7.1(i) hereof, (iv) Indebtedness
of the Borrower permitted by Section 7.1(k) hereof and (v) any other
Indebtedness of the Parent or its Subsidiaries subordinated in right of payment
to the Obligations pursuant to documentation containing maturities, amortization
schedules, covenants, defaults, remedies, subordination provisions and other
material terms in form and substance reasonably satisfactory to the
Administrative Agent and the Majority Lenders.
"Subsidiary" shall mean, as applied to any Person, (a) any corporation
of which more than fifty percent (50%) of the outstanding stock (other than
directors' qualifying shares) having ordinary voting power to elect a majority
of its board of directors, regardless of the existence at the time of a right of
the holders of any class or classes of securities of such corporation to
exercise such voting power by reason of the happening of any contingency, or any
partnership or limited liability company of which more than fifty percent (50%)
of the outstanding partnership or ownership interests, is at the time owned
directly or indirectly by such Person, or by one or more Subsidiaries of such
Person, or by such Person and one or more Subsidiaries of such Person, or (b)
any other entity which is directly or indirectly controlled or capable of being
controlled by such Person, or by one or more Subsidiaries of such Person, or by
such Person and one or more Subsidiaries of such Person. "Subsidiaries" as used
herein shall mean the Subsidiaries of the Borrower unless otherwise specified.
For all purposes hereunder, unless
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otherwise noted, the WMTV Trust and its Subsidiaries shall be deemed to be
Subsidiaries of the Borrower. The Subsidiaries of the Borrower as of the
Agreement Date are set forth on Schedule 2 hereto, except as otherwise noted
thereon. For all purposes under this Agreement (except as otherwise set forth
herein), with respect to the Borrower, "Subsidiary" or "Subsidiaries" shall not
include any Unrestricted Subsidiary but shall include any License Sub.
"Subsidiary Guaranty" shall mean any Subsidiary Guaranty, in favor of
the Collateral Agent and the Lenders, given by each Subsidiary of the Borrower,
substantially in the form of Exhibit J hereof.
"Subsidiary Pledge Agreement" shall mean any Subsidiary Pledge Agreement
made by each Subsidiary of the Borrower having one or more of its own
Subsidiaries, on the one hand, in favor of the Collateral Agent, on the other
hand, substantially in the form of Exhibit K hereof.
"Subsidiary Security Agreement" shall mean any Subsidiary Security
Agreement between any of the Borrower's Subsidiaries, on the one hand, and the
Collateral Agent, on the other hand, substantially in the form of Exhibit L
hereof.
"Television Station Asset Group" shall mean any group of assets which
constitute all or substantially all of the assets which would be necessary to
carry on the business of a television broadcast station and which, when
purchased by a single purchaser, would (together with any necessary FCC
Licenses, authorizations, working capital and operating location) be
substantially sufficient to allow such purchaser to carry on such business.
"Tender Offer" shall mean that certain tender offer made on April 16,
1999 by the Borrower for the Senior Notes pursuant to provisions of the Senior
Note Indenture to re-purchase the Senior Notes and extinguish such debt
evidenced by the Senior Notes.
"Term Loan Commitment" shall mean the several obligations of the Lenders
to fund their respective portion of the Term Loans to the Borrower on the
Agreement Date, in accordance with their respective Commitment Ratios, an
aggregate sum of up to $275,000,000, pursuant to the terms hereof, as such
obligations may be reduced from time to time pursuant to the terms hereof.
"Term Loans" shall mean, collectively, the amounts advanced by the
Lenders to the Borrower under the Term Loan Commitment, not to exceed the Term
Loan Commitment and evidenced by the Term Loan Notes.
"Term Loan Maturity Date" shall mean November 20, 2007, or such earlier
date as payment of the Term Loans shall be due (whether by acceleration or
otherwise).
"Term Loan Notes" shall mean, collectively, those certain promissory
notes in the aggregate original principal amount of $275,000,000, and issued to
each of the Lenders by the Borrower with respect to the Term Loan Commitment,
each one substantially in the form of Exhibit E-2 attached hereto, any other
promissory note issued by the Borrower to evidence the
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Term Loans pursuant to this Agreement, and any extensions, renewals, or
amendments to, or replacements of, the foregoing.
"Term Loan Repayment Proceeds" shall mean the product of (a) the Term
Loan Repayment Ratio, times (b) (i) with respect to a repayment required by
Section 2.7(b)(iii) hereof, the Net Proceeds (Asset Sales) Repayment Amount;
(ii) with respect to a repayment required by Section 2.7(b)(iv) hereof, the
Excess Cash Flow Repayment Amount; or (iii) with respect to a repayment required
by Section 2.7(b)(v) hereof, the Net Proceeds (Capital Sales) Repayment Amount,
as the case may be.
"Term Loan Repayment Ratio" shall mean, as of any date, the ratio of (a)
the Term Loan Commitment on such date to (b) the sum of the Commitments
hereunder on such date.
"Title Company" shall mean one or more title insurance companies
reasonably satisfactory to the Administrative Agent.
"Total Debt" shall mean the sum (without duplication) of (a) the sum of
(i) the outstanding principal amount of the Loans plus (ii) all other
Indebtedness of the Borrower and its Subsidiaries on a consolidated basis and
(b) all Indebtedness of the Parent (excluding the Parent Senior Preferred Stock
and the Parent Junior Preferred Stock) which requires the current payment of
cash interest.
"Total Leverage Ratio" shall mean, as of any date, the ratio of (a)
Total Debt to (b) Annualized Operating Cash Flow.
"Trademark Security Agreement" shall mean any Trademark Security
Agreement, between the Borrower or any Subsidiary and the Collateral Agent,
substantially in the form of Exhibit M attached hereto.
"Unrestricted Subsidiaries" shall mean any Subsidiaries of the Borrower
which are designated as such in accordance with Section 7.14 hereof. The
financial condition and operations of any Unrestricted Subsidiary shall not be
consolidated with those of the Borrower and its Subsidiaries for financial
covenant purposes set forth herein.
"Upstream Dividends" shall have the meaning ascribed to in Section 7.15
hereof.
"Voting Stock" shall mean, with respect to a corporation, all classes of
Capital Stock of such corporation then outstanding and normally entitled to vote
in the election of directors.
"Warrant Agreement" shall mean that certain Warrant Agreement dated as
of June 5, 1996 between the Parent and IBJ Schroder Bank & Trust Company.
"Warrants" shall mean the 600,000 initial warrants issued by the Parent
pursuant to the Warrant Agreement.
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"Wholly Owned Subsidiary" shall mean, at any time, a Subsidiary, and all
of the Voting Stock of which (except directors' qualifying shares) is at the
time owned, directly indirectly, by the Borrower.
"WMTV Trust" shall mean The WMTV Trust, a Wisconsin trust.
"WMTV Trust License Sub" shall mean WMTV License Co., LLC, a Delaware
limited liability company.
Section 1.2 Interpretation. Each definition of an agreement in this
Article 1 shall, unless otherwise specified, include such agreement as modified,
amended, restated or supplemented from time to time in accordance herewith and
therewith, and except where the context otherwise requires, the singular shall
include the plural and vice versa. Except where otherwise specifically
restricted, reference to a party to this Agreement or any other Loan Document
includes that party and its successors and assigns. All capitalized terms used
herein which are defined in Article 9 of the Uniform Commercial Code in effect
in the State of New York on the date hereof and which are not otherwise defined
herein shall have the same meanings herein as set forth therein.
Section 1.3 Cross References. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause in
such Article, Section or definition.
Section 1.4 Financial Projections. Whenever in this Loan Agreement the
Borrower is obligated to provide financial projections and calculations in form
and substance reasonably satisfactory to the Administrative Agent, such
financial projections shall be deemed satisfactory if such financial projections
(i) are prepared in substantially the same form as the projections delivered to
the Lenders prior to the Agreement Date pursuant to Section 4.1(r) (the
"Delivered Projections") and (ii) reflect future operating results substantially
in accordance with the Delivered Projections or reflect material changes thereto
reasonably satisfactory to the Administrative Agent.
ARTICLE 2
Loans
Section 2.1 The Loans
(a) Revolving Loans. The Lenders who issued a Revolving Loan
Commitment agree, severally, in accordance with their respective Commitment
Ratios and not jointly, upon the terms and subject to the conditions of this
Agreement to lend to the Borrower, prior to the Revolving Loan Maturity Date,
amounts not at any one time outstanding to exceed, in the aggregate, the
Revolving Loan Commitment. Subject to the terms and conditions hereof,
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Advances under the Revolving Loan Commitment may be repaid and reborrowed from
time to time on a revolving basis.
(b) Term Loans. The Lenders who issued a Term Loan Commitment,
agree severally, in accordance with their respective Commitment Ratios, and not
jointly, upon the terms and subject to the conditions of this Agreement, to lend
to the Borrower on the Agreement Date an amount which does not exceed in the
aggregate the Term Loan Commitment. Subject to the terms and conditions hereof,
Advances under the Term Loan Commitment may be repaid and reborrowed to effect a
change in the Interest Rate Basis or Interest Periods relating thereto;
provided, however, there shall be no increase in the principal amount of the
Term Loans outstanding after the Agreement Date.
Section 2.2 Manner of Borrowing and Disbursement.
(a) Choice of Interest Rate, Etc. Any Advance shall, at the
option of the Borrower, be made as a Base Rate Advance or a LIBOR Advance;
provided, however, that at such time as there shall have occurred and be
continuing a Default hereunder, the Borrower shall not have the right to receive
a LIBOR Advance. Any notice given to the Administrative Agent in connection with
a requested Advance hereunder shall be given to the Administrative Agent prior
to 11:00 a.m. (New York time) in order for such Business Day to count toward the
minimum number of Business Days required.
(b) Base Rate Advances.
(i) Advances. The Borrower shall give the Administrative
Agent in the case of Base Rate Advances at least one (1) Business Day's
irrevocable prior telephonic notice followed immediately by a Request
for Advance; provided, however, that the Borrower's failure to confirm
any telephonic notice with a Request for Advance shall not invalidate
any notice so given if acted upon by the Administrative Agent. Upon
receipt of such notice from the Borrower, the Administrative Agent shall
promptly notify each Lender by telephone or telecopy of the contents
thereof.
(ii) Repayments and Reborrowings. The Borrower may repay or
prepay a Base Rate Advance without regard to its Payment Date and (A)
upon at least one (1) Business Day's irrevocable prior telephonic notice
followed by written notice, reborrow all or a portion of the principal
amount thereof as a Base Rate Advance, (B) upon at least three (3)
Business Days' irrevocable prior telephonic notice followed by written
notice, reborrow all or a portion of the principal thereof as one or
more LIBOR Advances, or (C) not reborrow all or any portion of such Base
Rate Advance. On the date indicated by the Borrower, such Base Rate
Advance shall be so repaid and, as applicable, reborrowed. The failure
to give timely notice hereunder with respect to the Payment Date of any
Base Rate Advance shall be considered a request for a Base Rate Advance.
(c) LIBOR Advances.
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(i) Advances. Upon request, the Administrative Agent, whose
determination in absence of manifest error shall be conclusive, shall
determine the available LIBOR Bases and shall notify the Borrower of
such LIBOR Bases. The Borrower shall give the Administrative Agent in
the case of LIBOR Advances at least three (3) Business Days' irrevocable
prior telephonic notice followed immediately by a Request for Advance;
provided, however, that the Borrower's failure to confirm any telephonic
notice with a Request for Advance shall not invalidate any notice so
given if acted upon by the Administrative Agent. Upon receipt of such
notice from the Borrower, the Administrative Agent shall promptly notify
each Lender by telephone or telecopy of the contents thereof.
(ii) Repayments and Reborrowings. At least three (3) Business
Days prior to the Payment Date for each LIBOR Advance, the Borrower
shall give the Administrative Agent telephonic notice followed by
written notice specifying whether all or a portion of such LIBOR Advance
(A) is to be repaid and then reborrowed in whole or in part as one or
more LIBOR Advances, (B) is to be repaid and then reborrowed in whole or
in part as a Base Rate Advance, or (C) is to be repaid and not
reborrowed. The failure to give such notice shall preclude the Borrower
from reborrowing such Advance as a LIBOR Advance on its Payment Date and
shall be considered a request for a Base Rate Advance. Upon such Payment
Date such LIBOR Advance will, subject to the provisions hereof, be so
repaid and, as applicable, reborrowed.
(d) Notification of Lenders. Upon receipt of a Request for
Advance, or a notice from the Borrower with respect to any outstanding Advance
prior to the Payment Date for such Advance, the Administrative Agent shall
promptly but no later than the close of business on the day of such notice
notify each Lender by telephone or telecopy of the contents thereof and the
amount of such Lender's portion of the Advance. Each Lender shall, not later
than 12:00 noon (New York time) on the date of borrowing specified in such
notice, make available to the Administrative Agent at the Administrative Agent's
Office, or at such account as the Administrative Agent shall designate, the
amount of its portion of any Advance which represents an additional borrowing
hereunder in immediately available funds.
(e) Disbursement.
(i) Prior to 2:00 p.m. (New York time) on the date of an
Advance hereunder, the Administrative Agent shall, subject to the
satisfaction of the conditions set forth in Article 3 hereof, disburse
the amounts made available to the Administrative Agent by the Lenders in
like funds by (A) transferring the amounts so made available by wire
transfer pursuant to the Borrower's instructions, or (B) in the absence
of such instructions, crediting the amounts so made available to the
account of the Borrower maintained with the Administrative Agent.
(ii) Unless the Administrative Agent shall have received
notice from a Lender prior to 12:00 noon (New York time) on the date of
any Advance that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of such Advance, the
Administrative Agent may assume that such Lender has made or
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will make such portion available to the Administrative Agent on the date
of such Advance and the Administrative Agent may in its sole discretion
and in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent the Lender does
not make such ratable portion available to the Administrative Agent,
such Lender agrees to repay to the Administrative Agent on demand such
corresponding amount together with interest thereon, for each day from
the date such amount is made available to the Borrower until the date
such amount is repaid to the Administrative Agent, at the Federal Funds
Rate.
(iii) If such Lender shall repay to the Administrative Agent
such corresponding amount, such amount so repaid shall constitute such
Lender's portion of the applicable Advance for purposes of this
Agreement. If such Lender does not repay such corresponding amount
immediately upon the Administrative Agent's demand therefor, the
Administrative Agent shall notify the Borrower and the Borrower shall
immediately pay such corresponding amount to the Administrative Agent,
with interest at the Federal Funds Rate. The failure of any Lender to
fund its portion of any Advance shall not relieve any other Lender of
its obligation, if any, hereunder to fund its respective portion of the
Advance on the date of such borrowing, but no Lender shall be
responsible for any such failure of any other Lender.
(iv) In the event that, at any time when the Borrower is not
in Default and has otherwise satisfied each of the conditions in Section
3.2 hereof, a Lender for any reason fails or refuses to fund its portion
of an Advance and such failure shall continue for a period in excess of
thirty (30) days, then, until such time as such Lender has funded its
portion of such Advance (which late funding shall not absolve such
Lender from any liability it may have to the Borrower), or all other
Lenders have received payment in full from the Borrower (whether by
repayment or prepayment) or otherwise of the principal and interest due
in respect of such Advance, such non-funding Lender shall not have the
right (A) to vote regarding any issue on which voting is required or
advisable under this Agreement or any other Loan Document, and such
Lender's portion of the Loans shall not be counted as outstanding for
purposes of determining "Majority Lenders" hereunder, and (B) to receive
payments of principal, interest or fees from the Borrower, the
Administrative Agent or the other Lenders in respect of its portion of
the Loans.
Section 2.3 Interest.
(a) On Base Rate Advances. Interest on each Base Rate Advance
shall be computed on the basis of a year of 365/366 days (360 days to the extent
based on the Federal Funds Rate) for the actual number of days elapsed and shall
be payable at the Base Rate Basis for such Advance, in arrears on the applicable
Payment Date. Interest on Base Rate Advances then outstanding shall also be due
and payable on the Maturity Date.
(b) On LIBOR Advances. Interest on each LIBOR Advance shall be
computed on the basis of a 360-day year for the actual number of days elapsed
and shall be payable at the LIBOR Basis for such Advance, in arrears on the
applicable Payment Date, and, in addition, if the Interest Period for a LIBOR
Advance exceeds three (3) months, interest on such
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LIBOR Advance shall also be due and payable in arrears on every three-month
anniversary of the beginning of such Interest Period. Interest on LIBOR Advances
then outstanding shall also be due and payable on the Maturity Date.
(c) Interest if no Notice of Selection of Interest Rate Basis. If
the Borrower fails to give the Administrative Agent timely notice of its
selection of a LIBOR Basis, or if for any reason a determination of a LIBOR
Basis for any Advance is not timely concluded, the Base Rate Basis shall apply
to such Advance.
(d) Interest Upon Default. Immediately upon the occurrence of an
Event of Default hereunder, the outstanding principal balance of the Loans shall
bear interest at the Default Rate. Such interest shall be payable on demand by
the Majority Lenders and shall accrue until the earlier of (i) waiver or cure of
the applicable Event of Default, (ii) agreement by the Majority Lenders (or, if
applicable to the underlying Event of Default, the Lenders) to rescind the
charging of interest at the Default Rate, or (iii) payment in full of the
Obligations.
(e) LIBOR Contracts. At no time may the number of outstanding
LIBOR Advances exceed eight (8) in the aggregate.
(f) Applicable Margin.
(i) Revolving Loans. From the Agreement Date through and
including November 20, 1999, the Applicable Margin for any Advance under the
Revolving Loan Commitment, shall be, (A) for Base Rate Advances, one and
three-fourths of one percent (1.750%), and (B) for LIBOR Advances, two and
three-fourths of one percent (2.750%) below. At all times after November 20,
1999, the Applicable Margin shall be determined by the Administrative Agent with
respect to any Advance under the Revolving Loan Commitment based upon the Senior
Leverage Ratio as of the end of the fiscal quarter most recently ended,
effective as of the third (3rd) Business Day after the financial statements
referred to in Section 6.1 or 6.2 hereof, as the case may be, are furnished to
the Administrative Agent for such fiscal quarter, as follows:
<TABLE>
<CAPTION>
Base Rate Advance LIBOR Advance
Senior Leverage Ratio Applicable Margin Applicable Margin
--------------------- ----------------- -----------------
<S> <C> <C>
A. Greater than or equal to 5.00 to 1.00 1.750% 2.750%
B. Greater than or equal to 4.50 to 1.00, 1.500% 2.500%
but less than 5.00 to 1.00
C. Greater than or equal to 4.00 to 1.00, 1.250% 2.250%
but less than 4.50 to 1.00
D. Less than 4.00 to 1.00 1.000% 2.000%
</TABLE>
Notwithstanding the foregoing, if the Borrower shall fail to timely
deliver to the Administrative Agent the financial statements required for the
calculation of the Total Leverage
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Ratio for any fiscal quarter, then commencing with the Business Day after the
date such financial statements were due and continuing through the third (3rd)
Business Day following the date of delivery thereof, the Total Leverage Ratio
for such period shall be conclusively presumed to be, and the Applicable Margin
for any Advance under the Revolving Loan Commitment shall be calculated based
upon, the next highest Total Leverage Ratio level listed in the table set forth
above in this Section 2.3(f)(i).
(ii) Term Loans. The Applicable Margin for any Advance
under the Term Loan Commitment shall be (A) for Base Rate Advances, two and
one-fourth of one percent (2.250%) and (B) for LIBOR Advances, three and
one-fourth percent (3.250%).
Section 2.4 Commitment Fees. The Borrower agrees to pay to the
Administrative Agent for the account of each of the Lenders, in accordance with
such Lender's respective Commitment Ratio for the Revolving Loan Commitment a
commitment fee on the Available Revolving Loan Commitment for each day from the
Agreement Date until the Revolving Loan Maturity Date as follows: (a) if the
Available Revolving Loan Commitment as a percentage of the Revolving Loan
Commitment on such date is greater than or equal to 50%, then the commitment fee
shall be equal to the product of (i) the Available Revolving Loan Commitment
times (ii) 0.75%; and (b) if the Available Revolving Loan Commitment as a
percentage of the Revolving Loan Commitment on such date is less than 50%, then
the commitment fee shall be equal to the product of (i) the Available Revolving
Loan Commitment times (ii) the applicable rate per annum as set forth below:
<TABLE>
<CAPTION>
Then the applicable Commitment
If the Senior Leverage Ratio of the Fee rate under Section
Borrower on the applicable date is 2.4(b)(ii) hereof is:
----------------------------------- -----------------------------
<S> <C>
Greater than or equal to 5.0 to 1.0 0.750%
Less than 5.0 to 1.0 but greater than or 0.500%
equal to 4.0 to 1.0
Less than 4.0 to 1.0 0.375%
</TABLE>
Such commitment fees shall be computed on the basis of a year of three hundred
sixty-five (365)/three hundred sixty-six (366) days for the actual number of
days elapsed, shall be payable quarterly in arrears on the last Business Day of
each fiscal quarter, and shall be fully earned when due and non-refundable when
paid. A final payment of all commitment fees then payable shall also be due and
payable on the Revolving Loan Maturity Date.
Section 2.5 Mandatory Commitment Reductions
(a) Scheduled Reductions under the Revolving Loan Commitment.
Commencing on June 30, 2002 and at the end of each fiscal quarter thereafter,
the Revolving Loan Commitment as of June 29, 2002 shall be automatically and
permanently reduced by the
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percentage amount set forth below for the dates indicated (which reductions are
in addition to those set forth elsewhere in this Agreement):
<TABLE>
<CAPTION>
Percentage Reduction
to Revolving Loan
Commitment as of
Scheduled Reduction Dates June 29, 2002
------------------------- ---------------------
<S> <C>
June 30, 2002, September 30, 2002,
December 31, 2002 and March 31, 2003 3.75%
June 30, 2003, September 30, 2003,
December 31, 2003 and March 31, 2004 3.75%
June 30, 2004, September 30, 2004,
December 31, 2004 and March 31, 2005 5.00%
June 30, 2005, September 30, 2005,
December 31, 2005 and March 31, 2006 6.25%
June 30, 2006, September 30, 2006,
December 31, 2006 and Revolving Loan Maturity Date 6.25%
</TABLE>
(b) Reduction From Permitted Asset Sales. The Revolving
Loan Commitment shall be automatically and permanently reduced by an amount
equal to the repayment of Revolving Loans required under Section 2.7(b)(iii)
hereof. Reductions to the Revolving Loan Commitment under this Section 2.5(b)
shall be applied to the reductions set forth in Section 2.5(a) hereof in inverse
order of maturity.
(c) Reduction From Excess Cash Flow. The Revolving Loan
Commitment shall be automatically and permanently reduced by an amount equal to
the repayment of Revolving Loans required under Section 2.7(b)(iv) hereof.
Reductions to the Revolving Loan Commitment under this Section 2.5(c) shall be
applied to the reductions set forth in Section 2.5(a) hereof in inverse order of
maturity.
(d) Reduction From Sale of Capital and Debt Instruments.
The Revolving Loan Commitment shall be automatically and permanently reduced by
an amount equal to the repayment of Revolving Loans required under Section
2.7(b)(v) hereof. Reductions to the Revolving Loan Commitment under this Section
2.5(d) shall be applied to the reductions set forth in Section 2.5(a) hereof in
inverse order of maturity.
Section 2.6 Voluntary Commitment Reductions. The Borrower shall have the
right, at any time and from time to time after the Agreement Date, upon at least
three (3) Business Days' prior written notice to the Administrative Agent,
without premium or penalty, to cancel or reduce permanently all or a portion of
the Revolving Loan Commitment, on a pro rata basis among the Lenders, provided,
however, that any such partial reduction shall be made in an amount not less
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than $1,000,000 and in integral multiples of not less than $1,000,000. As of the
date of cancellation or reduction set forth in such notice, the Revolving Loan
Commitment shall be permanently reduced to the amount stated in the Borrower's
notice for all purposes herein, and the Borrower shall pay to the Administrative
Agent for the Lenders the amount necessary to reduce the principal amount of the
Revolving Loans then outstanding to not more than the amount of the Revolving
Loan Commitment as so reduced, together with accrued interest on the amount so
prepaid and commitment fees accrued through the date of the reduction with
respect to the amount reduced. Reductions to the Revolving Loan Commitment under
this Section 2.6 shall be applied to the reductions set forth in Section 2.5(a)
hereof pro rata across maturities.
Section 2.7 Prepayments and Repayments.
(a) Prepayments. The principal amount of any Base Rate Advance
may be prepaid in full or ratably in part at any time, without penalty and
without regard to the Payment Date for such Advance. LIBOR Advances may be
prepaid prior to the applicable Payment Date, upon two (2) Business Days' prior
written notice, or telephonic notice followed immediately by written notice, to
the Administrative Agent, provided, however, that the Borrower shall reimburse
the Lenders and the Administrative Agent, on the earlier of demand by the
applicable Lender or the Maturity Date, for any loss or reasonable out-of-pocket
expense incurred by any Lender or the Administrative Agent in connection with
such prepayment, as set forth in Section 2.10 hereof; provided further, however,
that the Borrower's failure to confirm any telephonic notice with a written
notice shall not invalidate any notice so given if acted upon by the
Administrative Agent. Any prepayment hereunder shall be in amounts of not less
than $1,000,000 and in integral multiples of $1,000,000. Revolving Loans prepaid
pursuant to Section 2.7(a) may be reborrowed, subject to the terms and
conditions hereof. Term Loans prepaid may not be reborrowed. Amounts prepaid
shall be paid together with accrued interest on the amount so prepaid accrued
through the date of such prepayment.
