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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report: February 18, 1994 Commission File No. 1-8283
(Date of earliest event reported)
GREAT AMERICAN COMMUNICATIONS COMPANY
(Exact name of registrant as specified in its charter)
Incorporated under the IRS Employer
laws of Florida Identification No. 59-2054850
One East Fourth Street
Cincinnati, Ohio 45202
(Address of principal executive offices)
Phone: (513) 579-2177
(Registrant's telephone number)
Former name or former address, if changed since last report - not
applicable
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GREAT AMERICAN COMMUNICATIONS COMPANY 8-K
Item 5. Other Events
On February 18, 1994 Great American Communications
Company ("GACC") redeemed all $77.6 million outstanding
principal amount of its 14% Senior Extendable Notes initially
due June 30, 2001 (the "14% Notes") and also prepaid all
$111.5 million principal amount of 13% Senior Subordinated
Notes due May 15, 2001 of its wholly-owned subsidiary, Great
American Broadcasting Company, (the "13% Notes"). No gain or
loss was recognized as the notes were redeemed or prepaid at
par plus accrued interest. The 14% Notes were issued by GACC
as part of its recently completed prepackaged plan of
reorganization.
The respective redemption and prepayment of the 14% Notes
and 13% Notes was financed by GACC through the issuance of
$200 million principal amount of 9-3/4% Senior Subordinated
Notes due February 15, 2004, to entities affiliated with
Fidelity Management and Research Co.
Item 7. Financial Statements and Exhibits
(c) Exhibits
4.1 Loan Agreement dated as of August 20, 1993 as
amended and restated from time to time between Great
American Television and Radio Company, Inc., Great
American
Broadcasting Company and certain banks.
4.2 Indenture dated as of February 18, 1994, between
Great American Communications Company and Shawmut
Bank, National Association, as Trustee relating to
the 9-3/4% Senior Subordinated Notes due 2004 (the
form of which 9-3/4% Senior Subordinated Notes is
included in such Indenture).
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SIGNATURES
Pursuant to the requirements 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.
GREAT AMERICAN COMMUNICATIONS COMPANY
February 18, 1994 By:/s/Gregory C. Thomas
Gregory C. Thomas
Executive Vice President and
Chief Financial Officer
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LOAN AGREEMENT
dated as of August 20, 1993
As Amended and Restated
as of November 30, 1993
Among
GREAT AMERICAN TELEVISION AND RADIO COMPANY, INC.
as the Borrower,
GREAT AMERICAN BROADCASTING COMPANY,
VARIOUS FINANCIAL INSTITUTIONS
NOW OR HEREAFTER PARTIES HERETO
as Lenders,
THE FIRST NATIONAL BANK OF BOSTON
as Administrative Agent,
CONTINENTAL BANK, N.A.
as Collateral Agent,
THE FIRST NATIONAL BANK OF BOSTON
and
CONTINENTAL BANK, N.A.
as Managing Agents
and
THE FIRST NATIONAL BANK OF BOSTON,
and
CONTINENTAL BANK, N.A.
and
CHASE MANHATTAN BANK, N.A.
as Co-Agents
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List of Schedules
SCHEDULE I - Agents and Lenders
SCHEDULE II - Disclosure Schedule
SCHEDULE III - Mortgaged Properties
List of Exhibits
EXHIBIT A - Form of Note
EXHIBIT B - Form of Accession Agreement
EXHIBIT C - Form of Compliance Certificate
EXHIBIT D - Form of Pledge Agreement
EXHIBIT E - Form of Perfection Certificate
EXHIBIT F - Form of Security Agreement
EXHIBIT G - Form of Trademark Security Agreement
EXHIBIT H - Form of Collateral Assignment of
Hanna-Barbera LC Documents
EXHIBIT I - Form of Subsidiary Guaranty
EXHIBIT J - Form of Lockbox Agreement
EXHIBIT K - Form of Concentration Account and
Sub-Agency Agreement
EXHIBIT L - Form of Mortgage
EXHIBIT M-1 - Form of Legal Opinion of Keating,
Meuthing & Klekamp
EXHIBIT M-2 - Form of Legal Opinion of FCC Counsel
EXHIBIT M-3 - Form of Legal Opinion of Bingham Dana &
Gould
EXHIBIT M-4 - Form of Legal Opinion of Bankruptcy
Counsel
EXHIBIT N - Form of Intercompany Subordination
Agreement
EXHIBIT O - Form of Solvency Certificate
EXHIBIT P - Form of Effective Date Certificate
EXHIBIT Q - Form of Document Acceptance Agreement
EXHIBIT R - Form of Assignment and Acceptance
Agreement
EXHIBIT S - Form of Comprehensive Settlement
Agreement
EXHIBIT T - Form of WGHP Loan Agreement
EXHIBIT U - Form of WGHP Subordination Agreement
EXHIBIT V - Form of Letter Agreement
EXHIBIT W - Form of GACC 14% Note Payment Agreement
EXHIBIT X - Form of Additional Funding Agreement
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TABLE OF CONTENTS
PAGE
I. DEFINITIONS
1.1. Defined Terms............................ 1
1.2. Use of Defined Terms..................... 35
1.3. Cross-References......................... 35
1.4. Accounting and Financial Determinations.. 35
1.5. General Provisions Relating to
Definitions.............................. 36
II. COMMITMENTS OF THE LENDERS
2.1. Commitments.............................. 36
2.2. Commitments Several...................... 36
2.3. Termination of Commitments............... 36
III. LOANS AND NOTES
3.1. Borrowing Procedure...................... 36
3.2. Notes.................................... 37
3.3. Principal Payments....................... 37
3.3.1. Repayments....................... 37
3.3.2. Prepayments...................... 38
3.4. Interest Payments........................ 40
3.4.1. Interest Rates................... 41
3.4.2. Interest on Overdue Amounts...... 41
3.4.3. Payment Dates.................... 41
3.5. Fees..................................... 42
3.5.1. Closing Fees..................... 42
3.5.2. Commitment Fees.................. 42
3.5.3. Agents Fees...................... 43
3.6. Making and Proration of Payments;
Computations; etc........................ 43
3.6.1. Making of Payments............... 43
3.6.2. Setoff........................... 43
3.6.3. Proration of Payments............ 43
3.6.4. Due Date Extension............... 44
3.6.5. Notice of Changes in Alternate
Base Rate;
Notice of Eurodollar Rates....... 44
3.6.6. Computations..................... 44
3.6.7. Recordkeeping.................... 44
3.7. Taxes.................................... 45
3.8. Use of Proceeds.......................... 45
IV. FUNDING OPTIONS
4.1. Pricing Tranches of Each Loan................ 46
4.2. Conversion Procedures........................ 46
4.3. Continuation Procedures..................... 47
4.4. Limitations on Interest Periods and
Continuation and Conversion Elections....... 47
4.4.1. Interest Periods..................... 47
4.4.2. Conditions Precedent................. 48
4.4.3. Other Limitations.................... 48
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4.5. Increased Costs............................. 48
