UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 27, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period to
Commission File No. 1-6383
MEDIA GENERAL, INC.
(Exact name of registrant as specified in its charter)
Commonwealth of Virginia 54-0850433
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
333 East Franklin Street, Richmond, Virginia 23219
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (804) 649-6000
Securities registered pursuant to Section 12(b) of the Act:
Class A Common Stock American Stock Exchange
(Title of class) (Name of exchange on
which registered)
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant (1) has 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 (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this form 10-K. [ ]
The aggregate market value of voting stock held by nonaffiliates of the
registrant, based upon the closing price of the Company's Class A Common Stock
as reported on the American Stock Exchange, as of February 28, 1999, was
approximately $1,158,000,000.
The number of shares of Class A Common Stock outstanding on February 28,
1999, was 26,307,781. The number of shares of Class B Common Stock outstanding
on February 28, 1999, was 556,574.
Part I, Part II and Part IV incorporate information by reference from
the Annual Report to Stockholders for the year ended December 27, 1998. Part III
incorporates information by reference from the proxy statement for the Annual
Meeting of Stockholders to be held on May 21, 1999.
<PAGE>
INDEX TO MEDIA GENERAL, INC.
ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED DECEMBER 27, 1998
<TABLE>
<CAPTION>
Item No. Page
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<S> <C>
Part I
1. Business
General 1
Publishing 2
Broadcast Television 2
Cable Television 5
Newsprint 7
2. Properties 7
3. Legal Proceedings 8
4. Submission of Matters to a Vote of Security Holders 9
Executive Officers of Registrant 9
Part II
5. Market for Registrant's Common Equity and Related Stockholder Matters 9
6. Selected Financial Data 9
7. Management's Discussion and Analysis of Financial Condition and Results
of Operation 9
7A. Quantitative and Qualitative Disclosures About Market Risk 10
8. Financial Statements and Supplementary Data 10
9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure 10
Part III
10. Directors and Executive Officers of the Registrant 10
11. Executive Compensation 10
12. Security Ownership of Certain Beneficial Owners and Management 10
13. Certain Relationships and Related Transactions 10
Part IV
14. Exhibits, Financial Statement Schedules and Reports on Form 8-K 11
Schedule II 12
Index to Exhibits 13
Signatures 17
</TABLE>
<PAGE>
PART I
ITEM 1. BUSINESS
GENERAL
Media General, Inc., is an independent, publicly owned communications
company situated primarily in the Southeast with interests in newspapers,
broadcast and cable television, recycled newsprint production and diversified
information services. The Company employs approximately 8,900 people on a full
or part-time basis. The Company's businesses are somewhat seasonal; the second
and fourth quarters are typically stronger than the first and third quarters.
As part of the Company's continuing commitment to a southeastern focus,
it has completed a series of acquisitions, exchanges and divestitures over the
past several years which have contributed to its strength in the Southeast. In
January 1998 the Company acquired, for approximately $93 million, the assets of
the Bristol Herald Courier, a daily newspaper in southwestern Virginia
(circulation - 42,000 daily, 45,000 Sunday), and two affiliated weekly
newspapers (circulation - 5,000 weekly). In July 1998 the Company acquired, for
approximately $40 million, the assets of the Hickory Daily Record, a daily
newspaper in northwestern North Carolina (circulation - 19,000 daily, 20,000
Sunday). Additionally, in June 1998, the Company completed the sale of its
Kentucky newspaper properties for approximately $24 million.
In January 1997, the Company acquired Park Acquisitions, Inc., parent of
Park Communications, Inc. (Park), which included ten network affiliated
television stations, 28 daily newspapers and 82 weekly newspapers. The total
consideration approximated $715 million. In conjunction with this acquisition,
and as intended, the Company sold certain of the former Park properties, most
all of which were located outside of the Southeast, for approximately $147
million and purchased new properties for approximately $53 million. These
purchases were the Potomac News (Woodbridge, Virginia; circulation - 22,000
daily, 24,000 Sunday) in February 1997, The Reidsville Review (Reidsville, North
Carolina) and The Messenger (Madison, North Carolina) in April 1997. In August
1997 the Company exchanged WTVR-TV (Richmond, Virginia), a station acquired from
Park, for three other stations, WSAV-TV (Savannah, Georgia), WJTV-TV (Jackson,
Mississippi) and WHLT-TV (Hattiesburg, Mississippi), in order to comply with the
Federal Communication Commission's requirement that WTVR-TV be divested within
one year of its January 1997 purchase date.
In August 1996 the Company acquired, for approximately $38 million, the
Danville Register & Bee, a daily newspaper in Virginia.
INDUSTRY SEGMENTS
The Company is engaged in four significant industry segments. For
financial information related to these segments see pages 33 through 35 of the
1998 Annual Report to Stockholders, which are incorporated herein by reference.
Additional information related to each of the Company's significant industry
segments is included below.
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PUBLISHING BUSINESS
At December 27, 1998, the Company's wholly owned publishing operations
included daily and Sunday newspapers in Virginia, Florida and North Carolina.
For a listing of the Company's daily and Sunday newspapers by location, see the
inside cover of the 1998 Annual Report to Stockholders, which is incorporated
herein by reference. Combined daily circulation for the Virginia, Florida and
North Carolina newspapers in 1998 was 389,000, 241,000 and 172,000,
respectively; combined Sunday circulation for these newspapers was 433,000,
325,000 and 181,000, respectively. The Company also owns weekly newspapers,
shoppers and other publications in Virginia, Florida and North Carolina, with
weekly circulation of 28,000, 2,000 and 20,000, respectively; and it holds 40%
of the common stock and all of the preferred stock of Denver Newspapers, Inc.,
the parent company of The Denver Post, a daily newspaper in Denver, Colorado.
Additionally, the Company owns Media General Financial Services, Inc., which
compiles and makes available both current and historical data on publicly traded
companies to a broad spectrum of users, including many on-line financial data
services, and also offers other specialized financial products.
The newspaper publishing industry in the United States is comprised of
hundreds of public and private companies ranging from large national and
regional companies, publishing multiple newspapers across many states, to small
privately held companies publishing one newspaper in one locality. Acquisitions
and growth achieved by the Company over the past several years have placed the
Company's newspaper circulation among the top twenty in the United States and
situated the Company among the top fifteen publicly-held newspaper publishers in
the country based on revenue. Moreover, the Company has achieved the number
three position in circulation in its chosen southeastern area of focus, with its
published product reaching nearly one million households across the Southeast
every week. Additionally, the Company's on-line news, information and
entertainment services are becoming increasingly important as they reach
additional viewers and readers without geographic restriction.
All of the Company's newspapers compete for circulation and advertising
with other newspapers published nationally and in nearby cities and towns and
for advertising with magazines, radio, broadcast and cable television, the
internet and other promotional media. All of the newspapers compete for
circulation principally on the basis of content, quality of service and price.
The primary raw material used by the Company in its publishing
operations is newsprint, which is purchased from various Canadian and United
States sources, including Garden State Paper Company, Inc., a wholly owned
subsidiary of the Company, and Southeast Paper Manufacturing Co., in which the
Company owns a one-third equity interest. The publishing operations of the
Company consumed approximately 137,000 tons of newsprint in 1998. Management of
the Company believes that sources of supply under existing arrangements will be
adequate in 1999.
BROADCAST TELEVISION BUSINESS
The ownership, operation and sale of broadcast television stations,
including those licensed to the Company, are subject to the jurisdiction of the
Federal Communication Commission (FCC), which engages in extensive and changing
regulation of the broadcasting industry under authority granted by the
Communications Act of 1934 (Communications Act). The Communications Act requires
broadcasters to serve the public interest. Among other things, the FCC assigns
frequency bands for broadcasting; assigns and controls the particular
frequencies, locations and operating power of stations; issues, renews, revokes
and modifies station licenses; assigns and controls changes in ownership or
control of station licenses; regulates equipment used by stations;
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adopts and implements regulations and policies that directly or indirectly
affect the ownership, operation and employment practices of stations; regulates
program content and has the authority to impose penalties for violations of its
rules or the Communications Act.
Pursuant to the Children's Television Act of 1990 (Children's Television
Act), the FCC has adopted rules limiting advertising in children's television
programming and requiring that broadcast television stations serve the
educational and informational needs of children. The Children's Television Act
specifically requires the FCC to consider compliance with these obligations in
deciding whether to renew a television broadcast license.
Reference should be made to the Communications Act, the
Telecommunications Act of 1996 (1996 Telecom Act), the Children's Television Act
and the FCC's rules, public notices and rulings for further information
concerning the nature and extent of federal regulation of broadcast television
stations.
The Broadcast Television Division operates fourteen network-affiliated
television stations in the southeastern United States. The following table sets
forth certain information on each of these stations:
<TABLE>
<CAPTION>
Expiration Expiration
National Date of Date of
Station Location Market Station Audience FCC Network
and Affiliation Rank (a) Rank (a) * % Share (a) * License (b) Agreement
---------------- -------- ---------- ------------- ----------- ----------
<S> <C> <C> <C> <C> <C>
WFLA-TV NBC 14 2 13% 2/1/05 12/31/04
Tampa, FL
WIAT-TV CBS 39 4 9% 4/1/05 12/31/04
Birmingham, AL
WJWB-TV WB (c) 52 4 6% 2/1/05 1/12/02
Jacksonville, FL
WTVQ-TV ABC 67 3 9% 8/1/05 1/1/06
Lexington, KY
WSLS-TV NBC 68 3 11% 10/1/04 10/1/05
Roanoke, VA
WDEF-TV CBS 87 3 14% 8/1/05 12/31/04
Chattanooga, TN
WJTV-TV CBS 89 1 22% 6/1/05 12/31/04
Jackson, MS
WJHL-TV CBS 92 2 17% 8/1/05 12/31/04
Johnson City, TN
</TABLE>
3
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<TABLE>
<CAPTION>
Expiration Expiration
National Date of Date of
Station Location Market Station Audience FCC Network
and Affiliation Rank (a) Rank (a) * % Share (a) * License (b) Agreement
---------------- -------- ---------- ------------- ------------ -----------
<S> <C> <C> <C> <C> <C>
WSAV-TV NBC 100 2 11% 4/1/05 9/30/04
Savannah, GA
WNCT-TV CBS 105 1 20% 12/1/04 12/31/04
Greenville, NC
WHOA-TV ABC (d) 113 3 8% 4/1/05 1/3/07
Montgomery, AL
WCBD-TV NBC 120 2 17% 12/1/04 1/1/05
Charleston, SC
WHLT-TV CBS 167 2 11% 6/1/05 8/31/05
Hattiesburg, MS
KALB-TV NBC 173 1 25% 6/1/05 10/1/05
Alexandria, LA
</TABLE>
(a) Source: November 1998 Nielsen Rating Books.
(b) Television broadcast licenses are granted for maximum terms of eight years
and are subject to renewal upon application to the FCC.
(c) Formerly WJKS-TV; transferred network affiliation from ABC to Warner
Brothers in February 1997.
(d) Sale pending.
* Sign-On to Sign-Off.
The primary source of revenues for the Company's television stations is
the sale of time to national and local advertisers. Since each of the stations
is network-affiliated, additional revenue is derived from the network
programming carried by each.
The Company's television stations are in competition for audience and
advertising revenues with other television and radio stations and cable
television systems as well as magazines, newspapers, the internet and other
promotional media. A number of cable television systems which operate generally
on a subscriber payment basis are in business in the Company's broadcasting
markets and compete for audience by importing out-of-market television signals
and by presenting cable network and other program services. The television
stations compete for audience on the basis of program content and quality of
reception, and for advertising revenues on the basis of price, share of market
and performance.
The television broadcast industry presently is planning for the
transition from analog to digital (DTV) technology in accordance with a mandated
conversion timetable established by the FCC. The FCC's timetable directs that
stations affiliated with the top four networks in the eleventh to thirtieth
largest markets begin DTV service by November 1, 1999. The Company's Tampa
television station is included within this group and is on schedule to meet this
timetable. The Company's other television stations must begin DTV service by May
1, 2002.
4
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Congress and the FCC have under consideration, and in the future may
consider and adopt, new laws, regulations and policies regarding a wide variety
of matters that could affect, directly or indirectly, the operation, ownership
and profitability of the Company's broadcast television stations and affect the
ability of the Company to acquire additional stations. In addition to the
matters noted above, these include, for example, spectrum use fees, political
advertising rates, potential restrictions on the advertising of certain products
(such as alcoholic beverages) and the rules and policies to be applied in
enforcing the FCC's equal employment opportunity regulations. Other matters that
could potentially affect the Company's broadcast properties include
technological innovations and developments generally affecting competition in
the mass communications industry, such as satellite radio and television
broadcast service, wireless cable systems, low-power television stations, radio
technologies and the advent of telephone company participation in the provision
of video programming services.
CABLE TELEVISION BUSINESS
The Cable Television Division includes two cable systems in northern
Virginia, Media General Cable of Fairfax County, Inc., and Media General Cable
of Fredericksburg, Inc., a cable advertising agency, Mega Advertising, Inc., and
an interest in a cable advertising interconnect business serving five cable
systems in the Washington, D.C. area. The Fairfax system presently has a
120-channel capacity on dual coaxial cables which pass approximately 343,000
homes. The Fredericksburg system presently has a 60-channel capacity and passes
approximately 22,000 homes.
The Company has cable television franchises to operate its existing
systems in the overwhelming majority of the territory of Fairfax County,
Virginia, in certain cities and towns adjoining Fairfax County, in
Fredericksburg and Spotsylvania County, Virginia, and a portion of Stafford
County, Virginia. These jurisdictions have enacted extensive regulations
governing cable television systems within their borders. Franchise renewal
proceedings were completed in 1998 in Fairfax County and have been completed or
substantially completed in the adjoining cities and towns, with new 15-year
franchises in all jurisdictions. Renewal proceedings also are underway for the
Company's Stafford County franchise. At December 27, 1998, the Company's cable
television systems served approximately 258,000 subscribers.
The Company's cable television systems are being upgraded over the next
several years to hybrid fiber-coaxial cable networks (fiber backbone from
head-ends to local nodes and coaxial cable from local nodes to the subscriber)
to improve signal transmission and permit the introduction of non-video
services. Associated costs are estimated to be $100 million.
The Fairfax system began offering high speed data services (HSDS),
including Internet access, in early 1999; the Fredericksburg system will
introduce HSDS later in 1999. The Company also is studying other strategic
planning initiatives for long-term implementation, including entry into
commercial and residential telephone markets at its Fairfax system.
The Company intends to introduce digital compression technology into
both its cable systems, commencing in 1999 in Fredericksburg and in 2000 in
Fairfax. Depending upon the final digital compression ratios used, this
technology will permit eight or more digital channels to be compressed into the
space now occupied by a single existing analog channel.
5
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The FCC has jurisdiction over and has adopted a regulatory program
concerning the cable television industry. The FCC's regulations establish cable
television service and programming requirements and govern cable television
engineering standards, registration and reporting obligations and other matters.
Among the regulatory limitations which impact the Company's costs and business,
federal law establishes rate regulation for the cable services (other than
premium and pay-per-view services) which the Company offers to subscribers.
Ratemaking authority is divided between local franchisors and the FCC, and some
of the Company's rates are under review by franchisors and under review by or on
appeal to the FCC. While the Company believes that its rates have been
established in compliance with applicable federal law, it is possible that rate
refunds and/or rate adjustments may be ordered.
The 1996 Telecom Act eliminates rate regulation after March 31, 1999,
for all cable services except the "basic" tier, which is the service level that
includes the local broadcast signals carried by a cable system. If effective
competition by other video programming providers develops generally in a
franchise area, cable rate regulation will end in that area, including the
"basic" tier.
The Company's cable television systems compete for viewers, on the basis
of price, program selection and content and quality of reception, with
programming offered by satellite and broadcast television providers (and with
video rentals in the case of pay-per-view movies). Open video systems, which
also offer television programming under a different regulatory framework
authorized by the 1996 Telecom Act, provide another method of competition. In
early 1998, a local telephone company affiliate was certificated by the FCC to
operate a competitive open video system in a portion of the franchise area
served by the Company's Fairfax system. The Company's HSDS services compete with
incumbent telephone companies and other internet providers leasing telephone
company or using similar transmission lines.
Most of the revenues generated by the Company's cable television systems
are derived from subscribers' payments for programming services; additional
revenue is also derived from pay-per-view services and from advertising. The
Company's cable television systems have substantially the same competition for
advertising as its television stations, competing on the basis of price, program
content and quality of reception.
In November 1998, the Company filed a request for relief from a FCC rule
concerning set-top converter devices. Without the requested relief,
approximately 17% of such converters presently in service at the Company's
Fairfax system would have to be replaced by the end of 1999 at an estimated cost
of approximately $9.2 million; the Company would expect to recover this amount
over time through increased subscriber billings.
Reference should be made to the Communications Act, the 1996 Telecom Act
and the FCC's rules, public notices and rulings for further information
concerning the nature and extent of federal regulation of cable television
systems.
6
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The following table sets forth certain information with respect to the
Company's largest cable operation:
Media General Cable of Fairfax
- ------------------------------
<TABLE>
<CAPTION>
1998 1997 1996
---- ---- ----
<S> <C> <C> <C>
Subscribers 241,570 235,551 227,717
Penetration 70.5% 70.2% 69.4%
Monthly revenue per home passed $33.98 $33.79 $32.87
Monthly average revenue per subscriber $48.37 $48.64 $47.54
</TABLE>
NEWSPRINT PAPER MANUFACTURING BUSINESS
Media General's newsprint operations consist of the Garden State Paper
Company, a wholly owned newsprint mill in Garfield, New Jersey, with an annual
capacity of 242,000 short tons, and a one-third interest in Southeast Paper
Manufacturing Company (SEPCO) in Dublin, Georgia, with an annual capacity of
535,000 short tons. Both facilities use Media General's proprietary de-inking
technology to produce 100 percent recycled, high quality newsprint from
recovered old newspapers (ONP). Media General's share of the combined total
capacity of these facilities is approximately 420,000 short tons, making Media
General the nation's leading producer of 100 percent recycled newsprint. The
Company also earns licensing fees pursuant to a contract with SEPCO, in addition
to its share of operating results.
Garden State competes with approximately twenty Canadian and American
companies in selling newsprint, its sole product, to newspaper publishers.
Competition is based principally on price, quality of product and service,
although the percentage of recovered fiber contained in manufactured newsprint
is becoming increasingly important to newspaper publishers to meet various
existing and proposed state and federal standards.
In the past decade, environmentally driven legislation, as well as both
the newspaper and newsprint industries, have encouraged the use of recycled
paper. Consequently, newspaper recycling rates rose steadily and increased
supply led to a gradual decline in ONP prices throughout all of 1996 and into
1997, with prices beginning to stabilize towards the close of 1997. 1998 showed
moderate increases in ONP prices as demand rose due to increased competition
within the industry. Media General's strategically located and cost-effective
newsprint recycling facilities have helped assure the Company of adequate
supplies of ONP.
The newsprint business has historically been a cyclical industry. In
1994, newsprint demand was on the rise, producing higher selling prices as most
mills reached 96-97 percent of operating capacity. The trend upward continued
through 1995, enabling Media General's newsprint operations to implement four
price increases during that year. Prices peaked in early 1996 and then declined
throughout the remainder of the year. However, prices began a gradual and steady
ascent in 1997 and leveled out during 1998, reflecting the cyclical nature of
newsprint prices inherent to the industry.
ITEM 2. PROPERTIES
The headquarters of Media General, Inc., and its Richmond Newspapers,
Inc., subsidiary are located in downtown Richmond, Virginia, in four adjacent
buildings. In the second quarter of 1998, the Company occupied the new corporate
headquarters building which it now leases. The Company will lease a new
headquarters facility for Richmond Newspapers, currently under construction by a
third party, on adjacent land beginning in early 2000. The Richmond newspaper
7
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is printed at a production and distribution facility located on an 86 acre site
in Hanover County, Virginia, near Richmond. The Company owns nine other daily
newspapers in Virginia, all of which are printed in or around their respective
cities at production and distribution facilities situated on parcels of land
ranging from one-half acre to six acres. The Tampa, Florida, newspaper is
located in a single unit production plant and office building located on a six
acre tract in that city. The headquarters of the Company's Brooksville and
Sebring, Florida, daily newspapers are located on leased property in their
respective cities; however, these newspapers are printed at the Tampa production
facility. The Winston-Salem newspaper is headquartered in one building in
downtown Winston-Salem. Its newspapers are printed at a production and
distribution facility located on a nearby 12 acre site. The remaining seven
daily newspapers in North Carolina are printed at production and distribution
facilities on sites which range from one-half acre to seven acres, all located
in or around their respective cities. Substantially all of the newspaper
production equipment, land and buildings, are owned by the Company.
Before the close of 1999, the Company's station, WFLA-TV in Tampa,
Florida, is expected to occupy its new headquarters and studio building, which
is currently being constructed by a third party and will be leased by the
Company. This building, which adjoins The Tampa Tribune, will provide the
television station with the ability to broadcast digital signal as well as
provide a new and expanded newsroom for the Tampa newspaper.
The Company's fourteen television facilities are located in ten
southeastern states. Two stations are located in each of the following states:
Alabama, Florida, Mississippi and Tennessee. The six remaining stations are
located in the following states: Georgia, Kentucky, Louisiana, North Carolina,
South Carolina and Virginia. Substantially all of the television stations are
located on land owned by the Company. Ten station tower sites are owned by the
Company; four are leased.
Media General Cable of Fairfax County, Inc., a subsidiary of the
Company, has its headquarters located in one building owned by the Company in
Chantilly, Virginia, and two signal retransmission centers which are located in
Fairfax County, Virginia, one on property owned by the Company and one on leased
property. In addition, Fairfax Cable leases a facility for its service
maintenance operations and fleet in Springfield, Virginia. The cable system
includes a home subscriber network and a separate institutional network.
Newsprint production facilities at Garden State consist of a
Company-owned mill in Garfield, New Jersey, housing two paper-making machines
adjacent to a Company-owned power plant which supplies it with steam and
electric power. Garden State leases adequate storage facilities for waste paper
in the general vicinity of the newsprint mill. The Company also leases four
properties in New Jersey and one in New York for its recycling operations.
The Company considers all of its properties, together with the related
machinery and equipment contained therein, to be well-maintained, in good
operating condition, and adequate for its present and foreseeable future needs.
ITEM 3. LEGAL PROCEEDINGS
None.
8
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ITEMS 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders during the
fourth quarter of 1998.
EXECUTIVE OFFICERS OF THE REGISTRANT
<TABLE>
<CAPTION>
NAME AGE POSITION AND OFFICE YEAR FIRST TOOK OFFICE*
<S> <C> <C> <C>
J. Stewart Bryan III 60 Chairman, President, Chief Executive Officer 1990
Marshall N. Morton 53 Senior Vice President, Chief Financial Officer 1989
H. Graham Woodlief, Jr. 54 Vice President, President of Publishing Division 1989
Stephen Y. Dickinson 53 Controller 1989
George L. Mahoney 46 General Counsel, Secretary 1993
Stephen R. Zacharias 49 Treasurer 1989
</TABLE>
- --------------------------
* The year indicated is the year in which the officer first assumed an
office with the Company. Mr. Dickinson assumed executive officer
responsibilities as of May 1994.
Officers of the Company are elected at the Annual Meeting of the Board
of Directors to serve, unless sooner removed, until the next Annual Meeting of
the Board of Directors and/or until their successors are duly elected and
qualified.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
Reference is made to page 49 of the 1998 Annual Report to Stockholders,
which is incorporated herein by reference, for information required by this
item.
ITEM 6. SELECTED FINANCIAL DATA
Reference is made to pages 50 and 51 of the 1998 Annual Report to
Stockholders, which are incorporated herein by reference, for information
required by this item.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Reference is made to pages 43 through 48 of the 1998 Annual Report to
Stockholders, which are incorporated herein by reference, for information
required by this item.
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ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Reference is made to page 47 of the 1998 Annual Report to Stockholders,
which is incorporated herein by reference, for information required by this
item.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Consolidated financial statements of the Company as of December 27,
1998, and December 28, 1997, and for each of the three fiscal years in the
period ended December 27, 1998, and the report of independent auditors thereon,
as well as the Company's unaudited quarterly financial data for the fiscal years
ended December 27, 1998, and December 28, 1997, are incorporated herein by
reference from the 1998 Annual Report to Stockholders pages 25 through 42 and
page 49.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Incorporated herein by reference from the Company's definitive proxy
statement for the Annual Meeting of Stockholders on May 21, 1999, except as to
certain information regarding executive officers included in Part I.
ITEM 11. EXECUTIVE COMPENSATION
Incorporated herein by reference from the Company's definitive proxy
statement for the Annual Meeting of Stockholders on May 21, 1999.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Incorporated herein by reference from the Company's definitive proxy
statement for the Annual Meeting of Stockholders on May 21, 1999.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Incorporated herein by reference from the Company's definitive proxy
statement for the Annual Meeting of Stockholders on May 21, 1999.
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PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) 1. and 2. The financial statements and schedule listed in the
accompanying index to financial statements and financial statement
schedules are filed as part of this annual report.
3. Exhibits
The exhibits listed in the accompanying index to exhibits are filed as
part of this annual report.
(b) Reports on Form 8-K
None
INDEX TO FINANCIAL STATEMENTS AND FINANCIAL STATEMENT SCHEDULES - ITEM 14(A)
<TABLE>
<CAPTION>
ANNUAL REPORT TO
FORM 10-K STOCKHOLDERS
MEDIA GENERAL, INC. --------- --------------
(REGISTRANT)
<S> <C> <C>
Report of independent auditors 42
Consolidated statements of operations for the fiscal years ended
December 27, 1998, December 28, 1997, and December 29, 1996 25
Consolidated balance sheets at December 27, 1998, and
December 28, 1997 26-27
Consolidated statements of stockholders' equity for the fiscal
years ended December 27, 1998, December 28, 1997,
and December 29, 1996 28
Consolidated statements of cash flows for the fiscal years ended
December 27, 1998, December 28, 1997, and December 27, 1996 29
Notes to consolidated financial statements 30-41
Schedule:
II - Valuation and qualifying accounts and reserves for the fiscal
years ended December 27, 1998, December 28, 1997, and
December 29, 1996 12
</TABLE>
Schedules other than Schedule II, listed above, are omitted since they are not
required or are not applicable, or the required information is shown in the
financial statements or notes thereto.
The consolidated financial statements of Media General, Inc., listed in the
above index which are included in the Annual Report to Stockholders of Media
General, Inc., for the fiscal year ended December 27, 1998, are incorporated
herein by reference. With the exception of the pages listed in the above index
and the information incorporated by reference included in Parts I, II and IV,
the 1998 Annual Report to Stockholders is not deemed filed as part of this
report.
11
<PAGE>
MEDIA GENERAL, INC., AND SUBSIDIARIES
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
FISCAL YEARS ENDED DECEMBER 27, 1998, DECEMBER 28, 1997, AND DECEMBER 29, 1996
<TABLE>
<CAPTION>
BALANCE AT ADDITIONS BALANCE
BEGINNING CHARGED TO DEDUCTIONS AT END
OF PERIOD EXPENSE-NET NET TRANSFERS OF PERIOD
---------- ----------- ---------- --------- ---------
<S> <C> <C> <C> <C> <C>
1998
Allowance for doubtful accounts $ 6,653,367 $ 6,727,114 $ 5,059,996 $ 112,815 (a) $ 8,433,300
Reserve for warranties 3,523,324 --- 383,390 --- 3,139,934
-------------- ------------- ------------- ----------- -------------
10,176,691 $ 6,727,114 $ 5,443,386 $ 112,815 $ 11,573,234
============== ============= ============= =========== =============
1997
Allowance for doubtful accounts $ 5,270,765 $ 5,716,864 $ 6,122,261 $ 1,787,999 (a) $ 6,653,367
Reserve for warranties 4,146,005 --- 622,681 --- 3,523,324
-------------- ------------- ------------- ----------- -------------
Totals $ 9,416,770 $ 5,716,864 $ 6,744,942 $ 1,787,999 $ 10,176,691
============== ============= ============= =========== =============
1996
Allowance for doubtful accounts $ 4,529,960 $ 5,195,767 $ 4,546,572 $ 91,610 (a) $ 5,270,765
Reserve for warranties 3,040,833 1,700,000 594,828 --- 4,146,005
-------------- ------------- ------------- ----------- -------------
Totals $ 7,570,793 $ 6,895,767 $ 5,141,400 $ 91,610 $ 9,416,770
============== ============= ============= =========== =============
</TABLE>
(a) Amount associated with net acquisitions of properties.
12
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
2.1 Agreement and Plan of Merger dated July 19, 1996, by and among
Media General, Inc., MG Acquisitions, Inc., and Park
Acquisitions, Inc., incorporated by reference to Exhibit 2.1 of
Form 8-K dated January 7, 1997.
2.2 First Amendment to Agreement and Plan of Merger dated as of
January 7, 1997, by and among Media General, Inc., MG
Acquisitions, Inc., and Park Acquisitions, Inc., incorporated by
reference to Exhibit 2.2 of Form 8-K dated January 7, 1997.
3(i) The Amended and Restated Articles of Incorporation of Media
General, Inc., incorporated by reference to Exhibit 3.1 of Form
10-K for the fiscal year ended December 31, 1989.
3(ii) Bylaws of Media General, Inc., amended and restated as of
July 31, 1997, incorporated by reference to Exhibit 3 (ii) of
Form 10-Q for the period ended September 28, 1997.
10.1 Form of Option granted under the 1976 Non-Qualified Stock Option
Plan, incorporated by reference to Exhibit 2.2 of Registration
Statement 2-56905.
10.2 Additional Form of Option to be granted under the 1976
Non-Qualified Stock Option Plan, incorporated by reference to
Exhibit 2 to Post-Effective Amendment No. 3 Registration
Statement 2-56905.
10.3 Addendum dated January 1984, to Form of Option granted under the
1976 Non-Qualified Stock Option Plan, incorporated by reference
to Exhibit 10.13 of Form 10-K for the fiscal year ended December
31, 1983.
10.4 Addendum dated June 19, 1992, to Form of Option granted under the
1976 Non-Qualified Stock Option Plan, incorporated by reference
to Exhibit 10.15 of Form 10-K for the fiscal year ended December
27, 1992.
10.5 The Media General, Inc., Amended and Restated Restricted Stock
Plan, dated January 31, 1996, incorporated by reference to
Exhibit 10.10 of Form 10-K for the fiscal year ended December 31,
1995.
10.6 Addendum dated June 19, 1992, to Form of Option granted under the
1987 Non-Qualified Stock Option Plan, incorporated by reference
to Exhibit 10.20 of Form 10-K for the fiscal year ended December
27, 1992.
10.7 Media General, Inc., Executive Death Benefit Plan effective
January 1, 1991, incorporated by reference to Exhibit 10.17 of
Form 10-K for the fiscal year ended December 29, 1991.
13
<PAGE>
10.8 Amendment to the Media General, Inc., Executive Death Benefit
Plan dated July 24, 1991, incorporated by reference to Exhibit
10.18 of Form 10-K for the fiscal year ended December 29, 1991.
10.9 Shareholders Agreement, dated May 28, 1987, between Mary Tennant
Bryan, Florence Bryan Wisner, J. Stewart Bryan III, and D.
Tennant Bryan and J. Stewart Bryan III as trustees under D.
Tennant Bryan Media Trust, and Media General, Inc., incorporated
by reference to Exhibit 10.50 of Form 10-K for the fiscal year
ended December 31, 1987.
10.10 Amended and Restated Redemption Agreement between Media General,
Inc., and D. Tennant Bryan, dated April 7, 1994, incorporated by
reference to Exhibit 10.21 of Form 10-Q for the period ended
March 27, 1994.
10.11 Media General, Inc., Supplemental Thrift Plan, amended and
restated as of November 17, 1994, incorporated by reference to
Exhibit 10.27 of Form 10-K for the fiscal year ended December 25,
1994.
10.12 Media General, Inc., Executive Supplemental Retirement Plan,
amended, and restated as of November 17, 1994, incorporated by
reference to Exhibit 10.28 of Form 10-K for the fiscal year ended
December 25, 1994.
10.13 Deferred Income Plan for Selected Key Executives of Media
General, Inc., and form of Deferred Compensation Agreement
thereunder dated as of December 1, 1984, incorporated by
reference to Exhibit 10.29 of Form 10-K for the fiscal year ended
December 31, 1989.
10.14 Media General, Inc., Management Performance Award Program,
adopted November 16, 1990, and effective January 1, 1991,
incorporated by reference to Exhibit 10.35 of Form 10-K for the
fiscal year ended December 29, 1991.
10.15 Media General, Inc., Deferred Compensation Plan, amended and
restated as of January 1, 1999, incorporated by reference to
Exhibit 4.3 of Registration Statement 333-69527.
10.16 Media General, Inc., ERISA Excess Benefits Plan, amended and
restated as of November 17, 1994, incorporated by reference to
Exhibit 10.33 of Form 10-K for the fiscal year ended December 25,
1994.
10.17 Media General, Inc., 1995 Long-Term Incentive Plan, adopted as of
May 19, 1995, incorporated by reference to Exhibit 10.33 of Form
10-K for the fiscal year ended December 31, 1995.
10.18 Media General, Inc., 1996 Employee Non-Qualified Stock Option
Plan, adopted as of January 30, 1996, incorporated by reference
to Exhibit 10.20 of Form 10-K for the fiscal year ended December
29, 1996.
10.19 Media General, Inc., 1997 Employee Restricted Stock Plan, adopted
as of May 16, 1997, incorporated by reference to Exhibit 10.21 of
Form 10-K for the fiscal year ended December 29, 1996.
14
<PAGE>
10.20 Media General, Inc., Directors' Deferred Compensation Plan,
adopted as of May 16, 1997, incorporated by reference to Exhibit
10.22 of Form 10-K for the fiscal year ended December 29, 1996.
10.21 Amended and Restated Partnership Agreement, dated November 1,
1987, by and among Virginia Paper Manufacturing Corp., KR
Newsprint Company, Inc., and CEI Newsprint, Inc., incorporated by
reference to Exhibit 10.31 of Form 10-K for the fiscal year ended
December 31, 1987.
10.22 Amended and Restated License Agreement, dated November 1, 1987,
by and among Media General, Inc., Garden State Paper Company,
Inc., and Southeast Paper Manufacturing Co., incorporated by
reference to Exhibit 10.34 of Form 10-K for the fiscal year ended
December 31, 1987.
10.23 Amended and Restated Umbrella Agreement, dated November 1, 1987,
by and among Media General, Inc., Knight - Ridder, Inc., and Cox
Enterprises, Inc., incorporated by reference to Exhibit 10.32 of
Form 10-K for the fiscal year ended December 31, 1987.
10.24 Amended Newsprint Purchase Contract, dated November 1, 1987, by
and among Southeast Paper Manufacturing Co., Media General, Inc.,
Knight-Ridder, Inc., and Cox Enterprises, Inc., incorporated by
reference to Exhibit 10.35 of Form 10-K for the fiscal year ended
December 31, 1987.
10.25 Television affiliation agreement, dated February 10, 1995,
between WFLA-TV and the NBC Television Network incorporated by
reference to Exhibit 10.38 of Form 10-K for the fiscal year ended
December 25, 1994.
10.26 Amendments, dated May 17, 1993, to television affiliations
agreement, between WFLA-TV and National Broadcasting Company,
Inc., dated March 22, 1989, incorporated by reference to Exhibit
10.47 of Form 10-K for the fiscal year ended December 26, 1993.
10.27 Franchise Agreements, dated June 1, 1998, between Fairfax County,
Virginia, and Media General Cable of Fairfax County, Inc.,
incorporated by reference to Exhibit 10.1 of Form 10-Q for the
period ended June 28, 1998.
10.28 Second Amended and Restated Stock and Warrant Purchase and
Shareholders' Agreement dated May 20, 1994, by and among Media
General, Inc., Affiliated Newspapers Investments, Inc., and
Denver Newspapers, Inc., incorporated by reference to Exhibit 2
of Form 8-K dated September 28, 1994.
10.29 Asset Purchase Agreement dated February 13, 1997, by and among
Media General Newspapers, Inc., and Newspaper Holdings, Inc.,
incorporated by reference to Exhibit 10.36 of Form 10-K dated
March 27, 1997.
10.30 Credit Agreement, dated December 4, 1996, among Media General,
Inc., and various lenders.
15
<PAGE>
13 Media General, Inc., Annual Report to Stockholders for the fiscal
year ended December 27, 1998.
21 List of subsidiaries of the registrant.
23 Consent of Ernst & Young LLP, independent auditors.
27 1998 Financial Data Schedule.
Note: Exhibits 10.1 - 10.20 are management contracts or
compensatory plans, contracts or arrangements.
16
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
MEDIA GENERAL, INC.
Date: March 24, 1999
/s/ J. Stewart Bryan III
------------------------------------------
J. Stewart Bryan III, CHAIRMAN, PRESIDENT
AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Marshall N. Morton Senior Vice President and March 24, 1999
- ----------------------------- Chief Financial Officer and Director
Marshall N. Morton
/s/ Stephen Y. Dickinson Controller March 24, 1999
- -----------------------------
Stephen Y. Dickinson
/s/ Robert P. Black Director March 24, 1999
- -----------------------------
Robert P. Black
/s/ Charles A. Davis Director March 24, 1999
- -----------------------------
Charles A. Davis
/s/ Robert V. Hatcher, Jr. Director March 24, 1999
- -----------------------------
Robert V. Hatcher, Jr.
/s/ John G. Medlin, Jr. Director March 24, 1999
- -----------------------------
John G. Medlin, Jr.
/s/ Roger H. Mudd Director March 24, 1999
- -----------------------------
Roger H. Mudd
/s/ Wyndham Robertson Director March 24, 1999
- -----------------------------
Wyndham Robertson
/s/ Henry L. Valentine, II Director March 24, 1999
- -----------------------------
Henry L. Valentine, II
</TABLE>
CREDIT AGREEMENT
among
MEDIA GENERAL, INC.,
as the Borrower
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as the Documentation Agent
THE TORONTO-DOMINION BANK,
as the Syndication Agent
and
NATIONSBANK OF TEXAS, N.A.,
as the Administrative Agent,
Dated as of December 4, 1996
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS......................................................1
1.1 Defined Terms.................................................1
1.2 Other Definitional Provisions................................23
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS AND LOANS.......................23
2.1 Committed Loans..............................................23
2.2 Notes for Committed Loans....................................24
2.3 Procedure for Borrowing of Committed Loans...................24
2.4 Swing Line Commitments.......................................25
2.5 Repayment of Loans...........................................27
2.6 Competitive Loans............................................27
SECTION 3. LETTERS OF CREDIT...............................................30
3.1 Letter of Credit Commitment..................................30
3.2 Procedure for Issuance of Letters of Credit..................31
3.3 Fees, Commissions and Other Charges..........................31
3.4 L/C Participations...........................................32
3.5 Reimbursement Obligation of the Borrower.....................33
3.6 Obligations Absolute.........................................33
3.7 Letter of Credit Payments....................................34
3.8 Application..................................................34
SECTION 4. GENERAL PROVISIONS APPLICABLE TO
LOANS AND LETTERS OF CREDIT.....................................34
4.1 Interest Rates and Payment Dates.............................34
4.2 Optional and Mandatory Commitment Reductions and Prepayments.35
4.3 Commitment Fees, etc.........................................37
4.4 Computation of Interest and Fees.............................38
4.5 Conversion and Continuation Options..........................38
4.6 Minimum Amounts of Tranches..................................39
4.7 Inability to Determine Interest Rate.........................39
4.8 Pro Rata Treatment and Payments..............................39
4.9 Requirements of Law..........................................40
4.10 Taxes........................................................41
4.11 Indemnity....................................................43
4.12 Change of Lending Office.....................................44
4.13 Replacement of Lenders under Certain Circumstances...........44
4.14 Illegality...................................................45
<PAGE>
SECTION 5. REPRESENTATIONS AND WARRANTIES..................................45
5.1 Financial Condition..........................................45
5.2 No Change....................................................47
5.3 Existence; Compliance with Law...............................47
5.4 Power; Authorization; Enforceable Obligations................47
5.5 No Legal Bar.................................................48
5.6 No Material Litigation.......................................48
5.7 No Default...................................................49
5.8 Ownership of Property; Intellectual Property.................49
5.9 No Burdensome Restrictions...................................49
5.10 Taxes........................................................49
5.11 Federal Regulations..........................................50
5.12 ERISA........................................................50
5.13 Investment Company Act; Other Regulations....................50
5.14 Capital Stock and Subsidiaries...............................50
5.15 Insurance....................................................51
5.16 Authorizations...............................................52
5.17 Environmental Matters........................................52
5.18 Accuracy of Projections......................................53
5.19 Solvency.....................................................54
5.20 Indebtedness.................................................54
5.21 Labor Matters................................................54
5.22 Full Disclosure..............................................54
SECTION 6. CONDITIONS PRECEDENT............................................54
6.1 Conditions to Initial Extensions of Credit...................54
6.2 Conditions to Extensions of Credit Relating to the Merger or
the Redemption, Defeasance or Retirement of the Park Debt....56
6.3 Conditions to Each Extension of Credit.......................58
SECTION 7. AFFIRMATIVE COVENANTS...........................................59
7.1 Financial Statements.........................................59
7.2 Certificates; Other Information..............................60
7.3 Payment of Obligations.......................................60
7.4 Conduct of Business and Maintenance of Existence, etc. ......61
7.5 Maintenance of Property; Insurance...........................61
7.6 Inspection of Property; Books and Records; Discussions.......61
7.7 Notices......................................................61
7.8 Environmental Laws...........................................62
7.10 Subsidiary Guaranty..........................................62
7.11 Hedging Requirements.........................................63
<PAGE>
SECTION 8. NEGATIVE COVENANTS..............................................63
8.1 Financial Condition Covenants................................63
8.2 Limitation on Indebtedness...................................64
8.3 Limitation on Liens..........................................65
8.4 Limitation on Fundamental Changes............................66
8.5 Limitation on Sale of Assets.................................67
8.6 Limitation on Restricted Payments; Other Payment Limitations.67
8.7 Limitation on Acquisitions...................................68
8.8 Investments, Loans, Etc......................................68
8.9 Limitation on Transactions with Affiliates...................69
8.10 Limitation on Restrictions on Subsidiary Distributions.......69
8.11 Limitation on Lines of Business..............................70
8.12 Limitation on Issuance of Capital Stock......................70
8.13 No Modification of Park Warrants.............................70
SECTION 9. EVENTS OF DEFAULT...............................................70
SECTION 10. THE ADMINISTRATIVE AGENT.......................................74
10.1 Appointment..................................................74
10.2 Delegation of Duties.........................................74
10.3 Exculpatory Provisions.......................................74
10.4 Reliance by the Administrative Agent.........................74
10.5 Notice of Default............................................75
10.6 Non-Reliance on the Administrative Agent and
the Other Lenders............................................75
10.7 Indemnification..............................................76
10.8 The Administrative Agent in Its Individual Capacity..........76
10.9 Successor Administrative Agent...............................76
10.10 Other Agents.................................................78
SECTION 11. MISCELLANEOUS..................................................78
11.1 Amendments and Waivers.......................................78
11.2 Notices......................................................79
11.3 No Waiver; Cumulative Remedies...............................79
11.4 Survival of Representations and Warranties...................79
11.5 Payment of Expenses and Taxes................................80
11.6 Successors and Assigns; Participations and Assignments.......80
11.7 Adjustments; Set-off.........................................83
11.8 Counterparts; When Effective.................................84
11.9 Severability.................................................84
11.10 Integration..................................................84
11.11 GOVERNING LAW................................................85
11.12 SUBMISSION TO JURISDICTION; WAIVERS..........................85
11.13 Acknowledgements.............................................86
11.14 WAIVERS OF JURY TRIAL........................................86
11.15 Confidentiality..............................................86
11.16 CONSEQUENTIAL DAMAGES........................................86
<PAGE>
SCHEDULES
Schedule 1.1 Commitments and Addresses of the Lenders
Schedule 5.1 Financial Disclosure
Schedule 5.14 Subsidiaries
Schedule 8.2(e) Existing Indebtedness
Schedule 8.3(c) Existing Liens
Schedule 8.8(b) Existing Investments
EXHIBITS
A Form of Assignment and Acceptance
B-1 Form of Competitive Bid
B-2 Form of Competitive Bid Acceptance
B-3 Form of Competitive Bid Rejection
B-4 Form of Competitive Bid Request
B-5 Form of Competitive Loan Confirmation
B-6 Form of Invitation to Bid
C Form of Compliance Certificate
D Form of Guaranty
E Form of Swing Line Loan Participation Certificate
F-1 Form of Committed Loan Note
F-2 Form of Swing Line Note
F-3 Form of Competitive Loan Note
G-1 Form of Notice of Borrowing
G-2 Form of Notice of Conversion/Continuation
H-1 Form of Closing Certificate (Initial Extension of Credit)
H-2 Form of Closing Certificate ([Merger] [Park Debt Redemption])
I Form of Legal Opinion of the General Counsel of the Borrower
J Form of Alternative Note
<PAGE>
THIS CREDIT AGREEMENT is entered into as of December 4, 1996,
among MEDIA GENERAL, INC., a Virginia corporation (the "Borrower"), the several
lenders from time to time parties hereto (the "Lenders"), NATIONSBANK OF TEXAS,
N.A., as the Administrative Agent for the Lenders hereunder, THE
TORONTO-DOMINION BANK, as the Syndication Agent (in such capacity, the
"Syndication Agent") and FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as the
Documentation Agent (in such capacity, the "Documentation Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested the Lenders to furnish the
extensions of credit provided for herein, which shall be used by the Borrower
(a) to refinance the existing debt of the Borrower evidenced by the Existing
Credit Agreement, (b) to finance current and future acquisitions, including the
acquisition by the Borrower (the "Park Acquisition") of Park Acquisition, Inc.