(b) Repayments. The Borrower shall repay the Loans as follows:
(i) Scheduled Repayments of the Term Loans. Commencing on
June 30, 2002, the principal balance of the Term Loans outstanding on June 29,
2002 shall be repaid in consecutive quarterly installments on the last day of
each fiscal quarter ending during the periods set forth below until paid in full
in such amounts as follows:
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<TABLE>
<CAPTION>
Percentage of Principal of
Term Loans outstanding on
Repayment Dates June 29, 2002 Due on each Repayment Date
--------------- ----------------------------------------
<S> <C>
June 30, 2002, September 30, 2002
December 31, 2002 and March 31, 2003 0.25%
June 30, 2003, September 30, 2003,
December 31, 2003 and March 31, 2004 0.25%
June 30, 2004, September 30, 2004,
December 31, 2004 and March 31, 2005 0.25%
June 30, 2005, September 30, 2005,
December 31, 2005 and March 31, 2006 0.25%
June 30, 2006, September 30, 2006
December 31, 2006 and March 31, 2007 0.25%
June 30, 2007 and Term Loan Maturity Date 47.50%
</TABLE>
(ii) Revolving Loans in Excess of Revolving Loan
Commitment. If, at any time, the Revolving Loans outstanding shall exceed the
Revolving Loan Commitment, the Borrower shall, on such date and subject to
Section 2.10 hereof, make a repayment of the principal amount of the Revolving
Loans in an aggregate amount equal to such excess, together with any accrued
interest with respect thereto.
(iii) Repayments from Permitted Asset Sales. On the
Business Day following the date of receipt by the Borrower or any of its
Subsidiaries of any Net Proceeds (Asset Sales) (other than in connection with a
disposition of assets permitted under Section 7.4(a) hereof), the Loans shall be
automatically and permanently prepaid as set forth in Section 2.7(b)(vi) hereof
in an amount equal to, in the aggregate, one-hundred percent (100%) of any Net
Proceeds (Asset Sales); provided, however, that (A) no prepayment under this
Section 2.7(b)(iii) shall occur if such Net Proceeds (Asset Sales) are
reinvested in Stations and other assets related to the Borrower's business
within the succeeding three hundred sixty-five (365) day period and (B) the
Borrower may use Net Proceeds (Asset Sales) from the sale of WIFR-TV in
Rockford, Illinois to repurchase Parent Discount Notes; provided that (1) the
Borrower provides to the Administrative Agent and the Lenders financial
projections and calculations, in the form and substance reasonably satisfactory
to the Administrative Agent, specifically demonstrating compliance with Sections
7.8, 7.9, 7.10 and 7.11 hereof and its ability to meet its repayment obligations
hereunder through the Maturity Date after giving effect to such sale and (2)
such proceeds are used to repurchase such Parent Discount Notes within one
hundred eighty (180) days from the date of such sale or are reinvested as
provided in Section 2.7(b)(iii)(A). Accrued interest on the principal amount of
the Loans being prepaid pursuant to this
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Section 2.7(b)(iii) to the date of such prepayment will be paid by the Borrower
concurrently with such principal prepayment.
(iv) Repayments from Excess Cash Flow. On or prior to
April 30, 2002, and on or prior to each April 30th thereafter during the term of
this Agreement, the Loans shall be automatically and permanently prepaid as set
forth in Section 2.7(b)(vi) hereof in an amount equal to, in the aggregate,
fifty percent (50%) of Excess Cash Flow for the fiscal year ended on the
immediately preceding December 31st. Accrued interest on the principal amount of
the Loans being prepaid pursuant to this Section 2.7(b)(iv) to the date of such
prepayment will be paid by the Borrower concurrently with such principal
prepayment.
(v) Repayments from Sale of Capital Stock and Debt
Instruments. On the Business Day following the date of receipt by the Borrower
or any of the Borrower's Subsidiaries of any Net Proceeds (Capital Sales), the
Loans shall be automatically and permanently prepaid as set forth in Section
2.7(b)(vi) hereof in an amount equal to, in the aggregate, one hundred percent
(100%) of all such Net Proceeds (Capital Sales). Accrued interest on the
principal amount of the Loans being prepaid pursuant to this Section 2.7(b)(v)
to the date of such prepayment will be paid by the Borrower concurrently with
such principal prepayment.
(vi) Allocation of Repayment Amounts. On the Business Day
of the receipt by the Borrower or any Subsidiary of any (i) Net Proceeds (Asset
Sales) Repayment Amount, (ii) Excess Cash Flow Repayment Amount or (iii) Net
Proceeds (Capital Sales) Repayment Amount, as the case may be, the Term Loans
shall be prepaid by an amount equal to the Term Loan Repayment Proceeds and the
Revolving Loan Commitment shall be automatically and permanently reduced by an
amount equal to the Revolving Loan Repayment Proceeds. Amounts so prepaid shall
be applied to principal of Term Loans in inverse order of maturity set forth in
Section 2.7(b)(i) hereof or to reduce the Revolving Loan Commitment over the
reduction schedule set forth in Section 2.5 (a) hereof in inverse order of
maturity.
(vii) Revolving Loan Maturity Date. In addition to the
foregoing, a final payment of all Revolving Loans, together with accrued
interest and fees with respect thereto, shall be due and payable on the
Revolving Loan Maturity Date.
(viii) Term Loan Maturity Date. In addition to the
foregoing, a final payment of the Term Loans, together with accrued interest and
fees with respect thereto and all other Obligations then outstanding, shall be
due and payable on the Term Loan Maturity Date.
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<PAGE>
Section 2.8 Notes; Loan Account
(a) The Loans shall be repayable in accordance with the terms and
provisions set forth herein and shall be evidenced by the Notes. One (1)
Revolving Loan Note and one (1) Term Loan Note shall be payable to the order of
each Lender, in accordance with such Lender's respective applicable Commitment
Ratio. The Revolving Loan Notes and Term Loan Notes shall be issued by the
Borrower to the Lenders and shall be duly executed and delivered by one (1) or
more Authorized Signatories. Any Lender (i) which is not a United States Person
(a "Non-U.S. Lender") and (ii) which would become completely exempt from
withholding of United States federal income taxes in respect of payment of any
obligations due to such Lender hereunder or under the Notes or any other Loan
Document relating to any of its Loans if such Loans were in registered form for
United States federal income tax purposes may request the Borrower (through the
Administrative Agent), and the Borrower agrees thereupon, at the cost and
expense of such Lender, to register such Loans as provided in Section 11.5(g)
hereof and to issue to such Lender Notes evidencing such Loans as Registered
Notes or to exchange Notes evidencing such Loans for new Registered Notes, as
applicable. Registered Notes may not be exchanged for Notes that are not in
registered form.
(b) Each Lender may open and maintain on its books in the name of
the Borrower a loan account with respect to its portion of the Loans and
interest thereon. Each Lender which opens such a loan account shall debit such
loan account for the principal amount of its portion of each Advance made by it
and accrued interest thereon, and shall credit such loan account for each
payment on account of principal of or interest on its Loans. The records of a
Lender with respect to the loan account maintained by it shall be prima facie
evidence of its portion of the Loans and accrued interest thereon absent
manifest error, but the failure of any Lender to make any such notations or any
error or mistake in such notations shall not affect the Borrower's repayment
obligations with respect to such Loans.
Section 2.9 Manner of Payment
(a) Each payment (including any prepayment) by the Borrower on
account of the principal of or interest on the Loans, commitment fees and any
other amount owed to the Lenders or the Administrative Agent or any of them
under this Agreement or the Notes shall be made not later than 1:00 p.m. (New
York time) on the date specified for payment under this Agreement to the
Administrative Agent at the Administrative Agent's Office, for the account of
the Lenders or the Administrative Agent, as the case may be, in lawful money of
the United States of America in immediately available funds. Any payment
received by the Administrative Agent after 1:00 p.m. (New York time) shall be
deemed received on the next Business Day. Receipt by the Administrative Agent of
any payment intended for any Lender or Lenders hereunder prior to 1:00 p.m. (New
York time) on any Business Day shall be deemed to constitute receipt by such
Lender or Lenders on such Business Day. In the case of a payment for the account
of a Lender, the Administrative Agent will promptly, but no later than the close
of business on the date such payment is deemed received, thereafter distribute
the amount so received in like funds to such Lender. If the Administrative Agent
shall not have received any payment from the Borrower as and when due, the
Administrative Agent will promptly notify the Lenders accordingly. In the event
that the Administrative Agent shall fail to make distribution to
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any Lender as required under this Section 2.9, the Administrative Agent agrees
to pay such Lender interest from the date such payment was due until paid at the
Federal Funds Rate.
(b) The Borrower agrees to pay principal, interest, fees and all
other amounts due hereunder or under the Notes without set-off or counterclaim
or any deduction whatsoever. So long as the applicable Lender has complied with
Section 2.13 hereof, the Borrower agrees to pay principal, interest, fees and
all other amounts due hereunder, under the Notes or under any other Loan
Document without set-off or counterclaim or any deduction whatsoever and free
and clear of all taxes, levies and withholding. So long as the applicable Lender
has complied with Section 2.13 hereof, if the Borrower is required by Applicable
Law to deduct any taxes from or in respect of any sum payable to the such Lender
hereunder, under any Note or under any other Loan Document: (i) the sum payable
hereunder or thereunder, as applicable, shall be increased to the extent
necessary to provide that, after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.9(b)), the
Administrative Agent or such Lender, as applicable, receives an amount equal to
the sum it would have received had no such deductions been made; (ii) the
Borrower shall make such deductions from such sums payable hereunder or
thereunder, as applicable, and pay the amount so deducted to the relevant taxing
authority as required by Applicable Law; and (iii) the Borrower shall provide
the Administrative Agent or such Lender, as applicable, with evidence
satisfactory to the Administrative Agent or such Lender, as applicable, that
such deducted amounts have been paid to the relevant taxing authority. Before
making any such deductions, such Lender shall designate a different lending
office and may take such alternative courses of action if such designation or
alternative courses of action will avoid the need for such deductions and will
not in the good faith judgment of such Lender be otherwise disadvantageous to
such Lender.
(c) Subject to any contrary provisions in the definition of
Interest Period, if any payment under this Agreement or any of the other Loan
Documents is specified to be made on a day which is not a Business Day, it shall
be made on the next Business Day, and such extension of time shall in such case
be included in computing interest and fees, if any, in connection with such
payment.
(d) Prior to the declaration of an Event of Default under Section
8.2 hereof, if some but less than all amounts due from the Borrower are received
by the Administrative Agent with respect to the Obligations, the Administrative
Agent shall distribute such amounts in the following order of priority, all in
accordance where applicable with the respective Commitment Ratios of the Lenders
for the applicable Commitment: (i) to the payment of any fees or expenses then
due and payable to the Administrative Agent and the Lenders, or any of them;
(ii) to the payment of interest then due and payable on the Loans; (iii) to the
payment of all other amounts not otherwise referred to in this Section 2.9(d)
then due and payable to the Administrative Agent and the Lenders, or any of
them, hereunder or under the Notes or any other Loan Document; (iv) to the
payment of principal then due and payable on the Loans made under the Term Loan
Commitment; and (v) to the payment of principal then due and payable on the
Loans made under the Revolving Loan Commitment.
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Section 2.10 Reimbursement.
(a) Whenever any Lender shall sustain or incur any losses or
reasonable out-of-pocket expenses in connection with (i) failure by the Borrower
to borrow any LIBOR Advance after having given notice of its intention to borrow
in accordance with Section 2.2 hereof (whether by reason of the Borrower's
election not to proceed or the non-fulfillment of any of the conditions set
forth in Article 3), or (ii) prepayment (or failure to prepay after giving
notice thereof) of any LIBOR Advance in whole or in part for any reason, the
Borrower agrees to pay to such Lender, upon the earlier of such Lender's demand
or the Maturity Date, an amount sufficient to compensate such Lender for all
such losses and out-of-pocket expenses. Such Lender's good faith determination
of the amount of such losses or out-of-pocket expenses, as set forth in writing
and accompanied by calculations in reasonable detail demonstrating the basis for
its demand, shall be presumptively correct absent manifest error.
(b) Losses subject to reimbursement hereunder shall include,
without limiting the generality of the foregoing, expenses incurred by any
Lender or any participant of such Lender permitted hereunder in connection with
the re-employment of funds prepaid, paid, repaid, not borrowed, or not paid, as
the case may be, and will be payable whether the Revolving Loan Maturity Date or
the Term Loan Maturity Date is changed by virtue of an amendment hereto (unless
such amendment expressly waives such payment) or as a result of acceleration of
the Obligations.
Section 2.11 Pro Rata Treatment.
(a) Advances. Each Advance under the Revolving Loan Commitment
from the Lenders hereunder made on or after the Agreement Date, shall be made
pro rata on the basis of the respective Commitment Ratios of the Lenders. On the
Agreement Date, each Advance from the Lenders under the Term Loan Commitment
shall be made pro rata on the basis of the respective Commitment Ratios of the
Lenders.
(b) Payments. Each payment and prepayment of principal of the
Loans, and, except as provided in Section 2.2(e) and Article 10 hereof, each
payment of interest on the Loans, shall be made to the Lenders pro rata on the
basis of their respective unpaid principal amounts outstanding under the
applicable Notes immediately prior to such payment or prepayment. If any Lender
shall obtain any payment (whether involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Loans in excess of its ratable share
of the applicable Loans under its applicable Commitment Ratio, such Lender shall
forthwith purchase from the other Lenders such participations in the portion of
the applicable Loans made by them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them; provided, however,
that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery. The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 2.11(b) may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation.
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Section 2.12 Capital Adequacy If after the date hereof, the adoption
of any Applicable Law regarding the capital adequacy of banks or bank holding
companies, or any change in Applicable Law (whether adopted before or after the
Agreement Date) or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such Lender with any
directive regarding capital adequacy (whether or not having the force of law) of
any such governmental authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on any Lender's capital as a
consequence of its obligations hereunder with respect to the Loans and the
Revolving Loan Commitment to a level below that which it could have achieved but
for such adoption, change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy immediately before such adoption,
change or compliance and assuming that such Lender's capital was fully utilized
prior to such adoption, change or compliance) by an amount reasonably deemed by
such Lender to be material, then, upon the earlier of demand by such Lender or
the Maturity Date, the Borrower shall promptly pay to such Lender such
additional amounts as shall be sufficient to compensate such Lender for such
reduced return, together with interest on such amount from the fourth (4th)
Business Day after the date of demand or the Maturity Date, as applicable, until
payment in full thereof at the Default Rate. A certificate of such Lender
setting forth the amount to be paid to such Lender by the Borrower as a result
of any event referred to in this paragraph and supporting calculations in
reasonable detail shall be presumptively correct absent manifest error.
Section 2.13 Lender Tax Forms. On or prior to the Agreement Date,
and prior to the date on which any Person becomes a Lender hereunder, and from
time to time thereafter if required by Applicable Law due to a change in
circumstances or if reasonably requested by the Borrower or the Administrative
Agent (unless such Lender is unable to do so by reasons of change in Applicable
Law), each Lender organized under the laws of a jurisdiction outside the United
States shall provide the Administrative Agent and the Borrower with (i) an
accurate and duly completed United States Internal Revenue Service Form 4224 or
Form 1001, as the case may be, and Form W-8 or Form W-9, as the case may be, or
other applicable or successor form, certificate or document prescribed by the
United States Internal Revenue Service certifying as to such Lender's
entitlement to full exemption from United States withholding tax with respect to
all payments to be made to such Lender hereunder or under any Note or other Loan
Document, or, (ii) in the case of a Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal
Revenue Service Form 1001 or 4224 pursuant to clause (i) above, (A) an accurate
and duly completed United States Internal Revenue Service Form W-8, or other
applicable or successor form, certificate or document prescribed by the United
States Internal Revenue Service certifying to such Lender's foreign status and
(B) a certificate certifying to such Lender's entitlement to a complete
exemption from United States withholding tax with respect to all payments
hereunder or under any Note or other Loan Document. In the event that the
Borrower withholds a portion of any payment hereunder or under any Note or other
Loan Document in accordance with this Section 2.13, the Borrower shall provide
evidence that such taxes of any nature whatsoever in respect of this Agreement,
any Loan or any Note or other Loan Document shall have been paid to the
appropriate taxing authorities by delivery to the Lender on whose account such
payment was made of the official
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tax receipts or notarized copies of such receipts within thirty (30) days after
payment of such tax. If the Borrower fails to make any such payment when due,
the Borrower shall indemnify the Lenders for any incremental taxes, interest or
penalties that may become payable by any Lender as a result of any such failure.
For any period with respect to which a Lender has failed to provide the Borrower
with the appropriate form described above (other than if such failure is due to
a change in Applicable Law occurring subsequent to the date on which a form
originally was required to be provided), such Lender shall not be entitled to
indemnification with respect to withholding taxes imposed by the United States
and the Borrower shall be allowed to deduct from payments to such Lender
hereunder and under any Note or other Loan Document, the amount of any such
withholding taxes paid by the Borrower.
ARTICLE 3
Conditions Precedent
Section 3.1 Conditions Precedent to Effectiveness of Agreement. The
obligation of the Lenders to undertake the Commitments and the effectiveness of
this Agreement are subject to the prior or contemporaneous fulfillment of each
of the following conditions:
(a) The Administrative Agent and the Lenders shall have received
each of the following:
(i) this Agreement duly executed;
(ii) [Reserved];
(iii) duly executed Notes;
(iv) duly executed Borrower's Pledge Agreement, together
with appropriate stock certificates, membership interest certificates, undated
assignment separate from certificate executed in blank and stock powers;
(v) duly executed Borrower's Security Agreement,
together with duly executed appropriate Uniform Commercial Code financing
statement forms to the extent requested by the Administrative Agent;
(vi) duly executed Subsidiary Pledge Agreements, together
with appropriate stock or membership interest certificates and undated stock
powers or assignments executed in blank;
(vii) duly executed Subsidiary Security Agreements,
together with duly executed appropriate Uniform Commercial Code financing
statement forms to the extent requested by the Administrative Agent;
(viii) duly executed Subsidiary Guaranties;
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(ix) duly executed Trademark Security Agreements,
together with any documentation relating thereto;
(x) duly executed Parent Pledge Agreement;
(xi) duly executed Parent Guaranty;
(xii) the loan certificate of the Borrower dated as
of the Agreement Date, in substantially the form attached hereto as Exhibit N-1,
including a certificate of incumbency with respect to each Authorized Signatory
of such Person, together with the following items: (A) a true, complete and
correct copy of the Certificate of Incorporation and By-laws of the Borrower as
in effect on the Agreement Date, (B) certificates of good standing for the
Borrower issued by the Secretary of State or similar state official for the
state of incorporation of the Borrower and for each state in which the Borrower
is required to qualify to do business, (C) a true, complete and correct copy of
the corporate resolutions of the Borrower authorizing the Borrower to execute,
deliver and perform this Agreement and the other Loan Documents, and (D) a true,
complete and correct copy of any shareholders' agreements or voting trust
agreements in effect with respect to the stock of the Borrower;
(xiii) a loan certificate of each Subsidiary of the
Borrower dated as of the Agreement Date, in substantially the form attached
hereto as Exhibit N-2, including a certificate of incumbency with respect to
each Authorized Signatory of such Person, together with the following items: (A)
a true, complete and correct copy of the Certificate or Articles of
Incorporation or Certificate of Formation, as applicable, of such Person as in
effect on the Agreement Date, (B) a true, complete and correct copy of the
By-laws, Operating or Trust Agreement, as applicable, of such Person as in
effect on the Agreement Date, (C) certificates of good standing for such Person
issued by the Secretary of State or similar state official for the state of
incorporation or formation, as applicable, of such Person and for each state in
which such Person is required to qualify to do business, (D) a true, complete
and correct copy of the corporate resolutions or membership resolutions, as
applicable, of such Person (or another appropriate Person) authorizing such
Person to execute, deliver and perform the Loan Documents to which it is party,
and (E) a true, complete and correct copy of any shareholders' agreements or
voting trust agreements in effect with respect to the Capital Stock of such
Person;
(xiv) the loan certificate of the Parent dated as of the
Agreement Date, in substantially the form attached hereto as Exhibit N-3,
including a certificate of incumbency with respect to each Authorized Signatory
of such Person, together with the following items: (A) a true, completed and
correct copy of the certificate of Incorporation and By-Laws of the Parent as in
effect on the Agreement Date, (B) certificates of good standing for the Parent
issued by the Secretary of State or similar state official for the state of
incorporation of the Parent and for each state in which the Parent is required
to qualify to do business, (C) a true, complete and correct copy of the
corporate resolutions of the Parent authorizing the Parent to execute, deliver
and perform this Agreement and the other Loan Documents, and (D) a true,
complete and correct copy of any shareholders' agreements or voting trust
agreements in effect with respect to the stock of the Parent;
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(xv) copies of insurance binders or certificates
covering the assets of the Borrower and its Subsidiaries, and otherwise meeting
the requirements of Section 5.5 hereof;
(xvi) legal opinions of (A) Shack & Siegel, corporate
counsel to the Parent, the Borrower and its Subsidiaries and (B) Covington &
Burling, FCC counsel, to the Parent, the Borrower and its Subsidiaries,
addressed to each Lender and the Administrative Agent and dated as of the
Agreement Date which shall be in form and substance acceptable to the
Administrative Agent;
(xvii) duly executed Certificate of Financial Condition
for the Parent, the Borrower and its Subsidiaries on a consolidated basis;
(xviii) any required FCC consents or other required
consents to the closing of this Agreement or to the execution, delivery and
performance of this Agreement and the other Loan Documents, each of which shall
be in form and substance reasonably satisfactory to the Administrative Agent;
(xix) duly executed Performance Certificate for the
Parent, the Borrower and its Subsidiaries;
(xx) copies of the most recent quarterly financial
statements of the Borrower and its Subsidiaries provided to each Lender and
each Administrative Agent, certified by the chief financial officer of the
Borrower;
(xxi) all such other documents as the Administrative
Agent may reasonably request, certified by an appropriate governmental official
or an Authorized Signatory if so requested.
(b) The Administrative Agent and the Lenders shall have received
evidence satisfactory to them that all Necessary Authorizations, including all
necessary consents to the closing of this Agreement, have been obtained or made,
are in full force and effect and are not subject to any pending or, to the
knowledge of the Borrower, threatened reversal or cancellation, and the
Administrative Agent and the Lenders shall have received a certificate of an
Authorized Signatory so stating.
(c) The Borrower shall have paid to the Administrative Agent for
the account of each Lender the facility fees set forth in those letter
agreements dated the Agreement Date in favor of each Lender.
(d) The Administrative Agent shall have received evidence of the
completion of the Tender Offer for 100% of the principal amount of the Senior
Notes, the discharge of the Senior Note Indenture and the release of all Liens
granted in connection therewith.
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(e) The Administrative Agent shall have received evidence that no
event has occurred that could reasonably be expected to have a material adverse
effect on the Borrower's business, assets or financial condition since December
31, 1998.
(f) The Administrative Agent shall receive (i) a duly executed
copy of each of the Material Contracts and each such Material Contract shall be
in full force and effect and (ii) a certificate from each of the Parent and the
Borrower in form and substance reasonably satisfactory to the Administrative
Agent to the effect set forth in clause (i) above.
(g) The Administrative Agent shall have received evidence of the
payment of all interest, fees and other amounts payable under the Prior Loan
Agreement and the release of all Liens granted in connection therewith.
Section 3.2 Conditions Precedent to Each Advance. The obligation of the
Lenders to make each Advance on or after the Agreement Date is subject to the
fulfillment of each of the following conditions immediately prior to or
contemporaneously with such Advance:
(a) All of the representations and warranties of the Parent and
the Borrower under this Agreement and the other Loan Documents (including,
without limitation, all representations and warranties with respect to the
Borrower's Subsidiaries), which, pursuant to Section 4.2 hereof, are made at and
as of the time of such Advance (except to the extent previously fulfilled in
accordance with the terms hereof and to the extent relating specifically to a
specific prior date), shall be true and correct at such time in all material
respects, both before and after giving effect to the application of the proceeds
of such Advance, and after giving effect to any updates to information provided
to the Lenders in accordance with the terms of such representations and
warranties, and no Default hereunder shall then exist or be caused thereby;
(b) With respect to Advances which, if funded, would increase the
aggregate principal amount of the Loans outstanding hereunder, the
Administrative Agent shall have received a duly executed Request for Advance;
(c) The Administrative Agent and the Lenders shall have received
all such other certificates, reports, statements, opinions of counsel (if such
Advance is in connection with an Acquisition) or other documents as the
Administrative Agent or any Lender may reasonably request;
(d) With respect to any Advance relating to any Acquisition or
the formation of any Subsidiary which is permitted hereunder, the Administrative
Agent and the Lenders shall have received such documents and instruments
relating to such Acquisition or formation of a new Subsidiary as are described
in Section 5.13 hereof or otherwise required herein;
(e) No event shall have occurred and no condition shall exist
which, in the reasonable judgment of the Majority Lenders, has had or may be
expected to have a Materially Adverse Effect on the business, assets or
financial condition of the Borrower or any of its Subsidiaries; and
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(f) On the date of such Advance, after giving effect to the
Advance requested, the Borrower shall be in compliance on a pro forma basis with
the covenants set forth in Sections 7.8, 7.9, 7.10 and 7.11 of this Agreement
and that no Default or Event of Default shall be caused hereunder by such
Advance.
The acceptance of proceeds of any Advance which would increase the
aggregate principal amount of Loans outstanding shall be deemed to be a
representation and warranty by the Borrower as to compliance with this Section
3.2 on the date any such Loan is made.
ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties. The Parent and the Borrower
each hereby agrees, represents and warrants, upon the Agreement Date, in favor
of the Administrative Agent and each Lender that:
(a) Organization; Ownership; Power; Qualification. Each of the
Parent and the Borrower is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. Each of the Parent and
the Borrower has the corporate power and authority to own its properties and to
carry on its business as now being and as proposed hereafter to be conducted.