4.6. Interest Rate Inadequate or Unfair.......... 50
4.7. Changes in Law Rendering Eurodollar
Tranches Unlawful........................... 50
4.8. Funding Losses.............................. 51
4.9. Right of Lenders to Fund Through
Other Offices............................... 51
4.10. Discretion of Lenders as to
Manner of Funding........................... 51
4.11. Conclusiveness of Statements;
Survival of Provisions...................... 52
V. GUARANTIES
5.1. Guaranty.................................... 52
5.1.1. Guaranty of Payment.................. 52
5.1.2. Guaranty of Performance.............. 53
5.2. Guaranty Absolute........................... 53
5.3. Reinstatement, etc.......................... 54
5.4. Waiver...................................... 55
5.5. Subordination of Subrogation Rights......... 55
VI. CONDITIONS TO LENDING
6.1. Conditions to Making the Loans.............. 56
6.1.1. Completion of Reorganization........ 56
6.1.2. Execution and Delivery of
Agreement, Notes, etc............... 60
6.1.3. Accession Agreement................. 60
6.1.4. Subsidiary Guaranty................. 60
6.1.5. Pledge Agreement.................... 60
6.1.6. Security Agreement; U.C.C.
Filings, etc........................ 60
6.1.7. Trademark Security Agreement........ 61
6.1.8. Collateral Assignment............... 61
6.1.9. Mortgages........................... 62
6.1.10. Title Matters....................... 62
6.1.11. MAI Appraisals...................... 63
6.1.12. Environmental Audits................ 63
6.1.13. Cash Collateral
Arrangements, etc................... 63
6.1.14. Amendment to Tax Sharing
Agreement........................... 63
6.1.15. Other Loan Documents and
Ancillary Documents............. 63
6.1.16. Opinions of Counsel.............. 64
6.1.17. Compliance Certificate........... 64
6.1.18. Solvency Certificate............. 64
6.1.19. Perfection Certificate........... 65
6.1.20. Document Acceptance
Agreements....................... 65
6.1.21. Resolutions, etc................. 65
6.1.22. Certificates of Good Standing.... 66
6.1.23. Financial Statements............. 66
6.1.24. No Materially Adverse Effect..... 66
6.1.25. Restricted Payments; Affiliate
Transactions; Other Corporate
Transactions..................... 66
6.1.26. Compliance with Warranties,
Absence of Litigation; No
Default.......................... 67
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6.1.27. Fees and Expenses................ 67
6.1.28. Insurance........................ 67
6.2. All Credit Extensions.................... 67
6.2.1. Compliance with Warranties,
Absence of Litigation, No
Default, etc..................... 67
6.2.2. Notice of Borrowing;
Continuation/Conversion
Notice........................... 68
6.2.3. Legality of Transactions......... 68
6.2.4. Satisfactory Legal Form, etc..... 68
VII. WARRANTIES, ETC.
7.1. Organization, etc........................ 68
7.2. Power, Authority......................... 69
7.3. Validity, etc............................ 69
7.4. Financial Information.................... 69
7.5. Projections.............................. 70
7.6. Materially Adverse Effect................ 70
7.7. Existing Indebtedness; Absence of
Default.................................. 71
7.8. Litigation, etc.......................... 71
7.9. Regulations G, U and X................... 71
7.10. Government Regulation.................... 72
7.11. Burdensome Agreements; Restricted
Payments................................. 72
7.12. Taxes.................................... 72
7.13. Compliance with ERISA.................... 73
7.14. Labor Controversies...................... 74
7.15. Corporate Structure...................... 74
7.16. Ownership of Properties, Liens........... 75
7.17. Patents, Trademarks, etc................. 75
7.18. Reorganization; Accuracy of
Information.............................. 75
7.19. Collateral Documents..................... 76
7.20. Environmental Matters.................... 76
7.21. Licenses and Approvals................... 78
7.22. Transactions with Affiliates............. 79
7.23. Representations in Loan Documents
and Ancillary Documents.................. 79
VIII. COVENANTS
8.1. Certain Affirmative Covenants............ 79
8.1.1. Financial Information, etc....... 80
8.1.2. Maintenance of Corporate
Existence, etc.................. 82
8.1.3. Foreign Qualification............ 83
8.1.4. Payment of Taxes, etc............ 83
8.1.5. Maintenance of Property;
Insurance........................ 83
8.1.6. Notice of Default,
Litigation, etc.................. 84
8.1.7. Notice of Restricted Payments.... 85
8.1.8. Performance of Loan Documents
and Ancillary Documents.......... 85
8.1.9. Books and Records................ 86
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8.1.10. Compliance with Laws, etc........ 86
8.1.11. Provision of Additional
Collateral; MAI Appraisals....... 87
8.1.12. Cash Collateral Arrangements..... 87
8.1.13. Rate Protection Agreements....... 88
8.1.14. ERISA Notices.................... 89
8.1.15. Environmental Compliance......... 89
8.2. Certain Negative Covenants............... 90
8.2.1. Limitation on Nature
of Business...................... 90
8.2.2. Indebtedness..................... 92
8.2.3. Liens............................ 95
8.2.4. Financial Covenants.............. 96
8.2.5. Capital Expenditures............. 97
8.2.6. Consolidated Corporate
Overhead......................... 98
8.2.7. Investments...................... 98
8.2.8. Restricted Payments.............. 99
8.2.9. Mergers; Acquisitions; Sales
of Property...................... 103
8.2.10. Modification, etc. of
Certain Agreements and
Governing Documents.............. 106
8.2.11. Transactions with Affiliates..... 106
8.2.12. Capital Stock.................... 106
8.2.13. Restrictive or
Inconsistent Agreements.......... 107
8.2.14. Fiscal Year...................... 107
8.2.15. Change of Location, Name or
Deposit Accounts................. 107
8.2.16. ERISA Compliance................. 108
8.3. No Claims Against GABCO Subsidiaries..... 108
IX. EVENTS OF DEFAULT
9.1. Events of Default........................ 108
9.1.1. Non-Payment of Obligations....... 108
9.1.2. Non-Performance of Certain
Obligations...................... 109
9.1.3. Non-Performance of Other
Obligations...................... 109
9.1.4. Breach of Warranty............... 109
9.1.5. Default Under Other
Debt Documents................... 109
9.1.6. Default Under Other Instruments.. 110
9.1.7. Bankruptcy Insolvency, etc....... 110
9.1.8. Judgments........................ 111
9.1.9. ERISA............................ 111
9.1.10. Broadcasting Stations............ 112
9.1.11. Impairment of Security, etc...... 112
9.1.12. Change of Control................ 113
9.1.13. Materially Adverse Effect........ 113
9.2. Action if Bankruptcy..................... 114
9.3. Action if Other Event of Default......... 114
9.4. Commitment Termination Event............. 114
X. THE ADMINISTRATIVE AGENT, THE MANAGING