("Park") pursuant to the Merger Agreement, (c) to, subject to the consummation
of the Park Acquisition, redeem, defease and/or retire up to $476,000,000 of
certain indebtedness of Park Communications, Inc. ("PCI"), Park Broadcasting,
Inc. ("PBI") and Park Newspapers, Inc. ("PNI"), which indebtedness is evidenced
by the Park Debt Documents and to pay any and all interest (including
paid-in-kind notes), fees, penalties and premiums associated with such
redemption, defeasance or retirement of the Park Debt, (d) for capital
expenditures of the Borrower and the Guarantor Subsidiaries and (e) for general
corporate purposes;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/100 of 1%) equal to the greater of (a) the Prime Rate in
effect on such day and (b) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. Any change in the ABR due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective as of
the opening of business on the effective day of such change in the Prime
Rate or the Federal Funds Effective Rate, respectively.
"ABR Loans": Loans which bear or are to bear interest at a rate
based upon the ABR.
"Acquisition Liens": as defined in Section 8.3(f).
"Administrative Agent": NationsBank, in its capacity as agent for
the Lenders under this Agreement and the other Loan Documents, and its
successors and permitted assigns in such capacity.
<PAGE>
"Advance": an amount loaned to the Borrower by any Lender
pursuant to this Agreement.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person. A Person shall be deemed to control another Person if
such Person (acting alone or with a group of Persons acting in concert)
possesses, directly or indirectly, the power to direct or cause the
direction of the management or policies of such other Person, whether
through ownership of voting securities, by contract or otherwise.
"Aggregate Available Commitment": the Total Commitment, minus
the Aggregate Outstanding Extensions of Credit of all Lenders.
"Aggregate Outstanding Extensions of Credit": as to any Lender at
any time, an amount equal to the sum of (a) the aggregate principal amount
of all Committed Loans made by such Lender then outstanding, (b) such
Lender's Specified Percentage of the L/C Obligations then outstanding, (c)
the aggregate principal amount of all Competitive Loans made by such
Lender then outstanding and (d) such Lender's Specified Percentage, if
any, of the aggregate principal amount of Swing Line Loans then
outstanding.
"Agreement": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Alternative Note": as defined in Section 11.6(d).
"Alternative Noteholder": as defined in Section 11.6(e).
"Applicable Margin": at the time of any determination thereof, for
purposes of all Loans (other than Competitive Loans), the margin of
interest over the ABR or the Eurodollar Rate, as the case may be, which is
applicable at the time of any determination of interest rates under this
Agreement, which Applicable Margin shall be subject to adjustment (upwards
or downwards, as appropriate) based on the Leverage Ratio, as follows:
<PAGE>
-------------------------------------------------------------------------
Applicable Margin Applicable Margin for
Leverage Ratio for ABR Loans Eurodollar Loans
-------------------------------------------------------------------------
-------------------------------------------------------------------------
Greater than or equal to 0.000% 0.750%
5.00 to 1.00
-------------------------------------------------------------------------
-------------------------------------------------------------------------
Greater than or equal to
4.50 to 1.00 but less 0.000% 0.625%
than 5.00 to 1.00
-------------------------------------------------------------------------
-------------------------------------------------------------------------
Greater than or equal to
4.00 to 1.00 but less 0.000% 0.500%
than 4.50 to 1.00
-------------------------------------------------------------------------
-------------------------------------------------------------------------
Greater than or equal to 0.000% 0.450%
3.50 to 1.00 but less
than 4.00 to 1.00
-------------------------------------------------------------------------
-------------------------------------------------------------------------
Greater than or equal to
3.00 to 1.00 but less 0.000% 0.375%
than 3.50 to 1.00
-------------------------------------------------------------------------
-------------------------------------------------------------------------
Greater than or equal to
2.50 to 1.00 but less 0.000% 0.300%
than 3.00 to 1.00
-------------------------------------------------------------------------
-------------------------------------------------------------------------
Greater than or equal to
2.00 to 1.00 but less 0.000% 0.250%
than 2.50 to 1.00
-------------------------------------------------------------------------
-------------------------------------------------------------------------
Less than 2.00 0.000% 0.225%
-------------------------------------------------------------------------
For the purposes of this definition, the Applicable Margin shall be
determined as at the end of each of the first three quarterly periods of
each fiscal year of the Borrower and as at the end of each fiscal year of
the Borrower, based on the relevant financial statements delivered
pursuant to Sections 7.1(a) and (b), respectively, and the Compliance
Certificate delivered pursuant to Section 7.2(b); changes in the
Applicable Margin shall become effective on the date which is the earlier
of (i) two Business Days after the date the Administrative Agent receives
such financial statements and the corresponding Compliance Certificate and
(ii) the last date on which such financial statements and corresponding
Compliance Certificate should have been delivered pursuant to Sections
7.1(a) and (b) and Section 7.2(b), and shall remain in effect until the
next change to be effected pursuant to this definition; provided, that (A)
until the first such financial statements and Compliance Certificate are
delivered after the date hereof, the Applicable Margin shall be determined
by reference to the Leverage Ratio set forth in the Closing Certificate
delivered to the Administrative Agent pursuant to Section 6.1(b) and (B)
if any financial statements or the Compliance Certificate referred to
above are not delivered within the time periods specified above, then, for
the period from and including the date on which such financial statements
and Compliance Certificate are required to be delivered to, but not
including, the date on which such financial statements and Compliance
Certificate are delivered, the Applicable Margin as at the end of the
fiscal period that would have been covered thereby shall be deemed to be
the Applicable Margin which would be applicable when the Leverage Ratio is
greater than 5.00 to 1.00.
<PAGE>
"Application": an application, in form and substance consistent
with this Agreement and mutually satisfactory to the Borrower and the
Issuing Lender, requesting the Issuing Lender to open a Letter of
Credit.
"Arranging Agents": the Administrative Agent, the Syndication
Agent and the Documentation Agent.
"Assignee": as defined in Section 11.6(c).
"Assignment and Acceptance": an Assignment and Acceptance
substantially in the form of Exhibit A.
"Authorizations": all filings, recordings and registrations
with, and all validations or exemptions, approvals, orders,
authorizations, consents, Licenses, certificates and permits from, the
FCC, applicable public utilities and other Governmental Authorities.
"Automatic Dividend Reinvestment and Stock Purchase Plan": as
defined in the definition of Net Proceeds of Capital Stock.
"Available Commitment": at any time, as to any Lender, an amount
equal to the excess, if any, of (a) the amount of such Lender's Commitment
at such time, minus (b) the sum of (i) the aggregate principal amount of
all Committed Loans made by such Lender then outstanding, (ii) such
Lender's Specified Percentage of the L/C Obligations then outstanding and
(iii) such Lender's Specified Percentage, if any, of the aggregate
principal amount of Swing Line Loans then outstanding.
"Bid Rate": as defined in Section 2.6(b).
"Board": the Board of Governors of the Federal Reserve System or
any successor.
"Borrower": as defined in the preamble hereto.
"Borrower Senior Note Agreement": the Senior Fixed Rate Notes Master
Shelf Agreement dated as of December 20, 1991 among the Borrower, The
Prudential Insurance Company of America and Prudential Asset Sales &
Syndications, Inc., as amended by the letter amendment dated as of March
3, 1992, the Amendment dated as of October 20, 1995 and the Amendment of
1991 Master Shelf Agreement dated as of December 4, 1996.
"Borrower Senior Note Debt": the Indebtedness of the Borrower
outstanding as of the date hereof and evidenced by the Borrower Senior
Note Documents.
<PAGE>
"Borrower Senior Note Documents": the Borrower Senior Notes and
the Borrower Senior Note Agreement, together with all related
instruments, agreements and other documents executed and delivered in
connection therewith, each as in effect on the date hereof.
"Borrower Senior Notes": the $65,000,000 aggregate principal
amount of 8.62% Series 1992A Senior Notes due March 1, 2002, issued
March 3, 1992 by the Borrower pursuant to the Borrower Senior Note
Agreement.
"Borrowing Date": any Business Day specified in a notice
pursuant to Sections 2.3, 2.4 or 2.6, as a date on which the Borrower
requests the Lenders to make Loans hereunder.
"Business": as defined in Section 5.17(b).
"Business Day": a day, other than a Saturday, Sunday or other day on
which commercial banks in New York, New York or Dallas, Texas are
authorized or required by law to close and, with respect to Eurodollar
Loans, a day on which dealings in Dollar deposits are carried out in the
London interbank market.
"Capital Expenditures": expenditures for the purchase or
construction of fixed assets, plant and equipment which are capitalized
in accordance with GAAP.
"Capital Lease Obligations": as to any Person, the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under
GAAP and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such
time determined in accordance with GAAP.
"Capital Stock": (a) any share, membership, partnership or other
percentage interest, unit of participation or other equivalent (however
designated) of an equity security or other equity interest in a Person and
(b) any debt security or other evidence of Indebtedness which is
convertible into or exchangeable for, or any option, warrant or other
right to acquire, any Capital Stock of any type referred to in clause (a)
of this definition.
<PAGE>
"Cash Equivalents": (a) securities with maturities of one year or
less from the date of acquisition issued and fully guaranteed or insured
by the United States Government or any agency thereof, (b) certificates of
deposit and eurodollar time deposits with maturities of one year or less
from the date of acquisition and overnight bank deposits of any Lender or
of any commercial bank having capital and surplus in excess of
$500,000,000, (c) repurchase obligations of any Lender or of any
commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States
Government, (d) commercial paper of a domestic issuer rated at least A-1
by Standard and Poor's Ratings Group ("S&P") or P-1 by Moody's Investors
Service, Inc. ("Moody's") maturing not in excess of six months from the
date of acquisition, or (e) shares of money market mutual or similar funds
which invest exclusively in assets satisfying the requirements of clauses
(a) through (d) of this definition.
"Change of Control": shall be deemed to have occurred at such
time as any of the following occur: (i) any person or two or more
persons (other than D. Tennant Bryan, J. Stewart Bryan, III and their
respective estates, lineal descendants, adoptive children, heirs,
executors, personal representatives, administrators and trusts for any
of their benefit or the benefit of their respective spouses, estates,
lineal descendants, adoptive children or heirs) acting in concert shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities Act of
1934) of (A) 60% or more of the outstanding shares of the Class A
voting stock of the Borrower, or (B) 34% or more of the outstanding
shares of the Class B voting stock of the Borrower; or (ii) as of any
date a majority of the Board of Directors of the Borrower consists of
individuals who were not either (A) directors of the Borrower as of the
corresponding date of the previous year, (B) selected or nominated to
become directors by the Board of Directors of the Borrower of which a
majority consisted of individuals described in clause (A), or (C)
selected or nominated to become directors by the Board of Directors of
the Borrower of which a majority consisted of individuals described in
clause (A) and individuals described in clause (B).
"Closing Certificate": as defined in Section 6.1(b).
"Code": the Internal Revenue Code of 1986, as amended from time
to time.
"Commission": the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of
1934.
"Commitment": as to any Lender, its obligation, if any, to make
Advances to, and/or issue or participate in Letters of Credit issued on
behalf of, the Borrower in an aggregate principal amount not to exceed at
any one time outstanding the amount set forth opposite such Lender's name
in Schedule 1.1 under the heading "Commitment" or, in the case of any
Lender that is an Assignee, the amount of the assigning Lender's
Commitment assigned to such Assignee pursuant to Section 11.6(c) and set
forth in the applicable Assignment and Acceptance (in each case, as the
same may be increased, reduced or otherwise adjusted from time to time as
provided herein).
"Committed Loan": any Advance made by any Lender under Section
2.1 and pursuant to such Lender's Commitment and "Committed Loans"
shall mean all of such Loans.
"Committed Loan Note": as defined in Section 2.2.
<PAGE>
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Borrower and which is treated as a single employer under Section 414(b) or
(c) of the Code.
"Company Material Adverse Effect": as defined in Section 6.2(e).
"Competitive Bid": an offer by a Lender in the form of Exhibit
B-1 to make a Competitive Loan.
"Competitive Bid Acceptance": a notification in the form of
Exhibit B-2 made by the Borrower pursuant to Section 2.6(c) to accept a
Competitive Bid
"Competitive Bid Rejection": a notification in the form of
Exhibit B-3 made by the Borrower pursuant to Section 2.6(c) to reject a
Competitive Bid.
"Competitive Bid Request": a request by the Borrower in the form
of Exhibit B-4 for Competitive Bids.
"Competitive Interest Period": for each Competitive Loan, the period
(a) commencing on the date such Competitive Loan is made and (b) ending on
the date requested by the Borrower in the Competitive Bid Request for such
Competitive Loan, which period shall be not less than seven days or more
than 180 days; provided that (i) Competitive Interest Periods commencing
on the same date for Competitive Loans comprising part of the same
borrowing shall not have more than three different durations; and (ii)
whenever the last day of any Competitive Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Competitive
Interest Period shall be extended to occur on the next succeeding Business
Day, provided further that if such extension would cause the last day of
such Competitive Interest Period to occur on or after the Termination Date
of any Lender making a Competitive Loan to which such Competitive Interest
Period relates, such Competitive Interest Period for such Competitive Loan
shall end on the next preceding Business Day.
"Competitive Loan": a Loan made by a Lender to the Borrower
pursuant to Section 2.6.
"Competitive Loan Confirmation": a confirmation by the
Administrative Agent to a Lender of the acceptance by the Borrower of
any Competitive Bid (or Portion thereof) made by that Lender, in
substantially the form of Exhibit B-5.
"Competitive Loan Period": any period of time during which the
Leverage Ratio is less than 4.00 to 1.00, both before giving any
Competitive Bid Request and after giving effect to any Competitive Loan.
<PAGE>
"Compliance Certificate": a certificate of a Responsible Officer
of the Borrower, substantially in the form of Exhibit C.
"Consolidated Net Worth": at any time, stockholders' equity,
less the sum of the value, as set forth or reflected on the most recent
consolidated balance sheet of the Borrower and its Consoldiated
Subsidiaries, prepared in accordance with GAAP, of
(A) Any amount at which shares of Capital Stock of the
Borrower appear as an asset on the balance sheet of the Borrower and
its Consolidated Subsidiaries; and
(B) Deferred expenses; provided, however, for purposes
of this subsection (B) deferred expenses shall not include such
expenses which are deferred in the ordinary course of business of
the Borrower and consistent with practices existing on the Effective
Date.
"Consolidated Subsidiary": at any date, any Subsidiary or other
entity the accounts of which, in accordance with GAAP, would be
consolidated with those of the Borrower in its consolidated financial
statements as of such date.
"Contingent Warrant Cancellation Event": an event which, pursuant
to the terms of the Park Warrant Agreement, terminates the rights of
the holders of the Park Warrants to receive any Contingent Warrants.
"Contingent Warrants": warrants exercisable for 3.0% of the common
stock of PCI on a fully diluted basis as of the date of such issuance
after giving effect to the issuance of such Contingent Warrant in the
event that PCI does not effect a Contingent Warrant Cancellation Event on
or prior to December 31, 1997.
"Contractual Obligation": as to any Person, any provision of any
Capital Stock issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"Default": any of the events specified in Section 9, whether or
not any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Depreciation": for any period, the sum of all depreciation
expenses of the Borrower and its Consolidated Subsidiaries for such
period, as determined in accordance with GAAP.
"Disposition": as defined in Section 8.5.
"Documentation Agent": as defined in the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
<PAGE>
"EBITDA": as of the end of each fiscal quarter for the fiscal
quarter then ending and the immediately preceding three fiscal quarters,
as applied to the Borrower and its Consolidated Subsidiaries without
duplication, the sum of the amounts for such period of (i) Net Income,
(ii) Depreciation, (iii) amortization expense, (iv) non operating non-cash
charges, less any non operating non-cash gains, (v) all interest expense
reported for such period on Indebtedness, (vi) all film amortization cash
charges, less any cash film payments and (vii) all federal and state taxes
reported for such period, all as determined and computed in accordance
with GAAP; and determined as if any Consolidated Subsidiary that has
become or ceased to be a Consolidated Subsidiary during the fiscal quarter
then ending or the immediately preceding three fiscal quarters, was (or,
in the case of a Consolidated Subsidiary that has ceased to be a
Consolidated Subsidiary, was not) a Consolidated Subsidiary at all times
during such period.
"Effective Date": as defined in Section 11.8.
"Employee Stock Option Plan": as defined in the definition of Net
Proceeds of Capital Stock.
"Environmental Laws": any and all Federal, state, local or municipal
laws, rules, orders, regulations, statutes, ordinances, codes, decrees,
requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the
environment, as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto) dealing
with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of such Board)
maintained by a member bank of the Federal Reserve System. The Eurodollar
Rate shall be adjusted automatically on and as of the effective date of
any change in the Eurocurrency Reserve Requirements.
<PAGE>
"Eurodollar Base Rate": with respect to any Interest Period
pertaining to a Eurodollar Loan, the rate per annum determined on the
basis of the offered rate for deposits in Dollars of amounts equal or
comparable to the principal amount of such Eurodollar Loan offered for a
term comparable to such Interest Period, which rates appear on the
Telerate Screen Page 3750 as of 11:00 a.m., London time, two (2) Business
Days preceding the first day of the relevant Interest Period; provided
that if no such offered rate appears on such page, the Eurodollar Base
Rate for such Interest Period will be the arithmetic average (rounded, if
necessary, to the next higher 1/100th of 1%) of the rates per annum at
which deposits in Dollars in immediately available funds are offered to
each of two (2) major United States banks, reasonably selected by the
Administrative Agent, at approximately 11:00 a.m., London time, two (2)
Business Days prior to the first day of such Interest Period, by prime
banks in the London interbank eurodollar market for a period comparable to
such Interest Period in an amount comparable to the principal amount of
such Eurodollar Loan.
"Eurodollar Loans": Loans which bear or are to bear interest
based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to
the nearest 1/100th of 1%):
Eurodollar Base Rate
-----------------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Excess Cash Flow": at any time, EBITDA, less, (i) principal on all
Indebtedness, (ii) interest on all Indebtedness, (iii) Capital
Expenditures and (iv) current federal and state taxes due and payable,
each as of the end of each fiscal quarter then ending and the immediately
preceding three fiscal quarters, less, $5,000,000.
"Existing Credit Agreement": the $320,000,000 Credit Agreement dated
as of October 26, 1995 among the Borrower, the banks listed therein and
Wachovia Bank of Georgia, N.A., as the administrative agent, Crestar Bank,
as co-agent and as a bank, NationsBank of Texas, N.A., as co-agent and as
a bank and Toronto Dominion (New York), Inc., as co-agent and a bank, as
amended through the date hereof.
"Facility": the Commitments and the extensions of credit made
hereunder.
"FCC": the Federal Communications Commission and any successor
thereto.
"Federal Funds Effective Rate": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by
the Administrative Agent from three federal funds brokers of recognized
standing selected by it.
<PAGE>
"Fee Letters": the NationsBank Fee Letter, the Toronto-Dominion
Fee Letter and the First Union Fee Letter.
"First Union Fee Letter": the letter agreement, dated September
30, 1996 from First Union National Bank of North Carolina to the
Borrower.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued
a reimbursement, counterindemnity or similar obligation, in any case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations whatsoever (the "primary obligations") of any other
third Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of
any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation shall not
include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal
to the stated or determinable principal amount of the primary obligation
in respect of which such Guarantee Obligation is made and (b) the maximum
principal amount for which such guaranteeing person may be liable pursuant
to the terms of the instrument embodying such Guarantee Obligation, unless
such primary obligation and the maximum principal amount for which such
guaranteeing person may be liable are not stated or determinable, in which
case the amount of such Guarantee Obligation shall be the principal amount
of such guaranteeing person's reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith. For the purposes of
Section 8.2, Guarantee Obligations by the Borrower or any of its
Subsidiaries in respect of Indebtedness of the Borrower or any of its
Subsidiaries shall be calculated without duplication of any other
Indebtedness. It is understood that obligations of the Borrower pursuant
to guaranties or indemnities of obligations of a Guarantor Subsidiary
which (a) are granted in the ordinary course of business or in connection
<PAGE>
with asset Dispositions and (b) do not cover Indebtedness of the types
described in clauses (a) through (d) of the definition thereof shall not
constitute "Guarantee Obligations" for purposes of this Agreement.
"Guarantor Subsidiary": each Subsidiary which executes and
delivers to the Administrative Agent the Guaranty or a Supplement to
Guaranty Agreement.
"Guaranty": the Guaranty Agreement in the form of Exhibit D to be
executed and delivered by each of the Subsidiaries and all Supplements
to Guaranty Agreement executed and delivered by a Subsidiary, as the
same may be amended, supplemented or otherwise modified from time to
time.
"Indebtedness": of any Person at any date, (a) all indebtedness of
such Person for borrowed money or which is evidenced by a note, bond,
debenture or similar instrument ("Indebtedness for Borrowed Money"), (b)
all indebtedness of such Person for the deferred purchase price of
property or services (other than current trade liabilities incurred in the
ordinary course of business and payable in accordance with customary
practices), (c) all Capital Lease Obligations of such Person, (d) all
obligations of such Person in respect of acceptances or letters of credit
or similar instruments issued or created for the account of such Person,
(e) all Guarantee Obligations of such Person, (f) all obligations of such
Person in respect of Interest Rate Hedge Agreements, (g) all Redeemable
Preferred Stock of such Person and (h) all liabilities of the type
described in clauses (a) through (e) above secured by any Lien on any
property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof; provided that the amount
of any nonrecourse Indebtedness of such Person shall be not more than an
amount equal to the fair market value of the property subject to such
Lien, as determined by the Borrower in good faith. The Indebtedness of any
Person shall include the Indebtedness of any partnership in which such
Person is a general partner, other than to the extent that the instrument
or agreement evidencing such Indebtedness expressly limits the liability
of such Person in respect thereof.
"Information": written information, including, without
limitation, certificates, reports, statements (other than financial
statements, budgets, projections and similar financial data) and
documents.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Coverage Ratio": as of the last day of the most
recently ended fiscal quarter, the ratio of (i) EBITDA to (ii) Interest
Expense.
<PAGE>
"Interest Expense": as of the end of each fiscal quarter for the
fiscal quarter then ending and the immediately preceding three fiscal
quarters the aggregate of all letter of credit fees, commitment fees and
interest accrued or paid by the Borrower or any of its Consolidated
Subsidiaries, during such period in respect of Total Debt, all as
determined on a consolidated basis in accordance with GAAP.
"Interest Payment Date": (a) as to any ABR Loan, (i) the last
Business Day of each March, June, September and December prior to the
Termination Date and (ii) the Termination Date, (b) as to any Eurodollar
Loan or Competitive Loan (i) having an Interest Period of three months or
less, the last day of such Interest Period or (ii) having an Interest
Period longer than three months, each day which is three months or a whole
multiple thereof, after the first day of such Interest Period and the last
day of such Interest Period, and in all cases, on the Termination Date.
"Interest Period": with respect to (a) any Competitive Loan, the
Competitive Interest Period and (b) any Eurodollar Loan (i) initially, the
period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three or six
months thereafter (or, to the extent available from all Lenders, nine or
twelve months thereafter), as selected by the Borrower in its Notice of
Borrowing or Notice of Conversion/Continuation, as the case may be, given
with respect thereto; and (ii) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six months thereafter (or,
to the extent available from all Lenders, nine or twelve months
thereafter), as selected by the Borrower in its Notice of
Conversion/Continuation given with respect thereto; provided that, all of
the foregoing provisions relating to Interest Periods for Eurodollar Loans
are subject to the following (x) if any Interest Period would otherwise
end on a day that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another calendar
month in which event such Interest Period shall end on the immediately
preceding Business Day, (y) any Interest Period that would otherwise
extend beyond the Termination Date shall end on the Termination Date, and
(z) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period) shall end on the
last Business Day of a calendar month.
"Interest Rate Hedge Agreement": any interest rate protection
agreement, interest rate futures contract, interest rate option,
interest rate cap or other interest rate hedge arrangement, to or under
which the Borrower or any Subsidiary is a party or a beneficiary.
"Investments": as defined in Section 8.8.
"Invitation to Bid": an invitation by the Administrative Agent
to a Lender in the form of Exhibit B-6 to make a Competitive Bid.
<PAGE>
"Issuing Lender": NationsBank or, in the event the Borrower requires
a higher rated bank, a Lender selected by the Borrower which has such
higher rating, provided that, in the event that NationsBank shall be
replaced as the Administrative Agent pursuant to Section 10.9, (i) no
Letter of Credit shall be issued by NationsBank on or after the date of
such replacement and (ii) the replacement Administrative Agent, together
with any Lender which is a higher rated bank as aforesaid, shall be the
Issuing Lender from and after the date of such replacement.
"L/C Fee Payment Date": the last Business Day of each March,
June, September and December.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate of the then undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of all
unpaid Reimbursement Obligations.
"Lenders": as defined in the preamble hereto.
"Letters of Credit": as defined in Section 3.1(a).
"Leverage Ratio": as of the last day of the most recently ended
fiscal quarter, the ratio of (i) Total Debt as of such day to (ii)
EBITDA.
"License": as to any Person, any license, permit, certificate of
need, authorization, certification, accreditation, franchise, approval,
or grant of rights by any Governmental Authority or other Person
necessary or appropriate for such Person to own, maintain, or operate
its business or property, including FCC Licenses.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention
agreement and any capital lease having substantially the same economic
effect as any of the foregoing).
"Loan": any Advance made by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement, the Applications, each
Guaranty and any Interest Rate Hedge Agreements with any of the Lenders.
"Loan Parties": the collective reference to the Borrower and
each Guarantor Subsidiary.
<PAGE>
"Majority Lenders": as of any date, (a) at any time Lenders are
committed to lend hereunder, Lenders having Commitments equal to 51% or
more of the Total Commitment or (b) at any time after the Commitments
shall have expired or terminated, (i) at any time that Committed Loans or
L/C Obligations are outstanding, the Lenders with outstanding Committed
Loans and participations in L/C Obligations having an unpaid principal
balance and face amount, respectively, equal to or more than 51% of all
Committed Loans and L/C Obligations outstanding, excluding from such
calculation the Lenders which have failed or refused to fund a Committed
Loan or their respective portion of an unpaid Reimbursement Obligation and
(ii) at any time that no Committed Loans or L/C Obligations are
outstanding, Lenders with outstanding Competitive Loans equal to 51% or
more of all Competitive Loans.
"Managing Agents": The Bank of Nova Scotia, Bank of
Tokyo-Mitsubishi Trust Company, Crestar Bank, Morgan Guaranty Trust
Company of New York, The Long-Term Credit Bank of Japan, Ltd., SunTrust
Bank and Wachovia Bank.
"Material Adverse Effect": a material adverse effect on (a) the
business, assets, operations or condition (financial or otherwise) of the
Borrower or of the Borrower and of the Consolidated Subsidiaries, taken as
a whole, (b) the ability of the Borrower or the Borrower and the other
Loan Parties, taken as a whole, to perform its or their obligations under
the Loan Documents or (c) the rights or remedies of the Administrative
Agent or the Lenders under this Agreement or any of the other Loan
Documents.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated
as such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Maximum Offer": as defined in Section 2.6(b).
"Maximum Request": as defined in Section 2.6(a).
"Merger": the merger of MG Acquisitions, Inc. into Park pursuant
to the Merger Agreement, with Park as the surviving corporation.
"Merger Agreement": the Agreement and Plan of Merger, dated as
of July 19, 1996, by and among the Borrower, MG Acquisitions, Inc. and
Park Acquisitions, Inc., as in effect on the date hereof.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NationsBank": NationsBank of Texas, N.A.
<PAGE>
"NationsBank Fee Letter": the letter agreement, dated September
19, 1996 from NationsBank to the Borrower.
"Net Income": as applied to any Person for any period, the aggregate
amount of net income of such Person, after taxes (but before extraordinary
items and to the extent that the fees, penalties and premiums incurred in
connection with the redemption of the Park Debt are not considered
extraordinary items, then before any charges associated with the payment
of such fees, penalties and premiums not to exceed $50,000,000), for such
period, as determined in accordance with GAAP.
"Net Proceeds of Capital Stock": any and all cash proceeds received
by the Borrower or a Consolidated Subsidiary in respect of the issuance of
Capital Stock (including, without limitation, the conversion of any
Indebtedness into Capital Stock), after deducting therefrom all reasonable
and customary costs and expenses incurred by the Borrower or such
Consolidated Subsidiary directly in connection with the issuance of such
Capital Stock; provided, however, the term "Net Proceeds of Capital Stock"
shall not include the proceeds received by the Borrower from the issuance
by the Borrower of Capital Stock: (A) under the Borrower's qualified or
non-qualified stock option plans as such stock option plans are in effect
on the date of this Agreement, as may be amended, modified or approved by
the stockholders of the Borrower; provided that no such amendment,
modification or approval shall result in a material increase in the
proceeds received by the Borrower (the "Employee's Stock Option Plans");
or (B) to Class A Shareholders of the Borrower who reinvest their
dividends in Capital Stock of the Borrower pursuant to the Borrower's
Automatic Dividend Reinvestment and Stock Purchase Plan, as such plan is
in effect on the date of this Agreement, as may be amended, modified or
approved by the Stockholders of the Borrower; provided that no such
amendment, modification or approval shall result in a material increase in
the proceeds received by the Borrower (the "Automatic Dividend
Reinvestment and Stock Purchase Plan").
"1995 Master Shelf Agreement": the Master Shelf Agreement dated as
of February 28, 1995 between the Borrower and The Prudential Insurance
Company of America, as amended by the Amendment of 1995 Master Shelf
Agreement dated as of December 4, 1996.
"Non-Excluded Taxes": as defined in Section 4.10(a).
"Non-U.S. Lender": as defined in Section 4.10(b).
"Notice of Borrowing": (a) with respect to Loans, other than
Competitive Loans, as defined in Section 2.3 and (b) a Competitive Bid
Request and the related Competitive Bid Acceptance, in the case of any
Competitive Loan.
"Notice of Conversion/Continuation": as defined in Section 4.5.
<PAGE>
"Obligations": the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Loan Party, whether or
not a claim for post-filing or post-petition interest is allowed in such
proceeding) the Loans and Reimbursement Obligations and all other
obligations and liabilities of any Loan Party to the Administrative Agent
or to any Lender (or, in the case of any Interest Rate Protection
Agreement, any affiliate of any Lender), whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, this
Agreement, any other Loan Document, the Letters of Credit, any Interest
Rate Protection Agreement entered into with any Lender (or any affiliate
of any Lender) or any other document made, delivered or given in
connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all reasonable fees, charges and
disbursements of counsel to the Administrative Agent or to any Lender that
are required to be paid by any Loan Party pursuant hereto) or otherwise.
"Park": as defined in the recitals hereto.
"Park Acquisition": as defined in the recitals hereto.
"Park Debt": the Indebtedness of PCI, PBI and PNI outstanding as
of the date hereof and evidenced by the Park Debt Documents.
"Park Debt Documents": the PCI Senior Note Documents, the PBI
Senior Note Documents and the PNI Senior Note Documents.
"Park Warrant Agreement": the Warrant Agreement dated as of May
13, 1996, between PCI and IBJ Schroder Bank & Trust Company as Warrant
Agent thereunder.
"Park Warrants": warrants issued pursuant to the Warrant
Agreement.
"Park Warrant Shares": shares in PCI common stock issued upon
exercise of the Park Warrants.
"Participant": as defined in Section 11.6(b).
"Payment Date": as defined in Section 9(l).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"PBI": as defined in the recitals hereto.
<PAGE>
"PBI Senior Note Documents": the PBI Senior Notes, the Indenture
dated as of May 13, 1996 between PBI and IBJ Schroder Bank & Trust
Company, as trustee, pursuant to which the PBI Senior Notes were issued,
and all related instruments and agreements executed and delivered in
connection therewith, each as in effect on the date hereof.
"PBI Senior Notes": the $241,000,000 aggregate principal amount of
11-3/4% Senior Notes due 2004 of PBI, issued pursuant to the Indenture
dated as of May 13, 1996 between PBI and IBJ Schroder Bank & Trust
Company, as trustee.
"PCI": as defined in the recitals hereto.
"PCI Senior Note Documents": the PCI Senior Notes and the Indenture
dated as of May 13, 1996 between PCI and IBJ Schroder Bank & Trust
Company, as trustee, pursuant to which the PCI Senior Notes were issued,
together with all related collateral documents and other instruments and
agreements executed and delivered in connection therewith, each as in
effect on the date hereof.
"PCI Senior Notes": the $80,000,000 aggregate principal amount of
13-3/4% Senior Pay-in-Kind Notes due 2004 of PCI, issued pursuant to the
Indenture dated as of May 13, 1996 between PCI and IBJ Schroder Bank &
Trust Company, as trustee.
"Permitted Line of Business": as defined in Section 8.11.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) a "contributing sponsor" as
defined in Section 4001(a)(13) of ERISA or a member of such contributing
sponsor's "control group" as defined in Section 4001(a)(14) of ERISA.
"PNI": as defined in the recitals hereto.
"PNI Senior Note Documents": the PNI Senior Notes, the Indenture
dated as of May 13, 1996 between PNI and IBJ Schroder Bank & Trust
Company, as trustee, pursuant to which the PNI Senior Notes were issued,
and all related instruments and agreements executed and delivered in
connection therewith, each as in effect on the date hereof.
"PNI Senior Notes": the $155,000,000 aggregate principal amount of
11-7/8% Senior Notes due 2004 of PNI, issued pursuant to the Indenture
dated as of May 13, 1996 between PNI and IBJ Schroder Bank & Trust
Company, as trustee.
<PAGE>
"Portion": as defined in Section 2.6(b).
"Prime Rate": the rate of interest per annum publicly announced from
time to time by the Administrative Agent as its prime rate in effect at
its office in Dallas, Texas (the Prime Rate not being intended to be the
lowest rate of interest charged by the Administrative Agent in connection
with extensions of credit to debtors)
"Properties": as defined in Section 5.17(a).
"Quarterly Percentage Reduction": as defined in Section 4.2(c).
"Redeemable Preferred Stock": any preferred stock issued by any
Person which is at any time prior to the Termination Date either (i)
mandatorily redeemable (by sinking fund or similar payments or
otherwise) or (ii) redeemable at the option of the holder thereof.
"Redemption Agreement": that certain Amended and Restated
Redemption Agreement, dated April 7, 1994, between the Borrower and D.
Tennant Bryan, as in effect on the date hereof.
"Refunded Swing Line Loans": as defined in Section 2.4(c).
"Register": as defined in Section 11.6(g).
"Reimbursement Obligations": the obligations of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn
under Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under Sections .13, .14, .16, .18, .19 or .20
of PBGC Reg. ss. 2615.
"Reported Net Income": for any period, the Net Income of the
Borrower and its Consolidated Subsidiaries determined on a consolidated
basis.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority (including any
Authorization), in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": the chief executive officer, the
president, the chief financial officer or the treasurer of the relevant
Loan Party.
<PAGE>
"Restricted Payments": as defined in Section 8.6.
"Restricted Stock Plans": the Media General, Inc. Restricted
Stock Plan, effective May 17, 1991 and the Media General, Inc.
Restricted Stock Plan for Non-Employee Directors, effective May 19,
1995, as such plans are in effect on the date of this Agreement.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that, as of
any date of determination, (a) the amount of the "fair value" or "present
fair saleable value" of the assets of such Person will, as of such date,
exceed the amount of all "liabilities of such Person, contingent or
otherwise", as of such date, as such quoted terms are determined in
accordance with applicable federal and state laws governing determinations
of the insolvency of debtors, (b) the fair value or present fair saleable
value of the assets of such Person will, as of such date, be greater than
the amount that will be required to pay the liability of such Person on
its debts as such debts become absolute and matured, (c) such Person will
not have, as of such date, an unreasonably small amount of capital with
which to conduct its business, and (d) such Person will be able to pay its
debts as they mature. For purposes of this definition, (i) "debt" means
liability on a "claim", (ii) "claim" means any (x) right to payment,
whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured or (y) 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 or unmatured, disputed, undisputed, secured or
unsecured and (iii) unliquidated, contingent, disputed and unmatured
claims shall be valued at the amount that can be reasonably expected to be
actual and matured.
"Southeast Paper": Southeast Paper Manufacturing Co., a Georgia
general partnership.
"Specified Percentage": at any time, as to any Lender, the
percentage of the Total Commitment then constituted by such Lender's
Commitment.
"Submission Deadline": as defined in Section 2.6(b).
<PAGE>
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors (or Persons holding equivalent
positions) of such corporation, partnership or other entity are at the
time owned, or the management and policies of which are otherwise
ultimately controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall
refer to a Subsidiary or Subsidiaries of the Borrower. Notwithstanding
anything to the contrary contained herein, Denver Newspapers, Inc., Flat
Earth Group, L.L.C., Tampa Tower General Partnership and Southeast Paper
Manufacturing Co. shall not be considered Subsidiaries for purposes of
this Agreement, unless and until either (i) the Borrower owns, directly or
indirectly, more than 50% of any such entity or (ii) such entity otherwise
becomes a Consolidated Subsidiary.
"Supplement to Guaranty Agreement": the Supplement to Guaranty
Agreement in the form of Exhibit A attached to the Guaranty, to be
executed and delivered by each Subsidiary acquired or created after the
date hereof.
"Swing Line Commitment": the Swing Line Lender's obligation to
make Swing Line Loans pursuant to Section 2.4.
"Swing Line Lender": NationsBank, in its capacity as provider of the
Swing Line Loans, provided that, in the event that NationsBank shall be
replaced as Administrative Agent pursuant to Section 10.9, (a) no Swing
Line Loans shall be made by NationsBank on or after the date of such
replacement and (b) the replacement Administrative Agent shall be the
Swing Line Lender from and after the date of such replacement.
"Swing Line Loan Participation Certificate": a certificate in
substantially the form of Exhibit E.
"Swing Line Loans": as defined in Section 2.4(a).
"Swing Line Termination Date": the earlier of (i) the date which is
364 days after the Effective Date, unless the Swing Line Lender, in its
sole discretion, elects to extend such 364 day period as notified to the
Borrower and the Lenders, (ii) the date the Lenders' Commitments are
otherwise cancelled or terminated and (iii) the date any Committed Loan is
accelerated.
"Syndication Agent": as defined in the preamble hereto.