Each Subsidiary of the Borrower is a Person duly organized, validly existing and
in good standing under the laws of the state of its incorporation or formation
and has the power and authority to own its properties and to carry on its
business as now being and as proposed hereafter to be conducted. The Parent has
no Subsidiaries other than the Borrower and its Subsidiaries. The Borrower, each
of its Subsidiaries and the Parent are duly qualified, in good standing and
authorized to do business in each jurisdiction in which the character of their
respective properties or the nature of their respective businesses requires such
qualification or authorization, except where failure to be so qualified, in the
aggregate, could not reasonably be expected to have a Materially Adverse Effect.
(b) Authorization; Enforceability. The Borrower has the corporate
power and has taken all necessary corporate action to authorize it to borrow
hereunder, and each of the Borrower and the Parent has the corporate power and
has taken all necessary corporate action to execute, deliver and perform this
Agreement and each of the other Loan Documents to which it is a party in
accordance with their respective terms, and to consummate the transactions
contemplated hereby and thereby. This Agreement has been duly executed and
delivered by the Borrower and the Parent and is, and each of the other Loan
Documents to which the Borrower and the Parent is party is, a legal, valid and
binding obligation of the Borrower or the Parent, as applicable, enforceable
against the Borrower or the Parent, as applicable, in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to enforceability, to
general principles of equity.
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(c) Subsidiaries: Authorization; Enforceability. The Borrower's
Subsidiaries, Unrestricted Subsidiaries and the Borrower's direct and indirect
ownership thereof as of the Agreement Date are as set forth on Schedule 2
attached hereto, and to the extent such Subsidiaries are corporations, the
Borrower has the unrestricted right to vote the issued and outstanding ownership
interests of the Subsidiaries shown thereon; such ownership interests of such
Subsidiaries and Unrestricted Subsidiaries have been duly authorized and issued
and are fully paid and nonassessable. Each Subsidiary of the Borrower has the
power and has taken all necessary action to authorize it to execute, deliver and
perform each of the Loan Documents to which it is a party in accordance with
their respective terms and to consummate the transactions contemplated by this
Agreement and by such Loan Documents. Each of the Loan Documents to which any
Subsidiary of the Borrower is party is a legal, valid and binding obligation of
such Subsidiary enforceable against such Subsidiary in accordance with its
terms, subject, as enforcement of remedies, to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity. The Borrower's ownership
interest in each of its Subsidiaries (other than the WMTV Trust and its
Subsidiaries) represents a direct or indirect controlling interest of such
Subsidiary for purposes of directing or causing the direction of the management
and policies of each Subsidiary. The Borrower is the sole beneficiary of the
WMTV Trust.
(d) Compliance with Other Loan Documents and Contemplated
Transactions. The execution, delivery and performance, in accordance with their
respective terms, by the Parent and the Borrower of this Agreement and the
Notes, and by the Parent, the Borrower and its Subsidiaries of each of the other
Loan Documents to which they are respectively party, and the consummation of the
transactions contemplated hereby and thereby, do not and will not (i) require
any consent or approval, governmental or otherwise, not already obtained, (ii)
violate any Applicable Law respecting the Parent, the Borrower or any Subsidiary
of the Borrower, (iii) conflict with, result in a breach of, or constitute a
default under the certificate or articles of incorporation or by-laws or
partnership agreements or operating agreements or trust agreements, as the case
may be, as amended, of the Parent, the Borrower or of any Subsidiary of the
Borrower, or under any Material Contract, any Related Document, or any other
material indenture, agreement, or other instrument, to which the Parent, the
Borrower or any of its Subsidiaries is a party or by which any of them or their
respective properties may be bound, or (iv) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by the Parent, Borrower or any of its Subsidiaries, except
for Permitted Liens.
(e) Business. The Borrower, together with its Subsidiaries, is
engaged in the business of owning and operating the Stations and other
media-related businesses.
(f) FCC Licenses.
(i) Each of the Parent and its Subsidiaries has all
requisite power and authority and FCC Licenses to own and operate its properties
and to carry on its businesses as now conducted and as proposed to be conducted.
Schedule 6 annexed hereto, as it may be supplemented, correctly describes each
of the Stations and sets forth all of the FCC Licenses of
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the Borrower and its Subsidiaries and correctly sets forth the termination date,
if any, of each such FCC License. A true, correct and complete copy of each
material FCC License has been made available to the Administrative Agent. Each
material FCC License was duly and validly issued pursuant to procedures which
comply in all material respects with all requirements of Applicable Law. As of
the Agreement Date and at all times thereafter, the Parent and its Subsidiaries
have the right to use all FCC Licenses required in the ordinary course of
business for all Stations, and each such FCC License is in full force and
effect. Each of the Parent and it Subsidiaries has taken all material actions
and performed all of its material obligations that are necessary to maintain all
material FCC Licenses without adverse modification or impairment. Except as
shown on Schedule 6, no event has occurred which (i) results in, or after notice
or lapse of time or both would result in, revocation, suspension, adverse
modification, non-renewal, impairment, restriction or termination of or any
order of forfeiture with respect to, any material FCC License or (ii) materially
and adversely affects or could reasonably be expected in the future to
materially adversely affect any of the rights of the Parent or any of its
Subsidiaries thereunder. Except as set forth on Schedule 6, each FCC License is
held by a License Sub. Except as set forth in Schedule 6, none of the FCC
Licenses requires that any present stockholder, director, officer or employee of
the Parent or any of its Subsidiaries remain a stockholder or employee of such
Person, or that any transfer of control of such Person must be approved by any
public or governmental body other than the FCC.
(ii) Except as shown on Schedule 6, neither the Parent nor
any of its Subsidiaries is a party to or has knowledge of any investigation,
notice of apparent liability, violation, forfeiture or other order or complaint
issued by or before any court or regulatory body, including the FCC, or of any
other proceedings (other than proceedings relating to the radio or television
industries generally) which could in any manner materially threaten or adversely
affect the validity or continued effectiveness of the FCC Licenses of any such
Person. Neither the Parent nor any of its Subsidiaries has any reason to believe
that any material FCC Licenses listed and described in Schedule 6 will not be
renewed in the ordinary course. Each of the Parent and its Subsidiaries, as
applicable, (a) has duly filed in a timely manner all material filings, reports,
applications, documents, instruments and information required to be filed by it
under the Communication Act or pursuant to FCC Regulations or requests of any
regulatory body having jurisdiction over any of its FCC Licenses, (b) has
submitted to the FCC on a timely basis all required equal employment opportunity
reports, and (c) is in compliance in all material respects with the
Communications Act, including all FCC Regulations relating to the broadcast of
television signals, all FCC Regulations concerning the limits on the duration of
advertising in children's programming and the recordkeeping obligations relating
to such advertising, the Children's Television Act and all FCC Regulations
promulgated thereunder and all equal employment opportunity-related FCC
Regulations. The Parent and its Subsidiaries maintain appropriate public files
at the Stations in a manner that complies in all material respects with all FCC
Regulations.
(iii) The Ownership Reports filed by the Parent, the
Borrower and its Subsidiaries with the FCC are true, correct and complete in all
material respects and there have been no changes in the ownership of the Parent,
the Borrower or any Subsidiary of the Borrower since the filing of such
Ownership Reports other than as described in information filed with the FCC and
made available for examination by the Administrative Agent.
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(g) Compliance with Law. The Parent, the Borrower, its
Subsidiaries and its Unrestricted Subsidiaries are in compliance with all
Applicable Law, except where the failure to be in compliance would not
individually or in the aggregate have a Materially Adverse Effect.
(h) Title to Assets. The Parent, the Borrower and its
Subsidiaries have good, legal and marketable title to, or a valid leasehold
interest in, all of their respective material assets. None of the properties or
assets of the Parent, the Borrower or any of its Subsidiaries is subject to any
Liens, except for Permitted Liens. Except for financing statements evidencing
Permitted Liens, no financing statement under the Uniform Commercial Code as in
effect in any jurisdiction and no other filing which names the Parent, the
Borrower or any of its Subsidiaries as debtor or which covers or purports to
cover any of the assets of the Parent, the Borrower or any of its Subsidiaries
is currently effective and on file in any state or other jurisdiction, and none
of the Parent, the Borrower nor any of its Subsidiaries has signed any such
financing statement or filing or any security agreement authorizing any secured
party thereunder to file any such financing statement or filing.
(i) Litigation. There is no action, suit, proceeding or
investigation pending against, or, to the knowledge of the Parent or the
Borrower, threatened against or in any other manner relating adversely to, the
Parent, the Borrower or any of its Subsidiaries or any of their respective
properties, including, without limitation, the FCC Licenses, in any court or
before any arbitrator of any kind or before or by any governmental body except
as set forth on Schedule 9 hereto or which could reasonably be expected to have
a Materially Adverse Effect. No action, suit, proceeding or investigation (i)
calls into question the validity of this Agreement or any other Loan Document,
or (ii) individually or collectively involves the possibility of any judgment or
liability not fully covered by insurance which, if determined adversely to the
Parent, the Borrower or any of its Subsidiaries, would have a Materially Adverse
Effect.
(j) Taxes. All federal, state and other tax returns of the
Parent, the Borrower, each of its Subsidiaries and each Unrestricted Subsidiary
required by law to be filed have been duly filed and all federal, state and
other taxes, including, without limitation, withholding taxes, assessments and
other governmental charges or levies required to be paid by the Parent, the
Borrower, by any of its Subsidiaries or by any Unrestricted Subsidiary or
imposed upon the Parent, the Borrower, any of its Subsidiaries or up on any of
the Unrestricted Subsidiaries or any of their respective properties, income,
profits or assets, which are due and payable, have been paid, except any such
taxes (i) (A) the payment of which the Parent, the Borrower or any of its
Subsidiaries or any Unrestricted Subsidiary is diligently contesting in good
faith by appropriate proceedings, (B) for which adequate reserves have been
provided on the books of the Parent, the Borrower or the Subsidiary of the
Borrower or any Unrestricted Subsidiary involved, and (C) as to which no Lien
other than a Permitted Lien has attached and no foreclosure, distraint, sale or
similar proceedings have been commenced, or (ii) which may result from audits
not yet conducted. The charges, accruals and reserves on the books of the
Parent, the Borrower, each of its Subsidiaries and each Unrestricted Subsidiary
in respect of taxes are, in the judgment of the Parent and the Borrower,
adequate.
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(k) Financial Statements. The Parent and the Borrower have
furnished or caused to be furnished to the Administrative Agent and the Lenders
a Form 10-K for the Parent and its Subsidiaries on a consolidated basis for the
fiscal year ended December 31, 1998 and audited financial statements for the
fiscal year ended December 31, 1998 and unaudited for March 31, 1999 which,
together with other financial statements furnished to the Lenders subsequent to
the Agreement Date have been prepared in accordance with GAAP and present fairly
in all material respects the financial position of the Parent, the Borrower and
the Borrower's Subsidiaries on a consolidated and consolidating basis, as the
case may be, on and as at such dates and the results of operations for the
periods then ended (subject, in the case of unaudited financial statements, to
normal year-end and audit adjustments). None of the Parent, the Borrower or any
of the Borrower's Subsidiaries has any material liabilities, contingent or
otherwise, other than as disclosed in the financial statements most recently
delivered on the Agreement Date or pursuant to Section 6.1 or 6.2 hereof, and
there are no material unrealized losses of the Parent, the Borrower or any of
the Borrower's Subsidiaries and no material anticipated losses of the Parent,
the Borrower or any of the Borrower's Subsidiaries other than those which have
been previously disclosed in writing to the Administrative Agent and the Lenders
and identified as such.
(l) No Material Adverse Change. There has occurred no event since
December 31, 1998 which has or which could reasonably be expected to have a
Materially Adverse Effect.
(m) ERISA. The Parent, the Borrower and each Subsidiary of the
Borrower and each of their respective Plans are in material compliance with
ERISA and the Code and neither the Borrower nor any of its ERISA Affiliates,
including its Subsidiaries, has incurred any material accumulated funding
deficiency with respect to any such Plan within the meaning of ERISA or the
Code. The Parent, the Borrower, each of its Subsidiaries, and each other ERISA
Affiliate have complied in all material respects with all requirements of COBRA.
None of the Parent, the Borrower nor any of its Subsidiaries has made any
promises of retirement or other benefits to employees, except as set forth in
the Plans, in written agreements with such employees, or in the Borrower's
employee handbook and memoranda to employees. None of the Parent, the Borrower
nor any of its ERISA Affiliates, including its Subsidiaries, has incurred any
material liability to PBGC in connection with any such Plan. The assets of each
such Plan which is subject to Title IV of ERISA are sufficient to provide the
benefits under such Plan, the payment of which PBGC would guarantee if such Plan
were terminated, and such assets are also sufficient to provide all other
"benefit liabilities" (within the meaning of Section 4041 of ERISA) due under
the Plan upon termination. No Reportable Event has occurred and is continuing
with respect to any such Plan. No such Plan or trust created thereunder, or
party in interest (as defined in Section 3(14) of ERISA), or any fiduciary (as
defined in Section 3(21) of ERISA), has engaged in a "prohibited transaction"
(as such term is defined in Section 406 of ERISA or Section 4975 of the Code)
which would subject such Plan or any other Plan of the Parent, the Borrower or
any of its Subsidiaries, any trust created thereunder, or any such party in
interest or fiduciary, or any party dealing with any such Plan or any such
trust, to the tax or penalty on "prohibited transactions" imposed by Section 502
of ERISA or Section 4975 of the Code. None of the Parent, the Borrower nor any
of its ERISA Affiliates, including its Subsidiaries, is or has
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been obligated to make any payment to a Multiemployer Plan. For purposes of this
Section 4.1(m), the term "Subsidiaries" shall include the Unrestricted
Subsidiaries.
(n) Compliance with Regulations T, U and X. None of the Parent,
the Borrower nor any of the Borrower's Subsidiaries is engaged principally or as
one of its important activities in the business of extending credit for the
purpose of purchasing or carrying, and neither the Borrower nor any of the
Borrower's Subsidiaries owns or presently intends to acquire, any "margin
security" or "margin stock" as defined in Regulations T, U, and X (12 C.F.R.
Parts 220, 221 and 224) of the Board of Governors of the Federal Reserve System
(herein called "margin stock"). None of the proceeds of the Loans will be used,
directly or indirectly, for the purpose of purchasing or carrying any margin
stock or for the purpose of reducing or retiring any Indebtedness which was
originally incurred to purchase or carry margin stock or for any other purpose
which might constitute this transaction a "purpose credit" within the meaning of
said Regulations T, U, and X. The Borrower has not taken, caused or authorized
to be taken, and will not take any action which might cause this Agreement or
the Notes to violate Regulation T, U, or X or any other regulation of the Board
of Governors of the Federal Reserve System or to violate the Securities Exchange
Act of 1934, in each case as now in effect or as the same may hereafter be in
effect. If so requested by the Administrative Agent, the Borrower will furnish
the Administrative Agent with (i) a statement or statements in conformity with
the requirements of Federal Reserve Forms G-3 and/or U-1 referred to in
Regulation U of said Board of Governors and (ii) other documents evidencing its
compliance with the margin regulations, reasonably requested by the
Administrative Agent. Neither the making of the Loans nor the use of proceeds
thereof will violate, or be inconsistent with, the provisions of Regulation T,
U, or X of said Board of Governors.
(o) Investment Company Act. None of the Parent, the Borrower nor
any of its Subsidiaries is required to register under the provisions of the
Investment Company Act of 1940, as amended, and neither the entering into or
performance by the Parent, the Borrower and its Subsidiaries of this Agreement
and the Loan Documents nor the issuance of the Notes violates any provision of
such Act or requires any consent, approval or authorization of, or registration
with, the Securities and Exchange Commission or any other governmental or public
body or authority pursuant to any provisions of such Act.
(p) Governmental Regulation. None of the Parent, the Borrower nor
any of its Subsidiaries is required to obtain any consent, approval,
authorization, permit or license which has not already been obtained from, or
effect any filing or registration which has not already been effected with, any
federal, state or local regulatory authority in connection with the execution
and delivery of this Agreement or any other Loan Document. None of the Parent,
the Borrower nor any of its Subsidiaries is required to obtain any consent,
approval, authorization, permit or license which has not already been obtained
from, or effect any filing or registration which has not already been effected
with, any federal, state or local regulatory authority in connection with the
performance, in accordance with their respective terms, of this Agreement or any
other Loan Document, other than filing of appropriate UCC financing statements
and mortgages.
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(q) Absence of Default, Etc. The Parent, the Borrower and its
Subsidiaries are in material compliance in all respects with all of the
provisions of their respective partnership agreements, operating agreements,
Certificates or Articles of Incorporation and By-Laws or Certificate of
Formation, as the case may be, and no event has occurred or failed to occur
(including, without limitation, any matter which could create a Default
hereunder by cross-default) which has not been remedied or waived, the
occurrence or non-occurrence of which constitutes, (i) a Default or (ii) a
material default by the Parent, the Borrower or any of its Subsidiaries under
any indenture, agreement or other instrument relating to Indebtedness of the
Parent, the Borrower or any of its Subsidiaries in the amount of $1,000,000 or
more in the aggregate, any material license, or any judgment, decree or order to
which the Parent, the Borrower or any of its Subsidiaries is a party or by which
the Parent, the Borrower or any of its Subsidiaries or any of their respective
properties may be bound or affected.
(r) Accuracy and Completeness of Information. All information,
reports, prospectuses and other papers and data relating to the Parent, the
Borrower or any of its Subsidiaries and furnished by or on behalf of the Parent,
the Borrower or any of its Subsidiaries to the Administrative Agent or the
Lenders, taken as a whole, were, at the time furnished, true, complete and
correct in all material respects to the extent necessary to give the
Administrative Agent and the Lenders true and accurate knowledge of the subject
matter. Any projections and pro forma financial information contained in such
materials are based upon good faith estimates and assumptions believed by the
Borrower to be reasonable and attainable at the time made, it being recognized
by the Lenders 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.
(s) Agreements with Affiliates. Except for agreements or
arrangements with Affiliates wherein the Parent, the Borrower or one or more of
its Subsidiaries provides services to such Affiliates for fair consideration or
which are set forth on Schedule 3 attached hereto, neither the Borrower nor any
of its Subsidiaries has (i) any written agreements or binding arrangements of
any kind with any Affiliate or (ii) any management or consulting agreements of
any kind with any Affiliate, other than those between the Borrower and its
Subsidiaries or referred to in Section 3.1 hereof.
(t) Payment of Wages. The Borrower and each of its Subsidiaries
are in compliance with the Fair Labor Standards Act, as amended, in all material
respects, and to the knowledge of the Borrower and each of its Subsidiaries,
such Persons have paid all minimum and overtime wages required by law to be paid
to their respective employees.
(u) Priority. The Security Interest is a valid and perfected
first priority security interest in the Collateral in favor of the
Administrative Agent, for the benefit of itself and the Lenders, securing, in
accordance with the terms of the Security Documents, the Obligations, and the
Collateral is subject to no Liens other than Permitted Liens. The Liens created
by the Security Documents are enforceable as security for the Obligations in
accordance with their terms with respect to the Collateral subject, as to
enforcement of remedies, to the following qualifications: (i) an order of
specific performance and an injunction are discretionary remedies and, in
particular, may not be available where damages are considered an adequate
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remedy at law, and (ii) enforcement may be limited by bankruptcy, insolvency,
liquidation, reorganization, reconstruction and other similar laws affecting
enforcement of creditors' rights generally (insofar as any such law relates to
the bankruptcy, insolvency or similar event of the Parent, the Borrower or any
of its Subsidiaries, as the case may be).
(v) Indebtedness. Except as described on Schedule 4 attached
hereto none of the Parent, the Borrower nor any of its Subsidiaries has
outstanding, as of the Agreement Date, and after giving effect to the initial
Advances hereunder on the Agreement Date, any Indebtedness.
(w) Solvency. As of the Agreement Date and after giving effect to
the transactions contemplated by the Loan Documents (i) the property of the
Parent and the Borrower, at a fair valuation, will exceed its debt; (ii) the
capital of the Parent and the Borrower will not be unreasonably small to conduct
its business; (iii) the Parent and the Borrower will not have incurred debts, or
have intended to incur debts, beyond its ability to pay such debts as they
mature; and (iv) the present fair salable value of the assets of the Parent and
the Borrower will be greater than the amount that will be required to pay its
probable liabilities (including debts) as they become absolute and matured. For
purposes of this Section, "debt" means any liability on a claim, and "claim"
means (i) the right to payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
undisputed, legal, equitable, secured or unsecured, or (ii) the right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, undisputed, secured or
unsecured.
(x) Patents, Trademarks, Franchises, etc. The Borrower and each
of its Subsidiaries owns, possesses, or has the right to use all necessary
patents, trademarks, trademark rights, trade names, trade name rights, service
marks, copyrights and franchises, and rights with respect thereof, necessary to
conduct its respective business as now conducted, without known conflict with
any patent, trademark, trade name, service mark, franchise, or copyright of any
other Person, and in each case, subject to no mortgage, pledge, lien, lease,
encumbrance, charge, security interest, title retention agreement, or option.
All such registered patents, trademarks, trademark rights, trade names, trade
name rights, service marks, copyrights, and franchises are listed as of the
Agreement Date on Schedule 5 attached hereto and are in full force and effect,
the holder thereof is in full compliance in all material respects with all of
the provisions thereof, and no such asset or agreement is subject to any pending
or, to the best of the Borrower's knowledge, threatened attack or revocation.
(y) Collective Bargaining. None of the employees of the Parent,
the Borrower or any of its Subsidiaries is a party to any collective bargaining
agreement with the Parent, the Borrower or any of its Subsidiaries except as set
forth on Schedule 11 attached hereto, and, to the best knowledge of the Borrower
and its officers, there are no material grievances, disputes, or controversies
with any union or any other organization of the employees of the Parent,
Borrower or any of its Subsidiaries or threats of strikes, work stoppages, or
any asserted pending demands for collective bargaining by any union or other
organization except as set forth on Schedule 11 attached hereto.
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(z) Year 2000 Compliance. Each of the Parent and the Borrower has
(i) initiated a review and assessment of all areas within the Parent's, the
Borrower's and each of the Borrower's Subsidiaries' respective business and
operations (including those affected by suppliers, vendors and customers) that
could be adversely affected by the "Year 2000 Problem" (that is, the risk that
computer applications used by the Parent, the Borrower or any of the Borrower's
Subsidiaries (or suppliers, vendors and customers) may be unable to recognize
and perform properly date-sensitive functions involving certain dates prior to
and any date after December 31, 1999), (ii) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented that plan in accordance with that timetable. Based on the foregoing,
the Parent and the Borrower believe that all computer applications (including
those of its suppliers, vendors and customers) that are material to the
Parent's, the Borrower's or any of the Borrower's Subsidiaries' business and
operations are reasonably expected on a timely basis to be able to perform
properly date-sensitive functions for all dates before and after January 1, 2000
(that is, be "Year 2000 Compliant"), except to the extent that a failure to do
so could not reasonably be expected to have a Materially Adverse Effect.
(aa) Parent Business. The Parent is engaged solely in the
business of (i) holding of the Capital Stock of the Borrower and investments in
the Borrower and/or the Borrower's Subsidiaries permitted hereunder; (ii)
activities related to the maintenance of the Parent Discount Notes, the Parent
Junior Preferred Stock, the Parent Senior Preferred Stock, the Warrants and
other Indebtedness and Capital Stock, as permitted hereunder, including
performing it obligations as a reporting company under the Securities and the
Exchange Act, (iii) performance of its obligations hereunder and under the Loan
Documents; and (iv) receiving Restricted Payments and Restricted Purchases from
the Borrower as permitted hereunder.
(bb) Parent Senior Preferred Stock, Parent Junior Preferred
Stock, Warrants and Parent Discount Notes.
(i) Parent Senior Preferred Stock. The Parent Senior
Preferred Stock, Parent Junior Preferred Stock and Warrants sold on or before
the Agreement Date are duly and validly issued, fully paid and nonassessable. No
stockholder of the Parent has or will have any preemptive rights to subscribed
for any additional equity Capital Stock of the Parent, except that holders of
the Warrants shall have the right to exchange the Warrants for Class A Common
Stock of Capital Stock in accordance with the terms thereof. The issuance and
sale of such Parent Senior Preferred Stock, Parent Junior Preferred Stock and
Warrants, have either (A) been registered or qualified under applicable federal
and state securities laws or (B) are exempt therefrom.
(ii) Parent Discount Notes. The Parent Discount Notes
are the legally valid and binding obligations of the Parent, enforceable against
the Parent in accordance with their respective terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable principles relating
to enforceability. The subordination provisions of the Parent Discount Notes are
and will be enforceable against the holders thereof and the Loans and all other
monetary Obligations hereunder are and will be within the definition of "Senior
Debt" included in such
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provisions. The Parent Discount Notes have either (A) been registered or
qualified under applicable federal and state securities laws or (B) are exempt
therefrom.
(cc) Environmental Protection.
(i) Except as set forth in Schedule 8 attached hereto,
none of the Parent, the Borrower nor any of its Subsidiaries nor any of their
respective Real Property or operations are subject to any outstanding written
order, consent decree or settlement agreement with any Person relating to (A)
any Environmental Law, (B) any Environmental Claim, or (C) any Hazardous
Materials Activity;
(ii) None of the Parent, the Borrower nor any of its
Subsidiaries has received any letter or request for information under Section
104 of the Comprehensive Environmental Response, Compensation and Liability Act
(42 U.S.C. 'SS' 9604) or any comparable state law.