AGENTS AND THE COLLATERAL AGENT
10.1. Actions.................................. 114
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10.2. Exculpation.............................. 115
10.3. Successor................................ 116
10.4. Collateral Documents, etc................ 116
10.5. Loans by Agents.......................... 116
10.6. Credit Decisions......................... 117
10.7. Notices, etc. to the Administrative
Agent.................................... 117
XI. ADDITIONAL LENDERS AND PARTICIPANTS
11.1. Participations by Lenders................ 117
11.1.1. Participations................... 117
11.1.2. Participant's Right of Setoff
in Certain Cases................. 118
11.1.3. Rights of Participants........... 118
11.2. Assignments by Lenders................... 118
11.2.1. Assignments...................... 118
11.2.2. Effect of Assignment and
Acceptance Agreement............. 119
11.2.3. Delivery of New Notes By
Borrower Following Assignments... 119
11.2.4. Administrative Agent's
Maintenance of Register.......... 120
11.2.5. Actions of Administrative
Agent; Fees...................... 120
11.2.6. Assigning Lender, Purchasing
Lender, and Other Parties,
Confirmations and Agreements..... 120
11.3. Disclosure of Information................ 121
11.4. Assistance............................... 121
11.5. Taxes.................................... 122
11.6. Federal Reserve Bank..................... 122
XII. MISCELLANEOUS
12.1. Waivers, Amendments, etc................. 122
12.2. Notices.................................. 124
12.3. Costs and Expenses....................... 124
12.4. Indemnification.......................... 125
12.5. Survival................................. 126
12.6. Severability............................. 126
12.7. Headings................................. 126
12.8. Counterparts; Entire Agreement........... 126
12.9. Choice of Law............................ 126
12.10. Service of Process...................... 126
12.11. Successors and Assigns.................. 127
12.12. Other Transactions; Consent to
Relationships.......................... 127
12.13. Further Assurances...................... 127
12.14. Confidentiality......................... 127
12.15. Release of Collateral; Subordination of
Liens.................................. 128
12.16. Waiver of Jury Trial.................... 128
12.17. Amendment and Restatement of Original
Loan Agreement......................... 129
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LOAN AGREEMENT
LOAN AGREEMENT, dated as of August 20, 1993, as amended
and restated as of November 30, 1993, among (i) GREAT
AMERICAN TELEVISION AND RADIO COMPANY, INC., an Ohio
Corporation (the "Borrower"), (ii) GREAT AMERICAN
BROADCASTING COMPANY, a Delaware corporation ("GABCO"), (iii)
the financial institutions which are now, or in accordance
with Section 11.2 hereafter become, parties hereto
(collectively, the "Lenders"), (iv) THE FIRST NATIONAL BANK
OF BOSTON ("Bank of Boston"), as Administrative Agent for the
Lenders, (v) CONTINENTAL BANK, N.A. ("Continental"), as
Collateral Agent for the Lenders, (vi) Bank of Boston and
Continental, as Managing Agents for the Lenders, and (vii)
Bank of Boston, Continental and Chase Manhattan Bank, N.A.,
as Co-Agents for the Lenders.
RECITALS
The Borrower has requested the Lenders to make Loans
(such capitalized term, and each other capitalized term used
but not defined in these Recitals or in the introductory
paragraph above, having the meanings specified in Section
1.1) to the Borrower in the aggregate principal amount of
$220,000,000. The proceeds of the Loans are to be used by
the Borrower to pay and prepay certain of its outstanding
Indebtedness and for the other purposes described in and
permitted by Section 3.8.
The Lenders are willing to make such Loans to the
Borrower on the Effective Date on the terms and subject to
the conditions contained herein.
Accordingly, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Defined Terms. The following terms, when
used in this Agreement, including the introductory paragraph
and Recitals above, shall, except where the context otherwise
requires, have the following meanings:
"Accession Agreement" means the Accession Agreement,
substantially in the form of Exhibit B attached hereto, to be
executed and delivered by GACC on the Effective Date and by
GABCO Sub on or prior to the Effective Date.
"Acquired Station" is defined in clause (c) of Section
8.2.9.
"Acquisition" means any transaction, or any series of
related transactions, in which GACC or any of its
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Subsidiaries (in one transaction or as the most recent
transaction in a series of transactions) (a) acquires any
Broadcasting Station, any business or all or substantially
all of the Property of any Person or any division or business
unit thereof, whether through purchase of assets, merger or
otherwise, (b) directly or indirectly acquires control of at
least a majority (in number of votes) of the Securities of a
corporation, partnership or other Person having ordinary
voting power for the election of directors or managers of
such corporation, partnership or other Person or (c) directly
or indirectly acquires control of a majority of the equity
interests in any Person.
"Additional Funding Agreement" means the Additional
Funding Agreement, dated as of August 20, 1993, among AFC,
GACC and GATR.
"Administrative Agent" means
(a) Bank of Boston;
(b) any branch, agency or Subsidiary of Bank of
Boston within the United States of America of which the
Lenders and the Borrower are notified and
(i) to which the rights and responsibilities of
the Administrative Agent hereunder may be
transferred from time to time, or
(ii) which may, from time to time on behalf of
Bank of Boston or any such transferee, act as
Administrative Agent for the Lenders; or
(c) such other Lender or financial institution
as shall have subsequently been appointed as the
successor Administrative Agent pursuant to Section 10.3.
"AFC" means American Financial Corporation, an Ohio
corporation.
"AFC Loan Agreement" is defined in Section 6.1.1.
"Affected Tranche" is defined in Section 4.7.
"Affiliate" of any Person means (a) any other Person
which, directly or indirectly, controls or is controlled by
or is under common control with such Person or (b) any other
Person who is a Relative, director or officer of such Person
or of any Person described in clause (a). For purposes of
this definition, control of a Person shall mean (i) the
power, whether direct or indirect, (x) to vote five percent
(5%) or more of the Securities having ordinary voting power
for the election of directors or other managers of such
Person or (y) to direct or cause the direction of the
management and policies of such Person, whether by contract
or otherwise, or (ii) the ownership, whether direct or
indirect, of five percent (5%) or more of any class of voting
or equity Securities of such Person.