"Termination Date": the earlier of (i) December 6, 2003, (ii)
the date the Lenders' Commitments are otherwise cancelled or terminated
and (iii) the date any Committed Loan is accelerated.
"Toronto-Dominion Fee Letter": the letter agreement, dated
September 30, 1996 from The Toronto-Dominion Bank to the Borrower.
"Total Commitment": the sum of all of the Commitments (in each
case, as the same may be increased, reduced or otherwise adjusted from
time to time as provided herein) not to exceed $1,200,000,000.
<PAGE>
"Total Debt": for the Borrower and the Consolidated Subsidiaries as
of any date, without duplication, the sum of (a) Indebtedness for Borrowed
Money outstanding on such date, (b) Capital Lease Obligations outstanding
on such date, (c) Indebtedness of the type described in subsection (d) of
the definition of Indebtedness outstanding on such date, (d) the amount of
all Redeemable Preferred Stock and (e) Guarantee Obligations, determined
on a consolidated basis in accordance with GAAP.
"Total Extensions of Credit": at any time, the sum of all of the
Aggregate Outstanding Extensions of Credit of all of the Lenders at
such time.
"Tranche": the collective reference to Eurodollar Loans made by
the Lenders, the then current Interest Periods of which begin on the
same date and end on the same later date (whether or not such
Eurodollar Loans shall originally have been made on the same day).
"Transferee": as defined in Section 11.6(i).
"Type": as to any Loan, its nature as an ABR Loan, a Eurodollar
Loan or a Competitive Loan.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
"Unrefunded Swing Line Loans": as defined in Section 2.4(d).
"Virginia Paper": Virginia Paper Manufacturing Corp., a Georgia
corporation.
"Wholly Owned Subsidiary": as to any Person, any other Person at
least 100% of the Capital Stock of which (other than directors'
qualifying shares required by law) is owned by such Person directly or
indirectly through one or more other Wholly Owned Subsidiaries.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any other Loan Document or any certificate or other document made
or delivered pursuant hereto or thereto.
<PAGE>
(b) Unless otherwise specified herein, all accounting terms used
herein (and in any other Loan Document and any certificate or other document
made or delivered pursuant hereto or thereto) shall be interpreted, all
accounting determinations shall be made, and all financial statements required
to be delivered hereunder shall be prepared, in accordance with GAAP as in
effect from time to time; provided, however, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in Section 8
to eliminate the effect of any change in GAAP on the operation of such covenant
(or if the Administrative Agent notifies the Borrower that the Majority Lenders
wish to amend Section 8 for such purpose), then compliance with such covenant
shall be determined on the basis of GAAP in effect immediately before the
relevant change in GAAP became effective, until either such notice is withdrawn
or such covenant is amended in a manner satisfactory to the Borrower and the
Majority Lenders.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) References in this Agreement or any other Loan Document to
knowledge by the Borrower or any Subsidiary of events or circumstances shall be
deemed to refer to events or circumstances of which any Responsible Officer has
actual knowledge or reasonably should have knowledge.
(f) References in this Agreement or any other Loan Document to
financial statements shall be deemed to include all related schedules and notes
thereto.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS AND LOANS
2.1 Committed Loans. (a) Subject to and in reliance upon the terms,
conditions, representations and warranties contained in the Loan Documents, each
Lender severally agrees to make Advances in Dollars (which are Committed Loans)
to the Borrower from time to time until the Termination Date so long as the
aggregate principal amount of such Committed Loans from such Lender outstanding
never exceeds such Lender's Commitment; provided that the Aggregate Outstanding
Extensions of Credit from all Lenders shall not exceed the Total Commitment.
Notwithstanding anything to the contrary set forth herein, any Lender may make
and have outstanding one or more Competitive Loans which, when aggregated with
the outstanding principal amount of all Committed Loans from such Lender, would
exceed such Lender's Commitment. Each Lender's Commitment shall continue in full
force and effect until and expire on the Termination Date, and no Lender shall
have any obligation to make any Advance thereafter. Until the Termination Date,
the Borrower may borrow, repay and reborrow Committed Loans and Competitive
Loans hereunder, subject as respects Competitive Loans to Section 2.6. The
Administrative Agent shall maintain a record of each Lender's Commitment,
Specified Percentage, Committed Loans, Specified Percentage of L/C Obligations,
Specified Percentage of Swing Line Loans and Competitive Loans.
(b) Loans may from time to time be (i) Eurodollar Loans, (ii) ABR
Loans, (iii) Competitive Loans or (iv) a combination thereof, as determined by
the Borrower and notified to the Administrative Agent in accordance with
Sections 2.3, 2.6 and 4.5, provided that, no Loan shall be made as a Eurodollar
Loan or a Competitive Loan after the day that is one month prior to the
Termination Date.
<PAGE>
2.2 Notes for Committed Loans. The Borrower agrees that, upon
request to the Administrative Agent by any Lender, in order to evidence the
Committed Loans, the Borrower will execute and deliver to such Lender a
promissory note substantially in the form of Exhibit F-1, with appropriate
insertions as to payee, date and principal amount (each, as amended,
supplemented, replaced or otherwise modified from time to time, a "Committed
Loan Note"), payable to the order of each Lender and in a principal amount equal
to each such Lender's Commitment. Each Committed Loan Note shall (x) be dated
the Effective Date or the date of any reissuance of such Committed Loan Note,
(y) be stated to mature on the Termination Date and (z) provide for the payment
of interest in accordance with Section 4.1.
2.3 Procedure for Borrowing of Committed Loans. Subject to the
terms, conditions, representations and warranties contained in the Loan
Documents, each Committed Loan shall be made following the Borrower's delivery
to the Administrative Agent of an irrevocable notice substantially in the form
of Exhibit G-1 (a "Notice of Borrowing") requesting a Committed Loan on a
certain Borrowing Date; provided, that, if the Borrower makes a Competitive Bid
Request and does not accept Competitive Loans in an aggregate amount equal to
the Maximum Request included in that Competitive Bid Request, the Borrower, by
giving such notice not later than 11:00 A.M., Dallas, Texas time on the date of
borrowing specified in that Competitive Bid Request, may make a borrowing of ABR
Loans on that date in an aggregate principal amount equal to (i) that Maximum
Request, minus (ii) the aggregate principal amount of Competitive Loans, if any,
the Borrower does so accept. A Notice of Borrowing must be received by the
Administrative Agent prior to 11:00 A.M., Dallas, Texas time (a) three Business
Days prior to the requested Borrowing Date, if all or any part of the requested
Committed Loans are to be initially Eurodollar Loans or (b) one Business Day
prior to the requested Borrowing Date otherwise. A Notice of Borrowing shall
specify (i) the amount to be borrowed, (ii) the requested Borrowing Date, (iii)
whether the borrowing is to be of Eurodollar Loans, ABR Loans or a combination
thereof and (iv) if the borrowing is to be entirely or partly of Eurodollar
Loans, the respective amounts of each Tranche and the respective lengths of the
initial Interest Periods therefor. Each borrowing under the Commitments shall be
in an amount equal to (a) in the case of ABR Loans (except any ABR Loans to be
used solely to pay a like amount of outstanding Reimbursement Obligations or
Swing Line Loans), $10,000,000 or a whole multiple of $1,000,000 in excess
thereof (or if the then aggregate Available Commitments of all Lenders are less
than $10,000,000, such lesser amount) and (b) in the case of Eurodollar Loans,
$10,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of
any such Notice of Borrowing from the Borrower, the Administrative Agent shall
promptly notify each Lender thereof. Each Lender will make the amount of its
Specified Percentage of each requested Committed Loan available to the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in Section 11.2 prior to 11:00 A.M., Dallas,
Texas time, on the Borrowing Date requested by the Borrower in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the Borrower by the Administrative Agent crediting the account of
the Borrower, as so directed by the Borrower in a Notice of Borrowing, with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
<PAGE>
2.4 Swing Line Commitments. (a) Subject to the terms, conditions,
representations and warranties contained in the Loan Documents, the Swing Line
Lender agrees to make swing line loans (individually, a "Swing Line Loan";
collectively, the "Swing Line Loans") to the Borrower from time to time until
the Swing Line Termination Date; provided that, the Swing Line Lender may not
make any Swing Line Loan if, after giving effect to such Swing Line Loan, either
(i) the amount of all Swing Line Loans outstanding would exceed the lesser of
(x) $10,000,000 or (y) the Aggregate Available Commitments or (ii) the Aggregate
Outstanding Extensions of Credit of all Lenders would exceed the Total
Commitment. Amounts borrowed by the Borrower under this Section 2.4 may be
repaid and, through but excluding the Swing Line Termination Date, reborrowed.
All Swing Line Loans shall be made as ABR Loans and shall not be entitled to be
converted into Eurodollar Loans. The Borrower shall give the Swing Line Lender a
Notice of Borrowing (which Notice of Borrowing must be received by the Swing
Line Lender prior to 1:00 P.M., Dallas, Texas time) on the requested Borrowing
Date specifying the amount of the requested Swing Line Loan, which shall be in a
minimum amount of $500,000 or whole multiples of $100,000 in excess thereof. The
proceeds of each Swing Line Loan will be made available by the Swing Line Lender
to the Borrower at the office of the Swing Line Lender by crediting the account
of the Borrower, as so directed by the Borrower in a Notice of Borrowing, with
such proceeds in Dollars.
(b) The Borrower agrees that, upon the request of the Swing Line
Lender, in order to evidence the Swing Line Loans, the Borrower will execute and
deliver to the Swing Line Lender a promissory note substantially in the form of
Exhibit F-2, with appropriate insertions (as the same may be amended,
supplemented, replaced or otherwise modified from time to time, the "Swing Line
Note"), payable to the order of the Swing Line Lender and in a principal amount
equal to $10,000,000 with interest thereon as prescribed in Section 4.1. The
Swing Line Note shall (i) be dated the Effective Date or the date of any
reissuance of such Swing Line Note, (ii) be stated to mature on the Swing Line
Termination Date and (iii) provide for the payment of interest in accordance
with Section 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute
discretion may, on behalf of the Borrower (which hereby irrevocably directs and
authorizes the Swing Line Lender to act on its behalf), request each Lender,
including the Swing Line Lender, to make a Committed Loan as an ABR Loan in an
amount equal to such Lender's Specified Percentage of the principal amount of
the Swing Line Loans (the "Refunded Swing Line Loans") outstanding on the date
such notice is given. Each Lender will make the proceeds of its Committed Loan
available to the Administrative Agent for the account of the Swing Line Lender
at the office of the Administrative Agent prior to 12:00 Noon, Dallas, Texas
time, in funds immediately available on the Business Day next succeeding the
date such notice is given. The proceeds of such Committed Loans shall be
immediately applied to repay the Refunded Swing Line Loans.
<PAGE>
(d) If, for any reason, Committed Loans may not be (as determined by
the Administrative Agent in its sole discretion), or are not, made pursuant to
Section 2.4(c) to repay Swing Line Loans as required by said Section, then,
effective on the date such Committed Loans would otherwise have been made, each
Lender severally, unconditionally and irrevocably agrees that it shall purchase
an undivided participating interest in such Swing Line Loans ("Unrefunded Swing
Line Loans"), in an amount equal to the amount of Committed Loans which
otherwise would have been made by such Lender pursuant to Section 2.4(c) (which
amount, if the Commitments shall have terminated, shall be determined on the
basis of such Lender's Specified Percentage (determined on the date of, and
immediately prior to, termination of the Commitments). In the event that the
Lenders purchase undivided participating interests pursuant to the first
sentence of this paragraph (d), each Lender shall immediately transfer to the
Swing Line Lender, in immediately available funds, the amount of its
participation and upon receipt thereof the Swing Line Lender will deliver to
such Lender a Swing Line Loan Participation Certificate dated the date of
receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received
from any Lender such Lender's participating interest in a Swing Line Loan, the
Swing Line Lender receives any payment on account thereof, the Swing Line Lender
will distribute to such Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participating interest was outstanding and
funded); provided, that in the event that such payment received by the Swing
Line Lender is required to be returned, such Lender will return to the Swing
Line Lender any portion thereof previously distributed by the Swing Line Lender
to it.
(f) Notwithstanding anything to the contrary in this Agreement, each
Lender's obligation to make the Committed Loans referred to in Section 2.4(c)
and to purchase and fund participating interests pursuant to Section 2.4(d)
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender or the Borrower may have
against the Swing Line Lender, the Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the other conditions specified in
Section 6; (iii) any adverse change in the condition (financial or otherwise) of
any Loan Party; (iv) any breach of this Agreement or any other Loan Document by
any Loan Party or any Lender; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
2.5 Repayment of Loans. (a) The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of (i) each Lender,
the then unpaid principal amount of each Committed Loan of such Lender, on the
Termination Date (or such earlier date on which the Committed Loans become due
and payable pursuant to Sections 4.2(d) or 9); (ii) the Swing Line Lender, the
then unpaid principal amount of the Swing Line Loans, on the Swing Line
Termination Date (or such earlier date on which the Swing Line Loans become due
and payable pursuant to Section 4.2(g) or 9); (iii) each Lender with a
Competitive Loan outstanding, the then unpaid principal amount of each
Competitive Loan on the date specified in Section 2.6(g); and (iv) the amounts
specified in Section 4.2, on the dates specified in Section 4.2. The Borrower
hereby further agrees to pay interest on the unpaid principal amount of the
Loans from time to time outstanding from the date hereof until payment in full
thereof at the rates per annum, and on the dates, set forth in Section 4.1.
<PAGE>
(b) Each Lender (including the Swing Line Lender) shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of the Borrower to such Lender resulting from each Loan of such
Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
Section 11.6(g), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, the Type thereof and each
Interest Period, if any, applicable thereto, (ii) the amount of each Letter of
Credit issued hereunder, (iii) each Lender's Specified Percentage of L/C
Obligations and/or Swing Line Loans, (iv) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (v) both the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Sections 2.5(b) and (c) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) to such Lender
the Loans to, and L/C Obligations of, the Borrower made in accordance with the
terms of this Agreement.
2.6 Competitive Loans. (a) At any time during the Competitive Loan
Period, the Borrower may make Competitive Bid Requests by 10:00 A.M., Dallas,
Texas time at least three Business Days prior to the proposed date of borrowing
for one or more Competitive Loans. The Borrower shall deliver each Competitive
Bid Request to the Administrative Agent (which on the same day of its receipt
thereof shall give notice thereof to each Lender by facsimile of an Invitation
To Bid if the Administrative Agent does not reject the Competitive Bid Request
pursuant to this Section 2.6) in a written Competitive Bid Request signed by the
Borrower and by telephone during regular business hours at the Administrative
Agent's office on the same Business Day. Each Competitive Bid Request shall
specify (A) the proposed date of the borrowing for the requested Competitive
Loans, (B) the aggregate amount of the requested Competitive Loans (the "Maximum
Request"), which shall (1) not exceed the Aggregate Available Commitment of all
Lenders as of the proposed date of the borrowing specified in the Competitive
Bid Request and (2) be in an aggregate amount not less than $10,000,000 or
$1,000,000 increments in excess thereof, (C) the Interest Period or Interest
Periods (up to a maximum of three in any Competitive Bid Request) therefor and
the last day of each such Interest Period and (D) if more than one Interest
Period is so specified, the principal amount allocable to each such Interest
Period (which amount in each case shall not be less than $10,000,000 or an
integral multiple of $1,000,000 increments in excess thereof). The
Administrative Agent shall reject each Competitive Bid Request the
Administrative Agent determines (which determination shall be conclusive absent
manifest error) does not conform to the requirements of this Section 2.6 and
shall notify the Borrower of any such rejection promptly upon the Administrative
Agent's receipt of the facsimile notice of such Competitive Bid Request.
<PAGE>
(b) Each Lender in its sole discretion may (but is not obligated to)
submit one or more Competitive Bids to the Administrative Agent in response to
any Competitive Bid Request not later than 9:30 A.M., Dallas, Texas time on the
proposed date of borrowing specified in such Competitive Bid Request (the
"Submission Deadline"), by facsimile or in writing, and thereby irrevocably
offer to make all or any part (any such part being a "Portion") of any
Competitive Loan described in the Competitive Bid Request (i) at the rate of
interest per annum (each a "Bid Rate") specified in such offer and (ii) in the
aggregate amount specified in such offer which shall be not less than $1,000,000
or an integral multiple of $100,000 in excess thereof, provided that if the
Administrative Agent in its capacity as a Lender shall, in its sole discretion,
elect to make any Competitive Bid in response to any Competitive Bid Request, it
shall notify the Borrower of such offer not later than 30 minutes prior to the
Submission Deadline for other Lenders respecting such Competitive Bid Request.
Multiple Competitive Bids may be delivered to and by the Administrative Agent.
The aggregate Portions of Competitive Loans for any or all Interest Periods
offered by each Lender in its Competitive Bid may exceed the Maximum Request
contained in the relevant Competitive Bid Request, provided that each
Competitive Bid shall set forth the maximum aggregate amount of the Competitive
Loans offered thereby which the Borrower may accept (the "Maximum Offer"), which
Maximum Offer shall not exceed the Maximum Request. If any Lender shall elect
not to make a Competitive Bid, such Lender shall so notify the Administrative
Agent by facsimile not later than 30 minutes prior to the Submission Deadline
for such Competitive Bid; provided, that, the failure by any Lender to give any
such notice shall not obligate such Lender to make any Competitive Loan or
subject such Lender to any liability.
(c) In the case of each Competitive Bid Request, the Administrative
Agent shall promptly give notice by telephone (promptly confirmed in writing) to
the Borrower of all Competitive Bids received by the Administrative Agent by the
Submission Deadline applicable to such Competitive Bid Request which comply in
all material respects with Section 2.6(b). The Borrower shall, in its sole
discretion, but subject to Section 2.6(d), irrevocably accept or reject each
such Competitive Bid (or any Portion thereof) not later than 11:00 A.M., Dallas,
Texas time on the day of the Submission Deadline by notice to the Administrative
Agent by telephone (confirmed in writing in the form of a Competitive Bid
Acceptance or Competitive Bid Rejection, as applicable, promptly the same day).
Promptly on the same day, the Administrative Agent, following its receipt from
the Borrower of such telephonic notice and Competitive Bid Acceptance or
Competitive Bid Rejection, as applicable, will give notice to each Lender that
submitted a Competitive Bid as to the extent, if any, that such Lender's
Competitive Bid shall have been accepted. If the Administrative Agent fails to
receive a Competitive Bid Acceptance or Competitive Bid Rejection notice from
the Borrower of any Competitive Bids at or prior to 11:00 A.M., Dallas, Texas
time on such day, all such Competitive Bids shall be deemed to have been
rejected by the Borrower, and the Administrative Agent will give to each Lender
that submitted a Competitive Bid notice of such rejection by telephone on such
day. In due course following the acceptance of any Competitive Bid, the
Administrative Agent shall notify each Lender that submitted a Competitive Bid,
in the form of a Competitive Loan Confirmation, of the amount, maturity date and
Bid Rate for each Competitive Loan.
<PAGE>
(d) If the Borrower accepts a Portion of a proposed Competitive Loan
for a single Interest Period at the Bid Rate provided therefor in a Lender's
Competitive Bid, such Portion shall be in a principal amount of $1,000,000
(subject to such lesser allocation as may be made pursuant to the provisions of
this Section 2.6(d)) or $100,000 increments in excess thereof. The aggregate
principal amount of Competitive Loans accepted by the Borrower following
Competitive Bids responding to a Competitive Bid Request may be less than but
shall not exceed the Maximum Request. The aggregate principal amount of
Competitive Loans accepted by the Borrower pursuant to a Lender's Competitive
Bid shall not exceed the Maximum Offer therein contained. If the Borrower
accepts any Competitive Loans or Portion offered in any Competitive Bid, the
Borrower must accept Competitive Bids (and Competitive Loans and Portions
thereby offered) based exclusively on the successively lowest Bid Rates within
each Interest Period and no other criteria. If two or more Lenders submit
Competitive Bids with identical Bid Rates for the same Interest Period and the
Borrower accepts any thereof, the Borrower shall, subject to the first three
sentences of this Section 2.6(d), accept all such Competitive Bids as nearly as
possible in proportion to the amounts of such Lenders' respective Competitive
Bids with identical Bid Rates for such Interest Period, provided, that if the
amount of Competitive Loans to be so allocated is not sufficient to enable each
such Lender to make such Competitive Loan (or Portions thereof) in an aggregate
principal amount of $1,000,000 or $100,000 increments in excess thereof, the
Borrower shall round the Competitive Loans (or Portions thereof) allocated to
such Lender or Lenders as the Borrower shall select as necessary to a minimum of
$200,000 and, if greater than $200,000, the nearest multiple of $100,000.
(e) Not later than 3:00 P.M., Dallas, Texas time on the relevant
date of borrowing, each Lender whose Competitive Bid was accepted by the
Borrower shall make available to the Administrative Agent at the office of the
Administrative Agent specified in Section 11.2, in immediately available funds,
the proceeds of such Lender's Competitive Loan(s). After the Administrative
Agent's receipt of such funds and, upon fulfillment of the conditions precedent
set forth in Section 6, the Administrative Agent shall make such funds available
to the Borrower by the Administrative Agent crediting the account of the
Borrower as so directed by the Borrower in the related Competitive Bid Request,
provided that the Administrative Agent will not in any event be required to make
such funds so available until 4:00 P.M., Dallas, Texas time on the relevant date
of borrowing. In the case of any Lender whose Competitive Bid is accepted by the
Borrower, unless the Administrative Agent has received notice from such Lender
prior to 1:00 P.M., Dallas, Texas time, on the date of the borrowing of such
Lender's Competitive Loan(s), that such Lender will not make available to the
Administrative Agent the proceeds of such Competitive Loan(s), the
Administrative Agent may assume such Lender has made such proceeds so available
and, if the Administrative Agent makes that assumption, the provisions of
Section 4.8(b) shall apply.
(f) All written notices required by this Section 2.6 shall be given
in accordance with Section 11.2.
<PAGE>
(g) At the request of any Lender making a Competitive Loan, the
Borrower shall execute and deliver to each such Lender, as evidence of such
Competitive Loan, a promissory note of the Borrower, substantially in the form
of Exhibit F-3 (each as endorsed or modified from time to time, a "Competitive
Loan Note"), payable to the order of such Lender, and dated the date of the
making of each applicable Competitive Loan. Each Competitive Loan made by each
Lender shall be due and payable in full on the earlier to occur of (A) the last
day of the Interest Period applicable thereto or (B) the Termination Date.
SECTION 3. LETTERS OF CREDIT
3.1 Letter of Credit Commitment. (a) Subject to the terms and
conditions hereof, Issuing Lender, in reliance on the agreements of the other
Lenders set forth in Section 3.4(a), agrees to issue letters of credit ("Letters
of Credit") for the account of the Borrower and/or its Guarantor Subsidiaries on
any Business Day prior to the Termination Date in such form as may be approved
from time to time by such Issuing Lender; provided that Issuing Lender shall not
issue any Letter of Credit if, after giving effect to such issuance, either (i)
the L/C Obligations would exceed the lesser of (x) $30,000,000 or (y) the
Aggregate Available Commitment or (ii) the Aggregate Outstanding Extensions of
Credit of all the Lenders would exceed the Total Commitment. Each Letter of
Credit shall (i) be denominated in Dollars and shall be either (x) a standby
letter of credit issued for the account of the Borrower and/or its Guarantor
Subsidiaries, which finances the working capital and business needs of the
Borrower and/or its Guarantor Subsidiaries, or (y) a commercial letter of credit
issued for the account of the Borrower and/or its Guarantor Subsidiaries in
respect of the purchase of goods or services by the Borrower and/or any of its
Guarantor Subsidiaries and (ii) expire no later than the earlier of (x) the
Termination Date and (y) the date which is 12 months after its date of issuance.
(b) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of New
York.
(c) The Issuing Lender shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the Issuing Lender or any other Lender to exceed any limits imposed by, any
applicable Requirement of Law.
<PAGE>
3.2 Procedure for Issuance of Letters of Credit. The Borrower may
from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender, at its address for notices specified herein,
an Application therefor, completed to the reasonable satisfaction of the Issuing
Lender, and such other certificates, documents and other papers and information
as the Issuing Lender may reasonably request. Upon receipt of any Application,
the Issuing Lender will process such Application and the certificates, documents
and other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Letter of
Credit requested thereby (but in no event shall the Issuing Lender be required
to issue any Letter of Credit earlier than three Business Days after its receipt
of the Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed by the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such
Letter of Credit to the Borrower promptly following the issuance thereof.
3.3 Fees, Commissions and Other Charges. (a) The Borrower shall pay
to the Administrative Agent, for the account of each Lender, a letter of credit
fee with respect to each Letter of Credit, for the period from and including the
date of issuance of such Letter of Credit to the date such Letter of Credit is
no longer outstanding, computed at a percentage rate per annum equal to the
Applicable Margin from time to time applicable to Eurodollar Loans, calculated
on the basis of a 360-day year, on the face amount of each Letter of Credit
issued, payable on each L/C Fee Payment Date to occur while such Letter of
Credit remains outstanding and on the date such Letter of Credit expires, is
cancelled or is drawn upon. Such fee shall be payable quarterly in arrears and
shall be nonrefundable.
(b) In addition to the foregoing letter of credit fees, the Borrower
shall pay to the Issuing Lender a fee with respect to the issuance of each
Letter of Credit, for the period from and including the date of issuance of each
Letter of Credit to the date such Letter of Credit is no longer outstanding
computed at a rate of 1/8 of 1% per annum, calculated on the basis of a 360-day
year, on the face amount of each Letter of Credit issued, payable on each L/C
Fee Payment Date to occur while such Letter of Credit remains outstanding and on
the date such Letter of Credit expires, is cancelled or is drawn upon. Such fee
shall be payable quarterly in advance and shall be non-refundable.
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to each Lender all fees received by the Administrative Agent
for each such Lender's account pursuant to Section 3.3(a).
3.4 L/C Participations. (a) The Issuing Lender irrevocably agrees to
grant and hereby grants to each Lender, and, to induce the Issuing Lender to
issue Letters of Credit hereunder, each Lender irrevocably agrees to accept and
purchase and hereby accepts and purchases from the Issuing Lender, on the terms
and conditions hereinafter stated, for such Lender's own account and risk an
undivided interest equal to such Lender's Specified Percentage (determined on
the date of issuance of the relevant Letter of Credit) in the Issuing Lender's
obligations and rights under each Letter of Credit issued by the Issuing Lender
and the amount of each draft paid by the Issuing Lender thereunder. Each Lender
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit issued by the Issuing Lender for which the
Issuing Lender is not reimbursed in full by the Borrower in accordance with
Section 3.5(a), such Lender shall pay to the Issuing Lender upon demand at the
Issuing Lender's address for notices specified herein an amount equal to such
Lender's Specified Percentage of the amount of such draft, or any part thereof,
which is not so reimbursed.
<PAGE>
(b) In addition to any amount required to be paid by any Lender to
the Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Lender under any Letter of Credit,
such Lender shall pay to the Issuing Lender on demand an amount equal to the
product of (i) such amount, times (ii) the daily average Federal Funds Effective
Rate during the period from and including the date such payment is required
(which due date, for the purposes of this paragraph (b), shall be deemed to be
the date on which such Lender shall have received notice from the Issuing Lender
of the amount required to be paid) to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. A certificate of the Issuing Lender submitted to
any Lender with respect to any amounts owing under this Section shall be
conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any Lender its pro rata share
of such payment in accordance with Section 3.4(a), the Issuing Lender receives
any payment related to such Letter of Credit (whether directly from the Borrower
or otherwise), or any payment of interest on account thereof, the Issuing Lender
will, if such payment is received prior to 12:00 P.M., Dallas, Texas time, on a
Business Day, distribute to such Lender its pro rata share thereof on the same
Business Day or if received later than 12:00 P.M. on the next succeeding
Business Day; provided that, in the event that any such payment received by the
Issuing Lender shall be required to be returned by the Issuing Lender, such
Lender shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
(d) Notwithstanding anything to the contrary in this Agreement, each
Lender's obligation to make the Committed Loans referred to in Section 3.5(b)
and to purchase and fund participating interests pursuant to Section 3.4(a)
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender or the Borrower may have
against the Issuing Lender, the Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the other conditions specified in
Section 6; (iii) any adverse change in the condition (financial or otherwise) of
any Loan Party; (iv) any breach of this Agreement or any other Loan Document by
any Loan Party or any Lender; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
3.5 Reimbursement Obligation of the Borrower. (a) The Borrower
agrees to reimburse the Issuing Lender (it being understood that such
reimbursement shall be effected by means of a borrowing of Committed Loans
unless the Administrative Agent shall determine in its discretion that such
Committed Loans may not be made for such purpose as a result of a Default or
Event of Default pursuant to Section 9(f)), upon receipt of notice from the
Issuing Lender of the date and amount of a draft presented under any Letter of
Credit and paid by the Issuing Lender, for the amount of (i) such draft so paid
and (ii) any taxes, fees, charges or other costs or expenses incurred by the
Issuing Lender in connection with such payment. Each such payment shall be made
to the Issuing Lender, at its address for notices specified herein in Dollars
and in immediately available funds, on the date on which the Borrower receives
such notice, if received prior to 11:00 A.M., Dallas, Texas time, on a Business
Day and otherwise on the next succeeding Business Day.
<PAGE>
(b) Interest shall be payable on any and all amounts remaining
unpaid by the Borrower under this Section 3.5, (i) from the date the draft
presented under the affected Letter of Credit is paid to the date on which the
Borrower is required to pay such amounts pursuant to paragraph (a) above at a
rate per annum equal to the ABR plus the Applicable Margin and (ii) thereafter
until payment in full at the rate specified in Section 4.1(e). Except as
otherwise specified in Section 3.5(a), each drawing under any Letter of Credit
shall constitute a request by the Borrower to the Administrative Agent for a
borrowing of Committed Loans that are ABR Loans pursuant to Section 2.3 in the
amount of such drawing. The Borrowing Date with respect to such borrowing shall
be the date of payment of such drawing and the proceeds of such Committed Loans
shall be applied by the Administrative Agent to reimburse the Issuing Lender for
the amounts paid under such Letter of Credit.
3.6 Obligations Absolute. Subject to the last two sentences of this
Section 3.6, the Borrower's obligations under this Section 3 shall be absolute
and unconditional under any and all circumstances and irrespective of any
set-off, counterclaim or defense to payment which the Borrower may have or have
had against the Issuing Lender, any Lender or any beneficiary of a Letter of
Credit. The Borrower also agrees with the Issuing Lender that the Issuing Lender
and the Lenders shall not be responsible for, and the Borrower's Reimbursement
Obligations under Section 3.5(a) shall not be affected by, among other things,
(i) the validity or genuineness of documents or of any endorsements thereon,
even though such documents shall in fact prove to be invalid, fraudulent or
forged, or (ii) any dispute between or among the Borrower and any beneficiary of
any Letter of Credit or any other party to which such Letter of Credit may be
transferred or (iii) any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. The Issuing Lender
and the Lenders shall not be liable for any error, omission, interruption or
delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions caused by such Person's gross negligence or willful misconduct. The
Borrower agrees that any action taken or omitted by the Issuing Lender under or
in connection with any Letter of Credit or the related drafts or documents, if
done in the absence of gross negligence or willful misconduct and in accordance
with the standards of care specified in the Uniform Commercial Code of the State
of New York, shall be binding on the Borrower and shall not result in any
liability of either the Issuing Lender or any other Lender to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower and the Lenders of the date and amount thereof. Subject to Section 3.6,
the responsibility of the Issuing Lender to the Borrower in connection with any
draft presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment appear on their face to be
in conformity with such Letter of Credit.
3.8 Application. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Agreement, the provisions of this Agreement shall apply.
<PAGE>
SECTION 4. GENERAL PROVISIONS APPLICABLE TO
LOANS AND LETTERS OF CREDIT
4.1 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin for Eurodollar Loans in effect for such day.
(b) Each ABR Loan shall bear interest for each day that it is
outstanding at a rate per annum equal to the ABR for such day plus the
Applicable Margin for ABR Loans in effect for such day.
(c) Each Swing Line Loan shall bear interest for each day that it is
outstanding at a rate per annum equal to the ABR for such day plus the
Applicable Margin for ABR Loans in effect for such day.
(d) Each Competitive Loan shall bear interest for each day during
each Interest Period with respect thereto at a rate per annum equal to the Bid
Rate determined for such Interest Period in accordance with Section 2.6.
(e) (i) After the occurrence and during the continuance of an Event
of Default, all Loans and Reimbursement Obligations shall bear interest at a
rate per annum which is equal to (x) in the case of Loans, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
Section 4.1 (it being understood that in the case of Eurodollar Loans, the rate
applicable thereto shall be the Eurodollar Rate then in effect until the end of
the applicable Interest Period and thereafter the rate applicable thereto shall
be the ABR), plus 2% or (y) in the case of Reimbursement Obligations, at a rate
per annum equal to the ABR plus the Applicable Margin for ABR Loans plus 2% and
(ii) if all or a portion of any interest payable on any Loan or Reimbursement
Obligation or any commitment fee or other amount payable hereunder shall not be
paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum equal to the ABR
plus the Applicable Margin plus 2%, in each case, with respect to clauses (i)
and (ii) above, from the date of such non-payment until such amount is paid in
full (as well after as before judgment).
(f) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (e) of this Section
shall be payable from time to time on demand.
<PAGE>
4.2 Optional and Mandatory Commitment Reductions and Prepayments.
(a) The Borrower may at any time and from time to time prepay the Loans, in
whole or in part, without premium or penalty (it being understood that amounts
payable pursuant to Section 4.11 do not constitute premium or penalty), upon at
least three Business Days' irrevocable notice to the Administrative Agent (in
the case of Eurodollar Loans or Competitive Loans) or at least one Business
Day's irrevocable notice to the Administrative Agent (in the case of ABR Loans
other than Swing Line Loans) or same-day irrevocable notice to the
Administrative Agent (in the case of Swing Line Loans), specifying the date and
amount of prepayment and whether the prepayment is of Eurodollar Loans,
Competitive Loans, ABR Loans or Swing Line Loans or a combination thereof, and,
in each case if a combination thereof, the principal amount allocable to each.
Upon the receipt of any such notice, the Administrative Agent shall promptly
notify each Lender thereof. If any such notice is given, the amount specified in
such notice shall be due and payable on the date specified therein, together
with (if a Eurodollar Loan or Competitive Loan is prepaid other than at the end
of the Interest Period applicable thereto) any amounts payable pursuant to
Section 4.11. Partial prepayments of Loans shall be in an aggregate principal
amount of $10,000,000 or $1,000,000 increments in excess thereof. Partial
prepayments of Swing Line Loans shall be in an aggregate principal amount of
$100,000 or $100,000 increments in excess thereof.
(b) The Borrower shall have the right, upon not less than three
Business Days' notice to the Administrative Agent (which will promptly notify
the Lenders thereof), to terminate the Total Commitment or, from time to time,
to reduce the amount of the Total Commitment; provided that no such termination
or reduction of the Total Commitment shall be permitted if, after giving effect
thereto and to any prepayments of the Loans made on the effective date thereof,
the Total Extensions of Credit then in effect would exceed the Total Commitment
as reduced. Any such reduction shall be in a minimum amount of $10,000,000 or
increments of $1,000,000 in excess thereof and shall reduce permanently the
Total Commitment then in effect.
(c) On the last Business Day of each March, June, September and
December, commencing March 31, 2001, through the Termination Date, the Total
Commitment shall automatically and permanently be reduced by the percentage (the
"Quarterly Percentage Reduction") of the amount of the Total Commitment as of
March 31, 2001, (as reduced, if at all, pursuant to Section 4.2(e) below), as
set forth below. Notwithstanding anything contained in this Agreement to the
contrary, on the Termination Date the Total Commitment shall automatically
reduce to zero.
Quarterly Percentage Total Percentage Reduction
Calendar Year Reduction for the Calendar Year
--------------- -------------------- --------------------------
2001 6.25% 25%
2002 6.25% 25%
2003 12.5% 50%
<PAGE>
(d) If at any time the Total Extensions of Credit exceed the Total
Commitment of all Lenders then in effect, the Borrower shall, without notice or
demand, immediately repay the Loans in an aggregate principal amount equal to
such excess, together with interest accrued to the date of such payment or
repayment and any amounts payable under Section 4.11. To the extent that, after
giving effect to any prepayment of the Loans required by the preceding sentence,
the Total Extensions of Credit still exceeds the Total Commitment then in
effect, the Borrower shall, without notice or demand, immediately cash
collateralize the then outstanding L/C Obligations in an amount equal to such
excess upon terms reasonably satisfactory to the Administrative Agent.
(e) In the event that the Merger has not been consummated on or
before March 31, 1997, the Total Commitment shall automatically and permanently
be reduced by $700,000,000. To the extent that, after giving effect to any
reduction of the Total Commitment required by the preceding sentence, the Total
Extensions of Credit exceed the Total Commitment then in effect after such
reduction, the Borrower shall, contemporaneously with such reduction of the
Total Commitment, comply with the provisions of Section 4.2(d).
(f) In the case of any reduction of the Total Commitment, voluntary
or otherwise, the Borrower shall, if applicable, comply with the requirements of
Section 4.2(d). Each repayment of the Loans under this Section 4.2 shall be
accompanied by accrued interest to the date of such repayment on the amount
repaid and any amounts payable under Section 4.11. Any amounts deposited in any
cash collateral account established pursuant to this Section 4.2 shall be
invested in Cash Equivalents having a one-day maturity or such other Cash
Equivalents as shall be acceptable to the Administrative Agent and the Borrower.
(g) The Borrower shall prepay all Swing Line Loans then outstanding
simultaneously with each borrowing of Committed Loans pursuant to Section 2.3.
4.3 Commitment Fees, etc. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender, a commitment fee, on the
average daily Available Commitment of such Lender (determined without deduction
for any outstanding Swing Line Loans), computed at a rate per annum based on the
Leverage Ratio in effect for the fiscal quarter preceding the payment date,
determined as follows:
Leverage Ratio Commitment Fee
-------------- --------------
Greater than or equal to 4.50 to 1.00 0.2500%
Less than 4.50 to 1.00 but greater 0.1875%
than or equal to 4.00 to 1.00
Less than 4.00 to 1.00 but greater 0.1250%
than or equal to 3.50 to 1.00
Less than 3.50 to 1.00 0.1000%
<PAGE>
For purposes of calculating the commitment fees due hereunder, the Leverage
Ratio shall be determined as at the end of each of the first three quarterly
periods of each fiscal year of the Borrower and as at the end of each fiscal
year of the Borrower, based on the relevant financial statements delivered
pursuant to Section 7.1(a) and (b), respectively, and the Compliance Certificate
delivered pursuant to Section 7.2(b); changes in the Leverage Ratio shall become
effective on the date which is the earlier of (i) two Business Days after the
date the Administrative Agent receives such financial statements and the
corresponding Compliance Certificate and (ii) the last date on which such
financial statements and corresponding Compliance Certificate should have been
delivered pursuant to Sections 7.1(a) and (b) and Section 7.2(b), and shall
remain in effect until the next change to be effected pursuant to this Section
4.3; provided, that (A) until the first such financial statements and Compliance
Certificate are delivered after the date hereof, the Leverage Ratio shall be
determined by reference to the Leverage Ratio set forth in the Closing
Certificate delivered to the Administrative Agent pursuant to Section 6.1(b),
and (B) if any financial statements or the Compliance Certificate referred to
above are not delivered within the time periods specified above, then, for the
period from and including the date on which such financial statements and
Compliance Certificate are required to be delivered until the date on which such
financial statements and Compliance Certificate are delivered, then the Leverage
Ratio as at the end of the fiscal period that would have been covered thereby
shall be deemed to be greater than or equal to 4.50 to 1.00.
Such commitment fees shall be payable quarterly in arrears on the last Business
Day of each March, June, September and December and on the date on which all of
the Commitments shall have terminated.
(b) The Borrower shall pay (without duplication of any fee payable
under Section 4.3(a) above) to the Administrative Agent, for its own account,
the fees in the amounts and on the dates agreed to in the Fee Letters.
4.4 Computation of Interest and Fees. (a) Interest based on the
Eurodollar Rate or on any Bid Rate and fees shall be calculated on the basis of
a 360-day year for the actual days elapsed; and interest based on the ABR shall
be calculated on the basis of a 365- (or 366-, as the case may be) day year for
the actual days elapsed. The Administrative Agent shall as soon as practicable
notify the Borrower and the Lenders of each determination of a Eurodollar Rate.
Any change in the interest rate on a Loan resulting from a change in the ABR or
the Eurocurrency Reserve Requirements shall become effective as of the opening
of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of the effective date and the amount of each such change in interest
rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error.
<PAGE>
4.5 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent an irrevocable notice substantially in the form of Exhibit
G-2 (a "Notice of Conversion/Continuation"), at least one Business Day prior to
such election, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert ABR Loans to Eurodollar Loans or to
continue Eurodollar Loans as Eurodollar Loans by giving the Administrative Agent
a Notice of Conversion/Continuation at least three Business Days' prior to such
election. Any such Notice of Conversion/Continuation to Eurodollar Loans shall
specify the length of the initial Interest Period or Interest Periods therefor.
Upon receipt of any such Notice of Conversion/Continuation the Administrative
Agent shall promptly notify each Lender thereof. All or any part of outstanding
Eurodollar Loans and ABR Loans may be converted as provided herein, provided
that (i) no Loan may be converted into a Eurodollar Loan when any Event of
Default has occurred and is continuing and (ii) no Loan may be converted into a
Eurodollar Loan if the Interest Period selected therefor would expire after the
Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the Administrative Agent three Business
Days prior to the expiration of the then current Interest Period, of the length
of the next Interest Period to be applicable to such Eurodollar Loans,
determined in accordance with the applicable provisions of the term "Interest
Period" for Eurodollar Loans set forth in Section 1.1, provided that no
Eurodollar Loan may be continued as such (i) when any Event of Default has
occurred and is continuing or (ii) after the date that is one month prior to the
Termination Date, and provided, further, that if the Borrower shall fail to give
any required notice as described above in this paragraph or if such continuation
is not permitted pursuant to the preceding proviso such Eurodollar Loans shall
be automatically converted to ABR Loans on the last day of such then expiring
Interest Period. Upon receipt of any such notice of continuation pursuant to
this Section 4.5(b), the Administrative Agent shall promptly notify each Lender
thereof.