(iii) There are no and, to the Parent's and the
Borrower's knowledge, have been no conditions, occurrences, or Hazardous
Materials Activities which could reasonably be expected to form the basis of an
Environmental Claim against the Parent, the Borrower or any of its Subsidiaries
that, individually or in the aggregate, could reasonably be expected to have a
Materially Adverse Effect;
(iv) None of the Parent, the Borrower nor any of its
Subsidiaries, nor, to the Parent's and the Borrower's knowledge, any predecessor
of the Parent, the Borrower or any of its Subsidiaries has filed any notice
under any Environmental Law indicating past or present treatment of Hazardous
Materials on any Real Property and none of the Parent, the Borrower nor any of
its Subsidiaries' operations involves the generation, transportation, treatment,
storage or disposal of hazardous waste (other than Hazardous Materials used in
the ordinary course of business, the use of which is immaterial and not
reasonably likely to materially adversely affect the Real Property or have a
Materially Adverse Effect), as defined under 40 C.F.R. Parts 260-270 or any
state equivalent; and
(v) Compliance with all current or reasonably
foreseeable future requirements pursuant to or under Environmental Laws will
not, individually or in the aggregate, have a reasonable possibility of giving
rise to a Materially Adverse Effect.
Notwithstanding anything in this Section 4.1(cc) to the contrary, no
event or condition has occurred or is occurring with respect to the Parent, the
Borrower or any of its Subsidiaries relating to any Environmental Law, any
release of Hazardous Materials, or any Hazardous Materials Activity which
individually or in the aggregate has had or could reasonably be expected to have
a Materially Adverse Effect.
(dd) Material Contracts. All Material Contracts are in full
force and effect and no material defaults currently exist thereunder.
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Section 4.2 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement and any other Loan
Document shall be deemed to be made, and shall be true and correct in all
material respects, at and as of the Agreement Date and on the date of each
Advance except to the extent relating specifically to the Agreement Date. All
representations and warranties made under this Agreement and the other Loan
Documents shall survive, and not be waived by, the execution hereof by the
Lenders and the Administrative Agent, any investigation or inquiry by any Lender
or the Administrative Agent, or the making of any Advance under this Agreement.
ARTICLE 5
General Covenants
So long as any of the Obligations is outstanding and unpaid or the
Lenders have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled), and unless the Majority
Lenders, or such greater number of Lenders as may be expressly provided herein,
shall otherwise consent in writing:
Section 5.1 Preservation of Existence and Similar Matters. Except as
permitted under Section 7.4 hereof, the Parent and the Borrower will, and will
cause each of its Subsidiaries to:
(a) preserve and maintain its existence, and its material rights,
franchises, FCC Licenses and privileges in the state of its incorporation, and
each of the Parent and the Borrower will maintain such number of directors and
elect any new members to its board of directors in such a manner so as to insure
that no "Change of Control" (as such term is defined in the Parent Discount Note
Indenture) would occur in the event that the holders of the Parent Senior
Preferred Stock and/or the Parent Junior Preferred Stock were to become entitled
to elect, and were to elect, additional directors as a result of an event giving
rise to such entitlement pursuant to any document relating to the Parent Senior
Preferred Stock and the Parent Junior Preferred Stock; and
(b) qualify and remain qualified and authorized to do business in
each jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization, except for such failure
to so qualify and be so authorized as could not reasonably be expected to have a
Materially Adverse Effect.
Section 5.2 Business; Compliance with Applicable Law. The Borrower will,
and will cause each of its Subsidiaries to, (a) engage in the business of owning
and operating Stations and other media-related businesses, and (b) comply in all
material respects with the requirements of all Applicable Law. The Borrower will
cause each Unrestricted Subsidiary to comply in all material respects with the
requirements of all Applicable Law.
Section 5.3 Maintenance of Properties. The Parent and the Borrower will,
and will cause each of its Subsidiaries to, maintain or cause to be maintained
in the ordinary course of business in good repair, working order and condition
(reasonable wear and tear excepted) all properties used in their respective
businesses (whether owned or held under lease), other than
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obsolete equipment or unused assets and from time to time make or cause to be
made all needed and appropriate repairs, renewals, replacements, additions,
betterments and improvements thereto.
Section 5.4 Accounting Methods and Financial Records. The Parent and
the Borrower will, and will cause each of its Subsidiaries on a consolidated and
consolidating basis to, maintain a system of accounting established and
administered in accordance with GAAP, keep adequate records and books of account
in which complete entries will be made in accordance with GAAP and reflecting
all transactions required to be reflected by GAAP and keep accurate and complete
records of their respective properties and assets. The Parent, the Borrower and
its Subsidiaries will maintain a fiscal year ending on December 31st.
Section 5.5 Insurance. The Parent and the Borrower will, and will cause
each of its Subsidiaries to:
(a) maintain insurance including, but not limited to, business
interruption coverage and public liability coverage insurance from responsible
companies in such amounts and against such risks to the Parent, the Borrower and
each of its Subsidiaries as is prudent for similarly situated companies engaged
in the television broadcast industry and as is reasonably acceptable to the
Collateral Agent;
(b) keep their respective assets insured by insurers on terms and
in a manner reasonably acceptable to the Collateral Agent against loss or damage
by fire, theft, burglary, loss in transit, explosions and hazards insured
against by extended coverage, in amounts which are prudent for companies in
similarly situated industries and reasonably satisfactory to the Collateral
Agent, all premiums thereon to be paid by the Parent, the Borrower and its
Subsidiaries; and
(c) require that each insurance policy provide for at least
thirty (30) days' prior written notice to the Collateral Agent of any
termination of or proposed cancellation or nonrenewal of such policy, and name
the Collateral Agent as additional named lender loss payee and, as appropriate,
additional insured, to the extent of the Obligations.
In addition to the foregoing, in the event that any insurer distributes
insurance proceeds, a condemnation award, or any other disbursement in
connection with any of the foregoing insurance policies, the Collateral Agent is
authorized to collect such distribution and, if received by the Parent, the
Borrower or any of the Borrower's Subsidiaries, such distribution shall be paid
over to the Collateral Agent; provided that all such proceeds shall be paid over
to the Borrower unless an Event of Default has occurred and is continuing. Any
such distribution paid over to the Collateral Agent shall be applied to prepay
the Loans as set forth in Section 8.3 hereof.
Section 5.6 Payment of Taxes and Claims. The Parent and the Borrower
will, and will cause each of its Subsidiaries and each Unrestricted Subsidiary
to, pay and discharge all taxes, including, without limitation, withholding
taxes, assessments and governmental charges or levies required to be paid by
them or imposed upon them or their income or profits or upon any properties
belonging to them, prior to the date on which penalties attach thereto, and
all lawful
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claims for labor, materials and supplies which, if unpaid, might become a Lien
or charge upon any of their properties; provided, however, except that no such
tax, assessment, charge, levy or claim need be paid which is being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves shall have been set aside on the appropriate books, but only so long as
such tax, assessment, charge, levy or claim does not become a Lien or charge
other than a Permitted Lien and no foreclosure, distraint, sale or similar
proceedings shall have been commenced. The Parent and the Borrower will, and
will cause each of its Subsidiaries and each Unrestricted Subsidiary to, timely
file all information returns required by federal, state or local tax
authorities.
Section 5.7 Compliance with ERISA.
(a) The Borrower shall, and shall cause its Subsidiaries to, make
all contributions to any Employee Pension Plan when such contributions are due
and not incur any "accumulated funding deficiency" within the meaning of Section
412(a) of the Code, whether or not waived, and will otherwise comply with the
requirements of the Code and ERISA with respect to the operation of all Plans,
except to the extent that the failure to so comply could not have a Materially
Adverse Effect.
(b) The Borrower shall, and shall cause its Subsidiaries to,
comply in all respects with the requirements of COBRA with respect to any Plans
subject to the requirements thereof, except to the extent that the failure to so
comply could not have a Materially Adverse Effect.
(c) The Borrower shall furnish to Administrative Agent (i) within
30 days after any officer of the Borrower obtains knowledge that a "prohibited
transaction" (within the meaning of Section 406 of ERISA or Section 4975 of the
Code) has occurred with respect to any material Plan of the Parent, the Borrower
or its ERISA Affiliates, including its Subsidiaries, that any Reportable Event
has occurred with respect to any Employee Pension Plan or that PBGC has
instituted or will institute proceedings under Title IV of ERISA to terminate
any Employee Pension Plan or to appoint a trustee to administer any Employee
Pension Plan, a statement setting forth the details as to such prohibited
transaction, Reportable Event or termination or appointment proceedings and the
action which it (or any other Employee Pension Plan sponsor if other than the
Borrower) proposes to take with respect thereto, together with a copy of the
notice of such Reportable Event given to PBGC if a copy of such notice is
available to the Parent, the Borrower, any of its Subsidiaries or any of its
ERISA Affiliates, (ii) promptly after receipt thereof, a copy of any notice the
Parent, the Borrower, any of its Subsidiaries or any of its ERISA Affiliates or
the sponsor of any Plan receives from PBGC, or the Internal Revenue Service or
the Department of Labor which sets forth or proposes any action or determination
with respect to such Plan, (iii) promptly upon request, after the filing
thereof, any annual report required to be filed pursuant to ERISA in connection
with each Plan maintained by the Borrower or any of its ERISA Affiliates,
including the Subsidiaries, and (iv) promptly upon the Administrative Agent's
request therefor, such additional information concerning any such Plan as may be
reasonably requested by the Administrative Agent.
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(d) The Borrower will promptly notify the Administrative Agent of
any excise taxes which have been assessed or which the Parent, the Borrower, any
of its Subsidiaries or any of its ERISA Affiliates has reason to believe may be
assessed against the Parent, the Borrower, any of its Subsidiaries or any of its
ERISA Affiliates by the Internal Revenue Service or the Department of Labor with
respect to any Plan of the Borrower or its ERISA Affiliates, including its
Subsidiaries and each Unrestricted Subsidiary.
(e) Within the time required for notice to the PBGC under Section
302(f)(4)(A) of ERISA, the Borrower will notify the Administrative Agent of any
lien arising under Section 302(f) of ERISA in favor of any Plan of the Parent,
the Borrower or its ERISA Affiliates, including its Subsidiaries.
(f) The Parent and the Borrower will not, and will not permit any
of its Subsidiaries or any of its ERISA Affiliates to take any of the following
actions or permit any of the following events to occur if such action or event
together with all other such actions or events would subject the Parent, the
Borrower, any of its Subsidiaries, or any of its ERISA Affiliates to any tax,
penalty, or other liabilities which could have a Materially Adverse Effect:
(i) engage in any transaction in connection with which the
Borrower, any of its Subsidiaries or any ERISA Affiliate could be subject to
either a civil penalty assessed pursuant to Section 502(i) of ERISA or a tax
imposed by Section 4975 of the Code;
(ii) terminate any Employee Pension Plan in a manner, or take
any other action, which could result in any liability of the Borrower, any of
its Subsidiaries or any ERISA Affiliate to the PBGC;
(iii) fail to make full payment when due of all amounts which,
under the provisions of any Plan, the Borrower, any of its Subsidiaries or any
ERISA Affiliate is required to pay as contributions thereto, or permit to exist
any accumulated funding deficiency within the meaning of Section 412(a) of the
Code, whether or not waived, with respect to any Employee Pension Plan; or
(iv) permit the present value of all benefit liabilities under
all Employee Pension Plans which are subject to Title IV of ERISA to exceed the
present value of the assets of such Plans allocable to such benefit liabilities
(within the meaning of Section 4041 of ERISA), except as may be permitted under
actuarial funding standards adopted in accordance with Section 412 of the Code.
Section 5.8 Visits and Inspections. The Parent and the Borrower will,
and will cause each of its Subsidiaries to, permit representatives of the
Administrative Agent and any of the Lenders, prior to the occurrence of an Event
of Default upon reasonable notice and at any time upon the occurrence and during
the continuance of an Event of Default, to (i) visit and inspect the properties
of the Parent, the Borrower or any of its Subsidiaries during business hours,
(ii) inspect and make extracts from and copies of their respective books and
records, and (iii) discuss with their respective principal officers their
respective businesses, assets, liabilities, financial positions, results of
operations and business prospects. The Parent, the Borrower and
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each of its Subsidiaries will also permit representatives of the Administrative
Agent and any of the Lenders to discuss with their respective accountants the
Parent's, the Borrower's and the Borrower's Subsidiaries' businesses, assets,
liabilities, financial positions, results of operations and business prospects.
Section 5.9 Payment of Indebtedness; Loans. Subject to any provisions
herein or in any other Loan Document, the Parent and the Borrower will, and will
cause each of its Subsidiaries to, pay any and all of their respective
Indebtedness when and as it becomes due, other than amounts diligently disputed
in good faith and for which adequate reserves have been set aside in accordance
with GAAP.
Section 5.10 Use of Proceeds. The Borrower will use the aggregate
proceeds of all Advances under the Loans directly or indirectly: (a) to
refinance Indebtedness under the Prior Loan Agreement; (b) to finance the Tender
Offer; (c) to make Restricted Payments to the Parent to call or repurchase the
Parent Discount Notes; and (d) for working capital needs, permitted Acquisitions
and Investments under this Agreement, and other general corporate purposes of
the Borrower and its Subsidiaries which do not otherwise conflict with this
Section 5.10 (including, without limitation, the payment of the fees and
expenses incurred in connection with the execution and delivery of this
Agreement). No proceeds of Advances hereunder shall be used for the purchase or
carrying or the extension of credit for the purpose of purchasing or carrying,
any margin stock within the meaning of Regulations T, U and X.
Section 5.11 Indemnity. The Borrower, for itself and on behalf of each
of its Subsidiaries, agrees to indemnify and hold harmless each Lender, the
Administrative Agent, and each of their respective affiliates, employees,
representatives, shareholders, officers and directors (any of the foregoing
shall be an "Indemnitee") from and against any and all claims, liabilities,
losses, damages, actions, reasonable attorneys' fees and expenses (as such fees
and expenses are incurred) and demands by any party, including the costs of
investigating and defending such claims, whether or not the Borrower, any
Subsidiary of the Borrower or the Person seeking indemnification is the
prevailing party: (a) resulting from any breach or alleged breach by the
Borrower or any Subsidiary of the Borrower of any representation or warranty
made hereunder; or (b) otherwise arising out of (i) the Commitments, the Loans
or otherwise under this Agreement, any Loan Document or any transaction
contemplated hereby or thereby, including, without limitation, the use of the
proceeds of Loans hereunder in any fashion by the Borrower or the performance of
their respective obligations under the Loan Documents by the Borrower or any of
its Subsidiaries, (ii) allegations of any participation by the Lenders, the
Administrative Agent, or any of them, in the affairs of the Borrower or any of
its Subsidiaries or any Unrestricted Subsidiary, or allegations that any of them
has any joint liability with the Borrower or any of its Subsidiaries or any
Unrestricted Subsidiary for any reason, (iii) any claims against the Lenders,
the Administrative Agent, or any of them, by any shareholder or other investor
in or lender to the Borrower or any Subsidiary of the Borrower, by any brokers
or finders or investment advisers or investment bankers retained by the Borrower
or by any other third party, arising out of the Commitments or otherwise under
this Agreement; or (c) in connection with taxes (not including federal or state
income or franchise taxes or other taxes based solely upon the revenues or
income of such Persons), fees, and other charges payable in connection with the
Loans, or the execution, delivery, and enforcement of this Agreement, the
Security Documents,
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the other Loan Documents, and any amendments thereto or waivers of any of the
provisions thereof; unless the Person seeking indemnification hereunder is
determined in such case to have acted with gross negligence or willful
misconduct, in any case, by a final, non-appealable judicial order. The
obligations of the Borrower under this Section 5.11 are in addition to, and
shall not otherwise limit, any liabilities which the Borrower might otherwise
have in connection with any warranties or similar obligations of the Borrower in
any other Loan Document.
Section 5.12 Interest Rate Hedging. Within ninety (90) days immediately
following the Agreement Date, and at all times thereafter, the Borrower shall at
all times maintain one (1) or more Interest Rate Hedge Agreements, or otherwise
fix the interest rate, with respect to the Parent's and the Borrower's interest
obligations on an aggregate principal amount of not less than fifty percent
(50%) of the aggregate sum of (a) the Obligations outstanding hereunder from
time to time and (b) the principal amount of the Parent Discount Notes, as
determined in a manner satisfactory to the Administrative Agent. Such Interest
Rate Hedge Agreements shall provide interest rate protection in conformity with
International Swap Dealers Association standards and for a period averaging at
least eighteen (18) months from the date of such Interest Rate Hedge Agreements
across all such Interest Rate Hedge Agreements or, if earlier, until the
Maturity Date on terms acceptable to the Administrative Agent, such terms to
include consideration of the creditworthiness of the other party to the proposed
Interest Rate Hedge Agreement. All Obligations of the Borrower to the
Administrative Agent or any of the Lenders or any of their Affiliates pursuant
to any Interest Rate Hedge Agreement permitted hereunder and all Liens granted
to secure such Obligations shall rank pari passu with all other Obligations and
Liens securing such other Obligations; and any Interest Rate Hedge Agreement
between the Borrower and any other Person shall be unsecured.
Section 5.13 Covenants Regarding Formation of Subsidiaries and
Acquisitions; Partnership, Subsidiaries. At the time of (i) any Acquisition
permitted hereunder, (ii) the purchase by the Borrower or any of its
Subsidiaries of any interests in any Subsidiary of the Borrower, or (iii) the
formation of any new Subsidiary of the Borrower or any of its Subsidiaries which
is permitted under this Agreement, the Borrower will, and will cause its
Subsidiaries, as appropriate, to (a) provide to the Administrative Agent an
executed Subsidiary Security Agreement for any new Subsidiary, together with
appropriate UCC-1 financing statements, as well as an executed Subsidiary
Guaranty for such new Subsidiary, which shall constitute both Security Documents
and Loan Documents for purposes of this Agreement, as well as a loan certificate
for such new Subsidiary, substantially in the form of Exhibit M-2 attached
hereto, together with appropriate attachments; (b) pledge to the Administrative
Agent all of the stock or partnership interests (or other instruments or
securities evidencing ownership) of such Subsidiary or Person which is acquired
or formed, beneficially owned by the Borrower or any of the Borrower's
Subsidiaries, as the case may be, as additional Collateral for the Obligations
to be held by the Administrative Agent in accordance with the terms of the
Borrower's Pledge Agreement, or a new Subsidiary Pledge Agreement and execute
and deliver to the Administrative Agent all such documentation for such pledge
as, in the reasonable opinion of the Administrative Agent, is appropriate; (c)
with respect to any Material Fee Property or Material Leasehold Property
acquired or owned by any new Subsidiary, provide to the Administrative Agent a
Mortgage, title insurance policy, Phase I environmental audit or such other
documentation reasonably satisfactory to the Administrative Agent which in their
reasonable
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opinion is appropriate with respect thereto; and (d) with respect to any
Acquisition of a Television Station Asset Group, provide revised financial
projections for the remainder of the fiscal year and for each subsequent year
until the Maturity Date which reflect such Acquisition, certified by the Chief
Financial Officer of the Borrower, together with a statement by such Person that
no Default exists or would be caused by such Acquisition or formation, and all
other documentation, including one or more opinions of counsel, reasonably
satisfactory to the Administrative Agent which in their reasonable opinion is
appropriate with respect to such Acquisition. Any document, agreement or
instrument (other than the Projections) executed or issued pursuant to this
Section 5.13 shall be a "Loan Document" for purposes of this Agreement.
Section 5.14 Payment of Wages. The Borrower shall and shall cause each
of its Subsidiaries to at all times comply, in all material respects, with the
material requirements of the Fair Labor Standards Act, as amended, including,
without limitation, the provisions of such Act relating to the payment of
minimum and overtime wages as the same may become due from time to time.
Section 5.15 Further Assurances. The Parent and the Borrower will
promptly cure, or cause to be cured, defects in the creation and issuance of any
of the Notes and the execution and delivery of the Loan Documents (including
this Agreement), resulting from any acts or failure to act by the Parent, the
Borrower or any of the Borrower's Subsidiaries or any employee or officer
thereof. The Parent and the Borrower at their expense will promptly execute and
deliver to the Administrative Agent and the Lenders, or cause to be executed and
delivered to the Administrative Agent and the Lenders, all such other and
further documents, agreements, and instruments in compliance with or
accomplishment of the covenants and agreements of the Parent and the Borrower in
the Loan Documents, including this Agreement, or to correct any omissions in the
Loan Documents, or more fully to state the obligations set out herein or in any
of the Loan Documents, or to obtain any consents, all as may be necessary or
appropriate in connection therewith and as may be reasonably requested.
Section 5.16 License Subs. At the time of any Acquisition of a
Television Station Asset Group permitted hereunder, the Borrower shall cause
each of the FCC Licenses being acquired by the Borrower or any of its
Subsidiaries to be transferred to one or more License Subs, each of which
License Subs shall have as its sole asset or assets the FCC Licenses of the
Borrower or any of its Subsidiaries and a management agreement with the Borrower
and such of its Subsidiaries subject to such FCC License or FCC Licenses, such
that from and after such applicable date neither the Borrower nor its
Subsidiaries (other than License Subs) shall hold any FCC Licenses other than
through one or more duly created and existing License Subs. The Borrower shall
not permit the License Subs to have any business activities, operations, assets,
Indebtedness, Guaranties or Liens (other than holding FCC Licenses and owning
the Ownership Interests of other License Subs, and other than pursuant to a
Subsidiary Guaranty and Subsidiary Security Agreement issued in connection
herewith or any agreement referred to in the preceding sentence). Promptly after
the transfer of the FCC Licenses to the License Subs, the Borrower shall provide
to the Administrative Agent copies of any required consents to such transfer
from the FCC and any other governmental authority, together with a certificate
of an Authorized Signatory stating that all Necessary Authorizations relating to
such transfer have been obtained
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or made, are in full force and effect and are not subject to any pending or
threatened reversal or cancellation.
Section 5.17 Year 2000 Compliance. The Parent and the Borrower will,
and will cause each of its Subsidiaries to, promptly notify the Administrative
Agent in the event that the Parent, Borrower or any of its Subsidiaries
discovers or determines that any computer application (including those of its
suppliers, vendors, and customers) that is material to the Parent's, the
Borrower's or any of its Subsidiaries' businesses and operations will not be
Year 2000 compliant, except to the extent that such failure could not reasonably
be expected to have a Materially Adverse Effect.
Section 5.18 Maintenance of Network Affiliations; Material Contracts.
The Borrower shall cause each Station to maintain a Network Affiliation at all
times. The Parent and the Borrower shall, and shall cause each of its
Subsidiaries to, not breach or violate any and all Material Contracts and other
rights necessary to operate the Stations in any material respect.
Section 5.19 Ownership Reports. The Borrower shall file Ownership
Reports for any Station acquired after the Agreement Date (reflecting such
Acquisition by the Borrower) with the FCC within thirty (30) days after the date
of the consummation of such Acquisition.
Section 5.20 Business of the Parent; Immediate Contributions to the
Borrower.
(a) The Parent shall engage solely in the business described in
Section 4.1(aa) hereof.
(b) The Parent shall immediately (i) contribute to the Borrower
upon receipt (A) any capital contributions (excluding equity used to refinance
the Parent Discount Notes, the Parent Senior Preferred Stock and the Parent
Junior Preferred Stock and the proceeds from the exercise of stock options by
employees); (B) net proceeds from the issuance of any Indebtedness (excluding
Subordinated Debt and Indebtedness permitted pursuant to Section 7.1(i) hereof);
and (C) any other cash received and (ii) lend to the Borrower the net proceeds
of any Subordinated Debt, which loan shall be subordinate to the Obligations
hereunder on terms reasonably satisfactory to the Majority Lenders.
(c) Promptly upon receipt by the Parent of any distributions
pursuant to Section 7.7(b) hereof, the Parent shall execute and deliver to the
Collateral Agent, a deposit agreement in form and substance reasonably
satisfactory to the Collateral Agent and shall maintain all cash and Cash
Equivalents owned by the Parent in accordance with the terms of such deposit
agreement unless promptly used in accordance with Section 7.7(a) hereof.
Section 5.21 Environmental Compliance and Indemnity.
(a) The Parent and the Borrower shall, and shall cause each of
its Subsidiaries to, comply in all material respects with all Environmental
Laws, including, without limitation, all Environmental Laws in jurisdictions in
which the Parent, the Borrower or any of its Subsidiaries owns or operates a
facility or site, arranges for disposal or treatment of Hazardous Materials,
solid waste or other wastes, accepts for transport any Hazardous Materials,
solid wastes or other wastes or holds any interest in Real Property or
otherwise. None of the Parent, the Borrower nor any of its Subsidiaries shall
cause or allow the release of Hazardous Materials,
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solid waste or other wastes on, under or to any Real Property in which the
Parent, the Borrower or such Subsidiary holds any interest or performs any of
its operations, in material violation of any Environmental Law. The Borrower
shall notify the Lenders promptly after its receipt of notice thereof, of any
Environmental Claim which the Borrower receives involving any potential or
actual material liability of the Parent, the Borrower or any of its Subsidiaries
arising in connection with any noncompliance with or violation of the
requirements of any Environmental Law or a material Release or threatened
Release of any Hazardous Materials, solid waste or other waste into the
environment. The Parent and the Borrower shall promptly notify the Lenders (i)
of any material release of Hazardous Material on, under or from the Real
Property in which the Parent, the Borrower or any of its Subsidiaries holds or
has held an interest, upon the Parent's or the Borrower's learning thereof by
receipt of notice that the Parent, the Borrower or any of its Subsidiaries is or
may be liable to any Person as a result of such Release or that the Parent, the
Borrower or such Subsidiary has been identified as potentially responsible for,
or is subject to investigation by any governmental authority relating to, such
Release, and (ii) of the commencement or threat or any judicial or
administrative proceeding alleging a violation of any Environmental Laws.