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"Affiliate Transaction" means any of the following
transactions or arrangements:
(a) the making by any GABCO Subsidiary of any
payments or prepayments (whether of principal, premium,
interest or any other sum) of or on account of, any
payment or other distribution on account of the
redemption, repurchase, defeasance or other acquisition
for value of, or any sinking fund payment in respect of,
any Indebtedness of any kind whatsoever of any GABCO
Subsidiary to any GACC Affiliate;
(b) the making by any GABCO Subsidiary of any
loans, advances or other Investments of any kind
whatsoever to or in any GACC Affiliate;
(c) the sale, transfer or other disposition by
any GABCO Subsidiary of all or any part of its Property
to, or for the direct or indirect benefit of, any GACC
Affiliate;
(d) the creation or incurrence by any GABCO
Subsidiary of any Indebtedness of such Subsidiary to any
GACC Affiliate;
(e) the making by any GABCO Subsidiary of any
payments (whether of principal, premium, interest or
other sum) of or on account of, or the making by any
GABCO Subsidiary of any payments or other distributions
on account of the purchase or other acquisition or
redemption of, any Indebtedness of, or any shares of
Capital Stock of, any GACC Affiliate; or
(f) any other transaction or Contractual
Obligation between any GACC Affiliate and any GABCO
Subsidiary.
"Agents" means, collectively, the Managing Agents, the
Administrative Agent and the Collateral Agent.
"Agents Fee" is defined in Section 3.5.3.
"Agents Fee Letter" means the Fee Letter, dated as of
November 15, 1993, between the Borrower and the Agents.
"Agreement" means this Loan Agreement.
"Alternate Base Rate" means, at any time, the greater of
(a) the Federal Funds Rate plus one-half of one percent (.5%)
and (b) the Bank of Boston Base Rate.
"Ancillary Documents" means, collectively, the Other
Debt Documents, the Reorganization Plan, the GACC Merger
Agreement, the GACC 14% Note Payment Agreement, the GACC
Undertaking, the Additional Funding Agreement, the Tax
Sharing Agreement, the Comprehensive Settlement Agreement,
the Hanna-Barbera LC Documents, and all other Instruments
that shall be from time to time identified by the Borrower
and the Managing Agents as Ancillary Documents for purposes
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of this Agreement.
"Alternate Base Rate Margin" means, for any Fiscal
Quarter, the rate per annum determined in accordance with the
schedule set forth below based upon the Total Debt to
Consolidated Broadcast Cash Flow Ratio for the Reference
Period ending on the day immediately preceding the
commencement of the Fiscal Quarter immediately prior to such
Fiscal Quarter:
Total Debt to Consolidated Alternate Base
Broadcast Cash Flow Ratio Rate Margin
5.00:1.00 or greater 2.00%
4.00:1.00 or greater,
but less than 5.00:1.00 1.50%
Less than 4.00:1.00 1.00%
"Applicable Law" means and includes statutes and rules and
regulations thereunder and interpretations thereof by any
Governmental Authority charged with the administration or the
interpretation thereof, and orders, requests, directives,
instructions and notices of any Governmental Authority.
"Apollo" means Apollo Advisors, L.P., a Delaware limited
partnership.
"Apollo Group" means, collectively, Apollo, Lion Advisors,
L.P., and AIF II, L.P.
"Approval" means, relative to any Transaction Party, each
and every approval, consent, filing or registration by or
with any Governmental Authority, or any creditor or
shareholder of such Transaction Party, necessary to authorize
or permit the execution, delivery or performance by such
Transaction Party of this Agreement or any of the other Loan
Documents to the extent it is a party thereto, and the
validity or enforceability of any of such Loan Documents
against such Transaction Party.
"Assigning Lender" is defined in Section 11.2.1.
"Assignment" is defined in Section 11.2.1.
"Assignment and Acceptance Agreement" is defined in Section
11.2.1.
"Assignor" is defined in Section 11.2.1.
"Associated Person" means (a) Lindner, (b) AFC, (c) Apollo,
(d) any Affiliate (other than a Transaction Party) of AFC,
Apollo or any Transaction Party, and (d) any Relative,
officer, director or general partner of any Person who is an
Associated Person by reason of clause (a), (b) or (c).
Transaction Parties shall not be Associated Persons for any
purposes of this Agreement or any other Loan Document.
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"Authorized Officers" is defined in Section 6.1.21.
"Bank Debt to Consolidated Broadcast Cash Flow Ratio" is
defined in Section 8.2.4.
"Bank of Boston" is defined in the introductory paragraph
hereto.
"Bank of Boston Base Rate" means the rate of interest
announced from time to time by Bank of Boston at its Domestic
Office as its "base rate".
"Bankruptcy Code" means Title 11 of the United States Code.
"Bankruptcy Court" means the United States Bankruptcy Court
for the Southern District of Ohio, Western Division.
"Bankruptcy or Insolvency Proceeding" means, with respect
to any Person, any insolvency or bankruptcy proceeding, or
any receivership, liquidation, reorganization or other
similar proceeding in connection therewith, relative to such
Person or its creditors, as such, or to its Property, and any
proceeding for voluntary liquidation, dissolution, or other
winding up of such Person, whether or not involving
insolvency or bankruptcy.
"Base Rate Tranche" means any Tranche bearing interest at a
fluctuating rate determined by reference to the Alternate
Base Rate.
"Borrower" is defined in the introductory paragraph hereto.
"Broadcasting Station" means all licenses, franchises and
permits (including all FCC Licenses) issued under federal,
state or local laws from time to time which authorize a
Person to receive or distribute, or both, over the airwaves,
audio and visual, radio or microwave signals within a
geographic area for the purpose of providing commercial
broadcasting of television or radio entertainment, together
with all Property owned or used in connection with the
entertainment provided pursuant to, and all interests of such
Person to receive revenues from any other Person which
derives revenues from or pursuant to, said licenses,
franchises and permits.
"Business Day" means a day on which banks are open for
business in Boston, Massachusetts and New York City, New
York.
"Capitalized Lease Obligations" means, with respect to any
Person, all monetary obligations of such Person under any
leasing or similar arrangement which in accordance with GAAP
is required to be classified on the balance sheet of such
Person as a capitalized lease.
"Capital Stock" means any shares, interests, participations
or other equivalents (howsoever designated) of corporate
capital stock or any options, warrants or other rights to
subscribe for, or to purchase, or to convert any Property
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into, or to exchange any Property for, any such corporate
capital stock, options, warrants or other rights.