4.6 Minimum Amounts of Tranches. All borrowings, conversions,
continuations and payments of Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Eurodollar Loans comprising each Tranche shall be equal to $10,000,000 or
$1,000,000 increments in excess thereof. In no event shall there be more than
seven Tranches outstanding at any time.
4.7 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period; or
(b) the Administrative Agent shall have received notice from the
Majority Lenders that the Eurodollar Rate determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost
to such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
<PAGE>
the Administrative Agent shall give facsimile notice thereof to the Borrower and
the Lenders as soon as practicable thereafter. If such notice is given (x) any
Eurodollar Loans requested to be made on the first day of such Interest Period
shall be made as ABR Loans, (y) any Loans that were to have been converted on
the first day of such Interest Period to Eurodollar Loans shall be continued as
ABR Loans and (z) any outstanding Eurodollar Loans shall be converted, on the
first day of such Interest Period, to ABR Loans. Until such notice has been
withdrawn by the Administrative Agent or the Majority Lenders, as the case may
be, no further Eurodollar Loans shall be made or continued as such, nor shall
the Borrower have the right to convert Loans to Eurodollar Loans.
4.8 Pro Rata Treatment and Payments. (a) Each borrowing of Loans
(other than Swing Line Loans and Competitive Loans) hereunder shall be made,
each payment by the Borrower on account of any commitment fee hereunder shall be
allocated by the Administrative Agent, and any reduction of the Total Commitment
shall be allocated by the Administrative Agent, pro rata according to the
respective Specified Percentages of the Lenders. Each payment (including each
prepayment) by the Borrower on account of (i) principal of and interest on Loans
(other than Swing Line Loans which shall be paid to the Swing Line Lender only)
or Reimbursement Obligations or (ii) commitment fees, shall be allocated ratably
by the Administrative Agent according to the amount of interest, principal and
fees which are then due and payable to the Lenders. All payments (including
prepayments) to be made by the Borrower hereunder and under any Notes, whether
on account of principal, interest, fees, Reimbursement Obligations or otherwise,
shall be made without set-off or counterclaim and shall be made prior to 12:00
P.M., Dallas, Texas time, on the due date thereof to the Administrative Agent,
for the account of the Lenders, at the Administrative Agent's office specified
in Section 11.2, in Dollars and in immediately available funds. Payments
received by the Administrative Agent after such time shall be deemed to have
been received on the next Business Day. If any payment hereunder becomes due and
payable on a day other than a Business Day, the maturity of such payment shall
be extended to the next succeeding Business Day, (and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension) unless, with respect to payments of Eurodollar Loans
only, the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day.
<PAGE>
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender by the required time prior to a borrowing that such Lender
will not make the amount that would constitute its share of such borrowing
available to the Administrative Agent, the Administrative Agent may assume that
such Lender is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available to
the Administrative Agent. A certificate of the Administrative Agent submitted to
any Lender with respect to any amounts owing under this Section 4.8 shall be
conclusive in the absence of manifest error. If such Lender's share of such
borrowing is not made available to the Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the Administrative Agent
shall notify the Borrower of the failure of such Lender to make such amount
available to the Administrative Agent and the Administrative Agent shall also be
entitled to recover, on demand from the Borrower, such amount with interest
thereon at a rate per annum equal to the ABR plus the Applicable Margin for ABR
Loans in effect on the Borrowing Date.
4.9 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note or any Eurodollar Loan made by
it, or change the basis of taxation of payments to such Lender in respect
thereof (except for Non-Excluded Taxes covered by Section 4.10, net income
taxes and franchise taxes (imposed in lieu of net income taxes));
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of funds
by, any office of such Lender which is not otherwise included in the
determination of the Eurodollar Rate; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost or reduce the
amount receivable to such Lender, by an amount which such Lender deems to be
material, of making, converting into, continuing or maintaining Eurodollar Loans
or to reduce any amount receivable hereunder in respect thereof, then, in any
such case, the Borrower shall promptly pay such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or reduced amount
receivable.
(b) If any Lender shall have reasonably determined that the adoption
of or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount reasonably deemed by
such Lender to be material, then from time to time, the Borrower shall promptly
pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction.
<PAGE>
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this Section 4.9, it shall promptly deliver a certificate to the
Borrower (with a copy to the Administrative Agent), setting forth in reasonable
detail an explanation of the basis for requesting such compensation. Such
certificate as to any additional amounts payable pursuant to this Section 4.9
submitted by such Lender to the Borrower (with a copy to the Administrative
Agent) must be delivered to the Borrower prior to the termination of this
Agreement and shall be conclusive in the absence of manifest error. The Borrower
shall pay each Lender the amount shown as due on any such certificate delivered
by it within 15 days after the Borrower's receipt thereof. The agreements in
this Section 4.9 shall survive the termination of this Agreement and the payment
of the Loans and all other amounts payable hereunder.
4.10 Taxes. (a) All payments made by the Borrower under this
Agreement and any Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding (i) net income taxes; (ii) franchise and doing
business taxes imposed on the Administrative Agent or any Lender as a result of
a present or former connection between the Administrative Agent or such Lender
and the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any Note); (iii) any taxes, levies,
imposts, deductions, charges or withholdings that are in effect and that would
apply to a payment to such Lender as of the Effective Date; and (iv) if any
Person acquires any interest in this Agreement or any Note pursuant to the
provisions hereof, including without limitation a participation (whether or not
by operation of law), or a foreign Lender changes the office in which the Loan
is made, accounted for or booked (any such Person or such foreign Lender in that
event being referred to as a "Tax Transferee"), any taxes, levies, imposts,
deductions, charges or withholdings to the extent that they are in effect and
would apply to a payment to such Tax Transferee as of the date of the
acquisition of such interest or change in office, as the case may be. If any
such non-excluded taxes, levies, imposts, duties, charges, fees deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder or under any Note,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Non-U.S. Lender if such Lender fails to
comply with the requirements of paragraph (b) of this Section. Whenever any
Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. If, when the Borrower is required by this Section 4.10(a) to pay any
Non-Excluded Taxes, the Borrower fails to pay such Non-Excluded Taxes when due
to the appropriate taxing authority or fails to remit to the Administrative
Agent the required receipts or other required documentary evidence, the Borrower
shall indemnify the Administrative Agent and the Lenders for any incremental
taxes, interest or penalties that may become payable by the Administrative Agent
or any Lender as a result of any such failure.
<PAGE>
(b) Each Lender (or Transferee) that is not a citizen or resident of
the United States of America, a corporation, partnership or other entity created
or organized in or under the laws of the United States of America, or any estate
or trust that is subject to federal income taxation regardless of the source of
its income (a "Non-U.S. Lender") shall deliver to the Borrower and the
Administrative Agent (or, in the case of a Participant, to the Lender from which
the related participation shall have been purchased) two copies of either U.S.
Internal Revenue Service Form 1001 or Form 4224, or, in the case of a Non-U.S.
Lender claiming exemption from U.S. federal withholding tax under Section 871(h)
or 881(c) of the Code with respect to payments of "portfolio interest", a Form
W-8, or any subsequent versions thereof or successors thereto (and, if such
Non-U.S. Lender delivers a Form W-8, an annual certificate representing that
such Non-U.S. Lender (i) is not a "bank" for purposes of Section 881(c) of the
Code (and is not subject to regulatory or other legal requirements as a bank in
any jurisdiction, and has not been treated as a bank in any filing with or
submission made to any Governmental Authority or rating agency), (ii) is not a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code)
of the Borrower and (iii) is not a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Code)), properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
from, U.S. federal withholding tax on all payments by the Borrower under this
Agreement and the other Loan Documents, along with such other additional forms
as the Borrower, the Administrative Agent (or, in the case of a Participant, the
Lender from which the related participation shall have been purchased) may
reasonably request to establish the availability of such exemption. Such forms
shall be delivered by each Non-U.S. Lender on or before the date it becomes a
party to this Agreement (or, in the case of any Participant, on or before the
date such Participant purchases the related participation). In addition, each
Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Lender. Each
Non-U.S. Lender shall promptly notify the Borrower at any time it determines
that it is no longer in a position to provide any previously delivered
certificate to the Borrower (or any other form of certification adopted by the
U.S. taxing authorities for such purpose). Notwithstanding any other provision
of Section 4.10, a Non-U.S. Lender shall not be required to deliver any form
pursuant to this Section 4.10(b) that such Non-U.S. Lender is not legally able
to deliver, it being understood and agreed that, in the event that a Non-U.S.
Lender fails to deliver any forms otherwise required to be delivered pursuant to
this Section 4.10(b), or notifies the Borrower that any previously delivered
certificate is no longer in force, the Borrower shall withhold such amounts as
the Borrower shall reasonably determine are required by law and shall not be
required to make any additional payment with respect thereto to the Non-U.S.
Lender, unless such failure to deliver or notify is a result of change in law
subsequent to the date hereof.
<PAGE>
(c) If a Lender (or Transferee) or the Administrative Agent shall
become aware that it is entitled to receive a refund in respect of Non-Excluded
Taxes paid by the Borrower, or as to which it has been indemnified by the
Borrower, which refund in the good faith judgment of such Lender (or Transferee)
is allocable to such payment made pursuant to this Section 4.10, it shall
promptly notify the Borrower of the availability of such refund and shall,
within 30 days after receipt of a request by the Borrower, apply for such
refund. If any Lender (or Transferee) or the Administrative Agent receives a
refund in respect of any Non-Excluded Taxes paid by the Borrower, or as to which
it has been indemnified by the Borrower, which refund in the good faith judgment
of such Lender (or Transferee) is allocable to such payment made pursuant to
this Section 4.10, it shall promptly notify the Borrower of such refund and
shall, within 15 days after receipt, repay such refund to the Borrower. The
agreements in this Section 4.10 shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
4.11 Indemnity. (a) The Borrower agrees to indemnify each Lender and
to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (i) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (ii) default by the Borrower in making any
prepayment of Eurodollar Loans after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (iii) the making of a
prepayment of Eurodollar Loans on a day which is not the last day of an Interest
Period with respect thereto. Such indemnification may include an amount equal to
the excess, if any, of (i) the amount of interest which would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment or of such failure to borrow, convert or
continue to, but not including, the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate
of interest for such Loans provided for herein over (ii) the amount of interest
(as reasonably determined by such Lender) which would have accrued to such
Lender on such amount by placing such amount on deposit for a comparable period
with leading banks in the London interbank eurodollar market.
(b) If (i) any payment of principal of any Competitive Loan is made
other than on the last day of the Interest Period relating to such Competitive
Loan for any reason or (ii) the Borrower fails to (A) fulfill on the date of any
proposed borrowing of Competitive Loans the applicable conditions set forth in
Section 2.6 or the conditions precedent set forth in Section 6 or (B) make a
borrowing of Competitive Loans after it shall have accepted any Competitive Bid
with respect thereto in accordance with Section 2.6, the Borrower shall
indemnify each Lender against, and shall pay directly to such Lender on such
Lender's demand the amount (calculated by such Lender using any method chosen by
such Lender which customarily is used by such Lender for such purpose) equal to,
any losses or reasonable expenses such Lender actually incurs as a result of
such payment or failure, including (A) the costs and expenses incurred by such
Lender in connection with, or by reason of, such event (including those
attributable to the liquidation, employment or reemployment of deposits or other
funds) and (B) the net amount of operating margin actually lost by such Lender.
(c) The provisions of this Section 4.11 shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
<PAGE>
4.12 Change of Lending Office. Each Lender agrees that if it makes
any demand for payment under Section 4.9 or 4.10(a), it will use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to it, as
determined in its sole discretion) to designate a different lending office if
the making of such a designation would reduce or obviate the need for the
Borrower to make payments under Section 4.9 or 4.10(a) or would eliminate or
reduce the effect of any adoption or change described in Section 4.9.
4.13 Replacement of Lenders under Certain Circumstances. The
Borrower shall be permitted to replace any Lender which requests reimbursement
for amounts owing pursuant to Section 4.9 or 4.10 (either for its own account or
for the account of any of its participants), with a replacement financial
institution; provided that (i) such replacement does not conflict with any
Requirement of Law, (ii) no Event of Default shall have occurred and be
continuing at the time of such replacement, (iii) prior to any such replacement,
such Lender shall have taken no action under Section 4.12 so as to eliminate the
continued need for payment of amounts owing pursuant to Section 4.9 or 4.10,
(iv) the Borrower shall repay (or the replacement financial institution shall
purchase, at par) all Loans and other amounts owing to such replaced Lender on
or prior to the date of replacement, (v) the Borrower shall be liable to such
replaced Lender under Section 4.11 if any Eurodollar Loan owing to such replaced
Lender shall be prepaid (or purchased) other than on the last day of the
Interest Period relating thereto, (vi) the replacement financial institution, if
not already a Lender, shall be reasonably satisfactory to the Administrative
Agent, (vii) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 11.6 (provided that the Borrower shall
be obligated to pay the registration and processing fee referred to therein),
(viii) until such time as such replacement shall be consummated, the Borrower
shall pay all additional amounts (if any) required pursuant to Section 4.9 or
4.10, as the case may be, and (ix) any such replacement shall not be deemed to
be a waiver of any rights which the Borrower, the Administrative Agent or any
other Lender shall have against the replaced Lender.
4.14 Illegality. If, after the date of this Agreement, the adoption
of any Requirement of Law or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof, or compliance by any Lender
with any request or directive of any such authority, central bank or comparable
agency, shall make it unlawful or impossible for any Lender to make, maintain or
fund its Eurodollar Loans, and such Lender shall so notify the Administrative
Agent, then until such Lender notifies the Administrative Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Lender to make Eurodollar Loans or to convert ABR Loans to Eurodollar
Loans, shall be suspended. If such Lender shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Eurodollar Loans
to maturity and shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each such Loan together
with accrued interest thereon without premium or penalty (subject, however, to
the Borrower's other obligations hereunder in respect of funding losses and
other matters); provided that concurrently with prepaying each Committed Loan
the affected Borrower may borrow a ABR Loan in an equal principal amount from
such Lender. Any Lender that has given a notice of unlawfulness pursuant to this
Section 4.14 shall rescind such notice promptly upon the cessation of such
unlawfulness by giving notice to the Administrative Agent.
<PAGE>
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans and to issue Letters of Credit, the
Borrower hereby represents and warrants to the Administrative Agent and each
Lender that:
5.1 Financial Condition. (a) The consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as at December 31, 1995 and the
related consolidated statements of income and of cash flows for the fiscal year
ended on such date, reported on by Ernst & Young, L.L.P., copies of which have
heretofore been furnished to each Lender, present fairly in all material
respects the consolidated financial condition of the Borrower and its
Consolidated Subsidiaries as at such date, and the consolidated results of their
operations and their consolidated cash flows for the fiscal year then ended. All
such financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by such accountants and as disclosed
therein). Neither the Borrower nor any of its Consolidated Subsidiaries had, as
of December 31, 1995, any material Guarantee Obligation, contingent liability or
liability for taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any interest rate or foreign currency
swap or exchange transaction, which is not reflected in the foregoing statements
or in the schedules or notes thereto. Except as set forth on Schedule 5.1,
during the period from December 31, 1995 to and including the date hereof there
has been no sale, transfer or other disposition by the Borrower or any of its
Consolidated Subsidiaries of any material part of its or their business, assets
or property and no purchase or other acquisition of any business, assets or
property (including any Capital Stock of any other Person) material in relation
to the consolidated financial condition of the Borrower and its Consolidated
Subsidiaries at December 31, 1995.
(b) The financial statements of the Borrower and its Consolidated
Subsidiaries and other information most recently delivered under Sections 7.1(a)
and (b) were prepared in accordance with GAAP (except in the case of interim
statements which shall be without footnotes) and present fairly the consolidated
financial condition, results of operations, and cash flows of the Borrower and
its Consolidated Subsidiaries as of, and for the portion of the fiscal year
ending on the date or dates thereof (subject in the case of interim statements
only to normal year-end audit adjustments). There were no liabilities, direct or
indirect, fixed or contingent, of the Borrower or its Consolidated Subsidiaries
as of the date or dates of such financial statements which are material to the
Borrower and the Subsidiaries, taken as a whole, and which are not reflected
therein, or in the case of the annual statements, in the notes thereto. Except
for transactions directly related to, or specifically contemplated by, the Loan
Documents, there have been no changes in the consolidated financial condition of
the Borrower and/or its Consolidated Subsidiaries from that shown in such
financial statements after such date which could reasonably be expected to have
a Material Adverse Effect, nor has the Borrower or any Consolidated Subsidiary
incurred any liability (including, without limitation, any liability under any
Environmental Law), direct or indirect, fixed or contingent, after such date
which could reasonably be expected to have a Material Adverse Effect.
<PAGE>
(c) On and after the date of delivery to the Administrative Agent of
such financial statements pursuant to Section 6.2(g), the consolidated balance
sheets of Park and the Subsidiaries of Park and the related consolidated
statements of income and of cash flows for the fiscal years ended as reflected
therein, to the best knowledge of the Borrower present fairly in all material
respects the consolidated financial condition of Park and the Subsidiaries of
Park as at such dates, and the consolidated results of their operations and
their consolidated cash flows for the fiscal years then ended as reflected
therein. To the best knowledge of the Borrower, all such financial statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP (except in the case of interim statements which shall be
without footnotes) applied consistently throughout the periods involved (except
as approved by the accountants and as disclosed therein). To the best knowledge
of the Borrower, neither Park nor any of the Subsidiaries of Park had, as of the
dates covered in such financial statements, any material Guarantee Obligation,
contingent liability or liability for taxes, or any long-term lease or unusual
forward or long-term commitment, including, without limitation, any interest
rate or foreign currency swap or exchange transaction, which is not reflected in
the foregoing statements or in the schedules or notes thereto. During the period
from December 31, 1995 to and including the date of the consummation of the
Merger there has been no sale, transfer or other disposition by Park or any of
the Subsidiaries of Park of any material part of its or their business, assets
or property other than as reflected in the financial statements to be delivered
to the Administrative Agent pursuant to Section 6.2(g) and no purchase or other
acquisition of any business, assets or property (including any Capital Stock of
any other Person) material in relation to the consolidated financial condition
of Park and the Subsidiaries of Park at December 31, 1995.
5.2 No Change. Since December 31, 1995 there has been no development
or event which has had or could reasonably be expected to have a Material
Adverse Effect.
5.3 Existence; Compliance with Law. The Borrower and each of its
Subsidiaries (a) is duly organized, validly existing and, where applicable, in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate, limited liability company or partnership power and authority, and
the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged,
(c) is duly qualified and, where applicable, in good standing under the laws of
each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification, except where the failure to
be so qualified could not reasonably be expected to have a Material Adverse
Effect, and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith could not reasonably be expected to
have a Material Adverse Effect.
<PAGE>
5.4 Power; Authorization; Enforceable Obligations. Each Loan Party
has the power and authority, and the legal right, to make, deliver and perform
each of the Loan Documents to which it is a party and, in the case of the
Borrower, (i) to borrow hereunder and (ii) to enter into and perform its
obligations under the Merger Agreement, and has taken all necessary corporate or
partnership action to authorize the execution, delivery and performance of each
of the Loan Documents to which it is a party and, in the case of the Borrower,
to authorize the (x) borrowings on the terms and conditions of this Agreement
and (y) Merger on the terms and conditions of the Merger Agreement. No consent
or authorization of, filing with, notice to or other act by or in respect of,
any Governmental Authority or any other Person (including any partner or
shareholder of any Loan Party or any Affiliate of any Loan Party) is required to
be obtained or made by any Loan Party or any Subsidiary of any Loan Party in
connection with the borrowings hereunder or the Merger (other than those that
are not material to the Merger) or with the execution, delivery, performance,
validity or enforceability of the Loan Documents or the Merger Agreement, other
than such as have been obtained or made and are in full force and effect. Each
Loan Document to which each Loan Party is a party and, in the case of the
Borrower, the Merger Agreement, has been duly executed and delivered on behalf
of each such Loan Party and the Borrower, respectively. Each Loan Document and,
in the case of the Borrower, the Merger Agreement, constitutes a legal, valid
and binding obligation of each Loan Party party thereto, and the Borrower,
respectively, enforceable against each such Loan Party in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent transfer or
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally.
5.5 No Legal Bar. (a) The execution, delivery and performance of the
Loan Documents by the Loan Parties thereto, the borrowings hereunder and the use
of the proceeds thereof will not (i) violate, result in a default under or
conflict with any Requirement of Law, any material Contractual Obligation of, or
any judgment, injunction, order or decree binding upon, the Borrower or of any
of its Subsidiaries, including but not limited to the Borrower Senior Note
Documents, and after the Merger, the Park Debt Documents and (ii) will not
result in a default under, or result in or require the creation or imposition of
any Lien on any of their respective properties or revenues pursuant to, any such
Requirement of Law or Contractual Obligation.
(b) The execution, delivery and performance by the Borrower of the
Merger Agreement and the consummation of the Merger does not and will not: (i)
violate any provision of law applicable to the Borrower, any Subsidiary of the
Borrower, Park, any Subsidiary of Park or any other Loan Party, the certificate
of incorporation or bylaws of the Borrower, the Subsidiaries of the Borrower,
Park, any Subsidiary of Park or any other Loan Party, or any order, judgment or
decree of any court or other agency of government binding on the Borrower, any
Subsidiary of the Borrower, Park, any Subsidiary of Park or any other Loan
Party; (ii) conflict with, result in a breach of or constitute (with due notice
or lapse of time or both) a default under any material Contractual Obligation of
the Borrower, of any Subsidiary of the Borrower, Park, any Subsidiary of Park or
<PAGE>
of any other Loan Party except those defaults which could not reasonably be
expected to cause a Company Material Adverse Effect, but specifically including
but not limited to the Borrower Senior Note Documents and the Park Debt
Documents; (iii) result in or require the creation or imposition of any Lien
upon any of the properties or assets of the Borrower, any Subsidiary of the
Borrower, Park, any Subsidiary of Park or any other Loan Party; or (iv) require
any approval or consent of any Person under any material Contractual Obligation
of the Borrower, any Subsidiary of the Borrower, Park, any Subsidiary of Park or
any other Loan Party, except for such approvals or consents to be obtained on or
before the consummation of the Merger or the absence of which could not
reasonably be expected to cause a Company Material Adverse Effect.
5.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of its Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby, or (b) which could reasonably be
expected to have a Material Adverse Effect. No attachment, prejudgment or
judgment Lien encumbers any asset of the Borrower or any of its Subsidiaries
other than in respect of (i) claims as to which payment in full above any
applicable customary deductible is covered by insurance or a bond or (ii) other
claims aggregating not more than $10,000,000.
5.7 No Default. The Borrower is not in default (and no condition
exists which would constitute a default with the giving of notice or the passage
of time) under or with respect to the Borrower Senior Note Debt. Neither the
Borrower nor any of its Subsidiaries is in default (and no condition exists
which would constitute a default with the giving of notice or the passage of
time) under or with respect to any of its Contractual Obligations in any respect
which could reasonably be expected to have a Material Adverse Effect or under or
with respect to any agreements relating to Capital Stock of the Borrower or any
of its Subsidiaries. No Default or Event of Default has occurred and is
continuing. On and after the Merger and for so long as the Park Debt is
outstanding, no default exists (and no condition exists which would constitute a
default with the giving of notice or the passage of time) under any of the Park
Debt Documents.
5.8 Ownership of Property; Intellectual Property. (a) Each of the
Borrower and its Subsidiaries has good record and indefeasible title in fee
simple to, or a valid leasehold interest in, in all material respects, in all
its real property, and good title to, or a valid leasehold interest in, in all
material respects, in all its other material property, and none of the property
of the Borrower or of its Subsidiaries is subject to any Lien except as
permitted by Section 8.3.
(b) The Borrower and its Subsidiaries have the right to use all
trademarks, tradenames, copyrights, technology, know-how or processes
("Intellectual Property") that are necessary for the conduct of its business as
currently conducted except for those which the failure to own or license could
not reasonably be expected to have a Material Adverse Effect. No material claim
has been asserted and is pending by any Person challenging or questioning the
use of any such Intellectual Property or the validity or effectiveness of any
such Intellectual Property, nor does the Borrower know of any valid basis for
any such claim. To the knowledge of the Borrower, the use of such Intellectual
Property by the Borrower and its Subsidiaries does not infringe on the rights of
any Person, except for such claims and infringements that, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
<PAGE>
5.9 No Burdensome Restrictions. No Requirement of Law or Contractual
Obligation of the Borrower or any of its Subsidiaries could reasonably be
expected to have a Material Adverse Effect.
5.10 Taxes. (a) (i) Each of the Borrower and its Subsidiaries has
filed or caused to be filed all tax returns which are required to be filed and
has paid all taxes shown to be due and payable by it on said returns and all
other material taxes, fees or other charges (collectively, the "Specified
Taxes") imposed on it or any of its property by any Governmental Authority due
and payable by it and (ii) to the knowledge of the Borrower, no material claim
is being asserted with respect to any Specified Tax, other than, in each case
with respect to this clause (a), Specified Taxes the amount or validity of which
are currently being contested in good faith by appropriate proceedings
diligently pursued and with respect to which reserves in conformity with GAAP
have been provided on the books of the Borrower or the relevant Subsidiary, as
the case may be, and (b) no tax Lien has been filed with respect to any
Specified Tax other than as permitted pursuant to Section 8.3(a).
5.11 Federal Regulations. No part of the proceeds of any Loans will
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation G or Regulation U of the
Board as now and from time to time hereafter in effect. If requested by any
Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form G-3 or FR Form U-1 referred to in
said Regulation G or Regulation U, as the case may be.
5.12 ERISA. Except as, in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect: (a) neither a Reportable Event
nor an "accumulated funding deficiency" (within the meaning of Section 412 of
the Code or Section 302 of ERISA) has occurred during the five-year period prior
to the date on which this representation is made or deemed made with respect to
any Plan, and each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code; (b) no termination of a Single
Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan has
arisen, during such five-year period; (c) the present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to the date
on which this representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits; (d) neither the Borrower
nor any Commonly Controlled Entity has had a complete or partial withdrawal from
any Multiemployer Plan, and neither the Borrower nor any Commonly Controlled
Entity would become subject to any liability under ERISA if the Borrower or any
such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date on
which this representation is made or deemed made; and (e) no such Multiemployer
Plan is in Reorganization or Insolvent.
<PAGE>
5.13 Investment Company Act; Other Regulations. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. Neither
the Borrower nor any of its Subsidiaries is a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended. No Loan
Party is subject to regulation under any Federal or State statute or regulation
(other than Regulation X of the Board) which limits its ability to incur
Indebtedness under this Agreement or the other Loan Documents.
5.14 Capital Stock and Subsidiaries. (a) All Capital Stock,
debentures, bonds, notes and all other securities of the Borrower and its
Subsidiaries presently issued and outstanding are validly issued in accordance
with all applicable laws including, but not limited to, the "Blue Sky" laws of
all applicable states and the federal securities laws.
(b) Schedule 5.14 (as supplemented by the Borrower from time to time
as required in Section 7.10) sets forth a true and complete list of (i) each of
the Subsidiaries of the Borrower and their jurisdictions of incorporation,
including a list of those entities to be acquired in connection with the Park
Acquisition and their jurisdictions of incorporation; and (ii) the authorized
Capital Stock of each of the Loan Parties (identifying the direct owner thereof
other than with respect to the Borrower) and the percentage ownership (direct
and indirect) of the Borrower in each class of Capital Stock of each of its
Subsidiaries, including the percentage ownership (direct and indirect) of the
Borrower in each class of Capital Stock of Park and each of the Subsidiaries of
Park (identifying the direct owner thereof), after the Merger.
(c) The outstanding shares of Capital Stock of (i) the Borrower and
each Subsidiary and (ii) immediately after the Merger, of Park and of Park's
Subsidiaries, have been duly authorized and validly issued and are fully paid
and non-assessable, and, except as otherwise indicated on Schedule 5.14 or as
permitted under Sections 8.5 or 8.8, all of the outstanding shares of each class
of the Capital Stock of (i) each Subsidiary and (ii) after the Merger, of Park
and Park's Subsidiaries, are owned, directly or indirectly, beneficially and of
record, by the Borrower, free and clear of any Liens or adverse claim.
(d) The Capital Stock of each of the Loan Parties (other than the
Capital Stock of the Borrower), and after the Merger, of Park and each of the
Subsidiaries of Park is owned by the stockholders and in the amounts set forth
on Schedule 5.14 (as supplemented by the Borrower from time to time as required
in Section 7.10). No shares of the Capital Stock of any Loan Party, Park or any
Subsidiaries of Park, other than those described above, are issued and
outstanding. There are no preemptive or other outstanding rights, options,
warrants, conversion rights or similar agreements or understandings for the
purchase or acquisition from any Loan Party (other than the Borrower), Park or
any Subsidiaries of Park of any shares of Capital Stock or other securities of
any such entity other than with respect to PCI, the Park Warrants.
<PAGE>
(e) With respect to the Borrower, there are no preemptive or other
outstanding rights, options, warrants, conversion rights or similar agreements
or understandings with respect to the Capital Stock of the Borrower which if
exercised could cause a Default or an Event of Default hereunder.
5.15 Insurance. Each Loan Party maintains with financially sound,
responsible, and reputable insurance companies or associations (or, as to
workers' compensation or similar insurance, with an insurance fund or by
self-insurance authorized by the jurisdictions in which it operates) insurance
covering its properties and businesses against such casualties and contingencies
and of such types and in such amounts (and with co-insurance and deductibles) as
is customary in the case of same or similar businesses.
5.16 Authorizations. Except as could not reasonably be expected to
result in a Material Adverse Effect:
(a) the Borrower and its Subsidiaries possess all Authorizations
necessary for the operations of their businesses and are not in violation
thereof. All such Authorizations are in full force and effect and no event
has occurred that permits, or after notice or lapse of time could permit,
the revocation, termination (other than an expiration by its terms) or
material and adverse modification of any such Authorization;
(b) neither the Borrower nor any of its Subsidiaries is in violation
of any duty or obligation required by the Communications Act of 1934, as
amended, or any FCC rule or regulation applicable to it;
(c) there is not pending or, to the best knowledge of the Borrower,
threatened, any action by the FCC to revoke, cancel, suspend or refuse to
renew any FCC License held by the Borrower or any of its Subsidiaries,
provided that the ownership of any FCC licensed radio station or
television station following public notice of an initial decision by the
FCC (as opposed to a FCC final order) to grant all or part of an
application or request (i) to consent to the transfer of control or
assignment of any FCC license, (ii) to grant a temporary waiver of any
applicable FCC rule or regulation, and/or (iii) otherwise to permit such
ownership by valid temporary action, shall not be a breach of this
representation.
(d) There is not pending or, to the best knowledge of the Borrower,
threatened, any action by the FCC to modify adversely, revoke, cancel,
suspend or refuse to renew any other Authorization; and
(e) there is not issued or outstanding or, to the best knowledge of
the Borrower, threatened, any notice of any hearing, violation or
complaint against the Borrower or any of its Subsidiaries with respect to
the operation of their businesses.
5.17 Environmental Matters. Except as could not reasonably be
expected to result in a Material Adverse Effect:
<PAGE>
(a) the facilities and properties owned, leased or operated by the
Borrower or any of its Subsidiaries (the "Properties") do not contain,
and, to the knowledge of the Borrower to the extent not owned, leased or
operated during the past five years, have not contained during the past
five years, any Materials of Environmental Concern in amounts or
concentrations which constitute or constituted a violation of, or could
reasonably be expected to give rise to liability under, any Environmental
Law;
(b) the Properties and all operations at the Properties are in
compliance, and, to the knowledge of the Borrower to the extent not owned,
leased or operated during the past five years, have in the last five years
been in compliance, with all applicable Environmental Laws, and there is
no contamination at, under or about the Properties or violation of any
Environmental Law with respect to the Properties or the business operated
by the Borrower or any of its Subsidiaries (the "Business") which could
interfere with the continued operation of the Properties or impair the
fair saleable value thereof;
(c) neither the Borrower nor any of its Subsidiaries has received
any notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business,
nor does the Borrower have any knowledge that any such notice will be
received or is being threatened;
(d) the Borrower has not transported or disposed of Materials of
Environmental Concern nor, to the Borrower's knowledge, have Materials of
Environmental Concern been transported or disposed of from the Properties
in violation of, or in a manner or to a location which could reasonably be
expected to give rise to liability to the Borrower or any Subsidiary
under, any Environmental Law, nor has the Borrower generated any Materials
of Environmental Concern nor, to the Borrower's knowledge, have Materials
of Environmental Concerns been generated, treated, stored or disposed of
at, on or under any of the Properties in violation of, or in a manner that
could reasonably be expected to give rise to liability to the Borrower or
any Subsidiary under, any applicable Environmental Law;
(e) no judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will be
named as a party with respect to the Properties or the Business, nor are
there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any applicable Environmental Law with respect to the
Properties or the Business; and
<PAGE>
(f) the Borrower has not released, nor, to the Borrower's knowledge,
has there been any release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or
related to the operations of the Borrower or any Subsidiary in connection
with the Properties or otherwise in connection with the Business, in
violation of or in amounts or in a manner that could reasonably be
expected to give rise to liability under Environmental Laws.
5.18 Accuracy of Projections. All pro forma financial information
and projections made available to the Administrative Agent or any Lender by the
Borrower pursuant to this Agreement or any other Loan Document have been
prepared and furnished to the Administrative Agent or such Lender in good faith
and were based on estimates and assumptions that were believed by the management
of the Borrower to be reasonable in light of the then current and foreseeable
business conditions of the Borrower and its Subsidiaries. The Administrative
Agent and the Lenders recognize that such pro forma financial information and
projections and the estimates and assumptions on which they are based may or may
not prove to be correct.
5.19 Solvency. As of the date on which this representation and
warranty is made or deemed made, each Loan Party is Solvent, both before and
after giving effect to the transactions contemplated hereby consummated on such
date and to the incurrence of all Indebtedness and other obligations incurred on
such date in connection herewith and therewith.
5.20 Indebtedness. (a) Neither the Borrower, nor any of its
Subsidiaries is an obligor on any Indebtedness except as permitted under Section
8.2.
(b) On and after the Merger and until the earlier to occur of (i)
the Payment Date and (ii) the payment in full of the Park Debt and the
termination of the Park Debt Documents, neither Park nor any of the Subsidiaries
of Park is an obligor on any Indebtedness for Borrowed Money, other than (x) the
Park Debt and (y) Indebtedness evidenced by certain promissory notes with an
aggregate outstanding principal balance of not more than $1,000,000.
(c) The Borrower Senior Note Documents do not conflict with, or
contain any terms or conditions any more restrictive than, the terms and
conditions of this Agreement and the other Loan Documents.
5.21 Labor Matters. There are no actual or overtly threatened
strikes, labor disputes, slow downs, walkouts, or other concerted interruptions
of operations by the employees of any Loan Party which could reasonably be
expected to have a Material Adverse Effect. Hours worked by and payment made to
employees of the Loan Parties have not been in violation of the Fair Labor
Standards Act or any other applicable law dealing with such matters, other than
any such violations, individually or collectively, which could not reasonably be
expected to have a Material Adverse Effect. All payments due from any Loan Party
on account of employee health and welfare insurance have been paid or accrued as
a liability on its books, other than any such nonpayments which could not,
individually or collectively, reasonably be expected to have a Material Adverse
Effect.
<PAGE>
5.22 Full Disclosure. There is no material fact or condition
relating to the Loan Documents or the financial condition, business, or property
of any Loan Party which could reasonably be expected to have a Material Adverse
Effect and which has not been disclosed, in writing, to the Managing Agents and
the Lenders.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Extensions of Credit. The agreement of
each Lender to make the initial extension of credit requested to be made by it
hereunder is subject to the satisfaction, immediately prior to or concurrently
with the making of such extension of credit, of the following conditions
precedent:
(a) Loan Documents. The Administrative Agent shall have received (i)
this Agreement, duly executed and delivered by the Borrower, (ii) any and
all Notes requested by the Lenders, duly executed and delivered by the
Borrower, payable to each such requesting Lender and (iii) the Guaranty of
each Subsidiary, duly executed and delivered by each such Subsidiary.
(b) Closing Certificate. The Administrative Agent shall have
received a certificate (a "Closing Certificate") of each Loan Party, dated
the date of the initial extension of credit hereunder, substantially in
the form of Exhibit H-1, with appropriate insertions and attachments, in
each case reasonably satisfactory in form and substance to the
Administrative Agent, executed by a Responsible Officer and the Secretary
or any Assistant Secretary of the appropriate Loan Party.
(c) Fees. The Administrative Agent shall have received all fees and
expenses required to be paid on or before the date hereof referred to in
Section 4.3(b).
(d) Legal Opinions. The Administrative Agent shall have received,
with a counterpart for each Lender, the executed legal opinion of the
General Counsel of the Loan Parties, substantially in the form of Exhibit
I and covering such additional matters relating to the transactions
contemplated hereby as the Administrative Agent or any Lender may
reasonably request.
(e) Financial Statements. The Lenders shall have received audited
consolidated financial statements of the Borrower for the 1995 fiscal
year, which financial statements shall have been prepared in accordance
with GAAP and shall be accompanied by an unqualified report thereon
prepared by Ernst & Young, L.L.P.
(f) Satisfactory Organizational and Capital Structure. The stock
ownership of each of the Subsidiaries shall be consistent with the
structure described in Schedule 5.14.
<PAGE>
(g) Termination of the Existing Credit Agreement. The Borrower shall
provide evidence to the Administrative Agent that (i) the Existing Credit
Agreement shall be terminated, (ii) all liens created in connection
therewith, if any, shall be terminated and (iii) all Indebtedness
outstanding thereunder has been paid in full, in each case concurrently
with the making of the initial extensions of credit hereunder.
(h) Governmental and Third Party Approvals. All governmental
approvals and material third party approvals necessary in connection with
the financing contemplated hereby shall have been obtained and be in full
force and effect.
(i) Borrower Senior Note Debt. The Borrower shall either (i) provide
evidence to the Administrative Agent that the Borrower Senior Note Debt
shall have been paid in full and the Borrower Senior Note Documents and
all liens relating thereto shall have been terminated, in each case
concurrently with the making of the initial extensions of credit
hereunder, or (ii) provide the Administrative Agent with (x) fully
executed amendments to the Borrower Senior Note Documents, in form and
substance reasonably satisfactory to the Administrative Agent and (y) an
Intercreditor Agreement fully executed by the holders of the Borrower
Senior Note Debt and the Lenders, in form and substance satisfactory to
the Administrative Agent.
(j) Amendments to Other Indebtedness. The Administrative Agent shall
have received fully executed amendments to the Indebtedness listed on
Schedule 8.2(e), in form and substance satisfactory to the Administrative
Agent.
(k) Additional Documentation. All other documentation, including,
without limitation, any tax sharing agreement, employment agreement,
management compensation arrangement or other financing arrangement, of the
Borrower or any of its Subsidiaries shall be reasonably satisfactory in
form and substance to the Lenders.
(l) Compliance Certificate. The Administrative Agent shall have
received a Compliance Certificate, executed by the Borrower, demonstrating
in a manner reasonably satisfactory to the Administrative Agent, pro forma
compliance with the financial covenants (based on the last day of the most
recently ended fiscal quarter) set forth in Section 8.1 as of the date of
the initial extension of credit hereunder.
6.2 Conditions to Extensions of Credit Relating to the Merger or the
Redemption, Defeasance or Retirement of the Park Debt. The Agreement of each
Lender to make extensions of credit relating to the Merger and/or the
redemption, defeasance or retirement of the Park Debt is subject to the
satisfaction, immediately prior to or concurrently with the making of such
extensions of credit, of the following conditions precedent:
(a) Consummation of Merger. For extensions of credit relating to the
Merger, the Administrative Agent shall have received satisfactory evidence
that the Merger shall have been simultaneously consummated for an
aggregate purchase price not to exceed the "Merger Consideration" as that
term is defined in the Merger Agreement, and no material provision thereof
shall have been amended, supplemented, waived or otherwise modified
without the prior written consent of the Majority Lenders.
<PAGE>
(b) Pro Forma Balance Sheets. The Lenders shall have received (i)
reasonably satisfactory projected pro forma balance sheets of the Borrower
and its Subsidiaries (after giving effect to the Merger and the
redemption, defeasance or retirement of the Park Debt, as applicable, and
the financing contemplated hereby) based on the most recently ended fiscal
quarter and (ii) unaudited interim consolidated financial statements of
the Borrower for each fiscal quarter ended during the portion of the 1996
fiscal year preceding such fiscal quarter, and such financial statements
shall not reflect any material adverse change in the consolidated
financial condition of the Borrower as reflected in the 1995 audited
financial statements referred to in Section 6.1 or in the projections
previously delivered to the Lenders.
(c) Governmental and Third Party Approvals. All governmental
approvals and material third party approvals necessary in connection with
the consummation of the Merger shall have been obtained and shall be in
full force and effect, and the filings required by the Hart-Scott-Rodino
Antitrust Improvement Act of 1976, as amended, shall have been made, and
all applicable waiting periods with respect thereto shall have expired
without any action being taken or threatened which would restrain, prevent
or otherwise impose materially adverse conditions on the Merger or the
financing thereof.
(d) No Material Litigation. No litigation, inquiry, injunction or
restraining order shall be pending, entered or threatened in writing which
would reasonably be expected to have a material adverse effect on the
Merger or on the redemption, defeasance or retirement of the Park Debt, as
applicable.
(e) No Material Adverse Effect. For extensions of credit relating to
the Merger, there shall not have occurred any Company Material Adverse
Effect (as such term is defined in the Merger Agreement) since July 19,
1996.