(b) If the Administrative Agent at any time has a reasonable
basis to believe that there may be a violation of any Environmental Law by, or
any liability arising thereunder of, the Parent, the Borrower or any of its
Subsidiaries or related to any real property owned, leased or operated by the
Parent, the Borrower or any of its Subsidiaries or real property adjacent to
such Real Property, which violation or liability could reasonably be expected to
have a Materially Adverse Effect, then the Parent or the Borrower shall, upon
request from the Administrative Agent, provide the Administrative Agent with
such reports, certificates, engineering studies or other written material or
data as the Administrative Agent may require so as to satisfy the Administrative
Agent that the Parent, the Borrower or such Subsidiary is in material compliance
with all applicable Environmental Laws.
(c) The Parent and the Borrower shall defend, indemnify and hold
the Administrative Agent and the Lenders and their respective officers,
directors, shareholders, employees, agents, affiliates, successors and assigns
harmless from and against all costs, expenses, claims, demands, damages,
penalties and liabilities of every kind or nature whatsoever incurred by them
(including, without limitation, reasonable attorney fees) arising out of,
resulting from or relating to (i) the noncompliance of the Parent, the Borrower,
any of its Subsidiaries or any property owned or leased by the Parent, the
Borrower or any of its Subsidiaries with any Environmental Law, or (ii) any
investigatory or remedial action involving the Parent, the Borrower, any of its
Subsidiaries or any property owned or leased by the Parent, the Borrower or any
of it Subsidiaries and required by Environmental Laws or by order of any
governmental authority having jurisdiction under any Environmental Laws, or
(iii) any injury to any person whatsoever or damage to any property arising out
of, in connection with or in any way relating to the breach of any of the
environmental warranties or covenants in this Agreement or any facts or
circumstances that cause any of the environmental representations or warranties
contained in this Agreement to cease to be true, or (iv) the existence,
treatment, storage, Release, generation,
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transportation, removal, manufacture or other handling of any Hazardous Material
on or affecting any property owned or leased by the Parent, the Borrower or any
of its Subsidiaries, or (v) the presence of any asbestos-containing material or
underground storage tanks, whether in use or closed, under or on any property
owned or leased by the Parent, the Borrower or any of its Subsidiaries;
provided, however, that the foregoing indemnity shall not apply to any such
costs, expenses, claims, demands, damages, penalties or liabilities that are
determined in a final non-appealable order of a court of competent jurisdiction
to have arisen solely out of the gross negligence or willful misconduct of the
indemnified person.
Section 5.22 Lien Searches and UCC Financing Statements and
Mortgages. Within (a) thirty (30) days of the Agreement Date, the Borrower shall
deliver to the Administrative Agent (i) UCC-1 lien and judgment search results
with respect to the Borrower, its Subsidiaries and the Parent; (ii) UCC-1
financing statements covering all of the Collateral; (iii) Mortgages and title
policies covering all Material Fee Property and Material Leasehold Property as
set forth on Schedule 12 attached hereto; and (iv) such other documentation
relating thereto as the Administrative Agent may reasonably request; and (b)
within one hundred twenty (120) days of the Agreement Date, the Borrower shall
deliver to the Administrative Agent UCC termination statements duly executed by
all applicable Persons for filing in all applicable jurisdictions as may be
necessary to terminate any effective UCC financing statements or fixture filings
disclosed in such search (other than any such financing statements or fixture
filings in respect of Permitted Liens permitted to remain outstanding pursuant
to the terms of this Agreement).
ARTICLE 6
Information Covenants
So long as any of the Obligations is outstanding and unpaid or the
Lenders have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled) and unless the Majority
Lenders shall otherwise consent in writing, the Borrower will furnish or cause
to be furnished to the Administrative Agent (with, for the reports required
under Sections 6.1, 6.2 and 6.3 hereof, sufficient copies for each Lender):
Section 6.1 Quarterly Financial Statements and Information. Within
forty-five (45) days after the last day of each of the first three (3) quarters
of each fiscal year of the Borrower, (a) the balance sheets and the related
statements of operations of the Parent on a consolidated and consolidating basis
with its Subsidiaries as at the end of such quarter and as of the end of the
preceding fiscal year and the related statements of cash flows of the Borrower
on a consolidated basis with its Subsidiaries and the Parent for such quarter
and for the elapsed portion of the year ended with the last day of such quarter,
and (b) for each Unrestricted Subsidiary, a balance sheet as at the end of such
quarter and as of the end of the preceding fiscal year, and the related
statements of operations and the related statements of cash flows for the
elapsed portion of the year ended with the last day of such quarter, and for the
elapsed portion of the year ended with the last day of such quarter, each of
which shall set forth in comparative form such figures as at the end of and for
such quarter and appropriate prior period and shall be certified by the chief
financial officer of the Borrower to have been prepared in accordance with GAAP
and to present
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fairly in all material respects the financial position of the Borrower on a
consolidated and consolidating basis with its Subsidiaries, and the Parent and
each Unrestricted Subsidiary, as applicable as at the end of such period and the
results of operations for such period, and for the elapsed portion of the year
ended with the last day of such period, subject only to normal year-end and
audit adjustments.
Section 6.2 Annual Financial Statements and Information. Within
ninety (90) days after the end of each fiscal year of the Borrower, (a) the
audited consolidated balance sheet of the Parent, the Borrower and its
Subsidiaries as of the end of such fiscal year and the related audited
consolidated statements of operations for such fiscal year and for the previous
fiscal year, the related audited consolidated statements of cash flow and
members' equity for such fiscal year and for the previous fiscal year, and (b)
the audited consolidated balance sheet of each Unrestricted Subsidiary or of all
Unrestricted Subsidiaries on a consolidated basis, as of the end of such fiscal
year and the related audited consolidated statements of operation for such
fiscal year and for the previous fiscal year, the related audited consolidated
statements of cash flow and members' equity for such fiscal year and for the
previous fiscal year, each of which shall be accompanied by an opinion of
independent certified public accountants of recognized national standing
acceptable to the Administrative Agent (without a "going concern" or like
qualification or exception and without any qualification or exception as to the
scope of the audit), together with a statement of such accountants that in
connection with their audit, nothing came to their attention that caused them to
believe that the Parent or the Borrower was not in compliance with or was
otherwise in Default under the terms, covenants, provisions or conditions of
Articles 7 and 8 hereof insofar as they relate to accounting or financial
matters.
Section 6.3 Performance Certificates. At the time the financial
statements are furnished pursuant to Sections 6.1 and 6.2, a certificate of the
president, chief financial officer or controller of the Borrower as to its
financial performance, in substantially the form attached hereto as Exhibit O:
(a) setting forth as and at the end of such quarterly period or
fiscal year, as the case may be, the arithmetical calculations required to
establish (i) any adjustment to the Applicable Margins, as provided for in
Section 2.3(f) and (ii) whether or not the Borrower was in compliance with the
requirements of Sections 7.8, 7.9, 7.10 and 7.11 hereof;
(b) stating that, to the best of his or her knowledge, no Default
has occurred as at the end of such quarterly period or year, as the case may be,
or, if a Default has occurred, disclosing each such Default and its nature, when
it occurred, whether it is continuing and the steps being taken by the Borrower
with respect to such Default; and
(c) containing a list of all Acquisitions, Investments (other
than Cash Equivalents), Restricted Payments and Asset Sales from the Agreement
Date through the date of such certificate, together with the total amount for
each of the foregoing categories.
Section 6.4 Copies of Other Reports.
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(a) Promptly upon receipt thereof, copies of all reports, if
any, submitted to the Borrower or the Parent by the Borrower's or the Parent's
independent public accountants regarding the Borrower or the Parent, including,
without limitation, any management report submitted to the Board of directors of
either the Borrower or the Parent prepared in connection with the annual audit
referred to in Section 6.2.
(b) From time to time and promptly upon each request, such
data, certificates, reports, statements, documents or further information
regarding the business, assets, liabilities, financial position, projections,
results of operations or business prospects of the Parent, the Borrower or any
of its Subsidiaries or of any Unrestricted Subsidiary, as the Administrative
Agent or any Lender may reasonably request.
(c) Annually, certificates of insurance indicating that the
requirements of Section 5.5 hereof remain satisfied for such fiscal year,
together with, upon request, copies of any new or replacement insurance policies
obtained during such year.
(d) Prior to January 31 of each year, the annual budget for
the Parent, the Borrower and the Borrower's Subsidiaries on a quarter by quarter
basis.
(e) Promptly upon their becoming available, copies of (i) all
financial statements, reports, notices and proxy statements sent or made
available generally by the Parent or the Borrower to its security holders or by
any Subsidiary of the Borrower to its security holders other than the Parent,
the Borrower, or another Subsidiary of the Borrower, (ii) all regular and
periodic reports and all registration statements (other than on Form S-8 or a
similar form) and prospectuses, if any, filed by the Parent, the Borrower, or
any of its Subsidiaries with any securities exchange or with the Securities and
Exchange Commission or any governmental or private regulatory authority, (iii)
all press releases and other statements made available generally by the Parent,
the Borrower or any of its Subsidiaries to the public concerning material
developments in the business of the Parent, the Borrower or any of its
Subsidiaries, (iv) any material non-routine correspondence or official notices
received by the Parent, the Borrower, or any of its Subsidiaries from any
Communications Regulatory Authority, and (v) all material information filed by
the Parent, the Borrower or any of its Subsidiaries, with the FCC (including all
Ownership Reports and amendments or supplements to any Ownership Report);
(f) Promptly upon (i) receipt of notice of (A) any forfeiture,
non-renewal, cancellation, termination, revocation, suspension, impairment or
material modification of any material FCC License held by the Parent, the
Borrower or any of its Subsidiaries, or any notice of default or forfeiture with
respect to any such FCC License, or (B) any refusal by any governmental agency
or authority (including the FCC) to renew or extend any such FCC License, a
certificate specifying the nature of such event, the period of existence
thereof, and what action the Parent, the Borrower and its Subsidiaries are
taking and propose to take with respect thereto, and (ii) any Acquisition of any
Television Station Asset Group, a written notice setting forth with respect to
such Station all of the data required to be set forth in Schedule 6 with respect
to such Television Station Asset Group and the FCC Licenses required in
connection with the ownership and operation of such Television Station Asset
Group (it being understood
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that such written notice shall be deemed to supplement Schedule 6 attached
hereto for all purposes of this Agreement); and
(g) Promptly, and in any event within ten (10) Business Days
after any Related Documents of the Parent or any of its Subsidiaries are
terminated or amended in a manner that is materially adverse to the Parent or
such Subsidiary, as the case may be, or any new Related Documents are entered
into, a written statement describing such event with copies of such material
amendments or new contracts, and an explanation of any actions being taken with
respect thereto.
Section 6.5 Notice of Litigation and Other Matters. Notice specifying
the nature and status of any of the following events, promptly, but in any
event not later than fifteen (15) days after the occurrence of any of the
following events becomes known to the Parent or the Borrower:
(a) the commencement of all proceedings and
investigations by or before any governmental body and all actions and
proceedings in any court or before any arbitrator against the Parent, the
Borrower or any Subsidiary, or, to the extent known to the Parent or the
Borrower, which could have a Materially Adverse Effect;
(b) any material adverse change with respect to the
business, assets, liabilities, financial position, results of operations or
business prospects of the Parent, the Borrower and its Subsidiaries, taken as a
whole, other than changes in the ordinary course of business which have not had
and would not reasonably be expected to have a Materially Adverse Effect and
other than changes in the industry in which the Parent, Borrower or any of its
Subsidiaries operate which would not reasonably be expected to have a Materially
Adverse Effect;
(c) any material adverse amendment or change to the
projections or annual budget provided to the Lenders by the Borrower;
(d) any Default or the occurrence or non-occurrence of
any event (i) which constitutes, or which with the passage of time or giving of
notice or both would constitute a default by the Parent, the Borrower or any of
its Subsidiaries under any material agreement other than this Agreement and the
other Loan Documents to which the Parent, the Borrower or any Subsidiary of the
Borrower is party or by which any of their respective properties may be bound,
or (ii) which could have a Materially Adverse Effect, giving in each case a
description thereof and specifying the action proposed to be taken with respect
thereto;
(e) the occurrence of any Reportable Event or a
"prohibited transaction" (as such term is defined in Section 406 of ERISA or
Section 4975 of the Code) with respect to any Plan of the Borrower or any of its
Subsidiaries or the institution or threatened institution by PBGC of proceedings
under ERISA to terminate or to partially terminate any such Plan or the
commencement or threatened commencement of any litigation regarding any such
Plan or naming it or the trustee of any such Plan with respect to such Plan or
any action taken by
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the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate of the
Borrower to withdraw or partially withdraw from any Plan or to terminate any
Plan; and
(f) the occurrence of any event subsequent to the
Agreement Date which, if such event had occurred prior to the Agreement Date,
would have constituted a material exception to the representation and warranty
in Section 4.1(m) of this Agreement.
ARTICLE 7
Negative Covenants
So long as any of the Obligations are outstanding and unpaid or the
Lenders have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled) and unless the Majority
Lenders, or such greater number of Lenders as may be expressly provided herein,
shall otherwise give their prior consent in writing:
Section 7.1 Indebtedness of the Parent, the Borrower, and its
Subsidiaries. The Parent and the Borrower shall not, and shall not permit
any of its Subsidiaries to, create, assume, incur or otherwise become or remain
obligated in respect of, or permit to be outstanding, any Indebtedness except:
(a) the Obligations;
(b) accounts payable, accrued expenses (including taxes)
and customer advance payments incurred in the ordinary course of business;
(c) Indebtedness secured by Permitted Liens not otherwise
provided in Sections 7.1(f) or 7.1(g) hereof;
(d) obligations under Interest Rate Hedge Agreements;
(e) unsecured Indebtedness of the Borrower or any of its
Subsidiaries to the Borrower or any other Subsidiary of the Borrower so long as
the corresponding debt instruments are pledged to the Administrative Agent as
security for the Obligations;
(f) Capitalized Lease Obligations in an amount for the
Borrower on a consolidated basis with its Subsidiaries not in excess, together
with the Indebtedness permitted under Section 7.1(g) hereof, of $20,000,000 in
the aggregate at any one time outstanding on terms and conditions no more
restrictive than those contained hereunder;
(g) Other Indebtedness which, together with the other
Indebtedness referred to in Section 7.1(f) hereof, does not exceed $20,000,000
in the aggregate at any one time outstanding; provided such additional
Indebtedness is purchase money Indebtedness of the Borrower or any of its
Subsidiaries that, within one hundred eighty (180) days of such purchase, is
incurred or assumed to finance part or all of (but not more than) the purchase
price of a
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tangible asset in which neither the Borrower nor such Subsidiary had at any time
prior to such purchase any interest other than a security interest or an
interest as lessee under an operating lease on terms and conditions no more
restrictive than those contained hereunder;
(h) the Parent Discount Notes;
(i) other unsecured Indebtedness of the Parent, provided that
(i) such Indebtedness is in an aggregate principal amount not to exceed
$100,000,000; (ii) under the terms of such Indebtedness there shall be no
payment of interest prior to May 20, 2004 or mandatory payment or mandatory
prepayment of principal in respect thereof prior to six (6) months following the
Term Loan Maturity Date; (iii) such Indebtedness contains terms and conditions
no more onerous than contained herein; (iv) such Indebtedness has no benefit of
any Guaranty; (v) the covenants contained in Sections 7.8, 7.9 and 7.10 are
negotiated on terms reasonably satisfactory to the Majority Lenders; and (vi)
both before and after giving effect to the incurrence of such Indebtedness, the
Parent and the Borrower shall be in compliance with the terms of this Agreement,
including, without limitation, Sections 7.8, 7.9, 7.10 and 7.11 hereof, and the
Borrower shall have delivered to the Lenders pro forma projections demonstrating
such compliance through the Maturity Date;
(j) Indebtedness of the Borrower incurred on or prior to
December 31, 2000 which is pari passu with the Obligations in an aggregate
principal amount not to exceed $75,000,000, provided that (i) such Indebtedness
is Indebtedness issued under and governed by this Agreement pursuant to an
amendment to this Agreement which is in form and substance satisfactory to the
Majority Lenders and (ii) both before and after giving effect to the incurrence
of such Indebtedness, the Borrower shall be in compliance with the terms of this
Agreement, including, without limitation, Sections 7.8, 7.9, 7.10 and 7.11
hereof and the Borrower shall have delivered to the Lenders pro forma
projections satisfactory to the Majority Lenders demonstrating such compliance
through the Maturity Date; and
(k) other unsecured Indebtedness of the Borrower, provided
that (i) such Indebtedness is subordinated to the Obligations on terms
reasonably satisfactory to the Majority Lenders; (ii) under the terms of such
Indebtedness there shall be no mandatory payment or mandatory prepayment of
principal in respect thereof prior to six (6) months following the Term Loan
Maturity Date; (iii) such Indebtedness contains terms and conditions no more
onerous than contained herein; (iv) such Indebtedness has no benefit of any
Guaranty (other than Guaranties of the Parent or any Subsidiary of the Borrower
(other than License Subs) subordinated to the Obligations on terms reasonably
satisfactory to the Majority Lenders); and (v) both before and after giving
effect to the incurrence of such Indebtedness, the Parent and the Borrower shall
be in compliance with the terms of this Agreement, including, without
limitation, Sections 7.8, 7.9, 7.10 and 7.11 hereof, and the Borrower shall have
delivered to the Lenders pro forma projections demonstrating such compliance
through the Maturity Date.
Section 7.2 Limitation on Liens. The Parent and the Borrower shall
not, and shall not permit any of its Subsidiaries to, create, assume, incur
or permit to exist or to be created, assumed, incurred or permitted to exist,
directly or indirectly, any Lien on any of its properties or assets, whether
now owned or hereafter acquired, except for Permitted Liens. The Borrower
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shall not, and shall not permit any of its Subsidiaries to undertake, covenant
or agree with any third party that it will not create, assume, incur or permit
to exist any lien in the favor the Administrative Agent or the Lenders securing
the Obligations on any of its assets or properties, whether now owned or
hereafter acquired except for Permitted Liens.
Section 7.3 Amendment and Waiver. The Parent and the Borrower
shall not, and shall not permit any of the Borrower's Subsidiaries to, enter
into any amendment of, or agree to or accept or consent to any waiver of any of
the provisions of its articles or certificate of incorporation, or its
partnership agreement or its by-laws, as appropriate, or any of the documents
evidencing Subordinated Debt, the Material Contracts or the Related Documents in
any respect materially adverse to the Administrative Agent or any Lender or any
of their rights or claims under any of the Loan Documents.
Section 7.4 Liquidation, Merger or Disposition of Assets.
(a) Disposition of Assets. The Parent and the Borrower shall
not, and shall not permit any of its Subsidiaries to, make any Asset Sale unless
(i) the proceeds of such Asset Sale are applied pursuant to Section 2.7(b)(iii)
hereof and (ii) with respect to any Asset Sale of a Television Station Asset
Group, the Borrower provides to the Administrative Agent and the Lenders
financial projections and calculations, in the form and substance reasonably
satisfactory to the Administrative Agent, specifically demonstrating compliance
with Sections 7.8, 7.9 and 7.10 hereof and its ability to meet its repayment
obligations hereunder through the Maturity Date after giving effect to such
Asset Sale.
(b) Liquidation or Merger. The Parent and the Borrower shall
not, and shall not permit any of its Subsidiaries to, at any time liquidate or
dissolve itself (or suffer any liquidation or dissolution) or otherwise wind up,
or enter into any merger, other than (so long as no Default exists or would be
caused thereby): (i) a merger or consolidation among the Borrower and one or
more of its Subsidiaries, provided the Borrower is the surviving corporation, or
(ii) a merger between or among two or more Subsidiaries of the Borrower, or
(iii) in connection with an Acquisition permitted hereunder effected by a merger
in which the Borrower or, in a merger in which the Borrower is not a party, a
Subsidiary of the Borrower is the surviving corporation or the surviving
corporation becomes a Subsidiary of the Borrower, or (iv) the Borrower may
dissolve the WMTV Trust and its Subsidiaries following the sale of WIFR-TV or
WMTV in accordance with Section 7.4(a) hereof or if the FCC Regulations permit
the Borrower to own both WIFR-TV and WMTV.
Section 7.5 Limitation on Guaranties. The Parent and the Borrower
shall not, and shall not permit any of its Subsidiaries to, at any time
Guaranty, assume, be obligated with respect to, or permit to be outstanding
any Guaranty of, any obligation of any other Person other than: (a) a
guaranty by endorsement of negotiable instruments for collection in the
ordinary course of business; (b) as may be contained in any Loan Document;
or (c) Guaranties of Indebtedness incurred as permitted pursuant to
Section 7.1 hereof in an aggregate amount not to exceed $10,000,000 and the
Borrower provides to the Administrative Agent and the Lenders calculations in
form and substance reasonably satisfactory to the Administrative Agent,
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specifically demonstrating compliance with Sections 7.8, 7.9, 7.10 and 7.11
hereof after giving effect to such Guaranty.
Section 7.6 Investments and Acquisitions. The Parent and the Borrower
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly make any Acquisition or Investment; provided, however, that so
long as no Default exists or would be caused thereby:
(a) the Borrower and its Subsidiaries may make Investments in
Cash Equivalents;
(b) provided that the Borrower complies with Section 5.13
hereof in connection therewith, and provides to the Administrative Agent and the
Lenders financial projections and calculations, in form and substance reasonably
satisfactory to the Administrative Agent, specifically demonstrating the
Borrower's compliance with Sections 7.8, 7.9, 7.10 and 7.11 hereof and its
ability to meet its repayment obligations hereunder through the Maturity Date,
after giving effect thereto, the Borrower and its Subsidiaries may:
(i) make Acquisitions of broadcasting and media related
assets or Persons with an aggregate purchase price, together with the cash paid
for asset swaps permitted under Sections 7.6(b)(ii) and 7.6(b)(iii) hereof, not
to exceed $50,000,000 during the term of this Agreement;
(ii) sell or exchange Satellite Stations; provided that
(A) the board of directors of the Borrower shall have determined that the
consideration received by the Borrower in such sale or exchange is at least
equal to the sum of the fair market value of the Satellite Station and any
additional consideration paid by the Borrower in such sale or exchange, and the
Borrower shall have delivered an officer's certificate to the Administrative
Agent to such effect; (B) any cash received by the Borrower in connection with
such sale or exchange shall be deemed to be "Net Proceeds (Asset Sales)"
received in an Asset Sale and shall be applied as required by Section
2.7(b)(iii) hereof; (C) neither the Parent or any of its Subsidiaries shall
incur or assume any Indebtedness in connection with such sale or exchange other
than Indebtedness assumed by the Borrower in connection with such sale or
exchange other than Indebtedness assumed by the Borrower in connection with any
such exchange that was incurred by the Person with whom such Satellite Station
was exchanged (1) solely with respect to the purchase by such Person of
particular assets that are included in such exchange, (2) in the ordinary course
of business of such Person and (3) not in anticipation of or in connection with
such exchange; and (D) the cash paid for all such sales and exchanges, together
with the cash paid for asset swaps permitted under Section 7.6(b)(iii) hereof
and Acquisitions permitted under Section 7.6(b)(i) hereof, shall not exceed
$50,000,000 in the aggregate during the term of this Agreement.
(iii) swap or exchange one or more Owned Television
Station Asset Groups for one or more other Television Station Asset Groups;
provided that (A) the board of directors of the Borrower shall have determined
that the consideration received by the Borrower in such swap or exchange is at
least equal to the sum of the fair market value of the Satellite Station and any
additional consideration paid by the Borrower in such swap or exchange, and the
Borrower shall have delivered an Officer's Certificate to the Administrative
Agent to such effect;
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(B) any cash received by the Borrower in connection with such swap or exchange
shall be deemed to be "Net Proceeds (Asset Sales)" received in an Asset Sale and
shall be applied as required by Section 2.7(b)(iii) hereof; (C) neither the
Parent or any of its Subsidiaries shall incur or assume any Indebtedness in
connection with such swap or exchange other than Indebtedness assumed by the
Borrower in connection with such swap or exchange other than Indebtedness
assumed by the Borrower in connection with any such swap or exchange that was
incurred by the Person with whom such Owned Television Station Asset Group was
exchanged (1) solely with respect to the purchase by such Person of particular
assets that are included in such exchange, (2) in the ordinary course of
business of such Person and (3) not in anticipation of or in connection with
such exchange; and (D) the cash paid for all such swaps and exchanges, together
with the cash paid for Satellite Station sales or swaps permitted under Section
7.6(b)(ii) hereof and Acquisitions permitted under Section 7.6(b)(i) hereof,
shall not exceed $50,000,000 in the aggregate during the term of this Agreement.
(iv) make Investments in Unrestricted Subsidiaries
engaged in media related businesses in an aggregate amount not to exceed
$25,000,000 during the term hereof; and
(c) enter into leases as the lessor or sublessor in the
ordinary course of business as long as such leases do not materially interfere
with the operation of the Stations or the conduct of business of the Borrower or
result in a material diminution in the value of any Collateral as security for
the Obligations;
(d) the Borrower may make loans or advances (i) to directors,
officers, employees or independent contractors to fund the exercise price of
options to purchase stock of the Parent or its Subsidiaries in an aggregate
amount not to exceed $5,000,000 at any one time outstanding or for the moving,
entertainment, travel expenses, drawing accounts and similar expenditure made in
the ordinary course of business and (ii) to Benedek in an aggregate amount not
to exceed $3,000,000 during the term of this Agreement.