"Cash Debt Service" means, in relation to GACC and its
Subsidiaries for any period, the sum of
(a) all Consolidated Cash Interest Charges of GACC and
its Subsidiaries for such period, and
(b) all principal payable by GACC and its Subsidiaries
during such period on the outstanding Consolidated Funded
Debt of GACC and its Subsidiaries, excluding, however,
principal payable solely as a result of the provisions of
Sections 3.3.2 (b), (c) or (e), and
(c) the aggregate amount of reductions in the remaining
Installments during such period on account of optional
prepayments made pursuant to Section 3.3.2(a), mandatory
prepayments made out of Excess Cash Flow pursuant to
Section 3.3.2(e), or mandatory prepayments made pursuant to
Section 3.3.2(d).
For purposes of clause (b), any principal payable by the
Borrower pursuant to Section 3.3.2(d) in December of 1994 or
in December of 1996 shall be deemed payable in January of
1995 or January of 1997, respectively.
For purposes of determining the Cash Debt Service for any
period, a portion of which falls prior to and includes the
Effective Date, (A) Consolidated Cash Interest Charges for
the portion of such period prior to and including the
Effective Date shall be calculated as set forth in the third
paragraph of the definition thereof, and (B) it shall be
assumed that no principal was payable with respect to any of
the Consolidated Funded Debt of GACC and its Subsidiaries
during such portion of such period.
"Cash Equivalents" means
(a) marketable obligations issued or unconditionally
guaranteed by the United States government, in each case
maturing within 180 days after the date of acquisition
thereof;
(b) marketable direct obligations issued by any state
of the United States or any political subdivision of any
such state or any public instrumentality thereof maturing
within 180 days after the date of acquisition thereof and,
at the time of acquisition, having the highest rating
obtainable from either Standard & Poor's Corporation or
Moody's Investors Service, Inc.;
(c) commercial paper maturing no more than 180 days
after the date of acquisition thereof, issued by a
corporation organized under the laws of any State of the
United States or of the District of Columbia and, at the
time of acquisition, having the highest rating obtainable
from either Standard & Poor's Corporation or Moody's
Investors Service, Inc.;
<PAGE>
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(d) money market funds whose investments are made
solely in securities described in clause (a) maturing
within one (1) year after the date of acquisition thereof;
(e) certificates of deposit maturing within ninety (90)
days after the date of acquisition thereof, issued by any
commercial bank that is either (i) a member of the Federal
Reserve System that has capital, surplus and undivided
profits (as shown on its most recent statement of
condition) aggregating not less than $100,000,000 and is
rated A or better by Moody's Investors Service, Inc. or
Standard & Poor's Corporation or (ii) a Lender; and
(f) repurchase agreements entered into with any Lender
or any commercial bank of the nature referred to in clause
(e), secured by a fully perfected Lien in any obligation of
the type described in any of clauses (a) through (e),
having a fair market value at the time such repurchase
agreement is entered into of not less than 100% of the
repurchase obligation thereunder of such Lender or other
commercial bank.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response
Compensation Liability Information System List.
"Class A Common Stock" means the shares of Class A Common
Stock, par value $.01 per share, of GACC, to be issued by
GACC on or after the Effective Date.
"Class B Common Stock" means the shares of Class B Common
Stock, par value $.01 per share, of GACC, to be issued by
GACC on or after the Effective Date.
"Closing Fees" is defined in Section 3.5.1.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"Collateral" means, collectively, the collateral provided
by the Transaction Parties under the Collateral Documents.
"Collateral Agent" means Continental, in its capacity as
collateral agent under the Collateral Documents, any
Affiliate (including any branch or agency) thereof to which
the rights and responsibilities thereof may be transferred,
and such other Lender or financial institution as shall have
been subsequently appointed as successor Collateral Agent
pursuant to Section 10.3.
"Collateral Assignment of Hanna-Barbera LC Documents" means
the Collateral Assignment, substantially in the form of
Exhibit H attached hereto, to be executed and delivered by
the Borrower on or prior to the Effective Date in favor of
the Collateral Agent for the benefit of the Secured Parties.
"Collateral Documents" means, collectively, the Security
<PAGE>
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Agreement, the Trademark Security Agreement, the Pledge
Agreement, the Concentration Account and Sub-Agency
Agreement, the Lockbox Agreements, the Subsidiary Guaranty,
the Mortgages, the Collateral Assignment of Hanna-Barbera LC
Documents, and all other Instruments that shall from time to
time be identified by the Managing Agents and the Borrower as
"Collateral Documents".
"Collection Deposit Accounts" means the accounts of the
Borrower maintained for the benefit of the Collateral Agent
and the other Secured Parties with Sub-Agents pursuant to
Lockbox Agreements, into which the Borrower shall cause to be
made direct payments of all remittances owed to it (other
than remittances owed to WGHP-TV).
"Commitment" means, in relation to any Lender, such
Lender's commitment to make a Loan pursuant to Section 2.1.
"Commitment Fee" is defined in Section 3.5.2.
"Commitment Termination Event" means any of the following
events:
(a) the acceleration of the obligations of the Borrower
under the Existing Loan Agreement following an Event of
Default (as defined in the Existing Loan Agreement)
thereunder;
(b) the occurrence of any Event of Default under
Section 9.1.7(a), (b), (c), (d), (e) or (f);
(c) any default by the Borrower in the payment when due
of any Fees, which default shall continue unremedied for a
period of five (5) Business Days; or
(d) March 15, 1994.
"Common Stock" means the Class A Common Stock and the Class
B Common Stock.
"Communications Act" means the Federal Communications Act
of 1934, as amended, and the rules and regulations of the FCC
thereunder as now or hereafter in effect.
"Communications Regulatory Authority" means any
communications regulatory commission, agency, department,
board or authority (including, without limitation, the FCC).
"Compliance Certificate" means a certificate duly executed
by an Authorized Officer of the Borrower, substantially in
the form of Exhibit C attached hereto (with such changes
thereto as may be agreed upon from time to time by the
Managing Agents and the Borrower), for purposes of monitoring
the Borrower's compliance herewith.
"Comprehensive Settlement Agreement" means the
Comprehensive Settlement Agreement, to be executed and
delivered by AFC, Lindner, GACC, on behalf of itself and each
of its direct and indirect Subsidiaries, each of the lenders
<PAGE>
- 9 -
party to the Existing Loan Agreement, each holder of Old 13%
Notes, each member of the Apollo Group, and representatives
of holders of certain Old Debt Securities providing for the
mutual release by each such party of certain claims that may
exist prior to the Effective Date.
"Concentration Account" means one or more accounts of the
Borrower maintained with Bank of Boston pursuant to the
Concentration Account and Sub-Agency Agreement, into which
balances from the Collection Deposit Accounts shall be
transferred on a daily basis.