(f) Pro Forma Covenant Compliance and No Default. Prior to any
borrowing related to the consummation of the Merger and prior to any
borrowing related to the redemption, defeasance, retirement or other
payment of the Park Debt, (i) the Administrative Agent shall have received
a Compliance Certificate evidencing the Borrower's pro forma compliance
with Section 8.1 as of the last day of the most recently ended fiscal
quarter, both before and after giving effect to such requested borrowings,
and (ii) no default, or event which with notice or the lapse of time or
both could become a default, shall exist under the Park Debt Documents.
(g) Park Financial Statements. The Borrower shall have delivered
audited financial statements of Park and its Subsidiaries for the fiscal
year ending December 31, 1995 and unaudited financial statements for each
fiscal quarter ended prior to the Merger, in form and substance
satisfactory to the Lenders.
<PAGE>
(h) Authorization. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or
any other Person (including any partner or shareholder or noteholder of
Park or any Subsidiary of Park) shall be required to be obtained or made
by the Borrower, any Subsidiary, Park or any Subsidiary of Park in
connection with the consummation of the Merger or the redemption,
defeasance or other retirement of the Park Debt, other than those that
have been obtained.
(i) Merger Documentation. Concurrently with any borrowing related to
the consummation of the Merger, the Administrative Agent shall have
received satisfactory evidence of (i) the filing of the documents
effecting the Merger and (ii) the issuance of the certificate of merger by
the Corporations Commission of the State of Delaware.
(j) Termination of Contingent Warrants. Concurrently with the
initial extension of credit made for the redemption, defeasance or other
retirement of the Park Debt, the Administrative Agent shall have received
evidence satisfactory to it that a Contingent Warrant Cancellation Event
shall have occurred concurrently with such extension of credit.
(k) Closing Certificate. The Administrative Agent shall have
received a Closing Certificate of the Borrower, dated the date of the
Merger and dated the date of the initial borrowing for the redemption of
the Park Debt, respectively, substantially in the form of Exhibit H-2 with
appropriate insertions and attachments, executed by a Responsible Officer
and the Secretary or Assistant Secretary of the Borrower.
(l) No Default Under Other Agreements. There shall exist no default
(or condition which would constitute such default with the giving of
notice or the passage of time) under (i) any Contractual Obligations of
Park, PCI, PBI, PNI or any of their respective Subsidiaries which could
reasonably be expected to cause a Company Material Adverse Effect, or (ii)
the Park Debt Documents.
6.3 Conditions to Each Extension of Credit. The obligation or
agreement of each Lender to make any Loan or to issue any Letter of Credit
requested to be made or issued by it on any date (including, without limitation,
its initial extension of credit) is subject to the satisfaction, immediately
prior to or concurrently with the making of such Loans or the issuing of such
Letters of Credit, of the following conditions precedent:
(a) No Material Litigation. No litigation, inquiry, injunction or
restraining order shall be pending, entered or threatened in writing which
could reasonably be expected to have a Material Adverse Effect.
(b) No Material Adverse Effect. There shall not have occurred any
change, development or event which could reasonably be expected to have a
Material Adverse Effect.
<PAGE>
(c) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents to
which it is a party shall be true and correct in all material respects on
and as of such date as if made on and as of such date, after giving effect
to the Loans requested to be made or the Letters of Credit to be issued on
such date and the proposed use of the proceeds thereof.
(d) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or will occur after giving effect to the
extension of credit requested to be made on such date and the proposed use
of the proceeds thereof.
(e) Notice of Borrowing; Application. The Borrower shall have
submitted (i) a Notice of Borrowing in accordance with Section 2.3 and/or
2.6 and shall certify to the matters set forth in Section 6.3(a) through
and including (d) and/or (ii) an Application in accordance with Section
3.2.
(f) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be reasonably satisfactory in form and substance to the
Administrative Agent, and the Administrative Agent shall have received
such other documents and legal opinions in respect of any aspect or
consequence of the transactions contemplated hereby or thereby as it shall
reasonably request.
Each borrowing by or issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the applicable conditions contained in
this Section 6 have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as any Commitment remains
in effect, any Loan or Letter of Credit shall be outstanding or any other
Obligation is due and payable to any Lender or the Administrative Agent
hereunder or under any other Loan Document, the Borrower shall and shall cause
each Subsidiary of the Borrower to:
7.1 Financial Statements. Furnish to the Administrative Agent for
subsequent distribution to each Lender:
(a) as soon as available, but in any event within 120 days after the
end of each fiscal year of the Borrower, a copy of the annual reports, on
Form 10-K, which the Borrower is required to file with the Commission
pursuant to Section 13(a), 13(c) or 15(d) of the Securities Exchange Act
of 1934; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three fiscal quarterly periods of each
fiscal year of the Borrower, a copy of the quarterly reports, on Form
10-Q, which the Borrower is required to file with the Commission pursuant
to Section 13(a), 13(c) or 15(d) of the Securities Exchange Act of 1934.
<PAGE>
All such reports shall be complete and correct in all material respects and
shall be prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
(except as approved by the Borrower's accountants or a Responsible Officer, as
the case may be, and disclosed therein). If the Borrower is not required to file
with the Commission such reports and other information referred to in Sections
7.1(a) and (b) above, the Borrower shall furnish (i) within 120 days after the
end of each fiscal year, annual reports containing the information required to
be contained in Form 10-K promulgated under the Securities Exchange Act of 1934,
or substantially the same information required to be contained in comparable
items of any successor form, (ii) within 45 days after the end of each of the
first three fiscal quarters of each fiscal year, quarterly reports containing
the information required to be contained in Form 10-Q promulgated under the
Securities Exchange Act of 1934, or substantially the same information required
to be contained in any successor form and (iii) promptly from the time after the
occurrence of an event required to be therein reported, such other reports
containing information required to be contained in Form 8-K promulgated under
the Securities Exchange Act of 1934, or substantially the same information
required to be contained in any successor form.
7.2 Certificates; Other Information. Furnish to the
Administrative Agent for subsequent distribution to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 7.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 7.1(a) or (b), a Compliance Certificate executed
by a Responsible Officer of the Borrower and each of its Consolidated
Subsidiaries;
(c) without duplication of the financial statements delivered
pursuant to Section 7.1, within five days after the same are sent, copies
of all financial statements and reports which the Borrower sends to the
holders of any class of its debt securities, and within five days after
the same are filed, copies of all financial statements and reports which
the Borrower may make to, or file with, the Securities and Exchange
Commission or any successor or analogous Governmental Authority; and
(d) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
7.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or the relevant Subsidiary, as the case may be.
<PAGE>
7.4 Conduct of Business and Maintenance of Existence, etc. (a)
Continue to engage in businesses of the same general type as now being conducted
by it and related businesses and preserve, renew and keep in full force and
effect its organizational existence and take all reasonable action to maintain
all material rights, privileges and franchises necessary in the normal conduct
of its business except as otherwise permitted pursuant to Section 8.4.
(b) Comply with all Contractual Obligations and applicable
Requirements of Law, except to the extent that failure to comply therewith could
not reasonably be expected to have a Material Adverse Effect.
7.5 Maintenance of Property; Insurance. Keep all material property
useful and necessary in its business in good working order and condition
(ordinary wear and tear excepted) consistent with customary practices in the
applicable industry; maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and against at
least such risks as are usually insured against in the same general area by
companies engaged in the same or a similar business.
7.6 Inspection of Property; Books and Records; Discussions. Keep and
maintain a system of accounting established and administered in accordance with
sound business practices and keep and maintain proper books of record and
accounts; and permit representatives of any Lender to visit and inspect any of
its properties and examine and make abstracts from any of its books and records
during normal business hours and as often as may reasonably be requested and
upon reasonable notice and to discuss the business, operations, properties and
financial and other condition of the Borrower and its Subsidiaries with officers
and employees of the Borrower and its Subsidiaries and with their independent
certified public accountants; provided that representatives of the Borrower
designated by a Responsible Officer may be present at any such meeting with such
accountants.
7.7 Notices. Promptly after the Borrower obtains knowledge thereof,
give notice to the Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the
Borrower or any of its Subsidiaries and any Governmental Authority, which
in either case could reasonably be expected to have a Material Adverse
Effect;
(c) any litigation or proceeding affecting the Borrower or any of
its Subsidiaries (i) which could reasonably be expected to result in an
adverse judgment of $10,000,000 or more and not covered by insurance or
(ii) in which injunctive or similar relief is sought which in the case of
this clause (ii) could reasonably be expected to materially interfere with
the ordinary conduct of business of the Borrower or its Subsidiaries;
<PAGE>
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows thereof: (i) the occurrence of any
material Reportable Event with respect to any Plan, a failure to make any
required contribution to a Plan, the creation of any Lien in favor of the
PBGC or a Plan or any withdrawal from, or the termination, Reorganization
or Insolvency of, any Multiemployer Plan or (ii) the institution of
proceedings or the taking of any other action by the PBGC or the Borrower
or any Commonly Controlled Entity or any Multiemployer Plan with respect
to the withdrawal from, or the terminating, Reorganization or Insolvency
of, any Plan; and
(e) any development or event which could reasonably be expected to
have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action is proposed to be taken with respect thereto.
7.8 Environmental Laws. (a) Comply with, and use reasonable efforts
to require compliance by all tenants and subtenants, if any, with, all
applicable Environmental Laws and obtain and comply with and maintain, and use
reasonable efforts to require that all tenants and subtenants obtain and comply
with and maintain, any and all licenses, approvals, notifications, registrations
or permits required by applicable Environmental Laws except, in each case, to
the extent that failure to do so could not be reasonably expected to have a
Material Adverse Effect.
(b) Comply with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws except to the extent that the same are
being contested in good faith by appropriate proceedings diligently pursued.
7.9 Use of Proceeds. The Borrower shall use the proceeds of the
Loans and the Letters of Credit only (a) to pay in full all obligations and
terminate all agreements relating to the Existing Credit Agreement and, to the
extent the Borrower does not comply with Section 6.1(i)(ii), the Borrower Senior
Note Debt, (b) to finance current and future acquisitions, including the Park
Acquisition, (c) to redeem, defease or otherwise retire up to $476,000,000 of
the Park Debt in connection with the Park Acquisition and to pay any and all
interest (including paid-in-kind notes), fees, penalties and premiums associated
with such redemption, defeasance or other retirement, (d) to finance capital
expenditures, and (e) for general corporate purposes.
<PAGE>
7.10 Subsidiary Guaranty. After the creation or acquisition of a
Subsidiary, (a) promptly notify the Administrative Agent of the existence
thereof, (b) deliver to the Administrative Agent, a revised Schedule 5.14
updating the information reflected therein within ten (10) days after the end of
each fiscal quarter of the Borrower and (c) promptly, cause each such new
Subsidiary to execute and deliver to the Administrative Agent, a Supplement to
Guaranty Agreement, pursuant to which, inter alia, each such new Subsidiary
shall guarantee the Obligations. Notwithstanding the foregoing, PCI, PBI, PNI
and the Subsidiaries of PBI and PNI, respectively, shall not be required to
execute and deliver a Supplement to Guaranty Agreement until the earlier to
occur of (i) the Payment Date and (ii) in the case of PCI, the date the PCI
Senior Notes are paid in full, in the case of PBI and the Subsidiaries of PBI,
the date the PBI Senior Notes are paid in full and, in the case of PNI and the
Subsidiaries of PNI, the date the PNI Senior Notes are paid in full.
7.11 Hedging Requirements. The Borrower will maintain a hedging
agreement to fix at least 25.0% of the amount of Loans, Letters of Credit and
Reimbursement Agreements outstanding, on terms and conditions acceptable to the
Arranging Agents, at all times during any time that the interest rate payable on
U.S. Government Treasury Notes with a maturity of three years or less exceeds
7.5% per annum and the Leverage Ratio is greater than 3.50 to 1.00. The Borrower
shall have 20 days to come into compliance with the provisions of this Section
7.11.
SECTION 8. NEGATIVE COVENANTS
The Borrower agrees hereby that, so long as any Commitment remains
in effect, any Loan or Letter of Credit is outstanding, or any other Obligation
is due and payable to any Lender or the Administrative Agent hereunder or under
any other Loan Document, the Borrower shall not, and the Borrower shall not
permit any of its Subsidiaries to, directly or indirectly:
8.1 Financial Condition Covenants.
(a) Leverage Ratio. Permit the Leverage Ratio, at the end of any
fiscal quarter occurring during any period set forth below, to be greater
than the ratio set forth opposite such period below:
Period Ratio
------ -----
Effective Date through and including 9/30/97 5.25 to 1.00
10/01/97 through and including 12/31/97 5.00 to 1.00
01/01/98 through and including 12/31/98 4.50 to 1.00
01/01/99 through and including 12/31/99 4.00 to 1.00
01/01/2000 and thereafter 3.50 to 1.00
(b) Interest Coverage Ratio. Permit the Interest Coverage Ratio, at
the end of any fiscal quarter occurring during any period set forth below,
to be less than the ratio set forth opposite such period below:
Period Ratio
------ -----
Effective Date through 12/31/98 2.50 to 1.00
01/01/99 and thereafter 3.00 to 1.00
<PAGE>
(c) Minimum Net Worth. Permit Consolidated Net Worth to be less than
90% of Consolidated Net Worth as of September 29, 1996, (A) plus the sum
of (i) 50% of the cumulative Reported Net Income of the Borrower and its
Consolidated Subsidiaries during any period after September 29, 1996
(taken as one accounting period), calculated quarterly but excluding from
such calculations of Reported Net Income for purposes of this clause (i)
any quarter in which the Reported Net Income of the Borrower and its
Consolidated Subsidiaries is negative and (ii) 100% of the cumulative Net
Proceeds of Capital Stock received during any period after September 29,
1996, (B) minus, (i) the after tax net income impact of any cash premiums,
penalties or fees paid by June 30, 1997 in connection with the redemption,
defeasance or other retirement of the Park Debt, not to exceed
$50,000,000, (C) minus, the after tax net income impact of any non-cash
charges related to such redemption, defeasance or other retirement of the
Park Debt, (D) minus, the amount paid for the redemption of the Capital
Stock of the Borrower owned by D. Tennant Bryan in connection with his
death, not to exceed $20,000,000 pursuant to the Redemption Agreement and
subject to Section 8.6.
8.2 Limitation on Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness of the Borrower or any Subsidiary of the Borrower,
except:
(a) Indebtedness arising under this Agreement;
(b) the Park Debt until the Payment Date;
(c) Interest Rate Hedge Agreements entered into with the Lenders or
any of them for the purpose of hedging against interest rate fluctuations
with respect to variable rate Indebtedness of the Borrower or any of its
Subsidiaries;
(d) Indebtedness of the Borrower and/or any Subsidiary not otherwise
permitted by this Section 8.2, provided that immediately prior to and
after giving effect to the creation, incurrence or assumption of such
Indebtedness (i) the aggregate amount of all such other Indebtedness of
the Borrower and its Subsidiaries, on a combined basis shall not at any
time outstanding exceed $25,000,000 and (ii) no Default or Event of
Default shall have occurred or result therefrom;
(e) Indebtedness (other than the Park Debt) in existence on the date
hereof and listed on Schedule 8.2(e) (but no refinancings, refundings or
replacements thereof); and
(f) in addition to the Indebtedness described in Section 8.2(e), so
long as (i) no Default or Event of Default shall have occurred or result
therefrom and (ii) the Leverage Ratio is less than 3.50 to 1.00 both
before and after the creation, incurrence or assumption thereof, unsecured
Indebtedness of the Borrower (but not any Subsidiary, other than
Indebtedness of the Subsidiaries in the form of guaranties of Indebtedness
issued under the 1995 Master Shelf Agreement) which has a longer average
life and maturity, no principal amortization and covenants no less
favorable or more restrictive, in the judgment of the Arranging Agents, to
the interests of the Borrower and the Lenders than this Agreement,
provided that during any time (the "Restricted Period") that the Leverage
Ratio is greater than or equal to 3.50 to 1.00, the amount of such
unsecured Indebtedness permitted hereby shall be limited to $200,000,000
in the aggregate at any time outstanding during such Restricted Period.
<PAGE>
8.3 Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes, assessments or governmental charges arising in
the ordinary course of business which are not yet due and payable or which
are being contested in good faith by appropriate proceedings, provided
that adequate reserves with respect thereto are maintained on the books of
the Borrower or the applicable Subsidiary, as the case may be, in
conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
which are not yet due and payable;
(c) Liens in existence on the date hereof listed on Schedule 8.3(c),
securing Indebtedness permitted by Section 8.2(e) and Liens securing any
of the Park Debt, provided that (x) no such Lien is spread to cover any
additional property, (y) the amount of the Indebtedness secured thereby is
not increased and (z) the Liens securing the Park Debt are terminated and
released on or before the Payment Date;
(d) Liens for Capital Lease Obligations incurred after the Effective
Date and created contemporaneously with such Capital Lease Obligations to
secure same, provided that such Liens shall only attach to the property so
leased and provided that such Liens, when combined with the amount of
purchase money Liens and Acquisition Liens outstanding under Sections
8.3(e) and (f), shall not exceed $25,000,000 in the aggregate at any time
outstanding;
(e) purchase money Liens on property acquired after the Effective
Date and created contemporaneously with the acquisition of such property
to secure or provide for the payment or financing of the purchase price
thereof, provided that such Liens shall only attach to the property so
acquired and provided that such Liens, when combined with the amount of
Liens for Capital Lease Obligations and Acquisition Liens outstanding
under Sections 8.3(d) and (f), shall not exceed $25,000,000 in the
aggregate at any time outstanding;
(f) Liens (i) existing on any asset of any corporation at the time
such corporation becomes a Consolidated Subsidiary and not created in
contemplation of such event, (ii) on any asset of any corporation existing
at the time such corporation is merged or consolidated with or into the
Borrower or a Consolidated Subsidiary and not created in contemplation of
such event, or (iii) existing on any asset prior to the acquisition
thereof by the Borrower or a Consolidated Subsidiary and not created in
contemplation of such acquisition (collectively, "Acquisition Liens"),
provided that such Liens, when combined with the amount of Liens for
Capital Lease Obligations and purchase money Liens outstanding under
Sections 8.3(d) and (e), shall not exceed $25,000,000 in the aggregate at
any time outstanding;
<PAGE>
(g) judgment liens and similar liens arising in connection with
court proceedings provided that the execution and other enforcement of
such liens is effectively stayed and the judgment or claim secured thereby
is being contested in good faith; and
(h) Liens incurred or pledges or deposits made in the ordinary
course of business, including those in connection with workers'
compensation, unemployment insurance and other types of social security
benefits and contractual, common law or statutory rights of set off
against deposits with depository institutions; provided that such Liens
incurred or pledges or deposits made were not incurred or made in
connection with the borrowing of money or the obtaining of advances or
credit and do not, in the aggregate, materially detract from the value of
the property or assets or impair the use thereof in the operation of the
business of the Borrower or its Subsidiaries.
8.4 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation with any Person, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or convey, sell, lease,
assign, transfer or otherwise dispose of, all or substantially all of its
property, business or assets to any Person, or make any material change in its
present method of conducting business, except:
(a) a Subsidiary may merge into or be acquired by the Borrower
if the Borrower is the survivor thereof;
(b) a Subsidiary may merge into or be acquired by another
Subsidiary, provided that (i) if one of the Subsidiaries is a Wholly Owned
Subsidiary or a Guarantor Subsidiary, such Wholly Owned Subsidiary or
Guarantor Subsidiary shall be the surviving entity and (ii) prior to the
earlier to occur of the (x) Payment Date and (y) the date the Park Debt is
paid in full and the Park Debt Documents are terminated, neither Park nor
any of the Subsidiaries of Park may merge into Borrower or another
Subsidiary of Borrower, except for the Merger and except for mergers
between Park and Subsidiaries of Park or between Subsidiaries of Park;
(c) the Borrower may merge with another Person, provided that (i)
such Person is organized under the laws of the United States of America or
one of its states, (ii) the Borrower is the corporation surviving such
merger, (iii) both immediately before and after giving effect to such
merger, no Default or Event of Default shall have occurred or result
therefrom and (iv) 60 days before such merger, the Borrower shall provide
the Administrative Agent evidence of pro forma compliance with all of the
terms and conditions of this Agreement; and
(d) Dispositions permitted under Section 8.5.
<PAGE>
8.5 Limitation on Sale of Assets. Convey, sell, lease, assign,
exchange, transfer or otherwise dispose of any of its property, business or
assets (including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired to any Person (a "Disposition"), except
that the Borrower or a Subsidiary may make a Disposition if such Disposition is
less than substantially all of its assets, in the case of the Borrower, and in
any case, all of the following conditions are satisfied: (i) both immediately
before and after giving effect to such Disposition, no Default or Event of
Default shall have occurred or would result therefrom, (ii) the net proceeds
from such Disposition shall be used to prepay the Loans (except for net proceeds
from Dispositions of property made in the ordinary course of business of the
Borrower or a Subsidiary), but the Total Commitment shall not be reduced, (iii)
prior to any such Disposition which involves assets that generated more than 10%
of EBITDA of the last immediately preceding four fiscal quarters, the Borrower
provides evidence of pro forma compliance with all of the terms and conditions
of this Agreement and (iv) to the extent such Disposition consists of the sale
of Capital Stock of a Subsidiary, such Disposition may only be made so long as
(x) the Disposition is for 100% of the Capital Stock of such Subsidiary or (y)
the Disposition is for an amount of Capital Stock sufficient to cause such
entity to no longer be a "Subsidiary" as such term is defined in this Agreement
and provided that the ownership interest in such entity retained by the Borrower
or a Subsidiary does not cause a violation of Section 8.8. Upon any Disposition
of a Guarantor Subsidiary in compliance with this Section 8.5, the
Administrative Agent will terminate, and release such Guarantor Subsidiary from,
the Guaranty.
8.6 Limitation on Restricted Payments; Other Payment Limitations.
(a) Declare or pay any dividend or distribution in respect of, or make any
payment on account of, or set apart assets for a sinking or other analogous fund
for the purchase, redemption, defeasance, retirement or other acquisition of,
any shares of or interests in any class of Capital Stock of the Borrower (other
than the repurchase of Warrant Shares or Warrants permitted under Section 8.6(b)
hereof) or make any payment on account of, or set apart assets for a sinking or
other analagous fund for the purchase, redemption, defeasance or retirement of
any principal on account of any Indebtedness of the Borrower or its Subsidiaries
(other than Indebtedness permitted under Sections 8.2(a), (c), (d) and (e)
hereof), including, but not limited to, the Park Debt (except payments for the
purpose of redeeming, defeasing or otherwise retiring of the Park Debt on or
before the Payment Date), whether now or hereafter outstanding, either directly
or indirectly, whether in cash or property or in obligations of the Borrower or
any of its Subsidiaries (collectively,"Restricted Payments"); provided that (i)
if both immediately before and after giving effect thereto no Default or Event
of Default shall have occurred or would result therefrom and (ii) (A) the
Leverage Ratio is greater than or equal to 4.50 to 1.00, the Borrower and each
such Subsidiary may make Restricted Payments, not to exceed in the aggregate for
any fiscal year, an amount equal to $16,000,000, (B) the Leverage Ratio is less
than 4.50 to 1.00 and greater than or equal to 4.00 to 1.00, the Borrower and
each Subsidiary may make Restricted Payments, not to exceed in the aggregate for
any fiscal year, an amount equal to the higher of (x) $16,000,000 or (y) 75% of
Excess Cash Flow, and (C) the Leverage Ratio is less than 4.00 to 1.00, the
Borrower and each such Subsidiary may make dividends or distributions so long as
the Borrower maintains pro forma compliance with the covenants of this
Agreement. Notwithstanding the foregoing, upon the death of D. Tennant Bryan the
Borrower may redeem up to $20,000,000 of the stock of D. Tennant Bryan pursuant
to the terms and conditions of the Redemption Agreement, provided that both
immediately before and after giving effect thereto no Default or Event of
Default shall have occurred or would result therefrom.
<PAGE>
(b) Permit PCI to declare or pay any dividend or distribution in
respect of or make any payment on account of the Warrant Shares so long as any
Warrant Shares are outstanding and owned by any person other than by a
Wholly-Owned Subsidiary; provided that the Borrower or PCI may purchase from the
holder thereof any Warrant Shares or Warrants.
8.7 Limitation on Acquisitions. Purchase any stock, bonds, notes,
debentures or other securities of or any assets constituting all or any
significant part of a business unit of any Person (collectively,
"Acquisitions"), except acquisitions through the purchase of stock or assets in
any Permitted Line of Business; provided that (i) no such acquisition may be
made if a Default or an Event of Default shall have occurred and be continuing
or would result therefrom; (ii) prior to any Acquisition in excess of
$25,000,000, the Borrower provides evidence of pro forma compliance with all of
the terms and conditions of this Agreement; and (iii) if such acquisition is of
Capital Stock of any Person, such acquisition must also comply with the
provisions of Section 8.8(c) or (e).
8.8 Investments, Loans, Etc. Purchase or otherwise acquire or invest
in the Capital Stock of, or any other equity interest in, any Person (including,
without limitation, the Capital Stock of the Borrower), or make any loan to, or
enter into any arrangement for the purpose of providing funds or credit to, or,
guarantee or become contingently obligated in respect of the obligations of or
make any other investment, whether by way of capital contribution or otherwise,
in, to or with any Person, or permit any Subsidiary so to do (all of which are
sometimes referred to herein as "Investments"), except:
(a) Investments in Cash Equivalents;
(b) Investments in existence on the date hereof and listed on
Schedule 8.8(b);
(c) Investments by the Borrower or its Subsidiaries in (x) existing
Guarantor Subsidiaries or (y) any other Person, provided that
contemporaneously with any such Investment such Person becomes a Guarantor
Subsidiary;
(d) Investments by the Borrower or any Subsidiary in Southeast Paper
to the extent such investments are less than or equal to (x) the aggregate
of distributions made to Virginia Paper from Southeast Paper since
September 22, 1996, minus the sum of (y) distributions by Southeast Paper
to Virginia Paper required by the Southeast Paper partnership agreement to
fund the tax obligations of Virginia Paper related to its partnership
interest in Southeast Paper since September 22, 1996, and (z) investments
by Virginia Paper into Southeast Paper since the Effective Date;
(e) in addition to Investments permitted under Section 8.8(b) and
(d), provided no Default or Event of Default exists or would result
therefrom, Investments made after the Effective Date in a Permitted Line
of Business not to exceed $50,000,000 in the aggregate at any time
outstanding;
<PAGE>
(f) Investments made prior to the Payment Date by the Borrower in
(x) PCI, not to exceed $91,000,000, (y) PNI, not to exceed $60,000,000 and
(z) PBI, not to exceed $100,000,000, in each case solely for the purpose
of allowing each of PCI, PBI and PNI to promptly redeem a corresponding
dollar amount of the PCI Senior Notes, the PBI Senior Notes and the PNI
Senior Notes, respectively; and
(g) the Borrower or any Subsidiary may acquire and own stock,
obligations or securities received in settlement of debts (created in the
ordinary course of business) owing to the Borrower or any such Subsidiary.
8.9 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate (other
than a Guarantor Subsidiary as specifically permitted herein) other than
transactions (a) otherwise permitted under this Agreement and (b) entered into
in the ordinary course of the Borrower's or such Subsidiary's business, the
terms of which are fair and reasonable and in the best interests of the Loan
Party which is party to the transaction and which transaction is approved by the
Board of Directors of the Borrower.
8.10 Limitation on Restrictions on Subsidiary Distributions. Enter
into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary of the Borrower to (a) pay
dividends or make any other distributions in respect of any Capital Stock of
such Subsidiary held by, or pay any Indebtedness owed to, the Borrower or any
other Subsidiary of the Borrower, (b) make loans or advances to the Borrower or
any other Subsidiary of the Borrower or (c) transfer any of its assets to the
Borrower or any other Subsidiary of the Borrower; provided that PCI and
Subsidiaries of PCI may permit the foregoing restrictions to exist pursuant to
the Park Debt Documents until the Payment Date.
8.11 Limitation on Lines of Business. Enter into any new business,
either directly or through any Subsidiary other than businesses related to those
currently conducted by the Borrower and its Subsidiaries or businesses related
to the communication business (a "Permitted Line of Business").
8.12 Limitation on Issuance of Capital Stock. In the case of a
Subsidiary, issue, sell, assign, exchange, transfer, pledge or otherwise dispose
of or encumber any shares of Capital Stock of such Subsidiary, except to the
Borrower or a Wholly Owned Guarantor Subsidiary.
8.13 No Modification of Park Warrants. Amend, modify or otherwise
change the terms and conditions of the Park Warrants.
<PAGE>
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
<PAGE>
(a) The Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or
the Borrower shall fail to pay any interest on any Loan or Reimbursement
Obligation, or any other amount payable hereunder, on or prior to the date
which is five days (or, if later, five Business Days) after any such
interest or other amount becomes due in accordance with the terms hereof;
or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document or
which is contained in any Information furnished at any time under or in
connection with this Agreement or any such other Loan Document shall prove
to have been incorrect in any material respect on or as of the date made
or deemed made; or
(c) The Borrower or any other Loan Party shall default in the
observance or performance of any agreement contained in Section 7.7(a),
Section 7.11 or Section 8 of this Agreement; or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in paragraphs
(a) through (c) of this Section), and such default shall continue
unremedied for a period of 30 days after the Administrative Agent shall
have given the Borrower notice thereof; or
<PAGE>
(e) (i) The Borrower or any of its Subsidiaries shall default in
making any payment of any principal of any Indebtedness (including,
without limitation, any Guaranty Obligation, but excluding the Loans and
Reimbursement Obligations) other than the Borrower Senior Note Debt, any
Indebtedness issued pursuant to the 1995 Master Shelf Agreement and any
Guarantee Obligations of the Subsidiaries in respect thereof (the
"Excluded Indebtedness"; all such Indebtedness other than the Excluded
Indebtedness, collectively, the "Non-Excluded Indebtedness") beyond the
period of grace or cure, if any, provided in the instrument or agreement
under which such Indebtedness was created; or (ii) the Borrower or any of
its Subsidiaries shall default in making any payment of any interest on
any such Non-Excluded Indebtedness beyond the period of grace or cure, if
any, provided in the instrument or agreement under which such Non-Excluded
Indebtedness was created; or (iii) the Borrower or any of its Subsidiaries
shall default in the observance or performance of any other agreement or
condition relating to any such Non-Excluded Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto, or
any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder
or beneficiary of such Non-Excluded Indebtedness (or a trustee or agent on
behalf of such holder or beneficiary) to cause, with the giving of notice
if required, such Non-Excluded Indebtedness to become due or to be
purchased or repurchased prior to its stated maturity (or, in the case of
any such Non-Excluded Indebtedness constituting a Guaranty Obligation, to
become payable prior to the stated maturity of the primary obligation
covered by such Guaranty Obligation); provided that a default, event or
condition described in clause (i), (ii) or (iii) of this paragraph (e)
shall not constitute an Event of Default under this Agreement unless, at
the time of such default, event or condition one or more defaults, events
or conditions of the type described in clauses (i), (ii) and (iii) of this
paragraph (e) shall have occurred with respect to Non-Excluded
Indebtedness the outstanding principal amount of which exceeds in the
aggregate $10,000,000; or
(f) (i) The Borrower or any of its Subsidiaries shall commence any
case, proceeding or other action (A) under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it
or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or the Borrower or any of its Subsidiaries
shall make a general assignment for the benefit of its creditors; or (ii)
there shall be commenced against the Borrower or any of its Subsidiaries
any case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against the Borrower or any of its Subsidiaries any case, proceeding or
other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its
assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) the Borrower or any
of its Subsidiaries shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii), or (iii) above; or (v) the Borrower or any of its
Subsidiaries shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or
<PAGE>
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Majority Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Majority Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with
respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to have a Material
Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance) of $10,000,000 or more, and all
such judgments or decrees shall not have been vacated, discharged, stayed
or bonded pending appeal within 60 days after the entry thereof; or
(i) Any material provision of the Loan Documents shall cease, for
any reason, to be in full force and effect, or the Borrower or any other
Loan Party shall so assert;
(j) A Change of Control shall occur;
(k) On and after the date the Park Acquisition is consummated, a
default or event of default shall occur under any of the Park Debt;
(l) Provided that the Merger has been consummated, (i) the Park Debt
shall not have been paid in full, (ii) the Liens securing the Park Debt
shall not have been released and terminated, (iii) the Park Contingent
Warrant Cancellation Event shall not have occurred or (iv) the Park Debt
Documents shall not have been terminated, in each case on or before the
date which is 50 days after the Merger (the "Payment Date"); or
(m) The holders of the Borrower Senior Note Debt or the holders of
any Indebtedness issued pursuant to the 1995 Master Shelf Agreement shall
accelerate such Indebtedness or otherwise cause such Indebtedness to
become payable prior to the stated maturity thereof.
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (f) of this Section 9 with respect to the Borrower, automatically
the Commitments shall immediately terminate and the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this Agreement and
the other Loan Documents (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) shall immediately
become due and payable, and (B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i) with the consent of
the Majority Lenders, the Administrative Agent may, or upon the request of the
Majority Lenders, the Administrative Agent shall, by notice to the Borrower
declare the Commitments to be terminated forthwith, whereupon such Commitments
shall immediately terminate; and (ii) with the consent of the Majority Lenders,
the Administrative Agent may, or upon the request of the Majority Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
<PAGE>
Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to this paragraph, the Borrower shall at such time deposit
in a cash collateral account opened by the Administrative Agent an amount equal
to the aggregate then undrawn and unexpired amount of such Letters of Credit.
Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
Obligations of the Borrower hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied, all Loans shall have been
paid in full and no other Obligations shall be due and payable, the balance, if
any, in such cash collateral account shall be returned to the Borrower (or such
other Person as may be lawfully entitled thereto).
Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 10. THE ADMINISTRATIVE AGENT
10.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement or any
other Loan Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
10.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
<PAGE>
10.3 Exculpatory Provisions. Neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Borrower to perform its obligations hereunder
or thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
10.4 Reliance by the Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
facsimile, statement, order or other document or conversation believed by it to
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Borrower), independent accountants and other
experts selected by the Administrative Agent. The Administrative Agent may deem
and treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Majority Lenders as it deems appropriate or it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
The Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Majority Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
10.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender
(except in the case of a Default under Section 9(a)) or the Borrower referring
to this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to
the Lenders. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Majority
Lenders; provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
<PAGE>
10.6 Non-Reliance on the Administrative Agent and the Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates
has made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to make
its Loans hereunder and enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
10.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Specified Percentages in effect on the
date on which indemnification is sought (or, if indemnification is sought after
the date upon which the Loans shall have been paid in full, ratably in
accordance with their Specified Percentages immediately prior to such date),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Loans) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. The agreements in this Section shall survive
the payment of the Loans and all other amounts payable hereunder.
10.8 The Administrative Agent in Its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to the Loans made by it, the Administrative
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
<PAGE>
10.9 Successor Administrative Agent. (a) The Administrative Agent
may resign as the Administrative Agent upon 30 days' notice to the Lenders and
the appointment of a successor Administrative Agent as hereinafter provided. If
the Administrative Agent shall resign as the Administrative Agent under this
Agreement and the other Loan Documents, then, unless an Event of Default shall
have occurred and be continuing (in which case, the Majority Lenders shall
appoint a successor), the Borrower shall appoint from among the Lenders a
successor Administrative Agent for the Lenders, which successor Administrative
Agent shall be approved by the Majority Lenders (which approval shall not be
unreasonably withheld). If no successor Administrative Agent shall have been so
appointed by the Borrower (or in the case of an Event of Default, by the
Majority Lenders) and such successor Administrative Agent has not accepted such
appointment within 30 days after such resignation, then the resigning
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which successor Administrative Agent hereunder shall be
either a Lender or, if none of the Lenders is willing to serve as successor
Administrative Agent, a major international bank having combined capital and
surplus of at least $500,000,000. Upon the acceptance of any appointment as the
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall succeed to the rights, powers and duties of
the Administrative Agent, and the term "Administrative Agent" shall mean such
successor Administrative Agent effective upon such appointment and approval, and
the former Administrative Agent's rights, powers and duties as the
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans. After any retiring Administrative
Agent's resignation as the Administrative Agent, the provisions of this Section
10 shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was the Administrative Agent under this Agreement and the other Loan
Documents.
<PAGE>
(b) In the event that the Administrative Agent shall have breached
any of its material obligations to the Lenders hereunder, the Majority Lenders
may remove the Administrative Agent, effective on the date specified by them, by
written notice to the Administrative Agent and the Borrower. Upon any such
removal, the Borrower, provided that no Event of Default shall have occurred and
be continuing (in which case the Majority Lenders shall make the appointment),
shall have the right to appoint a successor Administrative Agent, which
successor Administrative Agent shall be approved by the Majority Lenders (which
approval shall not be unreasonably withheld). If no successor Administrative
Agent shall have been so appointed by the Borrower (or in the case of an Event
of Default, by the Majority Lenders) and such successor Administrative Agent has
not accepted such appointment within 30 days after notification to the
Administrative Agent of its removal, then the retiring Administrative Agent may,
on behalf of the Lenders, appoint a successor Administrative Agent, which
successor Administrative Agent hereunder shall be either a Lender or, if none of
the Lenders is willing to serve as successor Administrative Agent, a major
international bank having combined capital and surplus of at least $500,000,000.
Such successor Administrative Agent, provided that no Event of Default shall
have occurred and be continuing, shall be reasonably satisfactory to the
Borrower. Upon the acceptance of any appointment as the 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 and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement. The Borrower and the Lenders shall execute such documents as
shall be necessary to effect such appointment. After any retiring Administrative
Agent's removal hereunder as the Administrative Agent, the provisions of this
Section 10.9 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Administrative Agent under this Agreement and the
other Loan Documents. If at any time there shall not be a duly appointed and
acting Administrative Agent, the Borrower agrees to make each payment due
hereunder and under the Notes directly to the Lenders entitled thereto during
such time.
<PAGE>
10.10 Other Agents. Neither the Documentation Agent, the Syndication
Agent nor any Arranging Agent, in each case in its capacity as such, shall have
any duties or responsibilities hereunder, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against any such Agent in its capacity as such.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Neither this Agreement nor any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 11.1. The
Majority Lenders and each relevant Loan Party may, or, with the written consent
of the Majority Lenders, the Administrative Agent and each relevant Loan Party
may, from time to time, (a) enter into written amendments, supplements or
modifications hereto and to the other Loan Documents for the purpose of adding
any provisions to this Agreement or the other Loan Documents or changing in any
manner the rights of the Lenders or of the Loan Parties hereunder or thereunder
or (b) waive, on such terms and conditions as the Majority Lenders or the
Administrative Agent, as the case may be, may specify in such instrument, any of
the requirements of this Agreement or the other Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall (i) reduce the amount or
extend the scheduled date of maturity of any Loan, any installment thereof or of
any Reimbursement Obligations, or reduce the stated rate of any interest or fee
payable hereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Commitment of any
Lender, or make any change in the method of application of any payment of the
Loans and Reimbursement Obligations specified in Section 4.2 or Section 4.8
without the consent of each Lender directly affected thereby, (ii) waive, extend
or reduce any mandatory Commitment reduction pursuant to Section 4.2, (iii)
amend, modify or waive any provision of this Section 11.1 or reduce any
percentage specified in the definition of Majority Lenders, or consent to the
assignment or transfer by any Loan Party of any of its rights and obligations
under this Agreement and the other Loan Documents or except as provided in
Section 8.5, release any Guarantor Subsidiary from its obligations under the
Guaranty, (iv) amend, modify or waive any condition precedent to any extension
of credit set forth in Section 6, in each case of (i), (ii), (iii) and (iv)
above, without the written consent of all of the Lenders, (v) amend, modify or
waive any provision of Section 10 without the written consent of the then
Administrative Agent or (vi) amend, modify or waive any provision of Section 3
without the written consent of the Issuing Lender; provided, further, that no
amendment, supplement or modification shall be made to (x) those provisions of
<PAGE>
Section 9(e) which relate to Excluded Indebtedness or (y) Section 9(m) without,
in each case, the prior written consent of the holders of the Borrower Senior
Note Debt and the holders of any Indebtedness issued under the 1995 Master Shelf
Agreement. Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the Lenders and shall be binding upon the Loan
Parties, the Lenders, the Administrative Agent and all future holders of the
Notes. In the case of any waiver, the Loan Parties, the Lenders and the
Administrative Agent shall be restored to their former position and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
11.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three Business Days after
being deposited in the mails, certified mail, return receipt requested, postage
prepaid, or (c) in the case of delivery by facsimile transmission, when sent and
receipt has been confirmed, addressed as follows in the case of the Borrower,
the Subsidiaries and the Administrative Agent, and as set forth in Schedule 1.1
(or, with respect to any Lender that is an Assignee, in the applicable
Assignment and Acceptance) in the case of the other parties hereto, or to such
other address as may be hereafter notified by the respective parties hereto:
The Borrower: Media General, Inc.
333 East Grace Street
Richmond, Virginia 23219
Attention: Chief Financial Officer
Fax: (804) 649-6524
The Administrative Agent: NationsBank of Texas, N.A.
901 Main Street, 64th Floor
Dallas, Texas 75202
Attention: Pam Kurtzman
Fax: (214) 508-9390
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Section 2 or 3 shall not be effective until received.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
<PAGE>
11.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
11.5 Payment of Expenses and Taxes. (a) The Borrower agrees (i) to
pay or reimburse the Administrative Agent for all its reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent, (ii)
to pay or reimburse each Lender and the Administrative Agent for all its
reasonable costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, including, without limitation, the reasonable fees and
disbursements of counsel to each Lender and of counsel to the Administrative
Agent, (iii) without duplication of amounts payable pursuant to Sections 4.9 and
4.10, to pay, indemnify, and hold each Lender and the Administrative Agent
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
similar taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation or administration
of any of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement, the other Loan Documents and any such other documents, and (iv)
without duplication of amounts payable pursuant to Sections 4.9 and 4.10, to
pay, indemnify, and hold each Lender, each Issuing Lender and the Administrative
Agent, and their respective officers, directors, employees, affiliates,
advisors, agents and controlling persons (each, an "indemnitee"), harmless from
and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents and
any such other documents or the use of the proceeds of the Loans (all the
foregoing in this clause (iv), collectively, the "indemnified liabilities"),
provided, that the Borrower shall have no obligation hereunder to any indemnitee
with respect to indemnified liabilities arising from the gross negligence or
willful misconduct of such indemnitee. The agreements in this Section shall
survive repayment of the Loans and all other amounts payable hereunder.