Section 7.7 Restricted Payments. The Parent shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly declare or make any
Restricted Payment or Restricted Purchase; provided, however, that (a)
so long as no Default then exists or would be caused thereby, and the
Borrower has demonstrated pro forma compliance with Sections 7.8, 7.9,
7.10 and 7.11 hereof: (i) the Parent or the Borrower may redeem or
repurchase the Parent Discount Notes provided that the Borrower provides to the
Administrative Agent and the Lenders financial projections specifically
demonstrating the Borrower's ability to meet its repayment obligations hereunder
through the Maturity Date, in form and substance reasonably satisfactory to the
Administrative Agent; (ii) the Parent or the Borrower may make regularly
scheduled payments of interest in respect of the Parent Discount Notes after May
15, 2001, required to be paid, in accordance with the terms of, and only to the
extent required by, and subject to the subordination provisions contained in,
the Parent Discount Note Indenture; (iii) the Parent or the Borrower may
repurchase Warrants for an aggregate amount not to exceed $3,000,000 in any
fiscal year and $10,000,000 in the aggregate during the term of this Agreement;
and (iv) the Parent or the Borrower may repurchase the Parent's Capital Stock
from executive officers of the Borrower in an aggregate amount not to exceed
$2,000,000 in any fiscal year and $5,000,000 in the aggregate
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during the term of this Agreement; and (b) so long as any Parent Discount Notes
are outstanding, the Borrower may make cash dividends or distributions to the
Parent.
Section 7.8 Senior Leverage Ratio. (a) As of the end of any fiscal
quarter, and (b) at the time of any Advance hereunder (after giving effect
to such Advance) as of the end of the fiscal quarter most recently ended,
the Borrower shall not permit its Senior Leverage Ratio to exceed the ratios
set forth below during the periods indicated:
<TABLE>
<CAPTION>
Period Senior Leverage Ratio
------ ---------------------
<S> <C>
Agreement Date through December 31, 1999 5.75:1.00
January 1, 2000 through June 30, 2000 5.50:1.00
July 1, 2000 through September 30, 2000 5.25:1.00
October 1, 2000 through June 30, 2002 5.00:1.00
July 1, 2002 through June 30, 2004 4.25:1.00
July 1, 2004 and thereafter 3.75:1.00
</TABLE>
Section 7.9 Interest Coverage Ratio. (a) As of the end of any
fiscal quarter, and (b) at the time of any Advance hereunder (after giving
effect to such Advance) as of the end of the fiscal quarter most recently ended,
the Borrower shall not permit its Interest Coverage Ratio to be less than the
ratio set forth below for the periods indicated:
<TABLE>
<CAPTION>
Period Interest Coverage Ratio
------ -----------------------
<S> <C>
Agreement Date through December 31, 2000 1.50:1.00
January 1, 2001 through December 31, 2001 1.75:1.00
January 1, 2002 through December 31, 2003 2.00:1.00
January 1, 2004 and thereafter 2.50:1.00
</TABLE>
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Section 7.10 Fixed Charges Coverage Ratio. (a) As of the end
of any fiscal quarter, and (b) at the time of any Advance hereunder (after
giving effect to such Advance) as of the end of the fiscal quarter most recently
ended, the Borrower shall not permit the Fixed Charges Coverage Ratio to be less
than 1.1:1.0.
Section 7.11 Total Leverage Ratio. (a) As of the end of any fiscal
quarter, and (b) at the time of any Advance hereunder (after giving effect
to such Advance) as of the end of the fiscal quarter most recently ended, the
Borrower shall not permit its Total Leverage Ratio to exceed the ratios set
forth below during the periods indicated:
<TABLE>
<CAPTION>
Period Total Leverage Ratio
------ --------------------
<S> <C>
Agreement Date through June 30, 2002 7.00:1.00
July 1, 2002 and thereafter 6.50:1.00
</TABLE>
Section 7.12 Affiliate Transactions. Except as specifically
provided herein and as may be described on Schedule 3 attached hereto,
the Borrower shall not, and shall not permit any of its Subsidiaries to,
at any time engage in any transaction with an Affiliate, or make an
assignment or other transfer of any of its properties or assets to any
Affiliate on terms no less advantageous to the Borrower or such Subsidiary than
would be the case if such transaction had been effected with a non-Affiliate
provided, that the Borrower may make loans or advances (a) to directors,
officers, employees or independent contractors to fund the exercise price of
options to purchase stock of the Parent or its Subsidiaries in accordance with
Section 7.6(d) hereof or for the moving, entertainment, travel expenses, drawing
accounts and similar expenditure made in the ordinary course of business and (b)
to Benedek in accordance with Section 7.6(d) hereof.
Section 7.13 Real Estate. None of the Parent, the Borrower and its
Subsidiaries shall purchase any real estate or enter into any sale-leaseback
transaction except (a) as contemplated in an Acquisition permitted under
Section 7.6 hereof and (b) real estate purchases useful in connection with
the Borrower's business made in the ordinary course of business.
Section 7.14 ERISA Liabilities. The Borrower shall not, and shall
cause each of its ERISA Affiliates not to, (i) permit the assets of any of
their respective Plans to be materially less than the amount necessary to
provide all accrued benefits under such Plans, or (ii) enter into any
Multiemployer Plan.
Section 7.15 Unrestricted Subsidiaries. From time to time the Borrower
may form or otherwise acquire one (1) or more Unrestricted Subsidiaries, so long
as the Borrower: (a) provides the Administrative Agent with notice of its intent
to form or acquire an Unrestricted Subsidiary making reference to this Section
7.15, together with the following information with respect to each such
Unrestricted Subsidiary, not less than ten (10) days prior to such formation or
acquisition: (i) the name and state of incorporation or formation of such
Unrestricted
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Subsidiary; (ii) the intended purpose for and business to be conducted by such
Unrestricted Subsidiary; (iii) the amount and nature of any Investment to be
made in such Unrestricted Subsidiary by the Borrower or any of its Subsidiaries;
and (iv) such additional information as the Administrative Agent may reasonably
require thereto; (b) shall not permit any Unrestricted Subsidiary to: (i)
create, assume, incur or otherwise become or remain obligated in respect of or
permit to be outstanding any Indebtedness, other than Indebtedness which is
non-recourse to the Parent, the Borrower and the Subsidiaries; (ii) create,
assume, incur or permit to exist or to be created, any Lien on any of its
properties or assets, whether now owned or hereafter acquired, other than Liens
securing Indebtedness which is non-recourse to the Parent, the Borrower and the
Subsidiaries; or (iii) Guaranty, assume, be obligated with respect to or permit
to be outstanding any Guaranty of, any obligation of any other Person, other
than Guaranties which are non-recourse to the Parent, the Borrower and the
Subsidiaries; (c) pledges all Ownership Interests of any first tier Unrestricted
Subsidiary to the Administrative Agent as additional Collateral for the
Obligations; (d) shall not and shall not permit any of its Subsidiaries to: (i)
make any loan or advance to, or Guaranty any obligations of, any Unrestricted
Subsidiary or otherwise acquire for consideration evidences of Indebtedness,
Capital Stock or other securities of any Unrestricted Subsidiary, other than
Investments permitted by Section 7.6 hereof and intercompany loans and advances
among the Unrestricted Subsidiaries; or (ii) transfer any assets (other than
cash) to any Unrestricted Subsidiary.
Section 7.16 No Limitation on Upstream Dividends by Subsidiaries.
The Borrower shall not permit any Subsidiary to enter into or agree, or
otherwise become subject (other than pursuant to Applicable Law), to any
agreement, contract or other arrangement with any Person pursuant to
the terms of which (a) such Subsidiary is or would be prohibited from
or limited in declaring or paying any cash dividends or distributions
on any class of its Capital Stock or any other Ownership Interests owned
directly or indirectly by the Borrower or from making any other distribution
on account of any class of any such Capital Stock or Ownership Interests
(herein referred to as "Upstream Dividends") or (b) the declaration or
payment of Upstream Dividends by a Subsidiary to the Borrower or to
another Subsidiary, on an annual or cumulative or other basis, is or would be
otherwise limited or restricted.
Section 7.17 Designation of "Designated Senior Debt". Neither the
Parent nor the Borrower shall designate any Indebtedness (other than the
Obligations) as "Designated Senior Debt", as defined in the Parent Discount
Note Indenture, for purposes of the Parent Discount Note Indenture without
the prior written consent of the Administrative Agent.
ARTICLE 8
Default
Section 8.1 Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
governmental or non-governmental body:
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(a) Any representation or warranty made under this Agreement
shall prove incorrect or misleading in any material respect when made or deemed
to be made pursuant to Section 4.2 hereof;
(b) The Parent or the Borrower shall default in the payment
of: (i) any interest under any of the Notes or fees or other amounts payable to
the Lenders and the Administrative Agent under any of the Loan Documents, or any
of them, when due, and such Default shall not be cured by payment in full within
three (3) Business Days from the due date; or (ii) any principal under any of
the Notes when due;
(c) The Parent or the Borrower shall default in the
performance or observance of any agreement or covenant contained in Sections
5.2(a), 5.10, 5.13, 5.16 or 5.20 hereof or in Articles 6 or 7 hereof;
(d) The Parent or the Borrower shall default in the
performance or observance of any other agreement or covenant contained in this
Agreement not specifically referred to elsewhere in this Section 8.1, and such
default shall not be cured within a period of thirty (30) days from the
occurrence of such Default;
(e) There shall occur any default in the performance or
observance of any agreement or covenant or breach of any representation or
warranty contained in any of the Loan Documents (other than this Agreement or as
otherwise provided in Section 8.1 of this Agreement) by the Parent, the
Borrower, any of its Subsidiaries, or any other obligor thereunder, which shall
not be cured within a period of thirty (30) days from the occurrence of such
Default;
(f) There shall be entered and remain unstayed a decree or
order for relief in respect of the Parent, the Borrower or any of the Borrower's
Subsidiaries under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other applicable Federal or state bankruptcy law or
other similar law, or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official of the Parent, the Borrower or any
of the Borrower's Subsidiaries, or of any substantial part of their respective
properties, or ordering the winding-up or liquidation of the affairs of the
Parent, the Borrower, or any of the Borrower's Subsidiaries; or an involuntary
petition shall be filed against the Parent, the Borrower or any of the
Borrower's Subsidiaries and a temporary stay entered, and (i) such petition and
stay shall not be diligently contested, or (ii) any such petition and stay shall
continue undismissed for a period of sixty (60) consecutive days;
(g) The Parent, the Borrower or any of the Borrower's
Subsidiaries shall file a petition, answer or consent seeking relief under Title
11 of the United States Code, as now constituted or hereafter amended, or any
other applicable Federal or state bankruptcy law or other similar law, or the
Parent, the Borrower or any of the Borrower's Subsidiaries shall consent to the
institution of proceedings thereunder or to the filing of any such petition or
to the appointment or taking of possession of a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Parent, the
Borrower or any of the Borrower's Subsidiaries or of any substantial part of
their respective properties, or the Parent, the Borrower or any of the
Borrower's Subsidiaries shall fail generally to pay their respective debts as
they
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become due or shall be adjudicated insolvent; the Borrower shall suspend or
discontinue its business; the Parent, the Borrower or any of the Borrower's
Subsidiaries shall have concealed, removed any of its property with the intent
to hinder or defraud its creditors or shall have made a fraudulent or
preferential transfer under any applicable fraudulent conveyance or bankruptcy
law, or the Parent, the Borrower or any of the Borrower's Subsidiaries shall
take any action in furtherance of any such action;
(h) A judgment not covered by insurance or indemnification,
where the indemnifying party has agreed to indemnify and is financially able to
do so, shall be entered by any court against the Parent, the Borrower or any of
the Borrower's Subsidiaries for the payment of money which exceeds singly or in
the aggregate with other such judgments, $2,000,000, or a warrant of attachment
or execution or similar process shall be issued or levied against property of
the Parent, the Borrower or any of the Borrower's Subsidiaries which, together
with all other such property of the Parent, the Borrower or any of the
Borrower's Subsidiaries subject to other such process, exceeds in value
$2,000,000 in the aggregate, and if, within thirty (30) days after the entry,
issue or levy thereof, such judgment, warrant or process shall not have been
paid or discharged or stayed pending appeal or removed to bond, or if, after the
expiration of any such stay, such judgment, warrant or process shall not have
been paid or discharged or removed to bond;
(i) There shall be at any time any material "accumulated
funding deficiency," as defined in ERISA or in Section 412 of the Code, with
respect to any Plan maintained by the Borrower or any of its Subsidiaries or any
ERISA Affiliate, or to which the Borrower or any of its Subsidiaries or any
ERISA Affiliate has any liabilities, or any trust created thereunder; or a
trustee shall be appointed by a United States District Court to administer any
such Plan; or PBGC shall institute proceedings to terminate any such Plan; or
the Borrower or any of its Subsidiaries or any ERISA Affiliate shall incur any
liability to PBGC in connection with the termination of any such Plan; or any
Plan or trust created under any Plan of the Borrower or any of its Subsidiaries
or any ERISA Affiliate shall engage in a "prohibited transaction" (as such term
is defined in Section 406 of ERISA or Section 4975 of the Code) which would
subject any such Plan, any trust created thereunder, any trustee or
administrator thereof, or any party dealing with any such Plan or trust to the
tax or penalty on "prohibited transactions" imposed by Section 502 of ERISA or
Section 4975 of the Code;
(j) There shall occur (i) any default under any instrument,
document or agreement relating to any Indebtedness of the Parent, the Borrower
or any of the Borrower's Subsidiaries in an aggregate principal amount exceeding
$1,000,000; (ii) any event or condition the occurrence of which would permit
such acceleration of such Indebtedness, or which, as a result of a failure to
comply with the terms thereof, would make such Indebtedness otherwise due and
payable, and which event or condition has not been cured within any applicable
cure period or waived in writing prior to any declaration of an Event of Default
or acceleration of the Loans hereunder; or (iii) any material default under any
Interest Rate Hedge Agreement which would permit the obligation of the Borrower
to make payments to the counterparty thereunder to be then due and payable;
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(k) Any Loan Document or any material provision thereof, shall
at any time and for any reason be declared by a court of competent jurisdiction
to be null and void, or a proceeding shall be commenced by the Parent, the
Borrower or any of the Borrower's Subsidiaries or by any governmental authority
having jurisdiction over the Parent, the Borrower or any of the Borrower's
Subsidiaries seeking to establish the invalidity or unenforceability thereof
(exclusive of questions of interpretation of any provision thereof), or the
Parent, the Borrower or any of the Borrower's Subsidiaries shall deny that it
has any liability or obligation for the payment of principal or interest
purported to be created under any Loan Document;
(l) Any Security Document shall for any reason, fail or cease
(except by reason of lapse of time) to create a valid and perfected and
first-priority Lien on or Security Interest in any portion of the Collateral
purported to be covered thereby, subject only to Permitted Liens;
(m) There shall occur any Change of Control; or
(n) Any material FCC License shall be cancelled, terminated,
rescinded, revoked, suspended, impaired, otherwise finally denied renewal, or
otherwise modified in any material adverse respect, or shall be renewed on terms
that materially and adversely affect the economic or commercial value or
usefulness thereof; or any material FCC License shall cease to be in full force
and effect; or the grant of any material FCC License shall have been stayed,
vacated or reversed, or modified in any material adverse respect by judicial or
administrative proceedings; or any administrative law judge or other
representative of the shall have issued an initial decision in any
non-comparative FCC License renewal, FCC License revocation or any comparative
(multiple applicant) proceeding to the effect that any material FCC License
should be revoked or not be renewed; or any other proceeding shall have been
instituted by or shall have been commenced before any court, the or any other
regulatory body that could reasonably be expected to result in (i) cancellation,
termination, rescission, revocation, material impairment, suspension or denial
of renewal of a material FCC License, or (ii) a modification of a material FCC
License in a material adverse respect or a renewal thereof on terms that
materially and adversely affect the economic or commercial value or usefulness
thereof.
Section 8.2 Remedies.
(a) If an Event of Default specified in Section 8.1 hereof
(other than an Event of Default under Section 8.1(f) or Section 8.1(g) hereof)
shall have occurred and shall be continuing, the Administrative Agent, at the
request of the Majority Lenders subject to Section 9.8(a) hereof, shall (i)
terminate the Commitments, and/or (ii) declare the principal of and interest on
the Loans and the Notes and all other amounts owed to the Lenders and the
Administrative Agent under this Agreement, the Notes and any other Loan
Documents to be forthwith due and payable without presentment, demand, protest
or other notice of any kind, all of which are hereby expressly waived, anything
in this Agreement, the Notes or any other Loan Document to the contrary
notwithstanding, and the Commitments shall thereupon forthwith terminate.
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(b) Upon the occurrence and continuance of an Event of Default
specified in Section 8.1(f) or Section 8.1(g) hereof, all principal, interest
and other amounts due hereunder and under the Notes, and all other Obligations,
shall thereupon and concurrently therewith become due and payable and the
Commitments shall forthwith terminate and the principal amount of the Loans
outstanding hereunder shall bear interest at the Default Rate, all without any
action by the Administrative Agent or the Lenders or the Majority Lenders or any
of them and without presentment, demand, protest or other notice of any kind,
all of which are expressly waived, anything in this Agreement or in the other
Loan Documents to the contrary notwithstanding.
(c) Upon acceleration of the Notes, as provided in subsection
(a) or (b) of this Section 8.2, above, the Administrative Agent and the Lenders
shall have all of the post-default rights granted to them, or any of them, as
applicable under the Loan Documents and under Applicable Law.
(d) Upon acceleration of the Notes, as provided in subsection
(a) or (b) of this Section 8.2, the Administrative Agent shall have the right
(but not the obligation) upon the request of the Lenders to operate the business
of the Parent, the Borrower and its Subsidiaries in accordance with the terms of
the FCC Licenses and pursuant to the terms and subject to any limitations
contained in the Security Documents and, within guidelines established by the
Majority Lenders, to make any and all payments and expenditures necessary or
desirable in connection therewith, including, without limitation, payment of
wages as required under the Fair Labor Standards Act, as amended, and of any
necessary withholding taxes to state or federal authorities. In the event the
Majority Lenders fail to agree upon the guidelines referred to in the preceding
sentence within six (6) Business Days after the Administrative Agent has begun
to operate the business of the Borrower, the Administrative Agent may, after
giving three (3) days' prior written notice to the Lenders of its intention to
do so, make such payments and expenditures as it deems reasonable and advisable
in its sole discretion to maintain the normal day-to-day operation of such
business. Such payments and expenditures in excess of receipts shall constitute
Advances under this Agreement, not in excess of the amount of the Commitments.
Advances made pursuant to this Section 8.2(d) shall bear interest as provided in
Section 2.3(d) and shall be payable on demand. The making of one or more
Advances under this Section 8.2(d) shall not create any obligation on the part
of the Lenders to make any additional Advances hereunder. No exercise by the
Administrative Agent of the rights granted to it under this Section 8.2(d) shall
constitute a waiver of any other rights and remedies granted to the
Administrative Agent and the Lenders, or any of them, under this Agreement or at
law. The Borrower hereby irrevocably appoints the Administrative Agent as agent
for the Lenders, the true and lawful attorney of the Borrower, in its name and
stead and on its behalf, to execute, receipt for or otherwise act in connection
with any and all contracts, instruments or other documents in connection with
the operation of the Borrower's business in the exercise of the Administrative
Agent's and the Lenders' rights under this Section 8.2(d). Such power of
attorney is coupled with an interest and is irrevocable. The rights of the
Administrative Agent under this Section 8.2(d) shall be subject to its prior
compliance with Applicable Law to the extent applicable to the exercise of such
rights.
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(e) Upon acceleration of the Notes, as provided in subsection
(a) or (b) of this Section 8.2, the Administrative Agent, upon request of the
Majority Lenders, shall have the right to the appointment of a receiver for the
properties and assets of the Borrower and its Subsidiaries, and the Borrower,
for itself and on behalf of its Subsidiaries, hereby consents to such rights and
such appointment and hereby waives any objection the Borrower or any Subsidiary
may have thereto or the right to have a bond or other security posted by the
Administrative Agent on behalf of the Lenders, in connection therewith. The
rights of the Administrative Agent under this Section 8.2(e) shall be subject to
its prior compliance with Applicable Law to the extent applicable to the
exercise of such rights.
(f) The rights and remedies of the Administrative Agent and
the Lenders hereunder shall be cumulative, and not exclusive.
Section 8.3 Payments Subsequent to Declaration of Event of Default.
Subsequent to the acceleration of the Loans under Section 8.2 hereof, payments
and prepayments under this Agreement made to the Administrative Agent and the
Lenders or otherwise received by any of such Persons (from realization on
Collateral for the Obligations or otherwise) shall be paid over to the
Administrative Agent (if necessary) and distributed by the Administrative Agent
as follows: first, to the Administrative Agent's reasonable costs and expenses,
if any, incurred in connection with the collection of such payment or
prepayment, including, without limitation, any reasonable costs incurred by it
in connection with the sale or disposition of any Collateral for the Obligations
and all amounts under Section 11.2(b) and (c); second, to the Lenders or the
Administrative Agent for any fees hereunder or under any of the other Loan
Documents then due and payable; third, to the Lenders pro rata on the basis of
their respective unpaid principal amounts (except as provided in Section
2.2(e)), to the payment of any unpaid interest which may have accrued on the
Obligations; fourth, to the Lenders pro rata based on the Revolving Loans and
the Term Loans then outstanding until all Loans have been paid in full (and, for
purposes of this clause, obligations under Interest Rate Hedge Agreements with
the Lenders or any of them shall be paid on a pro rata basis with the Loans);
fifth, to the Lenders pro rata on the basis of their respective unpaid amounts,
to the payment of any other unpaid Obligations; and sixth, to the Borrower or as
otherwise required by law.
ARTICLE 9
The Administrative Agent and the Collateral Agent
Section 9.1 Appointment and Authorization. Each Lender hereby
irrevocably appoints and authorizes, and hereby agrees that it will require any
transferee of any of its interest in its portion of the Loans and in its Note
irrevocably to appoint and authorize, the Administrative Agent to take such
actions as its agent on its behalf and to exercise such powers hereunder and
under the other Loan Documents as are delegated by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto. Neither the
Administrative Agent, nor any of its respective directors, officers, employees
or agents, shall be liable for any action taken or omitted to be taken by it or
them hereunder or in connection herewith, except for
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its or their own gross negligence or willful misconduct as determined by a
final, non-appealable judicial order of a court of competent jurisdiction.
Section 9.2 Interest Holders. The Administrative Agent may
treat each Lender, or the Person designated in the last notice filed with the
Administrative Agent, as the holder of all of the interests of such Lender in
its portion of the Loans and in its Note until written notice of transfer,
signed by such Lender (or the Person designated in the last notice filed with
the Administrative Agent) and by the Person designated in such written notice of
transfer, in form and substance reasonably satisfactory to the Administrative
Agent, shall have been filed with the Administrative Agent.
Section 9.3 Consultation with Counsel. The Administrative Agent may
consult with Powell, Goldstein, Frazer & Murphy LLP, Atlanta, Georgia, special
counsel to the Administrative Agent, or with other legal counsel selected by it
and shall not be liable for any action taken or suffered by it in good faith in
consultation with the Majority Lenders and in reasonable reliance on such
consultations.
Section 9.4 Documents. The Administrative Agent shall be under no duty
to examine, inquire into, or pass upon the validity, effectiveness or
genuineness of this Agreement, any Note, any other Loan Document, or any
instrument, document or communication furnished pursuant hereto or in connection
herewith, and the Administrative Agent shall be entitled to assume that they are
valid, effective and genuine, have been signed or sent by the proper parties and
are what they purport to be.
Section 9.5 Administrative Agent and Affiliates. With respect to the
Commitments and the Loans, the Administrative Agent shall have the same rights
and powers hereunder as any other Lender and the Administrative Agent and
Affiliates of the Administrative Agent may accept deposits from, lend money to
and generally engage in any kind of business with the Parent, the Borrower any
of its Subsidiaries or any Affiliates of, or Persons doing business with the
Borrower and the Parent, as if they were not affiliated with the Administrative
Agent and without any obligation to account therefor.
Section 9.6 Responsibility of the Administrative Agent. The duties and
obligations of the Administrative Agent under this Agreement are only those
expressly set forth in this Agreement. The Administrative Agent shall be
entitled to assume that no Default or Event of Default has occurred and is
continuing unless it has actual knowledge, or has been notified in writing by
the Borrower or the Parent, of such fact, or has been notified by a Lender in
writing that such Lender considers that a Default or an Event of Default has
occurred and is continuing, and such Lender shall specify in detail the nature
thereof in writing. The Administrative Agent shall not be liable hereunder for
any action taken or omitted to be taken except for its own gross negligence or
willful misconduct as determined by a final, non-appealable judicial order of a
court of competent jurisdiction. The Administrative Agent shall provide each
Lender with copies of such documents received from the Borrower or the Parent as
such Lender may reasonably request.
Section 9.7 Action by the Administrative Agent.
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(a) The Administrative Agent shall be entitled to use its
discretion with respect to exercising or refraining from exercising any rights
which may be vested in it by, and with respect to taking or refraining from
taking any action or actions which it may be able to take under or in respect
of, this Agreement, unless the Administrative Agent shall have been instructed
by the Majority Lenders to exercise or refrain from exercising such rights or to
take or refrain from taking such action; provided that the Administrative Agent
shall not exercise any rights under Section 8.2(a) of this Agreement without the
request of the Majority Lenders (or, where expressly required, all of the
Lenders) unless time is of the essence, in which case, such action can be taken
at the request of the Administrative Agent. The Administrative Agent shall incur
no liability under or in respect of this Agreement with respect to anything
which it may do or refrain from doing in the reasonable exercise of its judgment
or which may seem to it to be necessary or desirable in the circumstances,
except for its gross negligence or willful misconduct as determined by a final,
non-appealable judicial order of a court having jurisdiction over the subject
matter.