"Concentration Account and Sub-Agency Agreement" means the
Concentration Account and Sub-Agency Agreement, substantially
in the form of Exhibit K attached hereto, to be executed and
delivered by the Borrower and Bank of Boston, as agent for
the Collateral Agent, on or prior to the Effective Date in
favor of the Collateral Agent for the benefit of the Secured
Parties.
"Confirmation Order" means the order of the Bankruptcy
Court confirming the Reorganization Plan pursuant to Section
1129 of the Bankruptcy Code.
"Consolidated Broadcast Cash Flow" means, in relation to
GACC and its Subsidiaries for any period,
(a) the sum of
(i) the Consolidated Operating Cash Flow of GACC and its
Subsidiaries for such period, and
(ii) Consolidated Corporate Overhead of GACC and its
Subsidiaries for such period, to the extent, but only to
the extent, such Consolidated Corporate Overhead was
deducted in determining Consolidated Operating Cash Flow
of GACC and its Subsidiaries for such period, and
(iii) the aggregate amount of federal, state and local
income taxes paid by GACC and its Subsidiaries for such
period, to the extent, but only to the extent, such
expenses were deducted in determining Consolidated
Operating Cash Flow of GACC and its Subsidiaries for
such period,
(b) less the sum of
(i) cash dividends or other cash distributions received by
GACC and its Subsidiaries during such period in respect of
the equity of GACC and its Subsidiaries in the earnings of
any corporation, partnership or other Person which is not a
Subsidiary of GACC, to the extent, but only to the extent,
such dividends or distributions were added to Consolidated
Operating Income of GACC and its Subsidiaries in
determining Consolidated Operating Cash Flow of GACC and
its Subsidiaries for such period, and
(ii) the aggregate amount of mandatory prepayments of
principal of the Loans made or deemed made during such
<PAGE>
- 10 -
period pursuant to Section 3.3.2(d).
"Consolidated Capital Expenditures" means, in relation to
any Person and its Subsidiaries for any period, all
expenditures by such Person and its Subsidiaries paid or
accrued for the lease, purchase, construction or use of any
Property the value or cost of which, in accordance with GAAP,
is required to be (or is permitted to be, and such Person so
elects) capitalized on the consolidated balance sheet of such
Person and its Subsidiaries for such period, including,
without limitation, all amounts paid or accrued by such
Person and its Subsidiaries for such period with respect to
Capitalized Lease Obligations (excluding the interest
component thereof). Consolidated Capital Expenditures shall
not include expenditures of Net Disposition Proceeds by the
Borrower in respect of any Acquisition permitted by Section
8.2.9(c).
"Consolidated Cash Interest Charges" means, in relation to
any Person and its Subsidiaries for any period, all amounts
for which such Person or its Subsidiaries shall be obligated
(without regard to any applicable subordination provisions or
similar prohibitions) to make a payment in cash during such
period in respect of interest payable on outstanding
Indebtedness and in respect of commitment fees, facility
fees, agent's fees and similar fees and charges payable at
any time after the Effective Date in respect of outstanding
Indebtedness for Borrowed Money.
For purposes of determining the Consolidated Cash Interest
Charges of GACC and its Subsidiaries for any period, (a)
there shall be excluded all interest accrued during such
period on that portion of the principal of the Loans prepaid
during such period with Net Disposition Proceeds pursuant to
Section 3.3.2(b), (b) there shall be excluded all interest
earned during such period on Reserved Net Disposition
Proceeds that are pledged to the Collateral Agent in
compliance with clause (b) of Section 8.2.9, and (c) there
shall be included all interest accrued during such period on
Indebtedness incurred or assumed by GACC or any of its
Subsidiaries during such period in connection with the
acquisition of any Property during such period.
For purposes of determining the Consolidated Cash Interest
Charges of GACC and its Subsidiaries for any period, a
portion of which falls prior to and includes the Effective
Date, the Consolidated Cash Interest Charges of GACC and its
Subsidiaries for the portion of such period prior to and
including the Effective Date (the "Pro-Forma Period") shall
be determined as if (a) the Effective Date, the funding of
the Loans and the application of the Loan proceeds in
accordance with Section 3.8 occurred immediately prior to the
commencement of the Pro-Forma Period, (b) the Consolidated
Funded Debt of GACC and its Subsidiaries outstanding as of
the Effective Date and after giving effect to the
Reorganization, the funding of the Loans and the application
of the Loan proceeds in accordance with Section 3.8 was
outstanding throughout the Pro-Forma Period, (c) the interest
rate payable with respect to any particular item of
<PAGE>
- 11 -
Consolidated Funded Debt during the Pro-Forma Period was at
all times during the Pro-Forma Period equal to the interest
rate payable on such item of Consolidated Funded Debt on and
as of the Effective Date and (d) all such interest was
payable on a periodic basis throughout the Pro-Forma Period
in a manner consistent with the terms of the Instruments
governing such Consolidated Funded Debt as of the Effective
Date.
"Consolidated Corporate Overhead" means, in relation to
GACC and its Subsidiaries for any period, that portion of the
overhead expense, including legal, audit, accounting and
insurance expense, of GACC and its Subsidiaries not directly
allocable to the operation of the Broadcasting Stations and
other operating assets of GACC and its Subsidiaries.
Consolidated Corporate Overhead shall include salaries of
employees of GACC and its Subsidiaries, to the extent that
such salaries are not directly allocable to the operation of
the Broadcasting Stations and other operating assets of GACC
and its Subsidiaries. Consolidated Corporate Overhead shall
not include any fees payable to the Agents or any of the
Lenders pursuant to this Agreement or the restructuring fee,
in the aggregate amount of $225,000, payable to the holders
of GABCO 13% Notes on the Effective Date pursuant to the
GABCO 13% Note Exchange Agreement, but shall include any
fees, costs or expenses payable to holders of Indebtedness
for Borrowed Money of GACC or GABCO.
"Consolidated Funded Debt" means, in relation to any Person
and its Subsidiaries as at any date, all Indebtedness for
Borrowed Money of such Person and its Subsidiaries as at such
date, all as consolidated in accordance with GAAP.