(b) If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorney's fees, costs and necessary disbursements in addition to any
other relief to which it may be entitled.
11.6 Successors and Assigns; Participations and Assignments. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Administrative Agent and their respective successors and
assigns, except that neither the Borrower nor the Subsidiaries may assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
<PAGE>
(b) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("Participants") participating interests in any Loan owing to such
Lender, any Commitment of such Lender or any other interest of such Lender
hereunder and under the other Loan Documents. In the event of any such sale by a
Lender of a participating interest to a Participant, such Lender's obligations
under this Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the performance
thereof, such Lender shall remain the holder of any such Loan for all purposes
under this Agreement and the other Loan Documents, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents. In no event shall any Participant under any such
participation have any right to approve any amendment or waiver of any provision
of any Loan Document, or any consent to any departure by any Loan Party
therefrom, except to the extent that such amendment, waiver or consent would
reduce the principal of, or interest on, the Loans or any fees payable
hereunder, or postpone the date of the final scheduled maturity of the Loans, in
each case to the extent subject to such participation. The Borrower agrees that
if amounts outstanding under this Agreement are due or unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement, provided that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in Section 11.7(a) as fully as if it
were a Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 4.9, 4.10 and 4.11 with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if it were a Lender; provided that, in the case of Section 4.10, such
Participant shall have complied with the requirements of said Section and
provided, further, that no Participant shall be entitled to receive any greater
amount pursuant to any such Section than the transferor Lender would have been
entitled to receive in respect of the amount of the participation transferred by
such transferor Lender to such Participant had no such transfer occurred.
<PAGE>
(c) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign to any
Person (an "Assignee") all or any part of its rights and obligations under this
Agreement and the other Loan Documents pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit A, executed by such Assignee and such
assigning Lender and delivered to the Administrative Agent for its acceptance
and recording in the Register (with a copy to the Borrower); provided that, (i)
no such assignment (other than to any Lender or any affiliate thereof) shall be
in an aggregate principal amount of less than $5,000,000 and $1,000,000
increments in excess thereof, (ii) after giving effect to any such assignment,
the amount of the Commitment, Loans and Letters of Credit of the assigning
Lender (together with any Lender which is an affiliate of such assigning Lender)
being assigned shall either be (A) zero, or (B) more than 49% of its original
Specified Percentage of the Total Commitment (as reduced if at all pursuant to
Section 4.2(e)) and (iii) each assignment (other than to any Lender or any
affiliate thereof) made when no Default or Event of Default has occurred and is
continuing shall be subject to the prior written consent of the Borrower (which
consent shall not be unreasonably withheld). Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with a Commitment as set forth
therein, and (y) the assigning Lender thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its obligations under this
Agreement.
(d) Any Non-U.S. Lender that could become completely exempt from
withholding of any tax, assessment or other charge or levy imposed by or on
behalf of the United States or any taxing authority thereof ("U.S. Taxes") in
respect of payment of any Obligations due to such Non-U.S. Lender under this
Agreement if the Obligations were in registered form for U.S. federal income tax
purposes may request the Borrower (through the Administrative Agent), and the
Borrower agrees thereupon, to exchange any promissory note(s) evidencing such
Obligations for promissory note(s) registered as provided in paragraph (f) below
and substantially in the form of Exhibit J (an "Alternative Note"). Alternative
Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that could become completely exempt from
withholding of U.S. Taxes in respect of payment of any Obligations due to such
Non-U.S. Lender if the Obligations were in registered form for U.S. Federal
income tax purposes and that holds Alternative Note(s) (an "Alternative
Noteholder") (or, if such Alternative Noteholder is not the beneficial owner
thereof, such beneficial owner) shall deliver to the Borrower prior to or at the
time such Non-U.S. Lender becomes an Alternative Noteholder a Form W-8
(Certificate of Foreign Status of the U.S. Department of Treasury) (or any
successor or related form adopted by the U.S. taxing authorities), together with
an annual certificate stating that (i) such Alternative Noteholder or beneficial
owner, as the case may be, is not a "bank" within the meaning of Section 881(c)
of the Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign
corporation related to the Company (within the meaning of Section 864(d)(4) of
the Code) and (ii) such Alternative Noteholder or beneficial owner, as the case
may be, shall promptly notify the Borrower if at any time such Alternative
Noteholder or beneficial owner, as the case may be, determines that it is no
longer in a position to provide such certification to the Borrower (or any other
form of certification adopted by the U.S. taxing authorities for such purposes).
<PAGE>
(f) An Alternative Note and the Obligation(s) evidenced thereby may
be assigned or otherwise transferred in whole or in part only by registration of
such assignment or transfer of such Alternative Note and the Obligation(s)
evidenced thereby on the Register (and each Alternative Note shall expressly so
provide). Any assignment or transfer of all or part of such Obligation(s) and
the Alternative Note(s) evidencing the same shall be registered on the Register
only upon surrender for registration of assignment or transfer of the
Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or
accompanied by a written instrument of assignment or transfer duly executed by)
the Alternative Noteholder thereof, and thereupon one or more new Alternative
Note(s) in the same aggregate principal amount shall be issued to the designated
Assignee(s). No assignment of an Alternative Note and the Obligation(s)
evidenced thereby shall be effective unless it has been recorded in the Register
as provided in this Section 11.6(f).
(g) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in Section 11.2
a copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders
(including Alternative Noteholders) and the Commitments of, and principal
amounts of the Loans owing to, each Lender from time to time. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders may (and, in the case of any
Loan or other obligation hereunder not evidenced by a Note, shall) treat each
Person whose name is recorded in the Register as the owner of a Loan or other
obligation hereunder as the owner thereof for all purposes of this Agreement and
the other Loan Documents, notwithstanding any notice to the contrary. Any
assignment of any Loan or other obligation hereunder not evidenced by a Note
shall be effective only upon appropriate entries with respect thereto being made
in the Register. The Register shall be available for inspection by the Borrower
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee together with payment to the Administrative
Agent of a registration and processing fee of $3,500, the Administrative Agent
shall (i) promptly accept such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record the information contained
therein in the Register and give notice of such acceptance and recordation to
the Lenders and the Borrower.
(i) Subject to Section 11.15, the Borrower authorizes each Lender to
disclose to any Participant or Assignee (each, a "Transferee") and any
prospective Transferee, subject to the Transferee agreeing in writing to be
bound by the provisions of Section 11.15, any and all financial information in
such Lender's possession concerning the Borrower and the Subsidiaries which has
been delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of the Borrower and
its Subsidiaries prior to becoming a party to this Agreement.
(j) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments of Loans
and Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including, without limitation,
any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve
Bank in accordance with applicable law.
<PAGE>
11.7 Adjustments; Set-off. (a) If any Lender (a "benefitted Lender")
shall at any time receive any payment of all or part of its Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 9(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Loans, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loan, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
set-off and appropriate and apply against such amount, to the extent permitted
by applicable law, any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of the
Borrower. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Lender,
provided that, to the extent permitted by applicable law, the failure to give
such notice shall not affect the validity of such set-off and application.
11.8 Counterparts; When Effective. This Agreement may be executed by
one or more of the parties to this Agreement on any number of separate
counterparts (including by facsimile transmission), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the copies of this Agreement signed by all the parties shall be lodged with
the Borrower and the Administrative Agent. This Agreement shall become effective
when the Administrative Agent has received counterparts hereof executed by the
Borrower, the Administrative Agent and each Lender (such date herein referred to
as the "Effective Date").
11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
<PAGE>
11.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS
CONFLICT OF LAWS PRINCIPLES.
11.12 SUBMISSION TO JURISDICTION; WAIVERS. (a) EACH PARTY HERETO,
IN EACH CASE FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, HEREBY IRREVOCABLY
AND UNCONDITIONALLY:
(i) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO
WHICH IT IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS
OF THE STATE OF NEW YORK, THE COURTS OF THE UNITED STATES OF AMERICA FOR
THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(ii) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT
TO PLEAD OR CLAIM THE SAME;
(iii) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO IT AT ITS ADDRESS SET FORTH IN SECTION 11.2 OR SCHEDULE 1.1,
AS APPLICABLE, OR AT SUCH OTHER ADDRESS OF WHICH THE ADMINISTRATIVE AGENT
SHALL HAVE BEEN NOTIFIED PURSUANT TO SECTION 11.2; AND
(iv) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT TO SUE IN ANY OTHER JURISDICTION.
(b) THE BORROWER AND EACH SUBSIDIARY WAIVES, TO THE MAXIMUM EXTENT
NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL
ACTION OR PROCEEDING REFERRED TO IN THIS SECTION ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES.
<PAGE>
11.13 Acknowledgements. The Borrower and each Subsidiary hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower or any Subsidiary
arising out of or in connection with this Agreement or any of the other
Loan Documents, and the relationship between the Administrative Agent and
the Lenders, on one hand, and the Borrower or any Subsidiary, on the other
hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower, the Subsidiaries and the
Lenders.
11.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE SUBSIDIARIES, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.15 Confidentiality. Each Lender agrees to keep confidential all
non-public information provided to it by or on behalf of the Borrower or any of
the Subsidiaries pursuant to this Agreement or any other Loan Document; provided
that nothing herein shall prevent any Lender from disclosing any such
information (i) to the Administrative Agent or any other Lender, (ii) to any
Assignee or Participant who agrees in writing to this confidentiality provision,
(iii) to its employees, directors, agents, attorneys, accountants and other
professional advisors, (iv) upon request or demand of any Governmental Authority
having jurisdiction over such Lender, (v) in response to any order of any court
or other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (vi) which has been publicly disclosed other than in breach
of this Agreement, or (vii) in connection with the exercise of any remedy
hereunder.
11.16 CONSEQUENTIAL DAMAGES. NO LENDER SHALL BE RESPONSIBLE OR
LIABLE TO THE BORROWER OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, EXEMPLARY
OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF THIS AGREEMENT, THE
OTHER LOAN DOCUMENTS, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGES FOLLOW.]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
MEDIA GENERAL, INC.
By: /s/ Marshall N. Morton
________________________________
Name: Marshall N. Morton
________________________________
Title: Senior Vice President and CFO
______________________________
NATIONSBANK OF TEXAS, N.A.,
as the Administrative Agent and as a Lender
By: /s/ Pamela S. Kurtzman
________________________________
Name: Pamela S. Kurtzman
______________________________
Title: Vice-President
_____________________________
THE TORONTO-DOMINION BANK,
as the Syndication Agent and as a Lender
By: /s/ David G. Parker
________________________________
Name: David G. Parker
______________________________
Title: Mgr. Cr. Admin
_____________________________
<PAGE>
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA,
as the Documentation Agent and as a Lender
By: /s/ Jim F. Redman
________________________________
Name Jim F. Redman
______________________________
Title: Senior Vice President
_____________________________
THE BANK OF NOVA SCOTIA,
as a Managing Agent and as a Lender
By: /s/ Vincent J. Fitzgerald, Jr.
________________________________
Name: Vincent J. Fitzgerald, Jr.
______________________________
Title: Authorized Signatory
_____________________________
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Managing Agent and as a
Lender
By: /s/ Augustine Okwu, Jr.
________________________________
Name: Augustine Okwu, Jr.
______________________________
Title: Vice President
_____________________________
CRESTAR BANK, as a Managing Agent and
as a Lender
By: /s/ Thomas C. Palmer
________________________________
Name: Thomas C. Palmer
______________________________
Title: Vice President
_____________________________
MORGAN GUARANTY TRUST COMPANY
<PAGE>
OF NEW YORK, as a Managing Agent and
as a Lender
By: /s/ Donald H. Patrick
________________________________
Name: Donald H. Patrick
______________________________
Title: Vice President
_____________________________
LTCB TRUST COMPANY, as a Managing
Agent and as a Lender
By: /s/ Satoru Otsubo
________________________________
Name: Satoru Otsubo
______________________________
Title: Executive Vice President
_____________________________
SUNTRUST BANK, ATLANTA, as a
Managing Agent and as a Lender
By: /s/ F. McClellan Deaver, III
________________________________
Name: F. McClellan Deaver, III
______________________________
Title: Group Vice President
_____________________________
By: /s/ Jeffrey A. Howard
________________________________
Name: Jeffrey A. Howard
______________________________
Title: Assistant Vice President
_____________________________
WACHOVIA BANK OF NORTH CAROLINA,
N.A., as a Managing Agent and as a Lender
By: /s/ John Fox
________________________________
Name: John Fox
______________________________
Title: Senior Vice President
_____________________________
<PAGE>
THE SANWA BANK, LIMITED, ATLANTA
AGENCY, as a Lender
By: /s/ William M. Plough
________________________________
Name: William M. Plough
______________________________
Title: Vice President
_____________________________
BANK OF AMERICA ILLINOIS, as a Lender
By: /s/ Carl F. Salas
________________________________
Name: Carl F. Salas
______________________________
Title: Vice President
_____________________________
BANK OF NEW YORK, as a Lender
By: /s/ Edward F. Ryan Jr.
________________________________
Name: Edward F. Ryan, Jr.
______________________________
Title: Senior Vice President
_____________________________
THE DAI-ICHI KANGYO BANK, LTD.,
as a Lender
By: /s/ Yusuke Yanagawa
________________________________
Name: Yusuke Yanagawa
______________________________
Title: Assistant Vice President
_____________________________
<PAGE>
THE FIRST NATIONAL BANK OF
MARYLAND, as a Lender
By: /s/ W. Blake Hampson
________________________________
Name: W. Blake Hampson
______________________________
Title: Vice President
_____________________________
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as a Lender
By: /s/ Jeffrey Cole
________________________________
Name: Jeffrey Cole
______________________________
Title: Senior Vice President
_____________________________
THE MITSUBISHI TRUST AND BANKING
CORPORATION, as a Lender
By: /s/ Patricia Loret de Mola
________________________________
Name: Patricia Loret de Mola
______________________________
Title: Senior Vice President
_____________________________
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Steffen W. Crowther
________________________________
Name: Steffen W. Crowther
______________________________
Title: Vice President
_____________________________
<PAGE>
ROYAL BANK OF CANADA,
as a Lender
By: /s/ Edwardo Salazar
________________________________
Name: Edwardo Salazar
______________________________
Title: Senior Manager
_____________________________
THE SAKURA BANK, LIMITED, as a Lender
By: /s/ Yasuhiro Terada
________________________________
Name: Yasuhiro Terada
______________________________
Title: Senior Vice President
_____________________________
SIGNET BANK, as a Lender
By: /s/ William D. Garrison
________________________________
Name: William D. Garrison
______________________________
Title: Senior Vice President
_____________________________
THE SUMITOMO BANK, LIMITED,
as a Lender
By: /s/ John C. Kissinger
________________________________
Name: John C. Kissinger
______________________________
Title: Joint General Manager
_____________________________
<PAGE>
BANK OF MONTREAL, CHICAGO
BRANCH, as a Lender
By: /s/ Rene Encarnacion
________________________________
Name: Rene Encarnacion
______________________________
Title: Director
_____________________________
BANQUE NATIONALE DE PARIS,
as a Lender
By: /s/ Nuala Marley
________________________________
Name: Nuala Marley
______________________________
Title: Vice President
_____________________________
By: /s/ Nancy Stengel
________________________________
Name: Nancy Stengel
______________________________
Title: Assistant Treasurer
_____________________________
THE FUJI BANK, LIMITED, as a Lender
By: /s/ Teiji Teramoto
________________________________
Name: Teiji Teramoto
______________________________
Title: Vice President & Manager
_____________________________
MELLON BANK, N.A., as a Lender
By: /s/ Nathan H. Kehm
________________________________
Name: Nathan H. Kehm
______________________________
Title: Assistant Vice President
_____________________________
<PAGE>
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH, as a Lender
By: /s/ Stephen A. Cayer
________________________________
Name: Stephen A. Cayer
______________________________
Title: Assistant Treasurer
_____________________________
By: /s/ Laurent J. Chaix
________________________________
Name: Laurent J. Chaix
______________________________
Title: Vice President
_____________________________
ABN AMRO BANK, N.V., NEW YORK
BRANCH, as a Lender
By: /s/ James Dunleavy
________________________________
Name: James Dunleavy
______________________________
Title: Group Vice President
_____________________________
By: /s/ Mark Gronich
________________________________
Name: Mark Gronich
______________________________
Title: Vice President
_____________________________
THE ROYAL BANK OF SCOTLAND plc,
as a Lender
By: /s/ Grant F. Stoddart
________________________________
Name: Grant F. Stoddart
______________________________
Title: Senior Vice President & Manager
_____________________________
<PAGE>
CREDIT LYONNAIS ATLANTA AGENCY,
as a Lender
By: /s/ David M. Cawrse
________________________________
Name: David M. Cawrse
______________________________
Title: Vice President
_____________________________
THE YASUDA TRUST AND BANKING
COMPANY, LIMITED, NEW YORK
BRANCH, as a Lender
By: /s/ Makoto Tagawa
________________________________
Name: Makoto Tagawa
______________________________
Title: Deputy General Manager
_____________________________
WESTDEUTSCHE LANDESBANK,
as a Lender
By: /s/ Kheil McIntyre
________________________________
Name: Kheil McIntyre
______________________________
Title: Vice President
_____________________________
FLEET BANK, N.A., as a Lender
By: /s/ Tanya Crossley
________________________________
Name: Tanya Crossley
______________________________
Title: Vice President
_____________________________
All schedules and exhibits have been omitted
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated
as of the 12th day of February, 1997, among Media General, Inc. (the
"Borrower"), NationsBank of Texas, N.A. ("NationsBank"), individually as a
Lender and as the Administrative Agent and the other Lenders party hereto.
WITNESSETH:
A. On December 4, 1996, the Borrower, NationsBank, individually as a
Lender and as the Administrative Agent, and the other Lenders party thereto
(together with NationsBank, the "Lenders"), entered into that certain Credit
Agreement (the "Credit Agreement") providing for a $1,200,000,000 credit
facility.
B. The Borrower has requested certain amendments to the Credit
Agreement.
C. The Lenders have agreed to make certain amendments to the Credit
Agreement, subject to the Borrower's compliance with the representations,
warranties, covenants and other terms and conditions set forth herein.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree hereby as
follows:
1. All capitalized terms used herein and not otherwise defined herein shall
have the meanings set forth in the Credit Agreement.
2. Section 3.1(a) of the Credit Agreement is hereby amended to insert the
following phrase after the number "$30,000,000" in the seventh line thereof:
"plus the outstanding face amount of any Letter of Credit
issued hereunder for the account of Garden State Paper Company, Inc.
for the benefit of First Trust New York, as trustee or any successor
thereof, not to exceed $20,771,875"
<PAGE>
3. The Credit Agreement is amended hereby to include the following new
Section 4.2(h):
"(h) If the Borrower or any Subsidiary shall receive net
proceeds from any Disposition which are not reinvested in additional
properties or assets (including a replacement or exchange as
described in Section 1031 of the Code and any regulation related
thereto) for the Borrower or the Subsidiary making such Disposition
on or before the date which is 180 days after the effective date of
such Disposition, then the Borrower shall, without notice or demand,
immediately repay the Loans in an aggregate principal amount equal
to 100% of such net proceeds not so reinvested, together with
interest accrued to the date of such repayment and any amounts
payable under Section 4.11."
4. Section 8.5 of the Credit Agreement is hereby amended to delete
subsection (ii) therefrom in its entirety and to insert in lieu thereof the
following new subsection (ii):
"(ii) the net proceeds from such Disposition shall be used to
prepay the Loans pursuant to Section 4.2(h) (except for net proceeds
from Dispositions of property made in the ordinary course of
business of the Borrower or a Subsidiary), but the Total Commitment
shall not be reduced,"
5. The Credit Agreement is hereby amended as necessary to clarify
throughout the same that wherever the Borrower is required to calculate and/or
provide information to the Lenders for an "immediately preceding fiscal quarter
or quarters" of the Borrower, such phrase shall mean an immediately preceding
fiscal quarter or quarter(s) "for which financial statements have been or should
have been prepared and/or delivered to the Lenders pursuant to Section 7.1 of
the Credit Agreement".
6. Subject to the terms and conditions set forth herein, and in reliance
upon the representations and warranties of the Borrower set forth herein, the
Lenders hereby consent to the one-time issuance by The Toronto-Dominion Bank of
that certain Irrevocable Letter of Credit No. 1397 issued on December 12, 1996,
expiring on April 15, 1998, for the account of Garden State Paper Company, Inc.,
for the benefit of First Trust New York, as trustee, in the face amount of
$20,771,875. Borrower further acknowledges and agrees that the foregoing consent
shall not be deemed to constitute a consent by the Lenders to any other issuance
of a Letter of Credit with an expiration date in excess of the limitations set
forth in Section 3.1 of the Credit Agreement.
7. The Borrower represents and warrants to the Administrative Agent and the
Lenders that (a) this Amendment has been duly authorized, executed and delivered
by the Borrower and constitutes a legal, valid, and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally or general principles of equity, (b) both before and
after giving effect to the transactions and modifications contemplated herein,
there exists no Default or Event of Default under the Credit Agreement, (c) the
representations and warranties of the Borrower set forth in the Credit Agreement
and the other Loan Documents are true and correct as of the date of this
Amendment as though made on and as of such date, (d) the Borrower has complied
<PAGE>
with all agreements and conditions to be complied with by it on or before the
date of this Amendment under the Credit Agreement, the other Loan Documents and
this Amendment, and (e) the Credit Agreement, as amended hereby, and the other
Loan Documents remain in full force and effect.
8. By their execution hereinbelow, the parties hereto agree that the Credit
Agreement, as amended hereby, and the other Loan Documents and are hereby
ratified and confirmed, and the execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, operate as an
amendment of any provision of the Credit Agreement and other Loan Documents or
as a waiver of any right, power or remedy of the Lenders under the Credit
Agreement or other Loan Documents. Without limiting the generality of the
foregoing, the parties hereto agree that the consent set forth in Section 6
above shall be limited precisely as set forth above, and nothing in this
Amendment shall be deemed (i) to constitute a consent to the Borrower's
noncompliance with respect to any other provision or condition of the Credit
Agreement or any other Loan Documents or (ii) to prejudice any right or remedy
that the Lenders may now or may have in the future under or in connection with
the Credit Agreement or any other Loan Document.
9. The Borrower shall execute and deliver such further consents,
acknowledgments, agreements, documents, instruments, and certificates, in form
and substance satisfactory to Lenders, as Lenders may deem necessary or
appropriate in connection with this Amendment.
10. This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument. In making
proof hereof, it shall not be necessary to produce or account for any
counterpart other than one signed by the party against which enforcement is
sought.
11. THIS AMENDMENT SHALL BE GOVERNED BY, AND THE RIGHTS, OBLIGATIONS AND
LIABILITIES OF THE PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE WITH, THE
INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS) AND JUDICIAL DECISIONS
OF THE STATE OF NEW YORK AND APPLICABLE FEDERAL LAW.
12. THIS AMENDMENT, THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENT OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. EXCEPT AS HEREIN
EXPRESSLY MODIFIED, THE CREDIT AGREEMENT, THE LOAN DOCUMENTS AND ALL OTHER
DOCUMENTS AND AGREEMENTS EXECUTED IN CONNECTION THEREWITH SHALL CONTINUE IN FULL
FORCE AND EFFECT.
[Remainder of Page Intentionally Left Blank. Signature Pages Follow.]
<PAGE>
IN WITNESS WHEREOF, this Amendment is executed as of the date first
set forth above.
MEDIA GENERAL, INC.
/s/ Marshall N. Morton
By: _______________________________
Marshall N. Morton
Name: _____________________________
Senior Vice President & CFO
Title: ____________________________
NATIONSBANK OF TEXAS, N.A.,
as the Administrative Agent and as a Lender
/s/ Pamela S. Kurtzman
By: _______________________________
Pamela S. Kurtzman
Name: _____________________________
Vice President
Title: ____________________________
THE TORONTO-DOMINION BANK,
as the Syndication Agent and as a Lender
/s/ David G. Parker
By: _______________________________
David G. Parker
Name: _____________________________
Mgr. Cr. Admin.
Title: ____________________________
<PAGE>
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA,
as the Documentation Agent and as a Lender
/s/ Jim Redman
By: _______________________________
Jim Redman
Name: _____________________________
Senior Vice President
Title: ____________________________
THE BANK OF NOVA SCOTIA,
as a Managing Agent and as a Lender
/s/ Vincent J. Fitzgerald, Jr.
By: _______________________________
Vincent J. Fitzgerald, Jr.
Name: _____________________________
Authorized Signatory
Title: ____________________________
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Managing Agent and as a
Lender
/s/ R. F. Kay
By: _______________________________
R. F. Kay
Name: _____________________________
Vice President
Title: ____________________________
CRESTAR BANK, as a Managing Agent and
as a Lender
/s/ J. Eric Millham
By: _______________________________
J. Eric Millham
Name: _____________________________
Vice President
Title: ____________________________
<PAGE>
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as a Managing Agent and
as a Lender
/s/ Adam J. Silver
By: _______________________________
Adam J. Silver
Name: _____________________________
Associate
Title: ____________________________
LTCB TRUST COMPANY, as a Managing
Agent and as a Lender
/s/ Satoru Otsubo
By: _______________________________
Satoru Otsubo
Name: _____________________________
Executive Vice President
Title: ____________________________
SUNTRUST BANK, ATLANTA, as a
Managing Agent and as a Lender
/s/ F. McClellan Deaver, III
By: _______________________________
F. McClellan Deaver, III
Name: _____________________________
Group Vice President
Title: ____________________________
/s/ Jeffrey A. Howard
By: _______________________________
Jeffrey A. Howard
Name: _____________________________
Assistant Vice President
Title: ____________________________
<PAGE>
WACHOVIA BANK OF NORTH CAROLINA, N.A.,
as a Managing Agent and as a Lender
/s/ Kathryn E. Mentzer
By: _______________________________
Kathryn E. Mentzer
Name: _____________________________
Banking Officer
Title: ____________________________
THE SANWA BANK, LIMITED, ATLANTA
AGENCY, as a Lender
/s/ William M. Plough
By: _______________________________
William M. Plough
Name: _____________________________
Vice President
Title: ____________________________
BANK OF AMERICA ILLINOIS, as a Lender
/s/ Carl F. Salas
By: _______________________________
Carl F. Salas
Name: _____________________________
Vice President
Title: ____________________________
BANK OF NEW YORK, as a Lender
/s/ Edward F. Ryan, Jr.
By: _______________________________
Edward F. Ryan, Jr.
Name: _____________________________
Senior Vice President
Title: ____________________________
<PAGE>
THE DAI-ICHI KANGYO BANK, LTD.,
as a Lender
/s/ Yusuke Yanagwa
By: _______________________________
Yusuke Yanagwa
Name: _____________________________
Assistant Vice President
Title: ____________________________
THE FIRST NATIONAL BANK OF
MARYLAND, as a Lender
/s/ W. Blake Hampson
By: _______________________________
W. Blake Hampson
Name: _____________________________
Vice President
Title: ____________________________
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as a Lender
/s/ Jeffrey Cole
By: _______________________________
Jeffrey Cole
Name: _____________________________
Senior Vice President
Title: ____________________________
THE MITSUBISHI TRUST AND BANKING
CORPORATION, as a Lender
/s/ Patricia Loret de Mola
By: _______________________________
Patricia Loret de Mola
Name: _____________________________
Senior Vice President
Title: ____________________________
<PAGE>
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
/s/ Steffen W. Crother
By: _______________________________
Steffen W. Crother
Name: _____________________________
Vice President
Title: ____________________________
ROYAL BANK OF CANADA,
as a Lender
/s/ John Page
By: _______________________________
John Page
Name: _____________________________
Senior Manager
Title: ____________________________
THE SAKURA BANK, LIMITED, as a Lender
/s/ Yoshikazu Nagura
By: _______________________________
Yoshikazu Nagura
Name: _____________________________
Vice President
Title: ____________________________
SIGNET BANK, as a Lender
/s/ William D. Garrison
By: _______________________________
William D. Garrison
Name: _____________________________
Senior Vice President
Title: ____________________________
<PAGE>
THE SUMITOMO BANK, LIMITED,
as a Lender
/s/ Suresh S. Tata
By: _______________________________
Suresh S. Tata
Name: _____________________________
Senior Vice President
Title: ____________________________
BANK OF MONTREAL, CHICAGO
BRANCH, as a Lender
/s/ Rene Encarnacion
By: _______________________________
Rene Encarnacion
Name: _____________________________
Director
Title: ____________________________
BANQUE NATIONALE DE PARIS,
as a Lender
/s/ Nuala Marley
By: _______________________________
Nuala Marley
Name: _____________________________
Vice President
Title: ____________________________
/s/ Nancy Stengel
By: _______________________________
Nancy Stengel
Name: _____________________________
Assistant Treasurer
Title: ____________________________
THE FUJI BANK, LIMITED, as a Lender
/s/ Teiji Teramoto
By: _______________________________
Teiji Teramoto
Name: _____________________________
Vice President & Manager
Title: ____________________________
<PAGE>
MELLON BANK, N.A., as a Lender
/s/ Nathan H. Kehm
By: _______________________________
Nathan H. Kehm
Name: _____________________________
Assistant Vice President
Title: ____________________________
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH, as a Lender
/s/ Stephen A. Cayer
By: _______________________________
Stephen A. Cayer
Name: _____________________________
Assistant Vice President
Title: ____________________________
/s/ Leo L. Baltz
By: _______________________________
Leo L. Baltz
Name: _____________________________
Vice President
Title: ____________________________
ABN AMRO BANK, N.V., NEW YORK
BRANCH, as a Lender
/s/ David B. Martens
By: _______________________________
David B. Martens
Name: _____________________________
Vice President
Title: ____________________________
/s/ Mark S. Gronich
By: _______________________________
Mark S. Gronich
Name: _____________________________
Vice President
Title: ____________________________
<PAGE>
THE ROYAL BANK OF SCOTLAND plc,
as a Lender
/s/ Grant F. Stoddart
By: _______________________________
Grant F. Stoddart
Name: _____________________________
Senior Vice President & Manager
Title: ____________________________
CREDIT LYONNAIS ATLANTA AGENCY,
as a Lender
/s/ Robert Ivosevich
By: _______________________________
Robert Ivosevich
Name: _____________________________
Senior Vice President
Title: ____________________________
THE YASUDA TRUST AND BANKING
COMPANY, LIMITED, NEW YORK
BRANCH, as a Lender
/s/ Morikazu Kimura
By: _______________________________
Morikazu Kimura
Name: _____________________________
Chief Representative
Title: ____________________________
WESTDEUTSCHE LANDESBANK,
as a Lender
/s/ C. D. Rockey
By: _______________________________
C. D. Rockey
Name: _____________________________
Associate
Title: ____________________________
/s/ Salvatore Battinelli
By: _______________________________
Salvatore Battinelli
Name: _____________________________
Vice President
Title: ____________________________
<PAGE>
FLEET BANK, N.A., as a Lender
/s/ William Weiss
By: _______________________________
William Weiss
Name: _____________________________
Associate
Title: ____________________________
CORESTATES BANK, N.A.
/s/ Lynae S. Young
By: _______________________________
Lynae S. Young
Name: _____________________________
Assistant Vice President
Title: ____________________________
Exhibit 13
Media General
Operating Locations
o PUBLISHING
Virginia
Richmond Times-Dispatch
Bristol Herald Courier
The (Lynchburg) News & Advance
The (Charlottesville) Daily Progress
Potomac (Woodbridge) News
Danville Register & Bee
The (Waynesboro) News Virginian
Manassas Journal Messenger
Culpeper Star-Exponent
Suffolk News-Herald
Virginia Business Magazine - Richmond
Media General Financial Services - Richmond
North Carolina
Winston-Salem Journal
(Concord & Kannapolis) Independent Tribune
The Hickory Daily Record
Statesville Record & Landmark
The (Morganton) News Herald
The Reidsville Review
The (Eden) Daily News
The (Marion) McDowell News
Florida
The Tampa Tribune
(Sebring) Highlands Today
(Brooksville) Hernando Today
Colorado
The Denver Post (40% ownership)
District of Columbia
Media General News Service
Media General also owns nearly
100 weeklies and periodicals
o BROADCAST TELEVISION
WIAT-TV42 - Birmingham, Ala.
WHOA-TV32 - Montgomery, Ala.*
WJWB-TV17 - Jacksonville, Fla.
WFLA-TV8 - Tampa, Fla.
WSAV-TV3 - Savannah, Ga.
WTVQ-TV36 - Lexington, Ky.
KALB-TV5 - Alexandria, La.
WHLT-TV22 - Hattiesburg, Miss.
WJTV-TV12 - Jackson, Miss.
WNCT-TV9 - Greenville, N.C.
WCBD-TV2 - Charleston, S.C.
WDEF-TV12 - Chattanooga, Tenn.
WJHL-TV11 - Johnson City, Tenn.
WSLS-TV10 - Roanoka, Va.
Professional Communications Services - Tampa, Fla.
o CABLE TELEVISION
Media General Cable and Mega Advertising -
Fairfax County, Va.
Media General Cable of Frederickburg -
Fredericksburg, Va.
o NEWSPRINT
Garden State Paper Company, Inc. - Garfield, N.J.
Southeast Paper Manufacturing Company
(33% ownership) - Dublin, Ga.
* Sale pending
MEDIA GENERAL, INC., CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Fiscal Years Ended
----------------------------------------------
December 27, December 28, December 29,
1998 1997 1996
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Revenues $ 973,978 $ 909,987 $ 765,105
Operating costs:
Production 477,260 453,937 410,659
Selling, distribution and administrative 240,487 228,289 187,059
Depreciation and amortization 100,201 98,316 64,951
- ---------------------------------------------------------------------------------------------------
Total operating costs 817,948 780,542 662,669
- ---------------------------------------------------------------------------------------------------
Operating income 156,030 129,445 102,436
- ---------------------------------------------------------------------------------------------------
Other income (expense):
Interest expense (66,049) (65,442) (21,267)
Investment income - unconsolidated affiliates:
Southeast Paper Manufacturing Co. 12,831 8,334 19,508
Denver Newspapers, Inc.:
Equity in net income 3,226 6,695 2,704
Preferred stock income 6,136 6,008 4,976
Other, net (999) 1,267 1,381
- ---------------------------------------------------------------------------------------------------
Total other income (expense) (44,855) (43,138) 7,302
- ---------------------------------------------------------------------------------------------------
Income before income taxes and extraordinary item 111,175 86,307 109,738
Income taxes 40,301 33,797 39,240
- ---------------------------------------------------------------------------------------------------
Income before extraordinary item 70,874 52,510 70,498
Extraordinary item from early redemption of debt
(net of income tax benefit of $38,613) --- (63,000) ---
- ---------------------------------------------------------------------------------------------------
Net income (loss) $ 70,874 $ (10,490) $ 70,498
===================================================================================================
Earnings (loss) per common share:
Income before extraordinary item $ 2.67 $ 1.99 $ 2.68
Extraordinary item --- (2.39) ---
---------------------------------------------
Net income (loss) $ 2.67 $ (0.40) $ 2.68
=============================================
Earnings (loss) per common share and equivalent-
assuming dilution:
Income before extraordinary item $ 2.63 $ 1.97 $ 2.65
Extraordinary item --- (2.37) ---
---------------------------------------------
Net income (loss) $ 2.63 $ (0.40) $ 2.65
=============================================
</TABLE>
Notes to Consolidated Financial Statements begin on page 30.
25
<PAGE>
MEDIA GENERAL, INC., CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARES AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
ASSETS
December 27, December 28,
1998 1997
- ---------------------------------------------------------------------------------------------------
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 7,637 $ 3,504
Accounts receivable (less allowance for doubtful
accounts 1998 - $8,433; 1997 - $6,653) 110,067 109,287
Inventories 20,341 20,868
Other 38,181 32,268
--------------- --------------
Total current assets 176,226 165,927
- ---------------------------------------------------------------------------------------------------
Investments in unconsolidated affiliates 146,702 132,209
- ---------------------------------------------------------------------------------------------------
Other assets 45,818 28,519
- ---------------------------------------------------------------------------------------------------
Property, plant and equipment, at cost:
Land 29,932 30,190
Buildings 167,332 158,775
Machinery and equipment 900,328 877,992
Construction in progress 13,659 12,971
Accumulated depreciation (614,454) (578,296)
--------------- --------------
Net property, plant and equipment 496,797 501,632
- ---------------------------------------------------------------------------------------------------
Excess of cost over fair value of net identifiable assets
of acquired businesses (less accumulated amortization
1998 - $41,490; 1997 - $24,732) 651,391 572,458
- ---------------------------------------------------------------------------------------------------
FCC licenses and other intangibles (less accumulated
amortization 1998 - $34,829; 1997 - $18,601) 400,412 413,456
- ---------------------------------------------------------------------------------------------------
Total assets $ 1,917,346 $ 1,814,201
===================================================================================================
</TABLE>
Notes to Consolidated Financial Statements begin on page 30.
26
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES AND STOCKHOLDERS' EQUITY
December 27, December 28,
1998 1997
- ----------------------------------------------------------------------------------------------------
<S> <C> <C>
Current liabilities:
Accounts payable $ 41,050 $ 31,599
Accrued expenses and other liabilities 106,047 98,190
Income taxes payable --- 1,422
--------------- ---------------
Total current liabilities 147,097 131,211
- ----------------------------------------------------------------------------------------------------
Long-term debt 928,101 900,140
- ----------------------------------------------------------------------------------------------------
Deferred income taxes 244,968 249,649
- ----------------------------------------------------------------------------------------------------
Other liabilities and deferred credits 119,831 114,975
- ----------------------------------------------------------------------------------------------------
Commitments and contingencies (Note 9)
- ----------------------------------------------------------------------------------------------------
Stockholders' equity:
Preferred stock ($5 cumulative convertible), par value $5 per share:
Authorized 5,000,000 shares; none outstanding
Common stock, par value $5 per share:
Class A, authorized 75,000,000 shares; issued
26,214,721 and 26,172,424 shares 131,074 130,862
Class B, authorized 600,000 shares; issued
556,574 shares 2,783 2,783
Additional paid-in capital 18,694 16,733
Unearned compensation (1,050) (2,100)
Retained earnings 325,848 269,948
--------------- ---------------
Total stockholders' equity 477,349 418,226
- ----------------------------------------------------------------------------------------------------
Total liabilities and stockholders' equity $ 1,917,346 $ 1,814,201
====================================================================================================
</TABLE>
Notes to Consolidated Financial Statements begin on page 30.
27
<PAGE>
MEDIA GENERAL, INC., CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(IN THOUSANDS, EXCEPT SHARES AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Common Stock Additional
----------------- Paid-in Unearned Retained
Class A Class B Capital Compensation Earnings
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1995 $ 129,526 $ 2,783 $ 10,068 $ (2,573) $ 237,307
Net income --- --- --- --- 70,498
Cash dividends ($0.50 per share) --- --- --- --- (13,238)
Purchase and retirement of 44,212
Class A shares (221) --- (1,238) --- ---
Exercise of options on 88,621
Class A shares 443 --- 1,470 --- ---
Income tax benefits relating to
restricted share dividends and
exercised options --- --- 1,016 --- ---
Issuance of 5,408 Class A shares
under dividend reinvestment plan 27 --- 149 --- ---
Amortization and forfeitures
of unearned compensation (24) --- (72) 1,319 ---
----------- ---------- ----------- ----------- ----------
Balance at December 29, 1996 129,751 2,783 11,393 (1,254) 294,567
- -----------------------------------------------------------------------------------------------------
Net loss --- --- --- --- (10,490)
Cash dividends ($0.53 per share) --- --- --- --- (14,129)
Exercise of options on 131,024
Class A shares 655 --- 1,991 --- ---
Issuance of 91,000 Class A shares
under restricted stock plan 455 --- 2,406 (2,861) ---
Income tax benefits relating to
restricted share dividends and
exercised options --- --- 918 --- ---
Issuance of 5,373 Class A shares
under dividend reinvestment plan 27 --- 157 --- ---
Amortization and forfeitures
of unearned compensation (26) --- (132) 2,015 ---
----------- ---------- ----------- ----------- ----------
Balance at December 28, 1997 130,862 2,783 16,733 (2,100) 269,948
- -----------------------------------------------------------------------------------------------------
Net income --- --- --- --- 70,874
Cash dividends ($0.56 per share) --- --- --- --- (14,974)
Purchase and retirement of 77,011
Class A shares (385) --- (3,186) --- ---
Exercise of options on 112,560
Class A shares 563 --- 2,486 --- ---
Income tax benefits relating to
restricted share dividends and
exercised options --- --- 2,406 --- ---
Issuance of 6,748 Class A shares
under dividend reinvestment plan 34 --- 255 --- ---
Amortization of unearned
compensation --- --- --- 1,050 ---
----------- ---------- ----------- ----------- ----------
Balance at December 27, 1998 $ 131,074 $ 2,783 $ 18,694 $ (1,050) $ 325,848
=====================================================================================================
</TABLE>
Notes to Consolidated Financial Statements begin on page 30.