(b) The Administrative Agent shall not be liable to the
Lenders or to any Lender or the Parent, the Borrower or any of the Borrower's
Subsidiaries in acting or refraining from acting under this Agreement or any
other Loan Document in accordance with the instructions of the Majority Lenders
(or, where expressly required, all of the Lenders), and any action taken or
failure to act pursuant to such instructions shall be binding on all Lenders,
except for its gross negligence or willful misconduct as determined by a final,
non-appealable judicial order of a court having jurisdiction over the subject
matter. The Administrative Agent shall not be obligated to take any action which
is contrary to law or which would in its reasonable opinion subject it to
liability.
Section 9.8 Notice of Default or Event of Default. In the event that
the Administrative Agent or any Lender shall acquire actual knowledge, or shall
have been notified, of any Default or Event of Default, the Administrative Agent
or such Lender shall promptly notify the Lenders (provided failure to give such
notice shall not result in any liability on the part of such Lender or
Administrative Agent), and the Administrative Agent shall take such action and
assert such rights under this Agreement and the other Loan Documents as the
Majority Lenders shall request in writing, and the Administrative Agent shall
not be subject to any liability by reason of its acting pursuant to any such
request. If the Majority Lenders shall fail to request the Administrative Agent
to take action or to assert rights under this Agreement or any other Loan
Documents in respect of any Default or Event of Default within ten (10) days
after their receipt of the notice of any Default or Event of Default from the
Administrative Agent or any Lender, or shall request inconsistent action with
respect to such Default or Event of Default, the Administrative Agent may, but
shall not be required to, take such action and assert such rights (other than
rights under Article 8 hereof) as it deems in its discretion to be advisable for
the protection of the Lenders, except that, if the Majority Lenders have
instructed the Administrative Agent not to take such action or assert such
right, in no event shall the Administrative Agent act contrary to such
instructions unless time is of the essence, in which case, the Administrative
Agent may act in accordance with its reasonable discretion.
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Section 9.9 Responsibility Disclaimed. The Administrative Agent shall
not be under any liability or responsibility whatsoever as Administrative Agent:
(a) To the Parent, the Borrower or any other Person as a
consequence of any failure or delay in performance by or any breach by, any
Lender or Lenders of any of its or their obligations under this Agreement;
(b) To any Lender or Lenders, as a consequence of any failure
or delay in performance by, or any breach by, (i) the Borrower or the Parent of
any of its obligations under this Agreement or the Notes or any other Loan
Document, or (ii) any Subsidiary of the Borrower or any other obligor under any
other Loan Document;
(c) To any Lender or Lenders, for any statements,
representations or warranties in this Agreement, or any other document
contemplated by this Agreement or any information provided pursuant to this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement, or for the validity, effectiveness, enforceability or sufficiency of
this Agreement, the Notes, any other Loan Document, or any other document
contemplated by this Agreement; or
(d) To any Person for any act or omission other than that
arising from gross negligence or willful misconduct of the Administrative Agent
as determined by a final, non-appealable judicial order of a court of competent
jurisdiction.
Section 9.10 Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower) pro rata
according to their respective Commitment Ratios, from and against any and all
liabilities, obligations, losses (other than the loss of principal and interest
hereunder in the event of a bankruptcy or out-of-court `work-out' of the Loans),
damages, penalties, actions, judgments, suits, costs, expenses (including fees
and expenses of experts, agents, consultants and counsel), or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement or any other Loan Document or any action taken or omitted by the
Administrative Agent under this Agreement, any other Loan Document, or any other
document contemplated by this Agreement, except that no Lender shall be liable
to the Administrative Agent for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements resulting from the gross negligence or willful misconduct of the
Administrative Agent as determined by a final, non-appealable judicial order of
a court having jurisdiction over the subject matter.
Section 9.11 Credit Decision. Each Lender represents and warrants to
each other and to the Administrative Agent that:
(a) In making its decision to enter into this Agreement and to
make its portion of the Loans it has independently taken whatever steps it
considers necessary to evaluate the financial condition and affairs of the
Borrower and the Parent and that it has made an independent credit judgment, and
that it has not relied upon the Administrative Agent or
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information provided by the Administrative Agent (other than information
provided to the Administrative Agent by the Borrower and the Parent and
forwarded by the Administrative Agent to the Lenders); and
(b) So long as any portion of the Loans remains outstanding or
such Lender has an obligation to make its portion of Advances hereunder, it will
continue to make its own independent evaluation of the financial condition and
affairs of the Borrower and the Parent.
Section 9.12 Successor Administrative Agent. Subject to the appointment
and acceptance of a successor Administrative Agent as provided below, the
Administrative Agent may resign at any time by giving written notice thereof to
the Lenders and the Borrower and the Parent and may be removed at any time for
cause by the Majority Lenders. Upon any such resignation or removal, the
Majority Lenders shall have the right to appoint a successor Administrative
Agent which appointment shall, prior to a Default, be subject to the consent of
the Borrower and the Parent, acting reasonably. If (a) no successor
Administrative Agent shall have been so appointed by the Majority Lenders or (b)
if appointed, no successor Administrative Agent shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent gave
notice of resignation or the Majority Lenders removed the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent which shall be any Lender
or a commercial bank organized under the laws of the United States of America or
any political subdivision thereof which has combined capital and reserves in
excess of $250,000,000 and which shall be reasonably acceptable to the Borrower.
Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges,
duties and obligations of the retiring Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents. After any retiring Administrative
Agent's resignation or removal hereunder as Administrative Agent the provisions
of this Article shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the
Administrative Agent. In the event that the Administrative Agent or any of its
respective affiliates ceases to be a Lender hereunder, such Person shall resign
its agency hereunder.
Section 9.13 Collateral Agent. Each Lender and the Administrative Agent
hereby irrevocably appoints and authorizes, and hereby agrees that it will
require any transferee of any of its interest in its Loans and in its Notes
irrevocably to appoint and authorize, the Collateral Agent to take such actions
as its agent on its behalf and to exercise such powers under the Security
Documents as are delegated by the terms thereof, together with such powers as
are reasonably incidental thereto. Neither the Collateral Agent nor any of its
directors, officers, employees or agents shall be liable for any action taken or
omitted to be taken by it or them under any of the Security Documents or in
connection therewith, except for its or their own gross negligence or willful
misconduct as determined by a final non-appealable judicial order of a court of
competent jurisdiction. The Collateral Agent may execute any of its duties under
the Loan Documents by or through agents or attorneys selected by it using
reasonable care and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Collateral Agent shall not be responsible
to any Lender for the negligence or misconduct of any agents or
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attorneys selected by it with reasonable care. The Collateral Agent may treat
each Lender, or the Person designated in the last notice filed with the
Administrative Agent under Section 9.2 hereof of this Agreement, as the holder
of all of the interests of such Lender in its Loans and in its Notes until
written notice of transfer, signed by such Lender (or the Person designated in
the last notice filed with the Administrative Agent) and by the Person
designated in such written notice of transfer, in form and substance reasonably
satisfactory to the Administrative Agent, shall have been filed with the
Administrative Agent. The Collateral Agent may consult with legal counsel
selected by it and shall not be liable for any action taken or suffered by it in
good faith in reliance thereon. The Collateral Agent shall not be under any duty
to examine, inquire into, or pass upon the validity, effectiveness or
genuineness of any Security Document or other document or communication
furnished pursuant thereto or in connection therewith, and the Collateral Agent
shall be entitled to assume that they are valid, effective and genuine, have
been signed or sent by the proper parties and are what they purport to be. The
Collateral Agent shall be entitled to use its discretion with respect to
exercising or refraining from exercising any rights which may be vested in it
by, and with respect to taking or refraining from taking any action or actions
which it may be able to take under or in respect of, any Security Document,
unless the Collateral Agent shall have been instructed by the Majority Lenders
to exercise or refrain from exercising such rights or to take or refrain from
taking such action, provided that the Collateral Agent shall not exercise any
rights under any Security Document without the request of the Majority Lenders
unless time is of the essence, in which case, such action can be taken. The
Collateral Agent shall incur no liability under or in respect of any Security
Document with respect to anything which it may do or refrain from doing in the
reasonable exercise of its judgment or which may seem to it to be necessary or
desirable in the circumstances, except for its gross negligence or willful
misconduct as determined by a final, non-appealable judicial order of a court of
competent jurisdiction. The Collateral Agent shall not be liable to the Lenders
or to any Lender in acting or refraining from acting under any Security Document
in accordance with the instructions of the Majority Lenders, and any action
taken or failure to act pursuant to such instructions shall be binding on all
Lenders. The Collateral Agent shall not be obligated to take any action which is
contrary to law or which would in its reasonable opinion subject it to
liability. All indemnity provisions herein that pertain to the Administrative
Agent shall apply equally to the Collateral Agent. Each Lender and the
Administrative Agent hereby agree that all Collateral now or hereafter delivered
as security for the Obligations shall be held by the Collateral Agent (or
delivered to the Collateral Agent, if received by any Lender) in accordance with
the Security Documents.
Section 9.14 Successor Collateral Agent. Subject to the appointment
and acceptance of a successor Collateral Agent as provided below, the
Collateral Agent may resign at any time by giving written notice thereof to
the Lenders and the Borrower and may be removed at any time for cause by
the Majority Lenders. Upon any such resignation or removal, the Majority
Lenders shall have the right to appoint a successor Collateral Agent
with the approval of the Borrower during any time when no Event of
Default shall exist. If no successor Collateral Agent shall have been so
appointed by the Majority Lenders, and shall have accepted such appointment
within thirty (30) days after the retiring Collateral Agent's giving of notice
of resignation or the Majority Lenders' removal of the retiring Collateral
Agent, then the retiring Collateral Agent may, on behalf of the Lenders, appoint
a successor Collateral Agent which shall be any Lender or a commercial bank
organized under the laws of the United States of America or any political
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subdivision thereof which has combined capital and reserves in excess of
$250,000,000. Upon the acceptance of any appointment as Collateral Agent
hereunder by a successor Collateral Agent, such successor Collateral Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges,
duties, and obligations of the retiring Collateral Agent, and the retiring
Collateral Agent shall be discharged from its duties and obligations hereunder.
After any retiring Collateral Agent's resignation or removal hereunder as
Collateral Agent, the provisions of this Section 9.14 shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Collateral Agent.
Section 9.15 Collateral Actions. Each of the parties hereto
acknowledges and agrees that all provisions herein and under any Security
Document relating to rights and remedies under any Security Document shall be
exercised only upon the direction of the Majority Lenders (except as expressly
set forth in Section 9.13 hereof), and that the provisions of this Section 9.15
may not be amended except with the consent of the Majority Lenders.
Section 9.16 Delegation of Duties. The Administrative Agent may execute
any of its duties under the Loan Documents by or through agents or attorneys
selected by it using reasonable care, and shall be entitled to advice of counsel
concerning all matters pertaining to such duties.
ARTICLE 10
Change in Circumstances Affecting LIBOR Advances.
Section 10.1 LIBOR Basis Determination Inadequate or Unfair. If with
respect to any proposed LIBOR Advance for any Interest Period, the
Administrative Agent determines after consultation with the Lenders that
deposits in dollars (in the applicable amount) are not being offered to each of
the Lenders in the relevant market for such Interest Period, the Administrative
Agent shall forthwith give notice thereof to the Borrower and the Lenders,
whereupon until the Administrative Agent notifies the Borrower that the
circumstances giving rise to such situation no longer exist, the obligations of
any affected Lender to make its portion of such LIBOR Advances shall be
suspended.
Section 10.2 Illegality. If after the date hereof, the adoption of any
Applicable Law, or any change in any Applicable Law (whether adopted before or
after the Agreement Date), or any change in interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
with any directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, shall make it unlawful or
impossible for any Lender to make, maintain or fund its portion of LIBOR
Advances, such Lender shall so notify the Administrative Agent, and the
Administrative Agent shall forthwith give notice thereof to the other Lenders
and the Borrower. Before giving any notice to the Administrative Agent pursuant
to this
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Section 10.2, such Lender shall designate a different lending office if
such designation will avoid the need for giving such notice and will not, in the
sole reasonable judgment of such Lender, be otherwise materially disadvantageous
to such Lender. Upon receipt of such notice, notwithstanding anything contained
in Article 2 hereof, the Borrower shall repay in full the then outstanding
principal amount of such Lender's portion of each affected LIBOR Advance,
together with accrued interest thereon, on either (a) the last day of the then
current Interest Period applicable to such affected LIBOR Advances if such
Lender may lawfully continue to maintain and fund its portion of such LIBOR
Advance to such day or (b) immediately if such Lender may not lawfully continue
to fund and maintain its portion of such affected LIBOR Advances to such day.
Concurrently with repaying such portion of each affected LIBOR Advance, the
Borrower may borrow a Base Rate Advance from such Lender, whether or not it
would have been entitled to effect such borrowing and such Lender shall make
such Advance, if so requested, in an amount such that the outstanding principal
amount of the affected Note held by such Lender shall equal the outstanding
principal amount of such Note or Notes immediately prior to such repayment.
Section 10.3 Increased Costs.
(a) If after the date hereof, the adoption of any Applicable
Law, or any change in any Applicable Law (whether adopted before or after the
Agreement Date), or any interpretation or change in interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof or compliance
by any Lender with any directive (whether or not having the force of law) of any
such authority, central bank or comparable agency:
(1) shall subject any Lender to any tax, duty or
other charge with respect to its obligation to make its portion of
LIBOR Advances, or its portion of existing Advances, or shall change
the basis of taxation of payments to any Lender of the principal of or
interest on its portion of LIBOR Advances or in respect of any other
amounts due under this Agreement, in respect of its portion of LIBOR
Advances or its obligation to make its portion of LIBOR Advances
(except for changes in the rate or method of calculation of tax on the
revenues or net income of such Lender); or
(2) shall impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the Board of
Governors of the Federal Reserve System, but excluding any included in
an applicable Eurodollar Reserve Percentage), special deposit, capital
adequacy, assessment or other requirement or condition against assets
of, deposits with or for the account of, or commitments or credit
extended by, any Lender or shall impose on any Lender or the London
interbank borrowing market any other condition affecting its obligation
to make its portion of such LIBOR Advances or its portion of existing
Advances;
and the result of any of the foregoing is to increase the cost to such Lender of
making or maintaining any of its portion of LIBOR Advances, or to reduce the
amount of any sum received or receivable by such Lender under this Agreement or
under its Note with respect thereto, then, within ten (10) days after demand by
such Lender, the Borrower agrees to pay to such Lender
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such additional amount or amounts as will compensate such Lender for such
increased costs. Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Lender to compensation pursuant to this
Section 10.3 and will designate a different lending office if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the sole reasonable judgment of such Lender made in good faith, be
otherwise disadvantageous to such Lender.
(b) Any Lender claiming compensation under this Section 10.3
shall provide the Borrower with a written certificate setting forth the
additional amount or amounts to be paid to it hereunder and calculations
therefor in reasonable detail. Such certificate shall be presumptively correct
absent manifest error. In determining such amount, such Lender may use any
reasonable averaging and attribution methods. If any Lender demands compensation
under this Section 10.3, the Borrower may at any time, upon at least five (5)
Business Days' prior notice to such Lender, prepay in full such Lender's portion
of the then outstanding LIBOR Advances, together with accrued interest thereon
to the date of prepayment, along with any reimbursement required under Section
2.10 hereof. Concurrently with prepaying such portion of LIBOR Advances the
Borrower may, whether or not then entitled to make such borrowing, borrow a Base
Rate Advance, or a LIBOR Advance not so affected, from such Lender, and such
Lender shall, if so requested, make such Advance in an amount such that the
outstanding principal amount of the affected Note or Notes held by such Lender
shall equal the outstanding principal amount of such Note or Notes immediately
prior to such prepayment.
Section 10.4 Effect On Other Advances. If notice has been given
pursuant to Section 10.1, 10.2 or 10.3 suspending the obligation of any Lender
to make its portion of any type of LIBOR Advance, or requiring such Lender's
portion of LIBOR Advances to be repaid or prepaid, then, unless and until such
Lender notifies the Borrower that the circumstances giving rise to such
repayment no longer apply, all amounts which would otherwise be made by such
Lender as its portion of LIBOR Advances shall, unless otherwise notified by the
Borrower, be made instead as Base Rate Advances.
ARTICLE 11
Miscellaneous
Section 11.1 Notices
(a) Except as otherwise expressly provided herein, all notices
and other communications under this Agreement and the other Loan Documents
(unless otherwise specifically stated therein) shall be in writing and shall be
deemed to have been given three (3) Business Days after deposit in the mail,
designated as certified mail, return receipt requested, postage-prepaid, or one
(1) Business Day after being entrusted to a reputable commercial overnight
delivery service for next day delivery, or when sent on a Business Day prior to
5:00 p.m. (New York time) by telecopy addressed to the party to which such
notice is directed at
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its address determined as provided in this Section 11.1. All notices and other
communications under this Agreement shall be given to the parties hereto at the
following addresses:
(i) If to the Borrower or the Parent, to it at:
Benedek Broadcasting Corporation/Benedek
Communications Corporation
100 Park Avenue
Rockford, Illinois 61101
Attention: Ronald Lindwall
Telecopy: (815) 987-5335
with a copy to:
Shack and Siegel, P.C.
530 Fifth Avenue
New York, New York 10036
Attention: Paul S. Goodman, Esq.
Telecopy: (212) 730-1964
(ii) If to the Administrative Agent, to it at:
Toronto Dominion (Texas), Inc.
909 Fannin Street, Suite 1700
Houston, Texas 77010
Attn: Agency Department
Telecopy: (713) 951-9921
with a copy to:
TD Securities (USA) Inc.
31 West 52nd Street
New York, NY 10019-6101
Attn: Director, Communications Finance
Telecopy: (212) 262-1928
and
with a copy to:
Powell, Goldstein, Frazer & Murphy LLP
Sixteenth Floor
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn: Cindy A. Brazell, Esq.
Telecopy: (404) 572-6999
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(iii) If to the Lenders, to them at the addresses set forth on
Schedule 7 hereto.
The failure to provide copies shall not affect the validity of the notice given
to the primary recipient.
(b) Any party hereto may change the address to which notices
shall be directed under this Section 11.1 by giving ten (10) days' written
notice of such change to the other parties.
Section 11.2 Expenses. The Borrower will promptly pay, or reimburse:
(a) all reasonable out-of-pocket expenses of the
Administrative Agent in connection with the preparation, negotiation, execution
and delivery of this Agreement and the other Loan Documents, and the
transactions contemplated hereunder and thereunder and the making of the initial
Advance hereunder (whether or not such Advance is made), including, but not
limited to, the reasonable fees and disbursements of Powell, Goldstein, Frazer &
Murphy LLP, special counsel for the Administrative Agent; and
(b) all reasonable out-of-pocket costs and expenses of the
Administrative Agent and the Lenders of enforcement under this Agreement or the
other Loan Documents and all reasonable out-of-pocket costs and expenses of
collection if an Event of Default occurs in the payment of the Notes, which in
each case shall include reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent and the Lenders.
Section 11.3 Waivers. The rights and remedies of the Administrative
Agent and the Lenders under this Agreement and the other Loan Documents shall be
cumulative and not exclusive of any rights or remedies which they would
otherwise have. No failure or delay by the Administrative Agent, the Majority
Lenders, or the Lenders, or any of them, in exercising any right, shall operate
as a waiver of such right. The Administrative Agent and the Lenders expressly
reserve the right to require strict compliance with the terms of this Agreement
in connection with any future funding of a Request for Advance. In the event the
Lenders decide to fund a Request for Advance at a time when the Borrower is not
in strict compliance with the terms of this Agreement, such decision by the
Lenders shall not be deemed to constitute an undertaking by the Lenders to fund
any further Request for Advance or preclude the Lenders or the Administrative
Agent from exercising any rights available under the Loan Documents or at law or
equity. Any waiver or indulgence granted by the Administrative Agent, the
Lenders, or the Majority Lenders, shall not constitute a modification of this
Agreement or any other Loan Document, except to the extent expressly provided in
such waiver or indulgence, or constitute a course of dealing at variance with
the terms of this Agreement or any other Loan Document such as to require
further notice of their intent to require strict adherence to the terms of this
Agreement or any other Loan Document in the future.
Section 11.4 Set-Off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon the occurrence of an Event of Default and during the continuation thereof,
the Administrative Agent and each of the Lenders are hereby authorized by the
Borrower at any time or from time to time, without notice to the
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Borrower or to any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and to apply any and all deposits (general or
special, time or demand, including, but not limited to, Indebtedness evidenced
by certificates of deposit, in each case whether matured or unmatured) and any
other Indebtedness at any time held or owing by any Lender or Administrative
Agent, to or for the credit or the account of the Borrower or any of its
Subsidiaries, against and on account of the obligations and liabilities of the
Borrower to the Lenders and the Administrative Agent, including, but not limited
to, all Obligations and any other claims of any nature or description arising
out of or connected with this Agreement, the Notes or any other Loan Document,
irrespective of whether (a) any Lender or Administrative Agent shall have made
any demand hereunder or (b) any Lender or Administrative Agent shall have
declared the principal of and interest on the Loans and other amounts due
hereunder to be due and payable as permitted by Section 8.2 hereof and although
such obligations and liabilities or any of them shall be contingent or
unmatured. Upon direction by the Administrative Agent with the consent of all of
the Lenders each Lender holding deposits of the Borrower or any of its
Subsidiaries shall exercise its set-off rights as so directed.
Section 11.5 Assignment.
(a) The Borrower may not assign or transfer any of its rights
or obligations hereunder, under the Notes or under any other Loan Document
without the prior written consent of each Lender.
(b) Each Lender may sell (i) assignments of any amount of its
interest hereunder to any Lender, or (ii) assignments or participations of one
hundred percent (100%) (or, with the consent of the Borrower, a smaller
percentage) of its interest hereunder to (A) one or more wholly-owned Affiliates
of such Lender (provided that, if such Affiliate is not a financial institution,
such Lender shall be obligated to repurchase such assignment if such Affiliate
is unable to honor its obligations hereunder) or to an Approved Fund, or (B) any
Federal Reserve Bank as collateral security pursuant to Regulation A of the
Board of Governors of the Federal Reserve System and any Operating Circular
issued by such Federal Reserve Bank or, (C) in the case of any Lender that is a
fund that invests in bank loans, such Lender may pledge all or any portion of
its Loans and Notes to any trustee for, or any other representative of, holders
of obligations owed, by such fund, as security for such obligations; provided
that any foreclosure or similar action by such trustee or representatives shall
be subject to the provisions of this Section concerning assignments; provided,
however, that no such collateral assignment shall relieve such Lender of its
rights and obligations hereunder; and provided, that a copy of any such
assignment or participation is provided to the Administrative Agent prior to, or
simultaneous with, the effectiveness thereof.
(c) Each of the Lenders may at any time enter into assignment
agreements or participations with one or more other banks or other Persons
pursuant to which each Lender may assign or participate its interest under this
Agreement and the other Loan Documents, including, its interest in any
particular Advance or portion thereof, provided, that (1) all assignments (other
than assignments described in clause (b) hereof) shall be in minimum principal
amounts of the lesser of (x) the entire remaining amount of such Lender's Loans
and Commitments; (y) $5,000,000 and (z) such other amount as may be agreed to in
writing by the Administrative
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Agent and Borrower, and (2) all assignments (other than assignments described
in clause (b) hereof) and participations hereunder shall be subject to the
following additional terms and conditions:
(i) No assignment (except assignments permitted in
Section 11.5(b) hereof) shall be sold without the prior consent of the
Administrative Agent and prior to the occurrence and continuation of an
Event of Default, the consent of the Borrower, which consents shall not
be unreasonably withheld;
(ii) Any Person purchasing a participation or an
assignment of any portion of the Loans from any Lender shall be
required to represent and warrant that its purchase shall not
constitute a "prohibited transaction" (as defined in Section 4.1(m)
hereof);
(iii) The Borrower, the Lenders, and the Administrative
Agent agree that assignments permitted hereunder (including the
assignment of any Advance or portion thereof) may be made with all
voting rights, and shall be made pursuant to an Assignment and
Assumption Agreement. An administrative fee of $3,500 shall be payable
to the Administrative Agent by the assigning Lender at the time of any
assignment under this Section 11.5(c);
(iv) No participation agreement shall confer any rights
under this Agreement or any other Loan Document to any purchaser
thereof, or relieve any issuing Lender from any of its obligations
under this Agreement, and all actions hereunder shall be conducted as
if no such participation had been granted; provided, however, that any
participation agreement may confer on the participant the right to
approve or disapprove decreases in the interest rate, increases in the
principal amount of the Loans participated in by such participant,
decreases in fees, extensions of the Revolving Loan Maturity Date or
the Term Loan Maturity Date, as applicable, or other principal payment
date for the Loans or of the scheduled reduction of the Revolving Loan
Commitment and releases of Collateral;
(v) Each Lender agrees to provide the Administrative
Agent and the Borrower with prompt written notice of any issuance of
participations in or assignments of its interests hereunder;
(vi) No assignment, participation or other transfer of
any rights hereunder or under the Notes shall be effected that would
result in any interest requiring registration under the Securities Act
of 1933, as amended, or qualification under any state securities law;
(vii) No such assignment may be made to (A) any bank or
other financial institution (excluding funds) unless (1) such bank or
other financial institution either (x) has a minimum capital and
surplus of $500,000,000, or (y) is "adequately capitalized" (as such
term is defined in 12 USCA Section 1831(b)(1)(B) as in effect on the
Agreement Date) and (2) a receiver or conservator (including, without
limitation, the
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Federal Deposit Insurance Corporation, the Resolution Trust Company or
the Office of Thrift Supervision) has not been appointed with respect
to such bank or other financial institution, (B) any fund unless such
fund either (1) invests in commercial loans or (2) has total assets in
excess of $125,000,000, or (C) any other Person unless such Person
either (1) is an "accredited investor" (as defined in Regulation D of
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder) or (2) has total assets in excess of
$100,000,000;
(viii) If applicable, each Lender shall, and shall cause
each of its assignees to, provide to the Administrative Agent on or
prior to the effective date of any assignment an appropriate Internal
Revenue Service form as required by Applicable Law supporting such
Lender's or assignee's position that no withholding by the Borrower or
the Administrative Agent for U.S. income tax payable by such Bank or
assignee in respect of amounts received by it hereunder is required.