"Consolidated Operating Cash Flow" means, in relation to
GACC and its Subsidiaries for any period, the Consolidated
Operating Income of GACC and its Subsidiaries for such period
(a) plus the sum of
(i) the aggregate amount of depreciation and
non-cash amortization of intangibles accrued by
GACC and its Subsidiaries for such period to the
extent, but only to the extent, such aggregate
amount was deducted in determining Consolidated
Operating Income of GACC and its Subsidiaries
for such period, and
(ii) the aggregate amount of cash dividends or other
cash distributions received by GACC and its
Subsidiaries during such period in respect of the
equity of GACC and its Subsidiaries in the earnings of
any corporation, partnership or other Person, the
equity in whose earnings has not been included in the
Consolidated Operating Income of GACC and its
Subsidiaries for such period; and
(iii) the aggregate amount of mandatory prepayments of
principal of the Loans made during such period pursuant
<PAGE>
- 12 -
to Section 3.3.2(d),
(b) less the sum of
(i) the aggregate amount of federal, state and local
income taxes paid by GACC and its Subsidiaries for such
period, and
(ii) the Consolidated Corporate Overhead of GACC and
its Subsidiaries for such period, to the extent, but
only to the extent, such Consolidated Corporate
Overhead was not deducted in determining Consolidated
Operating Income of GACC and its Subsidiaries for such
period.
For purposes of clause (a)(iii), any mandatory prepayment
of principal of the Loans made pursuant to Section 3.3.2(d)
in December of 1994 or December of 1996 shall be deemed made
in January of 1995 or January of 1997, respectively.
For purposes of determining the Consolidated Operating Cash
Flow of any Person and its Subsidiaries for any period, (A)
there shall be excluded from such Consolidated Operating Cash
Flow all operating cash flow attributable to any Property
sold or disposed of by such Person and its Subsidiaries other
than in the ordinary course of business during such period as
if such Property were not owned at any time by such Person
and its Subsidiaries during such period, and (B) there shall
be included in such Consolidated Operating Cash Flow all
operating cash flow attributable to any Property acquired by
such Person and its Subsidiaries other than in the ordinary
course of business during such period as if such Property
were owned by such Person and its Subsidiaries at all times
during such period.
For all purposes of this Agreement, the "operating cash
flow" of any Person or attributable to any Property
(including any Broadcasting Station) for any period shall be
determined in a manner consistent in all relevant respects
with the method used to determine Consolidated Operating Cash
Flow, but on a non-consolidated basis. The determination of
the "operating cash flow" of any Broadcasting Station shall
account for only those items included in the definition of
Consolidated Operating Cash Flow that are directly
attributable to such Broadcasting Station and the operation
thereof.
"Consolidated Operating Cash Flow to Total Cash Interest
Ratio" is defined in Section 8.2.4.
"Consolidated Operating Income" means, in relation to any
Person and its Subsidiaries for any period, the amount set
forth opposite the line item "Operating Income" on the
consolidated statement of income of such Person and its
Subsidiaries for such period, all as prepared and
consolidated in accordance with GAAP, consistent with past
practices. "Consolidated Operating Income" shall in any
event not include any of the following: (a) any gains in
excess of losses resulting from the Sale of capital assets,
<PAGE>
- 13 -
(b) any gains resulting from the write-up of assets, (c) any
earnings of a Subsidiary of such Person which are not
available for the payment of dividends, (d) any proceeds of
life insurance policies, (e) any equity of such Person and
its Subsidiaries in the undistributed earnings (losses) of
any corporation, partnership or other Person which is not a
Subsidiary of such Person, (f) any earnings (losses) of any
corporation, partnership or other Person acquired by such
Person or any of its Subsidiaries in a pooling of interests
transaction for any year prior to the year of acquisition,
(g) deferred credits representing the excess of equity in any
other Person at the date of acquisition over the amount of
such Person's or any of its Subsidiaries' Investment in such
other Person, (h) the reversal of any reserve, except to the
extent that provision for such reserve is made during such
period, (i) gains resulting from the purchase by such Person
or any of its Subsidiaries of outstanding Indebtedness for
Borrowed Money of such Person or any such Subsidiary at a
price less than the principal amount thereof, and (j) any
other extraordinary nonrecurring items of earnings of such
Person or any of its Subsidiaries for such period.
"Continental" is defined in the introductory paragraph
hereto.
"Contingent Obligation" means, in relation to any Person,
any direct or indirect liability, contingent or otherwise, of
that Person with respect to any Indebtedness, lease,
dividend, letter of credit or other obligation of another if
the primary purpose or intent thereof by the Person incurring
the Contingent Obligation is to provide assurance to the
obligee of such obligation that such obligation will be paid
or discharged, or that any agreements relating thereto will
be complied with, or that the holders of such obligation will
be protected (in whole or in part) against loss in respect
thereof. Contingent Obligations shall include:
(a) the direct or indirect guaranty, endorsement
(otherwise than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse
or Sale with recourse by such Person of the obligation of
another, and
(b) any liability of such Person for the obligations of
another through any agreement (contingent or otherwise)
(i) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide
funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock
purchases, capital contributions or otherwise),
(ii) to maintain the solvency of any balance sheet
item, level of income or financial condition of
another, or
(iii) to make take-or-pay, pay or play or similar
payments if required regardless of non-performance by
any other party or parties to an agreement, if, in the
<PAGE>
- 14 -
case of any agreement described under subclauses (i),
(ii) or (iii), the primary purpose or intent thereof is
as described in the preceding sentence.
The amount of any Contingent Obligation shall be equal to the
amount of the obligation so guaranteed or otherwise
supported.
"Continuation/Conversion Notice" means a notice, signed by
an Authorized Officer of the Borrower, complying with the
requirements of Section 4.2 or 4.3, as applicable, and
otherwise in form and substance satisfactory to the
Administrative Agent.
"Contractual Obligation" means, in relation to any Person,
any provision of any Security issued by such Person or of any
Instrument or undertaking to which any such Person is a party
or by which it or any of its Property is bound.
"corporation" means any corporation, company, association,
joint stock company, business trust or other similar
organization or business enterprise.
"Counterparty" means any Lender, or any other bank or
financial institution acceptable to both the Managing
Agents, which has agreed to enter into a Rate Protection
Agreement.
"Credit Extension" means and includes the advancing of the
Loans by the Lenders pursuant to Article II, and the
continuation or conversion of any Base Rate Tranches or
Eurodollar Tranches by the Lenders pursuant to Article IV.
"Default" means any Event of Default or any condition or
event which, after notice or lapse of time or both, would
become an Event of Default.
"Disclosure Schedule" means the schedule attached hereto as
Schedule III.
"Document Acceptance Agreement" means the Document
Acceptance Agreement, substantially in the form of Exhibit Q
attached hereto, to be executed and delivered by each of the
Lenders on or prior to the Effective Date.
"Dollar" and the sign "$" mean lawful money of the United
States.
"Domestic Office" means, in relation to any Agent or any
Lender, the office thereof designated as such in Schedule I
attached hereto (or designated pursuant to an Assignment and
Acceptance Agreement) or such other office of such Agent or
Lender within the United States as may be designated from
time to time by notice from such Agent or Lender to the
Borrower and the Administrative Agent.