28
<PAGE>
MEDIA GENERAL, INC., CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
Fiscal Years Ended
--------------------------------------------
December 27, December 28, December 29,
1998 1997 1996
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income (loss) $ 70,874 $ (10,490) $ 70,498
Adjustments to reconcile net income (loss):
Extraordinary item --- 63,000 ---
Depreciation and amortization 100,201 98,316 64,951
Deferred income taxes (5,945) (4,227) (1,733)
Provision for doubtful accounts 6,269 5,228 5,084
Investment income - unconsolidated affiliates (19,493) (18,337) (27,188)
Distribution from unconsolidated newsprint
affiliate 5,000 --- 15,600
------------- ------------ -------------
Net cash provided by operations 156,906 133,490 127,212
Change in assets and liabilities:
Accounts receivable and inventories (6,810) (13,074) (1,979)
Other current assets 15,986 14,392 1,780
Accounts payable, accrued expenses
and other liabilities (14,774) (13,495) (1,745)
Other, net (11,044) (1,965) 1,235
------------- ------------ -------------
Net cash provided by operating activities 140,264 119,348 126,503
- ----------------------------------------------------------------------------------------------------
Cash flows from investing activities:
Capital expenditures (49,480) (41,599) (28,510)
Purchase of businesses (1997 - net of $476 million
of debt assumed) (132,680) (276,823) (40,024)
Sale of businesses 28,123 147,267 ---
Other, net 2,924 (1,146) 6,494
------------- ------------ -------------
Net cash used by investing activities (151,113) (172,301) (62,040)
- ----------------------------------------------------------------------------------------------------
Cash flows from financing activities:
Increase in debt 463,000 1,022,000 38,000
Payment of debt (436,383) (874,000) (88,750)
Premiums and costs related to early redemption
of Park debt --- (84,703) ---
Cash dividends paid (14,974) (14,129) (13,238)
Other, net 3,339 2,818 629
------------- ------------ -------------
Net cash provided (used) by financing activities 14,982 51,986 (63,359)
- ----------------------------------------------------------------------------------------------------
Net increase (decrease) in cash and cash equivalents 4,133 (967) 1,104
Cash and cash equivalents at beginning of year 3,504 4,471 3,367
------------- ------------ -------------
Cash and cash equivalents at end of year $ 7,637 $ 3,504 $ 4,471
====================================================================================================
</TABLE>
Notes to Consolidated Financial Statements begin on page 30.
29
<PAGE>
MEDIA GENERAL, INC., NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1: PRINCIPLES OF CONSOLIDATION
The accompanying financial statements include the accounts of Media General,
Inc., and subsidiaries more than 50% owned (the Company). The Company's fiscal
year ends on the last Sunday in December. All significant intercompany balances
and transactions have been eliminated. See Note 9 for a summary of the Company's
accounting policies.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates. Certain
prior year financial information has been reclassified to conform with the
current year's presentation.
NOTE 2: ACQUISITIONS
In January 1998, the Company acquired, for approximately $93 million, the
assets of the Bristol Herald Courier (Bristol), a daily newspaper in
southwestern Virginia, and two affiliated weekly newspapers. In July 1998 the
Company acquired, for approximately $40 million, the assets of the Hickory Daily
Record (Hickory), a daily newspaper in northwestern North Carolina. Both
transactions were accounted for as purchases and have been included in the
Company's consolidated results of operations since their respective dates of
acquisition. The purchase price has been allocated to the assets acquired based
on estimated fair values. The amount allocated to identifiable intangibles
(principally subscriber lists) was $8 million, to other assets, net (principally
property, plant and equipment) was $17 million, and to excess cost over the net
assets acquired was $108 million. Also, in June 1998, the Company completed the
sale of its Kentucky newspaper properties for approximately $24 million. The
Bristol and Hickory acquisitions were funded with borrowings under an existing
revolving credit facility (see Note 4), coupled with proceeds from the
disposition of the Kentucky newspaper properties.
In January 1997, the Company acquired Park Acquisitions, Inc., parent of
Park Communications, Inc. (Park). The acquisition included ten network
affiliated television stations, 28 daily newspapers and 82 weekly newspapers.
The total consideration approximated $715 million, representing the purchase of
all the issued and outstanding common stock of Park, the assumption of
liabilities (primarily $476 million of Park's high coupon long-term debt) and
transaction costs. In early February 1997, the Company redeemed Park's high
coupon debt and recorded an extraordinary charge of $63 million ($2.39 per
share, or $2.37 per share - assuming dilution), representing the debt prepayment
premium and the write-off of associated debt issuance costs, net of a $38.6
million tax benefit. The acquisition and redemption were financed with
borrowings under an existing revolving credit facility (see Note 4). As
intended, after the acquisition the Company completed sales of certain of the
former Park properties for approximately $147 million and purchased new
properties for approximately $53 million. These purchases included the Potomac
News (Woodbridge, Virginia) in February 1997, and the Reidsville Review
(Reidsville, North Carolina) and The Messenger (Madison, North Carolina) in
April 1997.
In order to comply with the Federal Communication Commission's requirement
that WTVR-TV be divested within one year of its January 1997 purchase date, in
August 1997, the Company completed the exchange of WTVR-TV (Richmond, Virginia)
for three other stations, WSAV-TV (Savannah, Georgia), WJTV-TV (Jackson,
Mississippi) and WHLT-TV (Hattiesburg, Mississippi). The new stations' results
of operations have been included in the Company's operations beginning with the
exchange date.
These acquisitions were also accounted for as purchases and the purchase
price was allocated to the assets acquired and liabilities assumed based upon
their estimated fair values. The amount allocated to FCC licenses and other
identifiable intangibles and to excess cost over the net assets acquired
relating to Park and the related sale, purchase, and exchange activities was
$415 million and $313 million, respectively. These amounts are being amortized
on a straight-line basis over periods ranging from 3 to 40 years. The results of
operations of these businesses, since their respective dates of acquisition,
have been included in the Company's consolidated results of operations.
In August 1996, the Company acquired, for approximately $38 million, the
Danville Register & Bee, a daily newspaper in Virginia. The results of
operations of this business since its date of acquisition, have been included in
the Company's consolidated results of operations.
NOTE 3: INVESTMENTS IN UNCONSOLIDATED AFFILIATES
The Company has a one-third partnership interest in Southeast Paper
Manufacturing Company (SEPCO), a domestic newsprint manufacturer which also pays
licensing fees to the Company. The Company also has a 40% interest in Denver
Newspapers, Inc. (DNI), the parent company of The Denver Post, a Denver,
Colorado, daily newspaper company.
30
<PAGE>
Summarized financial information for these investments accounted for by the
equity method follows:
SOUTHEAST PAPER MANUFACTURING COMPANY:
<TABLE>
<CAPTION>
(IN THOUSANDS) 1998 1997
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Current assets $ 79,434 $ 74,667
Noncurrent assets 294,628 318,478
Current liabilities 66,946 65,392
Noncurrent liabilities 74,765 118,894
- ------------------------------------------------------------------------------------------------------
(IN THOUSANDS) 1998 1997 1996
- ------------------------------------------------------------------------------------------------------
Net sales $ 255,248 $ 246,468 $ 277,543
Gross profit 66,945 56,183 93,150
Net income 38,493 25,002 58,525
Company's equity in net income 12,831 8,334 19,508
- ------------------------------------------------------------------------------------------------------
DENVER NEWSPAPERS, INC.:
(IN THOUSANDS) 1998 1997
- ------------------------------------------------------------------------------------------------------
Current assets $ 38,808 $ 37,658
Noncurrent assets 128,508 124,414
Current liabilities 33,029 35,836
Noncurrent liabilities 38,691 38,726
Mandatorily redeemable preferred stock 54,300 54,300
- ------------------------------------------------------------------------------------------------------
(IN THOUSANDS) 1998 1997 1996
- ------------------------------------------------------------------------------------------------------
Net sales $ 233,365 $ 224,787 $ 197,888
Gross profit 105,833 111,308 82,735
Net income 10,764 19,437 9,461
Net income applicable to common stock 8,064 16,737 6,761
Company's equity in net income 3,226 6,695 2,704
- ------------------------------------------------------------------------------------------------------
</TABLE>
The above summarized information for DNI includes its operating results for
the 12 month periods ended November 30, 1998, 1997, and 1996. The Company
recognizes, on a one month lag, 40% of DNI's net income applicable to common
stockholders. The carrying value of the Company's investment in the DNI
mandatorily redeemable preferred stock, which is being held to its June 30,
1999, maturity and is included in investments in unconsolidated affiliates, was
$52.7 million and $49.3 million, net of unamortized discounts of $3.2 million
and $9.3 million, at December 27, 1998, and December 28, 1997, respectively.
OTHER:
Retained earnings of the Company at December 27, 1998, included $37.5
million related to undistributed earnings of unconsolidated affiliates. During
1997, the Company invested approximately $4.6 million to acquire 18% of the
common stock of Hoover's, Inc., a leading provider of on-line financial
information.
NOTE 4: LONG-TERM DEBT AND OTHER FINANCIAL INSTRUMENTS
Long-term debt at December 27, 1998, and December 28, 1997, was as follows:
<TABLE>
<CAPTION>
(IN THOUSANDS) 1998 1997
- ------------------------------------------------------------------------------------------------------
<S> <C> <C>
Revolving credit facility $ 850,000 $ 810,000
8.62% senior notes due annually from 1999 to 2002 52,000 65,000
7.125% revenue bonds due 2022 20,000 20,000
Bank lines 5,000 5,000
Capitalized leases 1,101 140
----------- ------------
Long-term debt (see discussion of interest rate swap agreements following) $ 928,101 $ 900,140
======================================================================================================
</TABLE>
31
<PAGE>
In December 1996, the Company entered into a seven-year revolving credit
facility committing a syndicate of banks to lend the Company up to $1.2 billion.
This facility has mandatory commitment reductions of 25% at the end of 2001 and
2002. Interest rates under the facility are typically based on the London
Interbank Offered Rate (LIBOR) (5.36% at December 27, 1998) plus a margin
ranging from .225% to .75% (.45% at December 27, 1998), based on the Company's
debt to cash flow ratio (leverage ratio), as defined. Under this facility, the
Company pays commitment fees (.125% at December 27, 1998) on the unused portion
of the facility at a rate based on its leverage ratio.
In 1992, the Company issued $20 million of New Jersey Economic Development
Authority tax-exempt revenue bonds. The bonds are secured by a letter of credit,
under which the Company pays an annual fee equal to .125% plus a margin (.45% at
December 27, 1998) based on the Company's leverage ratio. The bonds contain
certain optional and mandatory redemption provisions, and the bond proceeds were
restricted for capital expenditures related to the Company's Garden State Paper
newsprint operations in New Jersey.
The Company's debt covenants contain a minimum net worth requirement ($384
million at December 27, 1998), and require the maintenance of an interest
coverage ratio and a leverage ratio, as defined. Long-term debt maturities
during the five years subsequent to December 27, 1998, aggregating $907,927,000,
are as follows: 1999 -- $18,000,000; 2000 -- $13,266,000; 2001 -- $13,279,000;
2002 -- $263,216,000; 2003 -- $600,166,000.
At December 27, 1998 and December 28, 1997, the Company had borrowings of $5
million from bank lines and $13 million of senior notes due within one year
classified as long-term debt in accordance with the Company's intention and
ability to refinance these obligations on a long-term basis under existing
facilities. The interest rates on the bank lines were 5.04% and 5.73% at
December 27, 1998 and December 28, 1997, respectively.
The Company had interest rate swap agreements totaling $725 million at
December 27, 1998, with maturities of approximately one to five years which
effectively convert the Company's variable rate debt to fixed rate debt with a
weighted average interest rate of 6.8% at December 27, 1998. The Company enters
into interest rate swap agreements, which are not held for trading purposes, to
manage interest cost and risk associated with variable interest rates, primarily
short-term changes in LIBOR. The Company uses the accrual method to account for
all interest rate swap agreements. Realized gains or losses on termination of
interest rate swaps are deferred and amortized over their remaining original
terms as an adjustment to interest expense. Amounts which are due to or from
interest rate swap counterparties are recorded as an adjustment to interest
expense in the periods in which they accrue. The Company's exposure to credit
loss on its interest rate swap agreements in the event of nonperformance by the
counterparties is believed to be remote due to the Company's requirement that
counterparties have a strong credit rating.
In June 1998, Statement of Financial Accounting Standards (SFAS) No. 133,
ACCOUNTING FOR DERIVATIVE INSTRUMENTS AND HEDGING ACTIVITIES, was issued and is
effective for fiscal years beginning after June 15, 1999. When adopted, all
derivatives will be recognized on the balance sheet at fair value. Derivatives
that are not hedges must be adjusted to fair value through income. If a
derivative is a hedge, depending upon the nature of the hedge, a change in its
fair value will either be offset against the change in the fair value of the
hedged assets, liabilities, or firm commitments through earnings, or recognized
in other comprehensive income (OCI) until the hedged item is recognized in
earnings. The difference between fair value of the hedge and the item being
hedged, known as the ineffective portion, will be immediately recognized in
earnings.
The Company's analysis of the impact of SFAS No. 133 on its results of
operations and financial position is ongoing. At a minimum, the Company expects
that its interest rate swaps will qualify for hedge accounting under the new
standard and will apply SFAS No. 130, REPORTING COMPREHENSIVE INCOME, concurrent
with the adoption of SFAS No. 133. Initial adoption and subsequent changes in
the fair value of the interest rate swaps will give rise to an OCI item, the
amount of which will depend on LIBOR rates in effect at those times.
32
<PAGE>
The table below includes information about the carrying values and estimated
fair values of the Company's financial instruments:
<TABLE>
<CAPTION>
(IN THOUSANDS) 1998 1997
- ------------------------------------------------------------------------------------------------------
Carrying Fair Carrying Fair
Amounts Value Amounts Value
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
ASSETS:
Investment in DNI Preferred Stock (Note 3) $ 52,702 $ 53,953 $ 49,266 $ 51,500
Investment in Hoover's, Inc. 4,567 7,120 4,567 4,567
LIABILITIES:
Long-term debt:
Revolving credit facility 850,000 850,000 810,000 810,000
8.62% senior notes 52,000 54,057 65,000 67,833
7.125% revenue bonds 20,000 22,287 20,000 22,539
Bank lines 5,000 5,000 5,000 5,000
Interest rate swap agreements --- 26,784 --- 12,337
- ------------------------------------------------------------------------------------------------------
</TABLE>
The fair value of the Company's investment in DNI Preferred Stock, which is
not publicly traded, was estimated by discounting expected future cash flows
using a current market rate applicable to the yield, credit quality and maturity
of the investment. The fair value of the Company's investment in Hoover's, Inc.,
which is not publicly traded, is based on prices recently paid for shares of the
Company. The fair values of the interest rate swaps are based on the estimated
amounts the Company would receive or pay to terminate the swaps. Fair values of
the Company's long-term debt are estimated using discounted cash flow analyses
based on the Company's incremental borrowing rates for similar types of
borrowings. The borrowings under the Company's revolving credit facility and
bank lines approximate their fair value.
NOTE 5: BUSINESS SEGMENTS
The Company has adopted SFAS No. 131, DISCLOSURES ABOUT SEGMENTS OF AN
ENTERPRISE AND RELATED INFORMATION, which was issued by the Financial Accounting
Standards Board in June 1997 and became effective for financial statements for
periods beginning after December 15, 1997. Disclosures from prior years have
been reclassified to conform with the current year's presentation.
The Company is a diversified communications company, located primarily in
the southeastern United States, which has four business segments: Publishing,
Broadcast Television, Cable Television and Newsprint. The Publishing Segment,
the Company's largest based on revenue and segment profit, includes 21 daily
newspapers and nearly 100 weekly newspapers and other publications, the
Company's 40% interest in DNI as well as its on-line financial data service. The
Broadcast Television Segment consists of 14 network-affiliated broadcast
television stations and a provider of equipment and studio design services. The
Cable Television Segment includes two cable television operations and a cable
advertising unit. A wholly owned mill, as well as the Company's 33% interest in
Southeast Paper Manufacturing Company (SEPCO), comprises the Newsprint Segment
which produces recycled newsprint for sale primarily to publishers.
Management measures segment performance based on operating cash flow
(operating income plus depreciation and amortization) as well as profit or loss
from operations before interest, income taxes, and acquisition related
amortization. Amortization of the excess of cost over fair value of net
identifiable assets, as well as FCC licenses and other intangibles, is not
allocated to individual segments although the intangible assets themselves are
included in identifiable assets for each segment. Investments in DNI and SEPCO
are not allocated to segment assets although the equity income is included in
the Publishing and Newsprint Segments, respectively. Intercompany sales are
accounted for as if the sales were at current market prices and are eliminated
in the consolidated financial statements. The Company's reportable segments,
which are managed separately, are strategic business enterprises that provide
distinct products and services using diverse technology and production
processes.
33
<PAGE>
Information by segment is as follows:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Broadcast Cable
(IN THOUSANDS) Publishing Television Television Newsprint Total
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1998
Consolidated revenues * $ 517,880 $ 170,797 $ 157,042 $ 128,259 $ 973,978
=============================================================
Segment operating cash flow $ 155,452 $ 51,318 $ 58,904 $ 18,825 $ 284,499
Allocated amounts:
Equity in net income of
unconsolidated affiliates 3,226 12,831 16,057
License fees from unconsolidated
affiliate 944 944
Depreciation and amortization (23,627) (9,311) (24,334) (6,734) (64,006)
-------------------------------------------------------------
Segment profit $ 135,051 $ 42,007 $ 34,570 $ 25,866 237,494
================================================
Unallocated amounts:
Interest expense (66,049)
Acquisition intangible amortization (34,189)
Corporate expenses (28,233)
Other 2,152
----------
Consolidated income before taxes $ 111,175
==========
Segment assets $ 809,803 $ 691,787 $ 129,820 $ 86,717 $1,718,127
Corporate 199,219
----------
Consolidated assets $1,917,346
==========
Segment capital expenditures $ 11,534 $ 10,061 $ 16,022 $ 10,043 $ 47,660
Corporate 1,820
----------
Consolidated capital expenditures $ 49,480
==========
- ---------------------------------------------------------------------------------------------------
1997
Consolidated revenues * $ 485,594 $ 156,315 $ 153,302 $ 114,776 $ 909,987
=============================================================
Segment operating cash flow $ 139,357 $ 49,099 $ 61,978 $ 2,734 $ 253,168
Allocated amounts:
Equity in net income of
unconsolidated affiliates 6,695 8,334 15,029
License fees from unconsolidated
affiliate 720 720
Depreciation and amortization (24,187) (9,066) (26,053) (6,249) (65,555)
-------------------------------------------------------------
Segment profit $ 121,865 $ 40,033 $ 35,925 $ 5,539 203,362
================================================
Unallocated amounts:
Interest expense (65,442)
Acquisition intangible amortization (31,043)
Corporate expenses (23,445)
Other 2,875
----------
Consolidated income before taxes
and extraordinary item $ 86,307
==========
Segment assets $ 713,375 $ 700,767 $ 137,706 $ 85,671 $1,637,519
Corporate 176,682
----------
Consolidated assets $1,814,201
==========
Segment capital expenditures $ 10,417 $ 9,203 $ 13,067 $ 7,920 $ 40,607
Corporate 992
----------
Consolidated capital expenditures $ 41,599
==========
</TABLE>
34
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Broadcast Cable
(IN THOUSANDS) Publishing Television Television Newsprint Total
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1996
Consolidated revenues * $ 407,791 $ 83,445 $ 146,159 $ 127,710 $ 765,105
=============================================================
Segment operating cash flow $ 94,479 $ 31,040 $ 55,960 $ 12,315 $ 193,794
Allocated amounts:
Equity in net income of
unconsolidated affiliates 2,704 19,508 22,212
License fees from unconsolidated
affiliate 1,397 1,397
Depreciation and amortization (21,163) (2,452) (26,129) (6,173) (55,917)
-------------------------------------------------------------
Segment profit $ 76,020 $ 28,588 $ 29,831 $ 27,047 161,486
================================================
Unallocated amounts:
Interest expense (21,267)
Acquisition intangible amortization (7,826)
Corporate expenses (22,357)
Other (298)
----------
Consolidated income before taxes $ 109,738
==========
Segment assets $ 590,811 $ 51,090 $ 149,265 $ 82,530 $ 873,696
Corporate 151,788
----------
Consolidated assets $1,025,484
==========
Segment capital expenditures $ 4,877 $ 2,269 $ 11,733 $ 6,504 $ 25,383
Corporate 3,127
----------
Consolidated capital expenditures $ 28,510
==========
- ---------------------------------------------------------------------------------------------------
</TABLE>
* Intercompany revenues are less than 1% of consolidated revenues and have been
eliminated.
NOTE 6: TAXES ON INCOME
The Company accounts for income taxes in accordance with Statement of
Financial Accounting Standards No. 109, ACCOUNTING FOR INCOME TAXES, which
requires recognition of deferred tax liabilities and assets for the expected
future tax consequences of events that have been included in the financial
statements or tax returns. Under this "liability" method, deferred tax
liabilities and assets are determined based on the temporary differences between
the financial statement and tax bases of assets and liabilities by applying
enacted statutory tax rates applicable to future years in which the differences
are expected to reverse.
The Company's federal income tax returns through fiscal year 1993 have been
examined and closed by the Internal Revenue Service. The Company's federal
income tax returns for the years 1994 and 1995, and various state tax returns,
are currently under examination by the IRS and state tax authorities,
respectively. The results of these examinations are not expected to be material
to the Company's results of operations, financial position or cash flows.
Significant components of income taxes are as follows:
<TABLE>
<CAPTION>
(IN THOUSANDS) 1998 1997 1996
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
CURRENT:
Federal $ 38,702 $ 32,683 $ 35,143
State 7,544 5,341 5,830
---------- ----------- ------------
46,246 38,024 40,973
---------- ----------- ------------
DEFERRED:
Federal (5,276) (3,722) (1,885)
State (669) (505) 152
---------- ----------- ------------
(5,945) (4,227) (1,733)
---------- ----------- ------------
$ 40,301 $ 33,797 $ 39,240
======================================================================================================
</TABLE>
35
<PAGE>
Temporary differences which give rise to significant components of the
Company's deferred tax liabilities and assets at December 27, 1998, and December
28, 1997, are as follows:
<TABLE>
<CAPTION>
(IN THOUSANDS) 1998 1997
- ------------------------------------------------------------------------------------------------------
<S> <C> <C>
Deferred tax liabilities:
Difference between book and tax bases of intangible assets $ 155,386 $ 152,568
Tax over book depreciation 117,505 123,296
Other 17,743 19,447
----------- ------------
Total deferred tax liabilities 290,634 295,311
Deferred tax assets:
Employee benefits (39,469) (39,688)
Other (17,377) (17,966)
----------- ------------
Total deferred tax assets (56,846) (57,654)
----------- ------------
Deferred tax liabilities, net 233,788 237,657
Deferred tax assets included in other current assets 11,180 11,992
----------- ------------
Deferred tax liabilities $ 244,968 $ 249,649
======================================================================================================
</TABLE>
Reconciliation of income taxes computed at the federal statutory tax rate to
actual income tax expense is as follows:
<TABLE>
<CAPTION>
(IN THOUSANDS) 1998 1997 1996
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Income taxes computed at federal statutory tax rate $ 38,911 $ 30,208 $ 38,408
Increase (reduction) in income taxes resulting from:
State income taxes, net of federal income tax benefit 4,469 3,143 3,888
Investment income -- unconsolidated affiliates (2,622) (3,557) (2,150)
Amortization of excess cost (goodwill) 2,987 2,900 247
Life insurance plans (1,905) (1,625) (1,772)
Other (1,539) 2,728 619
---------- ----------- ------------
$ 40,301 $ 33,797 $ 39,240
======================================================================================================
</TABLE>
Net of refunds, in 1998, 1997 and 1996, the Company paid income taxes of
$56.5 million, $29.4 million and $42.9 million, respectively.
NOTE 7: COMMON STOCK AND STOCK OPTIONS
Holders of the Class A common stock are entitled to elect 30% of the Board
of Directors and, with the holders of Class B common stock, also are entitled to
vote on the reservation of shares for stock awards and on certain specified
types of major corporate reorganizations or acquisitions. Class B common stock
can be converted into Class A common stock on a share-for-share basis at the
option of the holder. Both classes of common stock receive the same dividends
per share.
In January 1997, the Directors' Deferred Compensation Plan became effective
for each non-employee member of the Board of Directors of the Company. The plan
provides that each non-employee Director shall receive half of his or her annual
compensation for services to the Board in the form of Deferred Stock Units
(DSU); each Director additionally may elect to receive the balance of his or her
compensation in cash or DSU. Other than dividend credits, deferred stock units
do not entitle Directors to any rights due to a holder of common stock. DSU
account balances may be settled as of the Director's retirement date by a cash
lump-sum payment, a single distribution of common stock, or annual installments
of either cash or common stock over a period of up to ten years. Expense
recognized in both 1998 and 1997 under the plan was $550,000.
Stock-based awards are granted to key employees in the form of nonqualified
stock options and restricted stock under the 1995 Long-Term Incentive Plan
(LTIP). The plan is administered by the Compensation Committee of the Board of
Directors. Grant prices of stock options are determined by the Committee and
shall not be less than the fair market value on the date of grant. Options are
exercisable during the continued employment of the optionee but not for a period
greater than ten years and not for a period greater than one year after
termination of employment, and they become exercisable at the rate of one-third
each year from the date of grant. Restricted stock is awarded in the name of
each of the participants; these shares have all the rights of other Class A
shares, subject to certain restriction and forfeiture provisions. In 1997,
91,000 shares were granted under the terms of the plan, 2,000 shares of which
were forfeited by December 27, 1998. Restrictions on the shares expire no more
than ten years after the date of award, or earlier if pre-established
performance targets are met. The plan will continue until terminated by the
Company.
36
<PAGE>
Options to purchase Class A common stock were granted to key employees under
the 1976 and 1987 nonqualified stock option plans prior to the 1995 LTIP. The
Company will not make any future awards under these plans and past awards are
not affected. Options outstanding under the plans are exercisable during the
continued employment of the optionee, but not for a period greater than ten
years after the date of grant for options granted subsequent to the 1991
amendment to the 1987 plan and for a period of not greater than three years
after termination of employment.
Restricted shares of the Company's Class A common stock were granted to
certain key employees under the 1991 restricted stock plan. The Company will not
make any future awards under the plan and past awards are not affected. At
December 27, 1998, 26,425 shares granted in 1995 remain restricted under the
terms of the plan. Shares were awarded in the name of each of the participants;
these shares have all the rights of other Class A shares, subject to certain
restrictions and forfeiture provisions. Restrictions on the shares expire no
more than ten years after the date of the award, or earlier if certain
performance targets are met.
Unearned compensation was recorded at the date of the restricted stock
awards based on the market value of the shares. Unearned compensation, which is
shown as a separate component of stockholders' equity, is being amortized to
expense over a vesting period (not exceeding ten years) based upon expectations
of meeting certain performance targets. The amount amortized to expense in 1998,
1997 and 1996 was $1,050,000, $1,843,000 and $1,198,000, respectively.
In 1996, the Company adopted the disclosure-only provisions of SFAS No. 123,
ACCOUNTING FOR STOCK-BASED COMPENSATION. As permitted by the provisions of SFAS
No. 123, the Company continues to follow Accounting Principles Board Opinion No.
25, ACCOUNTING FOR STOCK ISSUED TO EMPLOYEES, and related interpretations in
accounting for its stock-based awards. Accordingly, since stock options are
issued at fair market value on the date of grant, the Company does not recognize
compensation cost related to its stock option plans.
The following information is provided solely in connection with the
disclosure requirements of SFAS No. 123. If the Company had elected to recognize
compensation cost related to its stock options granted in 1998, 1997 and 1996 in
accordance with the provisions of SFAS No. 123, earnings per share would have
declined $0.05 ($0.04 assuming dilution), $0.03 and $0.02 in 1998, 1997 and
1996, and pro forma net income (loss) and earnings (loss) per share would have
been $69,730,000, ($11,452,000) and $69,896,000; and $2.62 ($2.59 assuming
dilution), ($0.43) and $2.63, respectively (per share amounts assuming dilution
are identical unless otherwise indicated). The 1996 pro forma amounts are not
indicative of future effects of applying the provisions of SFAS No. 123 since a
three year vesting period is used to measure pro forma compensation expense and
1996 amounts reflect expense for two years of vesting. The fair value for these
options was estimated at the date of grant using a Black-Scholes option pricing
model with the following weighted-average assumptions for 1998, 1997 and 1996,
respectively: risk-free interest rates of 5.61%, 6.54% and 5.57%; dividend
yields of 1.45%, 1.57% and 1.75%; volatility factors of .287, .287 and .282; and
an expected life of 8 years.
A summary of the Company's stock option activity, and related information
for the years ended December 27, 1998, December 28, 1997 and December 29, 1996
follows:
<TABLE>
<CAPTION>
1998 1997 1996
----------------------- ------------------------- ----------------------
Weighted- Weighted- Weighted-
Average Average Average
Exercise Exercise Exercise
Options Shares Price Shares Price Shares Price
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Outstanding-beginning of year 1,049,097 $ 26.68 1,066,722 $ 25.59 1,038,511 $ 24.68
Granted 122,000 46.38 144,500 31.44 130,400 31.81
Exercised (112,560) 27.08 (131,024) 20.20 (88,621) 21.59
Forfeited (2,334) 6.64 (31,101) 38.60 (13,568) 41.62
----------- ----------- -----------
Outstanding-end of year 1,056,203 28.96 1,049,097 26.68 1,066,722 25.59
----------- ----------- -----------
Price range at end of year $ 2 to $46 $ 2 to $46 $ 2 to $46
Price range for exercised shares $ 2 to $46 $ 2 to $32 $ 2 to $32
Available for grant at end of year 603,100 725,100 869,600
Exercisable at end of year 799,388 789,300 814,622
Weighted-average fair value of
options granted during the year $ 17.68 $ 12.47 $ 11.44
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
37
<PAGE>
The following table summarizes information about stock options outstanding
at December 27, 1998:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
------------------------------------------------------------------ -----------------------------
Range of Weighted-Average
Exercise Number Remaining Weighted-Average Number Weighted-Average
Prices Outstanding Contractual Life Exercise Price Exercisable Exercise Price
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
$ 2.50 13,300 * $ 2.50 13,300 $ 2.50
15.75 43,830 ** 15.75 43,830 15.75
18.81-20.19 301,400 3 years 19.62 301,400 19.62
27.63-31.81 452,173 7 years 29.96 317,358 29.29
32.50-46.50 245,500 *** 42.36 123,500 38.39
---------- ---------
2.50-46.50 1,056,203 28.96 799,388 25.86
========== =========
</TABLE>
(*) Exercisable during lifetime of optionee
(**) Exercisable during the continued employment of the optionee and for a
three-year period thereafter
(***) Exercisable during the continued employment of the optionee and for a
three-year period thereafter with the exception of 122,000 options which
were issued on 1/28/98 for $46.38 with a remaining contractual life of
nine years
NOTE 8: RETIREMENT PLANS
The Company has adopted SFAS No. 132, EMPLOYERS' DISCLOSURES ABOUT PENSIONS
AND OTHER POSTRETIREMENT BENEFITS. The Company has non-contributory defined
benefit retirement plans which cover substantially all employees, and
non-contributory unfunded supplemental executive retirement and ERISA excess
plans which supplement the coverage available to certain executives. The Company
also provides certain health and life insurance benefits for retired employees.
The union employees at the Company's wholly owned newsprint mill participate in
multi-employer defined benefit and defined contribution pension plans. The
previously mentioned plans are collectively referred to as the "Plans."
The assumptions used in the measurement of the Company's benefit obligation
are shown as follows:
<TABLE>
<CAPTION>
Pension Benefits Other Benefits
----------------------- ---------------------
Weighted-average assumptions at end of year 1998 1997 1998 1997
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Discount rate 6.75% 7.25% 6.75% 7.25%
Expected return on plan assets 10.50% 10.50% --- ---
Rate of compensation increase 3.75% 4.25% 3.75% 4.25%
</TABLE>
For measurement purposes, a 9.25% annual rate of increase in the per
capita cost of covered health care benefits was assumed for 1998. The rate was
assumed to decrease gradually each year to a rate of 4.75% for 2007 and remain
at that level thereafter.
With the passage of time, actual experience differs from the assumptions
used in determining the Company's pension and postretirement benefit
obligations. These differences, coupled with external economic factors, cause
periodic revision of the assumptions. The effects of actual versus assumed
experience, as well as changes in assumptions, give rise to actuarial gains and
losses in the table that follows. These actuarial gains and losses represent
both better than expected return on plan assets and other changes in assumptions
and are recognized over the expected service period of active participants.
38
<PAGE>
The following table provides a reconciliation of the changes in the Plans'
benefit obligations and fair value of assets, and a statement of the funded
status over the periods ended December 27, 1998, and December 28, 1997:
<TABLE>
<CAPTION>
Pension Benefits Other Benefits
-------------------------- ------------------------
(IN THOUSANDS) 1998 1997 1998 1997
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Change in benefit obligation:
Benefit obligation at beginning of year $ 198,792 $ 171,794 $ 32,705 $ 30,439
Service cost 6,469 5,767 469 569
Interest cost 14,906 14,323 2,214 2,438
Participant contributions --- --- 290 284
Actuarial (gain)/loss 11,042 15,369 (365) 1,272
Acquisitions --- 1,669 --- ---
Benefit payments (11,052) (10,130) (2,665) (2,297)
--------- --------- --------- ---------
Benefit obligation at end of year 220,157 198,792 32,648 32,705
--------- --------- --------- ---------
Change in plan assets:
Fair value of plan assets at beginning
of year 216,205 188,114 --- ---
Actual return on plan assets 33,792 37,086 --- ---
Acquisitions --- 1,534 --- ---
Employer contributions 1,217 328 --- ---
Benefit payments (11,052) (10,857) --- ---
--------- --------- --------- ---------
Fair value of plan assets at end of year 240,162 216,205 --- ---
--------- --------- --------- ---------
Funded status:
Plan assets greater than/(less than)
benefit obligation 20,005 17,413 (32,648) (32,705)
Unrecognized transition asset (1,718) (2,217) --- ---
Unrecognized prior-service cost 5,509 6,722 --- ---
Unrecognized actuarial (gain)/loss (51,744) (48,662) 4,228 4,593
--------- --------- --------- ---------
Accrued benefit cost $ (27,948) $ (26,744) $ (28,420) $ (28,112)
======================================================================================================
</TABLE>
The following table provides the components of net periodic benefit cost
for the Plans for fiscal years 1998, 1997 and 1996:
<TABLE>
<CAPTION>
Pension Benefits Other Benefits
---------------------------- -------------------------------
(IN THOUSANDS) 1998 1997 1996 1998 1997 1996
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Service cost $ 6,469 $ 5,767 $ 5,560 $ 469 $ 569 $ 526
Interest cost 14,906 14,323 12,741 2,214 2,438 2,244
Expected return on plan assets (19,285) (17,679) (15,768) --- --- ---
Amortization of transition asset (499) (499) (499) --- --- ---
Amortization of prior-service cost 829 884 884 --- --- ---
Amortization of net loss/(gain) 2 (261) (505) --- 124 137
Multi-employer plans expense 589 678 627 --- --- ---
------- ------- ------- -------- ------- --------
Net periodic benefit cost $ 3,011 $ 3,213 $ 3,040 $ 2,683 $ 3,131 $ 2,907
=======================================================================================================
</TABLE>
The Company's policy is to fund benefits under the supplemental executive
retirement, excess, and postretirement benefits plans as claims and premiums are
paid. As of December 27, 1998, and December 28, 1997, the benefit obligation
related to the supplemental executive retirement and ERISA excess plans included
in the above tables was $21.1 million and $18.8 million, respectively.
39
<PAGE>
Assumed health care cost rates have an effect on the amounts reported for
the health care plans. A one percent change in assumed health care cost trend
rates would have the following effects:
<TABLE>
<CAPTION>
(IN THOUSANDS) 1% Increase 1% Decrease
- -----------------------------------------------------------------------------------------------
<S> <C> <C>
Effect on total of service and interest cost components of
net periodic postretirement health care benefit cost $ 91 $ (81)
Effect on the health care component of the accumulated
postretirement benefit obligation 1,387 (1,193)
</TABLE>
The Company also sponsors a thrift plan covering substantially all
employees. Company contributions represent a partial matching of participant
contributions up to a maximum of 3.3% of the employee's salary. Contributions
charged to expense under the plan were $5.0 million, $4.5 million and $4.2
million in 1998, 1997 and 1996, respectively.
NOTE 9: OTHER
REVENUE RECOGNITION
Advertising revenue is recognized when advertisements are published or
aired, or when related advertising services are rendered. Subscription revenue
is recognized on a pro-rata basis over the term of the subscription. Newsprint
revenue is recognized upon shipment of newsprint.
DEPRECIATION AND AMORTIZATION
Plant and equipment are depreciated, primarily on a straight-line basis,
over their estimated useful lives which are generally 40 years for buildings and
range from 3 to 20 years for machinery and equipment. Depreciation deductions
are computed by accelerated methods for income tax purposes. Internal use
software is amortized on a straight-line basis over its estimated useful life,
not to exceed 5 years.
Excess of cost over fair value of net identifiable assets of acquired
businesses through 1970 (approximately $32 million) is not amortized unless
there is evidence of diminution in value; such excess cost incurred after 1970
is being amortized by the straight-line method over periods not exceeding 40
years. FCC licenses and other intangibles are being amortized by the
straight-line method over periods ranging from 3 to 40 years. Amortization of
the excess of cost over fair value of net identifiable assets of acquired
businesses and FCC licenses and other intangibles was $34.3 million, $31.1
million and $7.9 million in 1998, 1997 and 1996, respectively.
Management periodically evaluates the recoverability of long-lived assets by
reviewing current and projected profitability or cash flows of such assets.
INTEREST
In 1998, 1997 and 1996, the Company's interest expense was $66 million,
$65.4 million and $21.3 million, respectively, which is net of $.2 million, $1.8
million and $.3 million of interest costs capitalized for those years. Interest
payments made during 1998, 1997 and 1996, net of amounts capitalized, were $65.3
million, $62.2 million and $23.3 million, respectively.
CASH AND CASH EQUIVALENTS
Cash and cash equivalents include highly liquid investments with original
maturities of three months or less whose carrying amount approximates fair
value.
INVENTORIES
Inventories, principally raw materials, are valued at the lower of cost or
market. The cost of raw material used in the production of newsprint is
determined on the basis of average cost. The cost of newsprint inventories is
determined on the first-in, first-out method.
OTHER CURRENT ASSETS
Other current assets included program rights of $12.6 million and $10.8
million at December 27, 1998, and December 28, 1997, respectively.
ACCRUED EXPENSES AND OTHER LIABILITIES
Accrued expenses and other liabilities consisted of the following:
<TABLE>
<CAPTION>
(IN THOUSANDS) 1998 1997
- ------------------------------------------------------------------------------------------
<S> <C> <C>
Payroll $ 21,577 $ 19,492
Program rights 20,317 17,944
Advances from unconsolidated newsprint affiliate 6,667 6,667
Unearned revenue 19,691 19,855
Other 37,795 34,232
----------- -----------
Total $ 106,047 $ 98,190
==========================================================================================
</TABLE>
40
<PAGE>
LEASE OBLIGATIONS
The Company rents certain facilities and equipment under operating leases.
These leases extend for varying periods of time ranging from one year to more
than twenty years and in many cases contain renewal options. Total rental
expense amounted to $14.2 million in 1998, $12.3 million in 1997 and $11.8
million in 1996. Minimum rental commitments under operating leases with
noncancelable terms in excess of one year are as follows: 1999 -- $10.7 million;
2000 -- $8.8 million; 2001 -- $7.7 million; 2002 -- $7.2 million; 2003 -- $3.9
million; subsequent years -- $6.1 million.
CONCENTRATIONS OF CREDIT RISK
Media General is a diversified communications company which sells products
and services to a wide variety of customers located principally in the eastern
United States. The Company's trade receivables result primarily from its
publishing, broadcast television, cable television and newsprint operations. The
Company routinely assesses the financial strength of significant customers, and
this assessment, combined with the large number and geographic diversity of its
customer base, limits its concentration of risk with respect to trade
receivables.
EARNINGS PER SHARE
The following chart is a reconciliation of the numerators and the
denominators of the basic and diluted per-share computations for income before
extraordinary item, as presented in the Consolidated Statements of Operations.
<TABLE>
<CAPTION>
1998 1997 1996
------------------------------------ ------------------------------------ ----------------------------------
(IN THOUSANDS, EXCEPT Income Shares Per-Share Income Shares Per-Share Income Shares Per-Share
PER SHARE AMOUNTS) (Numerator) (Denominator) Amount (Numerator) (Denominator) Amount (Numerator) (Denominator) Amount
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
BASIC EPS
Income available to
common stock-
holders before
extraordinary item $ 70,874 26,579 $ 2.67 $ 52,510 26,353 $ 1.99 $ 70,498 26,273 $ 2.68
======= ======= =======
EFFECT OF DILUTIVE
SECURITIES
Stock options 245 169 179
Restricted stock
and other (17) 90 (37) 172 (24) 120
------ ------ ----- ---- ------ ------
DILUTED EPS
Income available to
common stock-
holders + assumed
conversions $ 70,857 26,914 $ 2.63 $ 52,473 26,694 $ 1.97 $ 70,474 26,572 $ 2.65
==================================================================================================================================
</TABLE>
COMMITMENTS AND CONTINGENCIES
Over the next seven years the Company is committed to purchase approximately
$36.6 million of program rights which currently are not available for broadcast,
including programs not yet produced. If such programs are not produced the
Company's commitment would expire without obligation. Additionally, the Company
had commitments outstanding, at December 27, 1998, for capital expenditures
under purchase orders and contracts of approximately $15 million.
During 1997 and 1998, the Company entered into lease agreements whereby the
owner would construct and own real estate facilities at a cost of up to $100
million and lease the facilities to the Company for a term of up to 5 years. The
Company occupied a portion of the facilities in the second quarter of 1998. The
Company may cancel the leases by purchasing or arranging for the sale of the
facilities. The Company has guaranteed recovery of a portion (88%) of the
owner's cost. Such cost approximated $45 million at December 27, 1998.
The Company entered into a stock redemption agreement in 1985, which was
amended in 1988, and 1994, with the late D. Tennant Bryan, former Chairman
Emeritus of the Company. The amended agreement provides that Mr. Bryan's estate
has the option to sell and the Company has a separate option to buy the lesser
of (a) 15% of the Company's Class A stock owned by Mr. Bryan at his death and
(b) a sufficient number of shares of Class A stock to fund estate taxes and
certain other expenses. The purchase price for each share redeemable under the
amended agreement is $41.63. Both options expire in mid-1999. Should the Company
or the estate exercise its option to buy or sell, the maximum cost to the
Company of the redemption will approximate $14 million.