For purposes of this Agreement, an appropriate Internal Revenue Service
form shall mean Form 1001 (Ownership Exemption or Reduced Rate
Certificate of the U.S. Department of Treasury), or Form 4224
(Exemption from Withholding of Tax on Income Effectively Connected with
the Conduct of a Trade or Business in the United States), or any
successor or related forms adopted by the relevant U.S. taxing
authorities; and
(ix) Any Lender making an assignment of its rights and
obligations under the Revolving Loan Commitment shall also make an
assignment of an equal percentage of its outstanding loans under its
Revolving Loan Commitment.
(d) Except as specifically set forth in Section 11.5(b) or (c)
hereof, nothing in this Agreement or the Notes, expressed or implied, is
intended to or shall confer on any Person other than the respective parties
hereto and thereto and their successors and assignees permitted hereunder and
thereunder any benefit or any legal or equitable right, remedy or other claim
under this Agreement or the Notes.
(e) In the case of any participation, all amounts payable by
the Borrower under the Loan Documents shall be calculated and made in the manner
and to the parties hereto as if no such participation had been sold.
(f) The provisions of this Section 11.5 shall not apply to any
purchase of participations among the Lenders pursuant to Section 2.11 hereof.
(g) The Administrative Agent, acting, for this purpose only,
as agent of the Borrower shall maintain, at no extra charge or cost to the
Borrower, a register (the "Register") at the address to which notices to the
Administrative Agent are to be sent under Section 11.1 hereof on which Register
the Administrative Agent shall enter the name, address and taxpayer
identification number (if provided) of the registered owner of the Loans
evidenced by a Registered Note or, upon the request of the registered owner, for
which a Registered Note has been requested. A Registered Note and the Loans
evidenced thereby may be assigned or otherwise transferred in whole or in part
only by registration of such assignment or transfer of such Registered Note and
the Loans evidenced thereby on the Register. Any assignment or
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transfer of all or part of such Loans and the Registered Note evidencing the
same shall be registered on the Register only upon compliance with the other
provisions of this Section 11.5 and surrender for registration of assignment or
transfer of the Registered Note evidencing such Loans, duly endorsed by (or
accompanied by a written instrument of assignment or transfer duly executed by)
the Registered Noteholder thereof, and thereupon one or more new Registered
Notes in the same aggregate principal amount shall be issued to the designated
assignee(s) or transferee(s) and, if less than the aggregate principal amount of
such Registered Notes is thereby transferred, the assignor or transferor. Prior
to the due presentment for registration of transfer of any Registered Note, the
Borrower and the Administrative Agent shall treat the Person in whose name such
Loans and the Registered Note evidencing the same is registered as the owner
thereof for the purpose of receiving all payments thereon and for all other
purposes, notwithstanding any notice to the contrary.
Section 11.6 Accounting Principles. All references in this Agreement to
GAAP shall be to such principles as in effect from time to time. All accounting
terms used herein without definition shall be used as defined under GAAP. All
references to the financial statements of the Borrower and to its Total Debt and
Fixed Charges, and other such terms shall be deemed to refer to such items of
the Borrower and its Subsidiaries, on a fully consolidated basis.
Section 11.7 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
Section 11.8 Governing Law. This Agreement and the Notes shall be
construed in accordance with and governed by the internal laws of the State of
New York applicable to agreements made and to be performed in New York. If any
action or proceeding shall be brought by the Administrative Agent or any Lender
hereunder or under any other Loan Document in order to enforce any right or
remedy under this Agreement or under any Note or any other Loan Document, the
Borrower hereby consents and will, and the Borrower will cause each Subsidiary
to, submit to the jurisdiction of any state or federal court of competent
jurisdiction sitting within the area comprising the Southern District of New
York on the date of this Agreement. The Borrower, for itself and on behalf of
its Subsidiaries, hereby agrees that, to the extent permitted by Applicable Law,
service of the summons and complaint and all other process which may be served
in any such suit, action or proceeding may be effected by mailing by registered
mail a copy of such process to the offices of the Borrower at the address given
in Section 11.1 hereof and that personal service of process shall not be
required. Nothing herein shall be construed to prohibit service of process by
any other method permitted by law, or the bringing of any suit, action or
proceeding in any other jurisdiction. The Borrower agrees that final judgment in
such suit, action or proceeding shall be conclusive and may be enforced in any
other jurisdiction by suit on the judgment or in any other manner provided by
Applicable Law.
Section 11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
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Section 11.10 Interest.
(a) In no event shall the amount of interest due or payable
hereunder or under the Notes exceed the maximum rate of interest allowed by
Applicable Law, and in the event any such payment is inadvertently made by the
Borrower or inadvertently received by the Administrative Agent or any Lender,
then such excess sum shall be credited as a payment of principal, unless the
Borrower shall notify the Administrative Agent or such Lender, in writing, that
it elects to have such excess sum returned forthwith. It is the express intent
hereof that the Borrower not pay and the Administrative Agent and the Lenders
not receive, directly or indirectly in any manner whatsoever, interest in excess
of that which may legally be paid by the Borrower under Applicable Law.
(b) Notwithstanding the use by the Lenders of the Base Rate
and the LIBOR as reference rates for the determination of interest on the Loans,
the Lenders shall be under no obligation to obtain funds from any particular
source in order to charge interest to the Borrower at interest rates related to
such reference rates.
Section 11.11 Table of Contents and Headings. The Table of Contents and
the headings of the various subdivisions used in this Agreement are for
convenience only and shall not in any way modify or amend any of the terms or
provisions hereof, nor be used in connection with the interpretation of any
provision hereof.
Section 11.12 Amendment and Waiver. Neither this Agreement nor any Loan
Document nor any term hereof or thereof may be amended orally, nor may any
provision hereof or thereof be waived orally but only by an instrument in
writing signed by or at the direction of the Majority Lenders and, in the case
of an amendment, by the Parent and the Borrower, except that in the event of (a)
any increase in the amount of any Lender's portion of the Revolving Loan
Commitment or the Term Loan Commitment, (b) any extension of the Maturity Date,
(c) any delay or extension in the terms of repayment of the Loans provided in
Section 2.5 or 2.7 hereof, (d) any reduction in principal, interest or fees due
hereunder or postponement of the payment thereof without a corresponding payment
of such principal, interest or fee amount by the Borrower, (e) any release of
all or a substantial part of the Collateral for the Loans, except in connection
with an Asset Sale, merger, liquidation or dissolution pursuant to Section 7.4
hereof (in which case, such release shall require no further approval by the
Lenders), (f) any waiver of any Default due to the failure by the Borrower to
pay any sum due to any of the Lenders hereunder, (g) any release of any Guaranty
of all or any portion of the Obligations, except in connection with a merger,
sale or other disposition otherwise permitted hereunder (in which case, such
release shall require no further approval by the Lenders), (h) any amendment to
the pro rata treatment of the Lenders set forth in Section 2.11 hereof, or (i)
any amendment of this Section 11.12, of the definition of Majority Lenders, or
of any Section herein to the extent that such Section requires action by all
Lenders, any amendment or waiver or consent may be made only by an instrument in
writing signed by each of the Lenders and, in the case of an amendment, by the
Parent and the Borrower. Any amendment to any provision hereunder governing the
rights, obligations, or liabilities of the Administrative Agent in its capacity
as such, may be made only by an instrument in writing signed by such affected
Person and by each of the Lenders. No term or provision of any Security Document
may be amended or waived orally, but only by an
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instrument in writing signed by the Collateral Agent with the direction of the
Majority Lenders and, in the case of an amendment, by such of the Parent, the
Borrower and the Borrower's Subsidiaries as are party thereto; provided,
however, that the written consent of all of the Lenders shall be required with
respect to any amendment to or waiver of the provisions of any Security Document
which would have the effect of (A) releasing all or a substantial part of the
Collateral for the Loans, other than in connection with any merger, sale or
other disposition otherwise permitted hereunder (which shall require no further
approval by the Lenders) or (B) releasing any Guarantor from all or any portion
of the Obligations, except in connection with a merger, sale or other
disposition otherwise permitted hereunder (in which case, such release shall
require no further approval by the Lenders). The Lenders hereby instruct and
authorize the Collateral Agent to enter into the Security Documents (and all
other Loan Documents) referred to in Section 3.1 hereof as of the Agreement Date
and any other Security Documents required to be entered into by the Borrower or
any of its Subsidiaries hereunder.
Section 11.13 Entire Agreement. Except as otherwise expressly provided
herein, this Agreement and the other documents described or contemplated herein
will embody the entire agreement and understanding among the parties hereto and
thereto and supersede all prior agreements and understandings relating to the
subject matter hereof and thereof.
Section 11.14 Other Relationships. No relationship created hereunder or
under any other Loan Document shall in any way affect the ability of the
Administrative Agent and each Lender to enter into or maintain business
relationships with the Borrower or any of its Affiliates beyond the
relationships specifically contemplated by this Agreement and the other Loan
Documents.
Section 11.15 Directly or Indirectly. If any provision in this
Agreement refers to any action taken or to be taken by any Person, or which such
Person is prohibited from taking, such provision shall be applicable whether
such action is taken directly or indirectly by such Person, whether or not
expressly specified in such provision.
Section 11.16 Reliance on and Survival of Various Provisions. All
covenants, agreements, statements, representations and warranties made herein or
in any certificate delivered pursuant hereto (i) shall be deemed to have been
relied upon by the Administrative Agent and each of the Lenders notwithstanding
any investigation heretofore or hereafter made by them, and (ii) shall survive
the execution and delivery of the Notes and shall continue in full force and
effect so long as any Note is outstanding and unpaid. Any right to
indemnification hereunder, including, without limitation, rights pursuant to
Sections 2.10, 2.12, 5.11, 10.3 and 11.2 hereof, shall survive the termination
of this Agreement and the payment and performance of all Obligations.
Section 11.17 Senior Debt. The Obligations are secured by the Security
Documents and are intended by the parties hereto to be in parity with the
Interest Rate Hedge Agreements and senior in right of payment to all other
Indebtedness of the Borrower.
Section 11.18 Obligations Several. The obligations of the
Administrative Agent and each of the Lenders hereunder are several, not joint.
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ARTICLE 12
Waiver of Jury Trial
Section 12.1 Waiver of Jury Trial. THE BORROWER, FOR ITSELF AND ON
BEHALF OF EACH OF ITS SUBSIDIARIES, THE UNRESTRICTED SUBSIDIARIES AND THE
PARENT, AND THE ADMINISTRATIVE AGENT, COLLATERAL AGENT AND THE LENDERS, HEREBY
AGREE, TO THE EXTENT PERMITTED BY LAW, TO WAIVE AND HEREBY WAIVE THE RIGHT TO A
TRIAL BY JURY IN ANY COURT AND IN ANY ACTION OR PROCEEDING OF ANY TYPE IN WHICH
THE BORROWER, ANY OF THE BORROWER'S SUBSIDIARIES, THE PARENT, ANY OF THE
UNRESTRICTED SUBSIDIARIES, ANY OF THE LENDERS, THE ADMINISTRATIVE AGENT,
COLLATERAL AGENT OR ANY OF THEIR RESPECTIVE SUCCESSORS OR ASSIGNS IS A PARTY, AS
TO ALL MATTERS AND THINGS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT,
ANY OF THE NOTES OR THE OTHER LOAN DOCUMENTS AND THE RELATIONS AMONG THE PARTIES
LISTED IN THIS SECTION 12.1. EXCEPT AS PROHIBITED BY LAW, EACH PARTY TO THIS
AGREEMENT WAIVES ANY RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION
REFERRED TO IN THIS SECTION, ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH PARTY
TO THIS AGREEMENT (i) CERTIFIES THAT NEITHER ANY REPRESENTATIVE, AGENT OR
ATTORNEY OF THE ADMINISTRATIVE AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR ANY LENDER WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (ii) ACKNOWLEDGES THAT
IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
THE PROVISIONS OF THIS SECTION HAVE BEEN FULLY DISCLOSED BY AND TO THE PARTIES
AND THE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY
AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS
SECTION WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed by their duly authorized officers, all as of the day
and year first above written.
BORROWER: BENEDEK BROADCASTING CORPORATION,
a Delaware corporation
By: /s/ RONALD L. LINDWALL
-----------------------------------------
Name: RONALD L. LINDWALL
Title: Senior Vice President--Finance and
Chief Financial Officer
PARENT: BENEDEK COMMUNICATIONS CORPORATION,
a Delaware corporation
By: /s/ RONALD L. LINDWALL
-----------------------------------------
Name: RONALD L. LINDWALL
Title: Senior Vice President--Finance and
Chief Financial Officer
ADMINISTRATIVE AGENT AND TORONTO DOMINION (TEXAS), INC., as
LENDERS: Administrative Agent and Lender
By:
-----------------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed by their duly authorized officers, all as of the day
and year first above written.
BORROWER: BENEDEK BROADCASTING CORPORATION,
a Delaware corporation
By:
-----------------------------------------
Name:
Title:
PARENT: BENEDEK COMMUNICATIONS CORPORATION,
a Delaware corporation
By:
-----------------------------------------
Name:
Title:
ADMINISTRATIVE AGENT AND TORONTO DOMINION (TEXAS), INC., as
LENDERS: Administrative Agent and Lender
By: /s/ NEVA NESBITT
-----------------------------------------
Name: NEVA NESBITT
Title: Vice President
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EXHIBIT 10.2
FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT (the "Amendment") is made as of
this 18th day of June, 1999 by and among Benedek Communications Corporation, a
Delaware corporation (the "Parent"), Benedek Broadcasting Corporation, a
Delaware corporation (the "Borrower"), the Lender (as defined in the Loan
Agreement defined below) and Toronto Dominion (Texas), Inc. (the "Administrative
Agent", and collectively with the Collateral Agent (as defined in the Loan
Agreement defined below), the "Agents"), as administrative agent for the Lender.
W I T N E S S E T H:
WHEREAS, the Parent, the Borrower, the Lender and the Agents are all
parties to that certain Loan Agreement dated as of May 20, 1999 (as amended
hereby and as otherwise amended, modified, restated or supplemented from time to
time, the "Loan Agreement"); and
WHEREAS, the Borrower desires to increase the Revolving Loan Commitment
from $35,000,000 to $90,000,000 and to prepay the Term Loan in the amount of
$55,000,000; and
WHEREAS, the Borrower has requested that the Administrative Agent and
the Lender, and the Administrative Agent and the Lender have agreed to, subject
to the terms hereof, amend the Loan Agreement as set forth herein;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is acknowledged, the parties hereto agree that
all capitalized terms used herein which are not otherwise defined herein shall
have the meanings ascribed thereto in the Loan Agreement, and further agree as
follows:
1. Amendments to the Loan Agreement.
a. Amendments to Article 1 of the Loan Agreement. Section 1.1,
Defined Terms, of the Loan Agreement, is hereby amended by deleting the
definitions of "Revolving Loan Commitment", "Revolving Loan Notes",
"Term Loan Commitment" and "Term Loan Notes" in their entirety and by
substituting, in lieu thereof, the following:
"'Revolving Loan Commitment' shall mean the several
obligations of the Lenders to fund their respective portions of the
Revolving Loans to the Borrower in accordance with their respective
Commitment Ratios in the aggregate sum as of the date of the First
Amendment to this Agreement of up to $90,000,000, pursuant to the terms
hereof, as such obligations may be reduced from time to time pursuant
to the terms hereof."
<PAGE>
"'Revolving Loan Notes' shall mean, collectively, those
certain promissory notes in the aggregate original principal amount of
$90,000,000 and issued to each of the Lenders by the Borrower with
respect to the Revolving Loan Commitment, each one substantially in the
form of Exhibit E-1 attached hereto, any other promissory note issued
by the Borrower to evidence the Revolving Loans pursuant to this
Agreement, any extensions, renewals, or amendments to, or replacements
of, the foregoing."
"'Term Loan Commitment' shall mean the several obligations of
the Lenders to fund their respective portion of the Term Loans to the
Borrower on the date of the First Amendment to this Agreement, in
accordance with their respective Commitment Ratios, an aggregate sum of
up to $220,000,000 pursuant to the terms hereof, as such obligations
may be reduced from time to time pursuant to the terms hereof."
"'Term Loan Notes' shall mean, collectively, those certain
promissory notes in the aggregate original principal amount of
$220,000,000, and issued to each of the Lenders by the Borrower with
respect to the Term Loan Commitment, each one substantially in the form
of Exhibit E-2 attached hereto, any other promissory note issued by the
Borrower to evidence the Term Loans pursuant to this Agreement, and any
extensions, renewals, or amendments to, or replacements of, the
foregoing."
b. Amendments to Article 5 of the Loan Agreement. Section
5.22, Lien Searches and UCC Financing Statements and Mortgages, of the
Loan Agreement, is hereby amended by deleting the phrase "thirty (30)
days" appearing in Section 5.22(a) and substituting in lieu thereof the
phrase "sixty (60) days".
c. Amendments to the Exhibits to the Loan Agreement. Exhibit A
to the Loan Agreement, Assignment and Assumption Agreement, is hereby
amended by deleting in its entirety Paragraph A of the Recitals and
substituting, in lieu thereof, the following:
"A. Pursuant to that certain Loan Agreement dated as of May
20, 1999 (as the same may be hereafter amended, modified, supplemented
or restated from time to time, the "Loan Agreement") by and among
Benedek Communications Corporation (the "Parent"), the Borrower, the
Administrative Agent (as defined therein,), the Collateral Agent (the
Administrative Agent and the Collateral Agent, collectively, being
referred to herein as the "Agents") and the Lenders (as defined
therein) signatories thereto. Pursuant to the Loan Agreement, the
Lenders have agreed to extend credit to the Borrower under (1) the
Revolving Loan Commitment (as defined therein) in an aggregate original
principal amount not to exceed at any time outstanding $90,000,000 and
(2) the Term Loan Commitment (as defined therein) in an aggregate
original principal amount not to exceed at any time outstanding
$220,000,000 (as such amounts may be reduced from time to time pursuant
to the Loan Agreement, collectively, the "Commitments"). The Assignor's
portions of the Commitments are the amounts specified in Item 1 of
Schedule 1 hereto (the "Assignor's Commitments"). The aggregate
principal amounts of outstanding Loans made by the Assignor to the
Borrower under the Commitments pursuant to the Assignor's Commitments
are specified in Item 2 of Schedule 1 hereto (the "Assignor's Loans")."
<PAGE>
2. Acknowledgement. The parties hereto acknowledge and agree that after
giving effect to this Amendment, the aggregate amount of the Term Loans
outstanding shall be $220,000,000, the aggregate amount of the Revolving Loan
Commitment shall be $90,000,000 and the aggregate amount of the Revolving Loans
outstanding shall be $55,000,000; and further acknowledge that an Advance under
the Revolving Loan Commitment shall be deemed to have been made simultaneously
herewith to reduce the Term Loans from $275,000,000 to $220,000,000.
3. No Other Amendment or Waiver. Notwithstanding the agreement of the
Lender to the terms and provisions of this Amendment, the Borrower acknowledges
and expressly agrees that this Amendment is limited to the extent expressly set
forth herein and shall not constitute a modification of the Loan Agreement or
any other Loan Documents or a course of dealing at variance with the terms of
the Loan Agreement or any other Loan Documents (other than as expressly set
forth above) so as to require further notice by the Agents or the Lender, or any
of them, of its or their intent to require strict adherence to the terms of the
Loan Agreement and the other Loan Documents in the future. All of the terms,
conditions, provisions and covenants of the Loan Agreement and the other Loan
Documents shall remain unaltered and in full force and effect except as
expressly modified by this Amendment.
4. Representations and Warranties. The Parent and the Borrower hereby
represent and warrant to and in favor of the Administrative Agent and the Lender
as follows:
(a) each representation and warranty set forth in Article 4 of
the Loan Agreement is hereby restated and affirmed as true and correct
in all material respects as of the date hereof, except to the extent
previously fulfilled in accordance with the terms of the Loan Agreement
or to the extent relating specifically to the Agreement Date (or date
prior thereto) or otherwise inapplicable;
(b) the Parent and the Borrower have the corporate power and
authority (i) to enter into this Amendment and (ii) to do all acts and
things as are required or contemplated hereunder to be done, observed
and performed by it;
(c) this Amendment has been duly authorized, validly executed
and delivered by one or more Authorized Signatories of the Parent and
of the Borrower, and this Amendment and the Loan Agreement constitute
the legal, valid and binding obligations of the Parent and the
Borrower, enforceable against the Parent and the Borrower in accordance
with their respective terms, subject, as to enforcement of remedies, to
the following qualifications: (i) an order of specific performance and
an injunction are discretionary remedies and, in particular, may not be
available where damages are considered an adequate remedy at law and
(ii) enforcement may be limited by bankruptcy, insolvency, liquidation,
reorganization, reconstruction and other similar laws affecting
enforcement of creditors' rights generally (insofar as any such law
relates to the bankruptcy, insolvency or similar event of the Parent or
the Borrower); and
<PAGE>
(d) the execution and delivery of this Amendment and
performance by the Parent and the Borrower under the Loan Agreement
does not and will not require the consent or approval of any regulatory
authority or governmental authority or agency having jurisdiction over
the Parent or the Borrower which has not already been obtained, nor be
in contravention of or in conflict with the Certificate of
Incorporation of the Borrower or of the Parent, or any provision of any
statute, judgment, order, indenture, instrument, agreement, or
undertaking, to which the Borrower or the Parent is party or by which
the Parent's or the Borrower's assets or properties are bound.
5. Conditions Precedent to Effectiveness of Amendment. The
effectiveness of this Amendment is subject to:
(a) receipt by the Administrative Agent of duly executed
counterpart signature pages of the Lender to this Amendment;
(b) all of the representations and warranties of the Parent
and the Borrower under Section 4 hereof being true and correct in all
material respects, except to the extent previously fulfilled in
accordance with the terms of the Loan Agreement or to the extent
relating specifically to the Agreement Date (or date prior thereto) or
otherwise inapplicable;
(c) receipt by the Administrative Agent and the Lender of a
certificate of the chief financial officer of the Borrower certifying
that no Default exists both before and after giving effect to this
Amendment;
(d) receipt by the Administrative Agent and the Lender of a
signed legal opinion of Shack & Siegel, counsel to the Borrower and its
Subsidiaries, in form and substance reasonably satisfactory to the
Administrative Agent and its special counsel; and
(e) receipt by the Administrative Agent of commitments from
syndication members to purchase an aggregate amount of $55,000,000 of
the Revolving Loan Commitment and $206,000,000 of the Term Loans; and
(f) receipt of any other documents or instruments that the
Administrative Agent, the Lender, or any of them, may reasonably
request, certified by an officer of the Borrower if so requested.
6. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which
when taken together shall constitute one and the same agreement.
7. Governing Law. This Amendment shall be deemed to be made pursuant to
the laws of the State of New York and shall be construed, interpreted, performed
and enforced in accordance therewith.
<PAGE>
8. Loan Documents. Each reference in the Loan Agreement or any other
Loan Document to the term "Loan Agreement" shall hereafter mean and refer to the
Loan Agreement as amended hereby and as the same may hereafter be amended.
9. Effective Date. Upon satisfaction of the conditions precedent
referred to in Section 5 above, this Amendment shall be effective as of the date
first above written.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their
respective duly authorized officers or representatives to execute and deliver
this Amendment all as of the day and year first above written.
BORROWER: BENEDEK BROADCASTING CORPORATION,
a Delaware corporation
By: /s/
--------------------------------------
Name:---------------------------------
Title:--------------------------------
PARENT: BENEDEK COMMUNICATIONS
CORPORATION, a Delaware corporation
By: /s/
--------------------------------------
Name:---------------------------------
Title:--------------------------------
ADMINISTRATIVE AGENT TORONTO DOMINION (TEXAS), INC.,
AND LENDER: as Administrative Agent and as Lender
By: /s/
--------------------------------------
Name:---------------------------------
Title:--------------------------------
<PAGE>
AFFIRMATION OF GUARANTORS: The Guarantors hereby affirm their respective
guaranty of the obligations of the Borrower under and pursuant to the Loan
Agreement, as amended hereby.
GUARANTOR: BENEDEK COMMUNICATIONS
CORPORATION
By: /s/
--------------------------------------
Name:---------------------------------
Title:--------------------------------
GUARANTOR: BENEDEK LICENSE CORPORATION
By: /s/
--------------------------------------
Name:---------------------------------
Title:--------------------------------
GUARANTORS: The WMTV Trust, a Wisconsin trust
By: /s/
-------------------------------------
Philip A. Jones, solely in his capacity
as trustee under The WMTV Trust, a
Wisconsin trust
WMTV LICENSE CO., LLC, a Delaware limited
liability company
By: The WMTV Trust, a Wisconsin trust,
its sole member
By: /s/
---------------------------------------
Philip A. Jones, solely in his capacity
as trustee under The WMTV Trust, a
Wisconsin trust
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<PERIOD-START> JAN-01-1999
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