41
<PAGE>
MEDIA GENERAL, INC., MANAGEMENT STATEMENT
Primary responsibility for the integrity and objectivity of the Company's
financial statements rests with Management. The financial statements report on
Management's stewardship of Company assets. They are prepared in conformity with
generally accepted accounting principles and accordingly include amounts that
are based on Management's informed estimates and judgments. Nonfinancial
information included in the annual report has also been prepared by Management
and is consistent with the financial statements.
Media General, Inc., maintains an accounting system and related controls
designed to provide reasonable assurance that there is proper authorization and
accounting for all transactions, that financial records are reliable for
preparing financial statements, and that assets are safeguarded against loss or
unauthorized use. The system is supported by written policies and guidelines, a
program of internal audit and the selection and training of qualified personnel.
The Audit Committee of the Board of Directors, which is composed solely of
outside directors, meets periodically with Management, internal auditors and the
independent auditors to review their respective activities and the discharge of
their responsibilities.
Media General operates under a strict Code of Ethics that all employees are
required to follow without exception. The Code requires ethical standards in all
of the Company's relationships, including those with customers, suppliers and
government agencies.
January 26, 1999
/s/ J. Stewart Bryan III /s/ Marshall N. Morton
J. Stewart Bryan III Marshall N. Morton
Chairman, President and Senior Vice President
Chief Executive Officer and Chief Financial Officer
REPORT OF INDEPENDENT AUDITORS
THE BOARD OF DIRECTORS AND STOCKHOLDERS,
MEDIA GENERAL, INC.
We have audited the accompanying consolidated balance sheets of Media
General, Inc., as of December 27, 1998, and December 28, 1997, and the related
consolidated statements of operations, stockholders' equity and cash flows for
each of the three fiscal years in the period ended December 27, 1998. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion of these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position of
Media General, Inc., at December 27, 1998, and December 28, 1997, and the
consolidated results of its operations and its cash flows for each of the three
fiscal years in the period ended December 27, 1998, in conformity with generally
accepted accounting principles.
January 26, 1999
Richmond, Virginia /s/ Ernst & Young LLP
42
<PAGE>
MEDIA GENERAL, INC., FINANCIAL REVIEW AND MANAGEMENT ANALYSIS
This discussion addresses the principal factors affecting the Company's
operations during the past three years and should be read in conjunction with
the Company's financial statements and the Ten-Year Financial Summary which
appear elsewhere in this report.
ACQUISITIONS AND DISPOSITIONS
In January 1998, the Company acquired, for approximately $93 million, the
assets of the Bristol Herald Courier (Bristol), a daily newspaper in
southwestern Virginia, and two affiliated weekly newspapers. In July 1998, the
Company acquired, for approximately $40 million, the assets of the Hickory Daily
Record (Hickory), a daily newspaper in northwestern North Carolina. In June of
the same year, the Company completed the sale of its Kentucky newspaper
properties for approximately $24 million. Additionally, the Company sold certain
commercial printing assets in October 1998.
In January 1997, the Company acquired Park Acquisitions, Inc., parent of
Park Communications, Inc. (Park), which included ten network affiliated
television stations, 28 daily newspapers and 82 weekly newspapers. The total
consideration approximated $715 million. In conjunction with the acquisition,
the Company completed sales of certain of the former Park properties for
approximately $147 million and purchased new properties for approximately $53
million. Additionally, in August 1997, the Company completed the exchange of
WTVR-TV (Richmond, Virginia) for three other stations, WSAV-TV (Savannah,
Georgia), WJTV-TV (Jackson, Mississippi) and WHLT-TV (Hattiesburg, Mississippi),
in order to comply with the Federal Communication Commission's requirement that
WTVR-TV be divested within one year of its January 1997 purchase date.
In August 1996, the Company acquired, for approximately $38 million, the
Danville Register & Bee (Danville), a daily newspaper in Virginia; in May 1996,
the Company acquired a small provider of broadcast equipment and studio design
services for television stations.
The aforementioned acquisitions were accounted for as purchases and
accordingly, the operations of the acquired properties have been included in the
Company's consolidated results of operations since their respective dates of
purchase. See Note 2 to the accompanying consolidated financial statements for
additional information regarding these acquisitions.
Subsequent to the end of the fiscal year, the Company announced the sale of
its Montgomery, Alabama, television station. That transaction is expected to
close later in 1999.
CONSOLIDATED OPERATING RESULTS
<TABLE>
<CAPTION>
Change from Change from
(IN MILLIONS, EXCEPT PER SHARE DATA) 1998 prior year 1997 prior year 1996
---- ---------- ---- ---------- ----
<S> <C> <C> <C> <C> <C>
Revenues $ 974.0 7% $ 910.0 19% $ 765.1
Operating Income 156.0 21 129.4 26 102.4
Net Income (Loss) 70.9 --- (10.5)* --- 70.5
Earnings (Loss) Per Share 2.67 --- (0.40)* --- 2.68
Earnings (Loss) Per Share -
assuming dilution 2.63 --- (0.40)* --- 2.65
</TABLE>
* Includes extraordinary charge from early redemption of Park debt ($63 million,
net of an income tax benefit of $38.6 million; $2.39 per share, or $2.37 per
share - assuming dilution)
SEGMENT OPERATING RESULTS
Each segment's operating results include segment operating cash flow
information in addition to revenues, operating expense and operating income. The
segment operating cash flow amounts presented represent operating income plus
depreciation and amortization. The Company believes the presentation of
operating cash flow amounts is important for several reasons. First,
fluctuations in depreciation and amortization from year to year are not
necessarily indicative of the underlying performance of a company. Second, the
year-over-year change in operating cash flow can be a useful measure of
performance and presents a meaningful indicator of results that may occur in
future periods. Finally, acquisition values of communications and media
businesses are often based on multiples of operating cash flow.
The following discussion of segment operating results is primarily focused
on the year-over-year comparative performance of the Company excluding the
operating impact of acquisitions, dispositions, and exchanges during the
periods. For example, results from the former Park properties are included in
the discussion below when comparing 1998 to the prior year, due to the January
1997 acquisition date which allows for meaningful comparative information
between the years; however, Park results have been excluded for purposes of
comparing 1997 to 1996. Other acquisitions and dispositions have been treated
similarly. Additionally, operating income amounts vary from segment profit, as
presented in Note 5 to the accompanying consolidated financial statements,
because investment income from unconsolidated affiliates is not reflected within
operating income as presented below. Instead, income from such affiliates is
addressed on a separate basis within both the Publishing and Newsprint
discussion.
43
<PAGE>
PUBLISHING
<TABLE>
<CAPTION>
Change from Change from
(IN MILLIONS) 1998 prior year 1997 prior year 1996
---- ---------- ---- ---------- ----
<S> <C> <C> <C> <C> <C>
Revenues $ 517.9 7% $ 485.6 19% $ 407.8
Operating Expense 386.1 4 370.4 11 334.5
Operating Income 131.8 14 115.2 57 73.3
Depreciation & Amortization 23.6 (2) 24.2 14 21.2
Segment Operating Cash Flow 155.4 12 139.4 48 94.5
</TABLE>
The preceding chart contains the operating results of the Publishing
Segment, including recent acquisitions and dispositions. In 1998, Publishing
Segment revenues and operating income increased $10.3 million and $4.6 million,
respectively, over the prior year due to acquisitions (offset partially by
dispositions). In 1997, Publishing Segment revenues increased $53.1 million, and
operating income rose $14.3 million over 1996 as a direct result of
acquisitions.
1998 COMPARED TO 1997
Excluding acquisitions and dispositions, Publishing Segment revenues
improved $22 million (5%) in 1998 over 1997. At the Company's three largest
daily metropolitan newspapers, revenues rose $14.4 million as a result of
expanded linage (up 2.4%) and higher advertising rates (up 2.9%). This increase
was principally the result of strong performances in classified advertising (led
by the employment category) and retail advertising (driven by preprints).
Additionally, the Company's Virginia and North Carolina community newspapers
produced a revenue increase of $5 million over the prior year, primarily due to
solid classified advertising.
Publishing Segment operating expense, excluding acquisitions and
dispositions, increased $10 million in 1998. Approximately half of this increase
was attributable to a 6.2% rise in newsprint expense due to higher newsprint
prices. Other contributing factors included a $1.3 million rise in marketing and
promotion cost, a $1.7 million increase in facilities expense, and increased
cost associated with new niche products.
Excluding acquisitions and dispositions, operating income for the Publishing
Segment increased $12 million (11%) in 1998 over the comparable 1997 amount. The
improved operating results were principally due to robust advertising revenues,
partially offset by increased newsprint expense.
Investment income earned from the Company's Denver Newspapers, Inc. (DNI),
affiliate decreased $3.3 million in 1998 from the previous year. This reduced
income was primarily attributable to increased newsprint costs, principally due
to higher prices. Additionally, increased advertising and circulation revenues
only partially offset the associated rise in advertising and circulation expense
in the intensely competitive Colorado market.
1997 COMPARED TO 1996
Excluding acquisitions, Publishing Segment revenues rose $24.7 million (6%)
in 1997. At the Company's metropolitan newspapers, advertising revenues
increased $20 million as a result of expanded linage (up 4.1%) combined with
higher advertising rates (up an average of 3.4%). The year-over-year increase
was principally attributable to strong performances in classified advertising,
led by the employment and automotive categories, and in retail advertising. A
small decrease in circulation revenues of 1.8%, resulting from a decline in
circulation volume (down 2.3%) coupled with slightly higher average rates, was
more than offset by the growth in general advertising revenues.
Publishing Segment operating expense, excluding acquisitions, decreased $2.9
million in 1997 compared to 1996. This drop was attributable to a $13.1 million
reduction in newsprint expense, due to decreased cost per ton, partially offset
by a $2.4 million increase in employee compensation and benefit costs combined
with a modest increase in depreciation expense. Additionally, certain other
operating expenses increased, including approximately $4.2 million in one-time
costs incurred in 1997 related to re-engineering initiatives at several of the
Segment's locations including the Company's Tampa, Florida, and Richmond,
Virginia, daily newspapers.
Operating income for the Publishing Segment, excluding acquisitions, rose
$27.6 million in 1997. This growth came principally from increased revenues at
the Company's metropolitan newspapers, particularly in classified and retail
advertising, coupled with the substantial decline in newsprint expense.
Income earned from DNI increased $5 million in 1997 over 1996 due to a $4
million increase in the Company's share of DNI's net income applicable to common
stockholders and a $1 million increase in income from the Company's DNI
preferred stock investment. DNI's improved results were attributable to solid
advertising revenue growth coupled with reduced newsprint expense which,
together, more than offset the effects of a modest decrease in circulation
revenues and increases in other operating expenses.
BROADCAST TELEVISION
<TABLE>
<CAPTION>
Change from Change from
(IN MILLIONS) 1998 prior year 1997 prior year 1996
---- ---------- ---- ---------- ----
<S> <C> <C> <C> <C> <C>
Revenues $ 170.8 9% $ 156.3 87% $ 83.4
Operating Expense 128.8 11 116.3 112 54.8
Operating Income 42.0 5 40.0 40 28.6
Depreciation & Amortization 9.3 3 9.1 270 2.4
Segment Operating Cash Flow 51.3 5 49.1 58 31.0
</TABLE>
44
<PAGE>
The preceding chart presents the operating results of the Broadcast
Television Segment, including 1997 and 1996 acquisitions. As a direct result of
those acquisitions, 1997 revenues and operating income increased $77.3 million
and $15 million, respectively, over 1996.
1998 COMPARED TO 1997
Broadcast Television Segment revenues increased $14.5 million in 1998, up 9%
from 1997. This increase was due to strong political advertising revenues
resulting from election primaries and the 1998 general elections combined with
local and national issue-oriented advertising, as well as to solid local
advertising revenues (led by the automotive and fast food categories). Together,
these strong results more than offset weak national advertising revenues at the
Company's largest station, WFLA-TV in Tampa. In addition, PCS, the Company's
provider of equipment and studio design services, generated particularly strong
revenues, up $6.9 million, reflecting expanded broadcast equipment sales and
increased studio design and sport facility projects.
Operating expense in the Broadcast Segment rose $12.5 million in 1998.
Approximately half of this rise was attributable to the increased cost of goods
sold related to higher revenues produced by PCS during the current year. The
remainder resulted from a 24% increase in programming costs, reflecting higher
costs of existing programming and purchases of additional syndicated
programming, and a 9% rise in overall employee compensation and benefits
expense. The higher 1998 expense levels were anticipated as steps were initiated
in 1997 to invigorate the performance of the stations acquired in that year.
These steps included upgrading programming and equipment, increasing staff
levels and competitively compensating personnel in conjunction with the
repositioning and relaunching of virtually all of these stations. November
rating books indicated increased audience share at seven of the nine relaunched
stations, reflecting the positive results achieved from these efforts.
Broadcast operating income increased $2 million in 1998. The improvement was
attributable to strong political and local advertising revenues, which more than
offset increased programming, employee compensation and benefits expense.
1997 COMPARED TO 1996
Broadcast Television Segment revenues, excluding acquisitions, decreased
$4.4 million in 1997 from 1996. The decline was principally the result of soft
national and political advertising revenues (the latter due to the absence of
several 1996 national and local political issues), which were only partially
offset by an increase in local advertising revenues (driven by the automotive
category).
Broadcast Television Segment operating expense, excluding acquisitions,
remained essentially flat in 1997. A modest increase in programming cost was
partially offset by a small decrease in employee compensation and benefit
expense.
Excluding acquisitions, Broadcast Television Segment operating income
declined $3.6 million in 1997. The drop was primarily attributable to reduced
national and political advertising revenues, especially at the Company's Tampa
station, WFLA-TV. The Company completed the transfer of the network affiliation
at its Jacksonville station (WJWB-TV) from ABC to Warner Brothers in February
1997. As anticipated, WJWB-TV posted weak 1997 results. Conversely, the
full-year impact of the network switch from ABC to NBC in August 1996 at the
Company's WCBD-TV station in Charleston resulted in growth, but only partially
compensated for WJWB-TV's reduced results.
CABLE TELEVISION
<TABLE>
<CAPTION>
Change from Change from
(IN MILLIONS) 1998 prior year 1997 prior year 1996
---- ---------- ---- ---------- ----
<S> <C> <C> <C> <C> <C>
Revenues $ 157.0 2% $ 153.3 5% $ 146.2
Operating Expense 122.4 4 117.4 1 116.3
Operating Income 34.6 (4) 35.9 20 29.9
Depreciation & Amortization 24.3 (7) 26.1 -- 26.1
Segment Operating Cash Flow 58.9 (5) 62.0 11 56.0
</TABLE>
1998 COMPARED TO 1997
During 1998, the Company renewed the majority of its cable franchise
agreements with several municipalities in northern Virginia for 15-year terms.
As part of the June agreement with Fairfax County, the Company agreed not to
raise subscriber rates for a period of one year. Although this rate increase
moratorium affected the 1998 results of the Cable Television Segment, the
long-term benefits of the agreement will override the short-term negative impact
on the Company.
Despite the moratorium, revenues in the Company's Cable Television Segment
rose $3.7 million in 1998. The increase was attributable to the Company's
Fairfax County, Virginia, cable system (Fairfax Cable), as a result of a 2.6%
increase in the number of subscribers (to 241,600 at December 27, 1998),
together with a combined average increase of 1.4% in basic and expanded
subscriber rates over the prior year.
The Telecommunications Act of 1996 (1996 Act) eliminated rate regulation of
cable services other than the basic service tier after March 31, 1999. The 1996
Act also removed previously applicable restrictions that had prevented most
local telephone companies from offering cable services in the areas where they
provide telephone services. This development and
45
<PAGE>
the advent of wireless and direct broadcast satellite services have begun to
increase competition in the areas served by the Company's cable systems. Among
the strategic initiatives the Company is developing for its Fairfax Cable system
is high speed data services (HSDS). The Company incurred modest expense during
1998 related to the initiation of HSDS, which was launched in the first quarter
of 1999. The Company expects to incur operating losses related to this new
business during the initial years of rollout, but believes the long-term revenue
and profit streams will provide an excellent return on its investment.
Additionally, the Company continues to explore possibilities in the commercial
and residential telephone markets. The Company estimates that the capital
investment required for it to compete effectively in HSDS and telephony could
exceed $200 million over a ten-year period.
Cable Television Segment operating expense increased $5 million in 1998.
This increase was primarily attributable to a $4.9 million rise in programming
costs, due to higher contractual rates paid to program providers combined with
the increased costs associated with the expansion of the subscriber base at
Fairfax Cable.
Cable operating income declined $1.3 million in 1998 from the earlier-year
period. While Fairfax's growing subscriber base produced higher revenues, it
also contributed to a rise in programming costs which the Segment could not
fully absorb due to the rate increase moratorium. Subscriber rate increases are
planned during the second half of 1999.
1997 COMPARED TO 1996
Revenues at the Company's Cable Television Segment rose $7.1 million in
1997, up 5% from 1996. The increase was the result of a 3.4% rise in the number
of subscribers (to 235,500 at December 28, 1997) at Fairfax Cable, together with
a combined average increase of 5.4% in basic and expanded subscriber rates.
These rate increases along with subscriber growth produced a 2.6% improvement in
average revenue per subscriber (excluding pay-per-view).
Cable Television Segment operating expense remained essentially flat in
1997. An increase in programming costs more than offset reductions in
compensation and employee benefit costs.
Cable Television Segment operating income improved $6 million (20%) in 1997
from 1996. The increase was due principally to revenue growth at Fairfax Cable
of $7.1 million, up 5% in 1997 as a result of both rate and subscriber count
increases. These subscriber count increases prompted a commensurate rise in
programming costs, which was essentially offset by reduced compensation and
employee benefits costs; this reduction reflected the benefit of the
restructuring process implemented in 1996 at Fairfax Cable.
NEWSPRINT
<TABLE>
<CAPTION>
Change from Change from
(IN MILLIONS) 1998 prior year 1997 prior year 1996
---- ---------- ---- ---------- ----
<S> <C> <C> <C> <C> <C>
Revenues $ 128.3 12% $ 114.8 (10%) $ 127.7
Operating Expense 116.2 (2) 118.3 (3) 121.6
Operating Income (Loss) 12.1 -- (3.5) -- 6.1
Depreciation & Amortization 6.7 8 6.2 1 6.2
Segment Operating Cash Flow 18.8 -- 2.7 (78) 12.3
</TABLE>
1998 COMPARED TO 1997
Newsprint Segment revenues increased $13.5 million (12%) in 1998, reflecting
the improved results of the Company's Garden State Paper (Garden State)
newsprint mill, located in Garfield, New Jersey. This increase resulted from a
6.8% rise in the average realized selling price per ton, combined with a 4%
increase in tons sold. Newsprint selling prices gradually rose throughout 1997
and continued to show modest increases during 1998, such that the average
realized price rose from $488 per ton in 1997 to $522 per ton in the current
year.
Newsprint Segment operating expense dropped $2.1 million in 1998. This
favorable decrease was the result of production efficiencies. The most
significant of these was a 13% decline in energy expense, due to both a shift to
purchasing natural gas in the competitively-priced open market as well as a mild
1998 winter, and an 18% decrease in chemical expense. These cost reductions were
only partially offset by a 10% rise in the cost of Garden State's principal raw
material, recovered newspapers (ONP), which was due to both increased
consumption and demand-driven price increases.
Newsprint operating income rose $15.6 million, rebounding from a loss of
$3.5 million in 1997 to income of $12.1 million in 1998. The significant
increase resulted from a $34 increase in average realized selling price per ton
in the current year over the comparable prior-year period, coupled with reduced
chemical and energy costs.
The Company's investment income from its Southeast Paper Manufacturing
Company (SEPCO) newsprint affiliate increased $4.5 million (54%) in 1998 from
the comparable 1997 amount. SEPCO's revenues rose 4.3% as a result of a 6.4%
rise in the average realized selling price, which more than offset the effect of
a 2.3% decrease in tons sold.
1997 COMPARED TO 1996
Newsprint Segment revenues declined $12.9 million (10%) in 1997, reflecting
the results of the Company's Garden
46
<PAGE>
State Paper newsprint mill. The decline was attributable to a 14.5% decrease in
the average realized selling price per ton, partially offset by a 5.1% rise in
tons sold. Average realized newsprint selling price fell from $572 per ton in
1996 to $488 per ton in 1997. However, the market showed continued improvement
throughout 1997, as evidenced by a 7% average selling price increase from $456
per ton during the first quarter of 1997 to the above-mentioned $488 per ton for
the full year.
Newsprint Segment operating expense decreased $3.3 million in 1997 from the
comparable 1996 amount due primarily to a $3.7 million (15%) drop in ONP cost.
The average cost of ONP in 1997 was $73 per ton, down 16% from 1996's $87 per
ton due to lower market demand for ONP during 1997. The decline in ONP cost
together with decreases of $1.1 million in maintenance costs, due mainly to
improved production and decreased downtime, and $.7 million in energy expense,
attributable to lower average fuel prices during the year, more than offset a
$1.9 million increase in the cost of chemicals used to enhance the quality of
newsprint produced.
The Newsprint Segment produced an operating loss of $3.5 million in 1997, a
sharp contrast to the $6.1 million income posted in 1996. The decline resulted
from an $84 decrease in average realized selling price per ton as compared to
the preceding year, partially offset by a drop in ONP expense. During 1997, as
newsprint consumption increased, the Company's average realized newsprint
selling price per ton rose and, in the fourth quarter of 1997, began to exceed
equivalent 1996 levels.
The Company's share of the operating results of SEPCO decreased $11.2
million in 1997 from 1996. Despite a 5.6% increase in tons sold, revenues
declined 11.2% as a result of a decrease in SEPCO's average realized newsprint
selling price to $492 per ton in 1997 from $583 per ton in 1996.
INTEREST EXPENSE
Interest expense of $66 million in 1998 was essentially even with 1997.
Interest expense in 1997 increased $44.2 million over 1996 primarily due to a
$654 million rise in average debt outstanding during 1997 as a result of
acquisitions made in that year. The effective interest rate during each year was
just under 7%.
The Company's interest expense is affected by changes in short-term interest
rates, primarily changes in LIBOR on the debt outstanding under its revolving
credit facility. However, the Company limits the effects of interest rate
changes through the use of interest rate swap agreements (see Note 4 to the
accompanying consolidated financial statements). If short-term interest rates
were to be either higher or lower by one percentage point throughout 1999 and
the Company's interest rate swap agreements and long-term debt levels were
consistent with 1998, the Company's interest expense and income before taxes
would change by less than $900,000. This amount is determined by considering the
impact of the hypothetical interest rates on the Company's borrowing cost,
short-term investment balances, and interest rate swap agreements.
PROVISION FOR INCOME TAXES
The Company's effective tax rate was 36.25% in 1998, down from 39.2%
(excluding the extraordinary item) in 1997, but up slightly compared to 35.8% in
1996. The decline in effective tax rate in the current year from the prior year
was principally the result of a favorable settlement of a state tax examination,
while the rise in 1997 was due to a higher proportion of nondeductible
intangible asset amortization related to 1997 acquisitions. 1998 income tax
expense rose $6.5 million (19%) over the prior year on a pretax earnings
increase of $24.9 million (29%). Conversely, income tax expense declined $5.4
million (14%) in 1997 from 1996 on a pretax earnings decrease of $23.4 million
(21%). See Note 6 to the accompanying consolidated financial statements for
additional information regarding income taxes.
NET INCOME
Net income for 1998 was $70.9 million ($2.67 per share, or $2.63 per share -
assuming dilution) compared to $52.5 million ($1.99 per share, or $1.97 per
share - assuming dilution) in 1997, excluding that year's extraordinary item.
This $18.4 million (35%) increase in net income was primarily due to robust
Newsprint Segment profits which rose to more than four times their prior-year
level, combined with solid contributions from the Publishing Segment which
posted an 11% year-over-year profit improvement. Partially offsetting the
segment operating income growth was a moderate increase in intangible
amortization expense, a result of the Bristol and Hickory acquisitions, and in
Corporate expense, due to personnel and other costs related to the
implementation of new company-wide financial, benefit plan and human resource
systems. The significant growth of the Company over the past few years and the
need for better information has occasioned these infrastructure investments, as
well as the addition of resources necessary to support them.
The Company incurred a net loss of $10.5 million ($.40 per share; both
basic and assuming dilution) in 1997 as the result of a $63 million charge, net
of an income tax benefit of $38.6 million, ($2.39 per share, or $2.37 per share
- - assuming dilution) related to the redemption of Park's high coupon debt in
February 1997. Excluding this extraordinary item, net income declined from $70.5
million in 1996 to $52.5 million in 1997. Net income fell $18 million ($23
million pretax) in 1997 due primarily to declining Newsprint Segment results
which were down $21.5 million. Increases in interest expense ($44.2 million) and
amortization expense ($23.2 million) related to acquisitions slightly more than
offset segment operating profit increases in other business segments. The
Publishing and Cable Segments had particularly strong performances, posting
year-over-year segment profit increases of 60% and 20%, respectively.
47
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
Funds generated by operating activities during 1998 totaled $140.3 million,
up $20.9 million from 1997. The increase was due to a rise in net income
(adjusted for the extraordinary item) combined with a $5 million distribution
from SEPCO, partially offset by an increase in funds used for working capital.
Funds generated from operating and financing activities, coupled with proceeds
from the sale of the Kentucky properties, supplied the $133 million used for the
acquisition of Bristol and Hickory, the $49 million for capital expenditures and
the $15 million for the payment of dividends to stockholders.
Total debt outstanding at December 27, 1998, was $928.1 million, up $28
million from the year-ago level of $900.1 million. This increase was
attributable to $133 million in borrowings related to the 1998 acquisitions of
Bristol and Hickory, coupled with increased income tax payments. A substantial
portion of the 1998 borrowings were repaid by the end of 1998 with funds
generated from operations along with proceeds from the sale of the Company's
Kentucky newspapers. At December 27, 1998, the Company had $350 million in
unused credit lines available from its committed $1.2 billion revolving credit
facility which has commitment reductions of 25% at the end of both 2001 and
2002, and expires in 2003.
The Company anticipates that internally generated funds provided by
operations, together with existing credit facilities, will be more than adequate
to finance other possible acquisitions, projected capital expenditures,
dividends to stockholders, and working capital needs in 1999. Additionally, the
Company anticipates receiving a $53.2 million principal and dividend payment on
its preferred stock investment in Denver Newspapers, Inc., by June 30, 1999,
that security's mandatory redemption date.
YEAR 2000
The Company continues to address issues regarding the transition to the
Year 2000 through a specially created task force comprised of corporate,
divisional and operating unit personnel. The project has been divided into five
phases: 1) identification/analysis, 2) plan development/scheduling, 3)
remediation, 4) testing/integration, and 5) monitoring/continuous improvement.
The Company made significant strides in all phases during 1998 and has
substantially completed the first two phases for both information systems and
operating systems with embedded technology. All phases are expected to be
completed by the third quarter of 1999.
Inherent in all phases is assessing the Year 2000 compliance of key
suppliers and customers. The Company has initiated formal communications with
these parties and most have indicated that there should be no disruption in
their relationships with us. However, the Company cannot assure timely
compliance of third parties and therefore could be adversely affected by failure
of a significant third party to become Year 2000 compliant.
Amounts expended exclusively to ensure Year 2000 compliance continue to be
funded by cash flow from operations and have not had, nor are they expected to
have, a material impact on the Company's financial position, results of
operations or cash flows. If the Company does not successfully complete
significant portions of its Year 2000 project, its financial condition could be
adversely impacted; the Company does not consider the possibility of such an
occurrence to be reasonably likely. While the Company believes its existing
business recovery plans are adequate to address reasonably likely Year 2000
issues, the Company has a separate initiative underway to revise its business
recovery plans. This initiative is much broader than the Year 2000 project but
will certainly consider Year 2000 issues.
OUTLOOK FOR 1999
With the integration of its two recently acquired newspapers, the
relaunching of nine of its broadcast stations, and the renewal of its cable
franchises, the Company laid the groundwork in 1998 for its continued success.
Although there has been recent softness in some categories of newspaper
advertising and continued weakness in national television advertising revenues,
most major economic trends remain favorable. The mid-1999 lapse of the rate
increase moratorium will enable the Cable Segment to resume more traditional
rates of growth, and the rollout of HSDS should offer increased revenue
opportunities. Despite the newsprint market's supply and demand factors, which
may not facilitate favorable pricing levels in the near term, the Company
expects 1999 to be another good year.
48
<PAGE>
MEDIA GENERAL, INC.
QUARTERLY REVIEW
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
First Second Third Fourth
Quarter Quarter Quarter Quarter
-----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1998
Revenues $ 234,681 $ 251,162 $ 236,812 $ 251,323
Operating income 32,722 44,038 33,953 45,317
Net income 12,745 21,541 14,455 22,133
Net income per share 0.48 0.81 0.54 0.83
Net income per share -
assuming dilution 0.47 0.80 0.54 0.82
-----------------------------------------------------------------------------------------------
Shares traded 3,030 2,087 2,127 1,947
Stock price range $ 40.94-50.50 $ 43.75-52.50 $ 40.50-52.00 $ 33.88-50.63
Quarterly dividend paid $ 0.14 $ 0.14 $ 0.14 $ 0.14
-----------------------------------------------------------------------------------------------
1997
Revenues $ 216,145 $ 229,426 $ 221,975 $ 242,441
Operating income 24,802 34,325 28,481 41,837
Income before
extraordinary item 8,233 13,890 10,565 19,822
Extraordinary item (63,000) --- --- ---
Net income (loss) (54,767) 13,890 10,565 19,822
Net income per share before
extraordinary item 0.31 0.53 0.40 0.75
Net income per share before
extraordinary item -
assuming dilution 0.31 0.52 0.39 0.75
Net income (loss) per share (2.08) 0.53 0.40 0.75
Net income (loss) per share -
assuming dilution (2.06) 0.52 0.39 0.75
----------------------------------------------------------------------------------------------
Shares traded 2,761 2,978 2,498 1,876
Stock price range $ 29.38-32.75 $ 28.38-35.25 $ 34.50-40.00 $ 37.25-44.63
Quarterly dividend paid $ 0.13 $ 0.13 $ 0.13 $ 0.14
----------------------------------------------------------------------------------------------
</TABLE>
o Media General, Inc., Class A common stock is listed on the American Stock
Exchange under the symbol MEG.A. The approximate number of equity security
holders of record at February 28, 1999, was: Class A common - 2,278, Class B
common - 12.
o First quarter 1997 results include an extraordinary item of $63 million, net
of a tax benefit of $39 million, ($2.39 per share, or $2.37 per share -
assuming dilution) representing the debt prepayment premium and the
write-off of associated debt issuance costs related to the redemption of
debt assumed in the January 1997, acquisition of Park.
o During the fourth quarter 1997, the Company received updated appraisal
information related to the Park acquisition which principally resulted in
adjustments to intangible assets, deferred taxes and the effective income
tax rate. Values assigned by the appraisal to identifiable intangible assets
increased and excess of cost over fair value decreased while total appraised
value remained unchanged.
49
<PAGE>
MEDIA GENERAL, INC., TEN-YEAR FINANCIAL SUMMARY
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
Certain of the following data were compiled from the consolidated financial
statements of Media General, Inc., and should be read in conjunction with those
statements and the financial review and management analysis which appear
elsewhere in this report.
<TABLE>
<CAPTION>
1998 1997 1996 1995
------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Summary of Operations
OPERATING REVENUES $ 973,978 $ 909,987 $ 765,105 $ 707,766
------------------------------------------------------------------------------------------
NET INCOME (LOSS) $ 70,874 $ (10,490) $ 70,498 $ 53,232
Adjustments to reconcile to
operating cash flow:
Extraordinary item (a) --- 63,000 --- ---
Gain on sale of Garden State
Newspapers investment --- --- --- ---
Cumulative effect of changes
in accounting principles (b) --- --- --- ---
Investment (income) loss -
unconsolidated affiliates (22,193) (21,037) (27,188) (19,034)
Other, net 999 (1,267) (1,381) (5,204)
Interest expense 66,049 65,442 21,267 15,522
Income taxes 40,301 33,797 39,240 28,477
----------- ----------- ----------- ------------
Operating income (c) 156,030 129,445 102,436 72,993
Depreciation and amortization 100,201 98,316 64,951 60,590
----------- ----------- ----------- ------------
Operating cash flow $ 256,231 $ 227,761 $ 167,387 $ 133,583
=====================================================================================================
Per Share Data: (a)(b)
Income (loss) before
extraordinary item
and cumulative effect of
changes in accounting
principles $ 2.67 $ 1.99 $ 2.68 $ 2.04
Extraordinary item --- (2.39) --- ---
Cumulative effect of
changes in accounting
principles --- --- --- ---
----------- ----------- ----------- -----------
Net income (loss) $ 2.67 $ (0.40) $ 2.68 $ 2.04
- -----------------------------------------------------------------------------------------------------
Per Share Data -
assuming dilution: (a)(b)
Income (loss) before
extraordinary item
and cumulative effect
of changes in
accounting principles $ 2.63 $ 1.97 $ 2.65 $ 2.01
Extraordinary item --- (2.37) --- ---
Cumulative effect of
changes in accounting
principles --- --- --- ---
----------- ----------- ----------- -----------
Net income (loss) $ 2.63 $ (0.40) $ 2.65 $ 2.01
- -----------------------------------------------------------------------------------------------------
Other Financial Data:
Total assets $ 1,917,346 $ 1,814,201 $ 1,025,484 $ 1,016,743
Working capital 29,129 34,716 13,373 22,938
Capital expenditures 49,480 41,599 28,510 29,076
Total debt 928,101 900,140 276,318 327,235
Cash dividend per share 0.56 0.53 0.50 0.48
=====================================================================================================
</TABLE>
(a) In 1997 the Company incurred a loss of $63 million (net of a tax benefit of
$38.6 million), representing the debt prepayment premium and write-off of
associated debt issuance costs related to the redemption of debt assumed in
the January 1997, Park acquisition.
(b) Includes the recognition, at the beginning of fiscal 1992, of the
accumulated postretirement benefit obligation related to prior service costs
of $22.8 million ($14.4 million after-tax; $0.55 per share, basic and
assuming dilution) as the cumulative effect of a change in accounting
principle for the adoption of Statement of Financial Accounting Standards
No. 106, "Employers' Accounting for Postretirement Benefits Other Than
Pensions" and the adoption of Financial Accounting Standards No. 109,
"Accounting for Incomes Taxes" which increased 1992 net income by $15.1
million ($0.58 per share, basic and assuming dilution), which represented
the net decrease in the Company's deferred tax liability at that date.
(c) Operating income includes the following pretax special charges: 1991 -
$11.3 million for early retirement program and newspaper merger costs; 1989
- $10.3 million for the write-off of unrecovered costs related to a lawsuit
against William B. Tanner and others.
50
<PAGE>
<TABLE>
<CAPTION>
1994 1993 1992 1991 1990 1989
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Summary of Operations
OPERATING REVENUES $ 626,247 $ 600,824 $ 577,659 $ 585,900 $ 613,667 $ 595,132
- ----------------------------------------------------------------------------------------------------------------------------------
NET INCOME (LOSS) $ 117,009 $ 25,708 $ 19,000 $ (62,091) $ 25,480 $ 20,720
Adjustments to reconcile to
operating cash flow:
Extraordinary item (a) --- --- --- --- --- ---
Gain on sale of Garden State
Newspapers investment (91,520) --- --- --- --- ---
Cumulative effect of changes
in accounting principles (b) --- --- (687) --- --- ---
Investment (income) loss -
unconsolidated affiliates (2,935) 990 4,926 75,640 1,303 (10,562)
Other, net 789 (835) (6,131) (2,659) (814) (684)
Interest expense 16,948 21,274 17,559 16,056 19,831 25,385
Income taxes 25,960 13,166 7,946 9,395 18,025 9,280
----------- ---------- ---------- ---------- ----------- -------------
Operating income (c) 66,251 60,303 42,613 36,341 63,825 44,139
Depreciation and amortization 55,450 56,847 54,550 49,943 47,547 45,635
----------- ---------- ---------- ---------- ----------- -------------
Operating cash flow $ 121,701 $ 117,150 $ 97,163 $ 86,284 $ 111,372 $ 89,774
==================================================================================================================================
Per Share Data: (a)(b)
Income (loss) before
extraordinary item
and cumulative effect of
changes in accounting
principles $ 4.50 $ 0.99 $ 0.70 $ (2.40) $ 0.99 $ 0.80
Extraordinary item --- --- --- --- --- ---
Cumulative effect of
changes in accounting
principles --- --- 0.03 --- --- ---
----------- ---------- ---------- ---------- ----------- -------------
Net income (loss) $ 4.50 $ 0.99 $ 0.73 $ (2.40) $ 0.99 $ 0.80
- ----------------------------------------------------------------------------------------------------------------------------------
Per Share Data -
assuming dilution: (a)(b)
Income (loss) before
extraordinary item
and cumulative effect
of changes in
accounting principles $ 4.45 $ 0.98 $ 0.70 $ (2.40) $ 0.98 $ 0.80
Extraordinary item --- --- --- --- --- ---
Cumulative effect of
changes in accounting
principles --- --- 0.03 --- --- ---
----------- ---------- ---------- ---------- ----------- -------------
Net income (loss) $ 4.45 $ 0.98 $ 0.73 $ (2.40) $ 0.98 $ 0.80
- ----------------------------------------------------------------------------------------------------------------------------------
Other Financial Data:
Total assets $ 787,165 $ 745,242 $ 787,425 $ 762,311 $ 775,944 $ 782,657
Working capital 14,833 9,551 9,657 3,668 21,333 62,210
Capital expenditures 56,919 32,837 92,319 115,383 73,686 69,117
Total debt 173,144 262,550 321,487 277,428 235,266 275,928
Cash dividend per share 0.44 0.44 0.44 0.44 0.44 0.42
==================================================================================================================================
</TABLE>
51
Exhibit 21
Subsidiaries of the Registrant
Listed below are the major subsidiaries of the Company, including equity
investees, each of which is in the consolidated financial statements of the
Company and its Subsidiaries, and the percentage of ownership by the Company (or
if indented, by the subsidiary under which it is listed). Subsidiaries omitted
from the list would not, if aggregated, constitute a significant subsidiary:
<TABLE>
<CAPTION>
Jurisdiction of Securities
Name of Subsidiary Incorporation Ownership
- ------------------ --------------- ---------
<S> <C> <C>
Denver Newspapers, Inc. Delaware 40%
Garden State Paper Company, Inc. Virginia 100%
Media General Business Communications, Inc. Virginia 100%
Media General Cable of Fairfax County, Inc. Virginia 100%
Media General Cable of Fredericksburg, Inc. Virginia 100%
Media General Communications, Inc. Delaware 100%
Media General Newspapers, Inc. Delaware 100%
Media General Broadcasting, Inc. Virginia 100%
MG Broadcasting of Birmingham, Inc. Alabama 100%
Media General Broadcasting of Montgomery, Inc. Alabama 100%
Media General Financial Services, Inc. Virginia 100%
Mega Advertising, Inc. Virginia 100%
NES II, Inc. Virginia 100%
Piedmont Publishing Company, Inc. North Carolina 100%
Richmond Newspapers, Inc. Virginia 100%
The Tribune Company Florida 100%
Virginia Newspapers, Inc. Virginia 100%
Virginia Paper Manufacturing Corp. Virginia 100%
Southeast Paper Manufacturing Co.
(Partnership) Georgia 33.33%
</TABLE>
Exhibit 23
Consent of Independent Auditors
The Board of Directors and Stockholders
Media General, Inc.
We consent to the incorporation by reference in this Annual Report (Form 10-K)
of Media General, Inc., of our report dated January 26, 1999, included in the
1998 Annual Report to Stockholders of Media General, Inc.
Our audits also included the financial statement schedule of Media General,
Inc., listed in Item 14(a). This schedule is the responsibility of the Company's
management. Our responsibility is to express an opinion based on our audits. In
our opinion, the financial statement schedule referred to above, when considered
in relation to the basic financial statements taken as a whole, presents fairly
in all material respects the information set forth therein.
We also consent to the incorporation by reference in the following Registration
Statements of our report dated January 26, 1999, with respect to the
consolidated financial statements of Media General, Inc., incorporated herein by
reference, and our report included in the preceding paragraph with respect to
the financial statement schedule of Media General, Inc., included in this Annual
Report (Form 10-K) of Media General, Inc., for the fiscal year ended December
27, 1998.
REGISTRATION STATEMENT NUMBER DESCRIPTION
2-56905 Form S-8
33-29478 Form S-8
33-23698 Form S-8
33-26853 Form S-8
33-52472 Form S-8
333-16731 Form S-8
333-16737 Form S-8
333-69527 Form S-8
Ernst & Young LLP
Richmond, Virginia
March 24, 1999
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM MEDIA
GENERAL, INC.'S CONSOLIDATED CONDENSED BALANCE SHEETS AND CONSOLIDATED CONDENSED
STATEMENTS OF OPERATIONS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> Year
<FISCAL-YEAR-END> DEC-27-1998
<PERIOD-END> DEC-27-1998
<CASH> 7,637
<SECURITIES> 0
<RECEIVABLES> 118,500
<ALLOWANCES> 8,433
<INVENTORY> 20,341
<CURRENT-ASSETS> 176,226
<PP&E> 1,111,251
<DEPRECIATION> 614,454
<TOTAL-ASSETS> 1,917,346
<CURRENT-LIABILITIES> 147,097
<BONDS> 928,101
0
0
<COMMON> 133,857
<OTHER-SE> 343,492
<TOTAL-LIABILITY-AND-EQUITY> 1,917,346
<SALES> 973,978
<TOTAL-REVENUES> 973,978
<CGS> 477,260
<TOTAL-COSTS> 477,260
<OTHER-EXPENSES> 100,201
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 66,049
<INCOME-PRETAX> 111,175
<INCOME-TAX> 40,301
<INCOME-CONTINUING> 70,874
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 70,874
<EPS-PRIMARY> 2.67
<EPS-DILUTED> 2.63
</TABLE>