"Effective Date" means the first date on which all of the
conditions precedent set forth in Section 6.1 and 6.2 have
been and remain satisfied.
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"Effective Date Certificate" means a certificate,
substantially in the form of Exhibit Q attached hereto, to be
executed and delivered by an Authorized Officer of the
Borrower on the Effective Date in favor of the Lenders.
"Environmental Laws" means all Applicable Laws relating to
health and safety matters and protection of the environment
and relating to or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste,
substance, material or pollutant, in each case as in effect
from time to time.
"ERISA" means the Employee Retirement Income Security Act
of 1974, as amended, and any successor statute of similar
import, together with the regulations thereunder, in each
case as in effect from time to time. References to sections
of ERISA shall be construed to also refer to any successor
sections.
"ERISA Affiliate" means any Person (including each trade or
business (whether or not incorporated)) which together with
the Borrower or any other Principal Company would be deemed
to be a "single employer" or a member of the same "controlled
group" as a "contributing sponsor" with respect to a Plan, in
each case within the meaning of Section 4001 of ERISA.
"Eurodollar Office" means, in relation to any Lender, the
office of such Lender designated by such Lender to the
Administrative Agent as of the Effective Date (or designated
pursuant to an Assignment and Acceptance Agreement) or such
other office, whether or not outside the United States, of
such Lender as designated from time to time by notice from
such Lender to the Borrower and the Administrative Agent
which shall be making or maintaining Eurodollar Tranches of
such Lender hereunder and through which such Lender, if it is
a Reference Lender, determines the Eurodollar Rate.
"Eurodollar Rate" means, in relation to each Interest
Period applicable to any Eurodollar Tranche, the rate of
interest determined by the Administrative Agent to be the
arithmetic average (rounded upwards, if necessary, to the
nearest 1/16 of 1%) of the rates per annum notified to the
Administrative Agent by the Reference Lenders as the rates
per annum at which Dollar deposits in immediately available
funds are offered to the Eurodollar Offices of the Reference
Lenders two (2) Business Days prior to the beginning of such
Interest Period by prime banks in the interbank eurodollar
market as at or about 10:00 a.m., Boston time, for delivery
on the first day of such Interest Period, for the number of
days comprised therein and in an amount equal to the amount
of the Eurodollar Tranche of such Reference Lender for such
Interest Period.
"Eurodollar Rate Margin" means, for any Fiscal Quarter, the
rate per annum determined in accordance with the schedule set
forth below based upon the Total Debt to Consolidated
Broadcast Cash Flow Ratio for the Reference Period ending on
the day immediately preceding the commencement of the Fiscal
Quarter immediately prior to such Fiscal Quarter:
<PAGE>
- 16 -
Total Debt to Consolidated Eurodollar
Broadcast Cash Flow Ratio Rate Margin
5.00:1.00 or greater 3.00%
4.00:1.00 or greater,
but less than 5.00:1.00 2.50%
Less than 4.00:1.00 2.00%
"Eurodollar Rate (Reserve Adjusted)" means, with respect to
any Eurodollar Tranche for any Interest Period, a rate per
annum (rounded upwards, if necessary, to the nearest 1/16 of
1%) determined pursuant to the following formula:
Eurodollar Rate = Eurodollar Rate
(Reserve Adjusted) 1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means, with respect to any
Eurodollar Tranche for any Interest Period, a percentage
(expressed as a decimal) equal to the daily average during
such Interest Period of the maximum percentages in effect on
each day of such Interest Period, as prescribed by the F.R.S.
Board, for determining the maximum reserve requirements
applicable to "Eurocurrency Liabilities" pursuant to
Regulation D or any other applicable regulation of the F.R.S.
Board that prescribes reserve requirements applicable to
"Eurocurrency Liabilities" as currently defined in
Regulation D.
"Eurodollar Tranche" means any Tranche which bears interest
at a rate determined by reference to the Eurodollar Rate
(Reserve Adjusted).
"Event of Default" is defined in Section 9.1.
"Excess Cash Flow" means, for any Fiscal Year, the excess
(if any) of
(a) the Consolidated Operating Cash Flow of GACC and its
Subsidiaries for such Fiscal Year
over
(b) the sum of
(i) the Consolidated Cash Interest Charges of GACC
and its Subsidiaries for such Fiscal Year, and
(ii) the aggregate principal amount of Consolidated
Funded Debt of GACC and its Subsidiaries paid or
prepaid by GACC or any of its Subsidiaries during
such Fiscal Year other than any such payments or
prepayments with Net Debt Proceeds, Net Securities
Proceeds, Net Disposition Proceeds, or as required
by Section 3.3.2(e), and
(iii) the aggregate amount of all Capital Expenditures
by GACC and its Subsidiaries during such Fiscal Year
<PAGE>
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that are permitted by Section 8.2.5, and
(iv) the aggregate amount of Restricted Payments made
by the Borrower during such Fiscal Year that were
permitted by clause (b)(i)(B) and (b)(iii) of
Section8.2.8;provided, however, that in calculating
"Excess Cash Flow" for any Fiscal Year, (w) there shall
be excluded from the Consolidated Operating Cash Flow
of GACC and its Subsidiaries for such Fiscal Year all
operating cash flow attributable to WGHP-TV, (x) there
shall be excluded from the Consolidated Cash Interest
Charges of GACC and its Subsidiaries for such Fiscal
Year the portion of such Consolidated Cash Interest
Charges consisting of Consolidated Cash Interest
Charges under the WGHP Loan Agreement, (y) there shall
be excluded from payments or prepayments of
Consolidated Funded Debt of GACC and its Subsidiaries
during such Fiscal Year all such payments or
prepayments under the WGHP Loan Agreement, and (z)
there shall be excluded from the Capital Expenditures
of GACC and its Subsidiaries for such Fiscal Year, all
Capital Expenditures made in respect of the WGHP-TV
Operating Assets.
"Existing Loan Agreement" means the Loan Agreement, dated
as of October 6, 1987, by and among the Borrower, certain
Affiliates of the Borrower party thereto, certain financial
institutions party thereto and Bank of Boston and
Continental, as agents.
"Existing WGHP Loan Agreement" is defined in Section 3.8.
"FCC" means the United States Federal Communications
Commission (or any successor agency, commission, bureau,
department or other political subdivision of the United
States).
"FCC License" means any radio, television or other license,
permit, certificate of compliance, franchise, approval or
authorization granted or issued by the FCC.
"Federal Funds Rate" means, for any day, the rate set forth
in the daily statistical release designated as the Composite
3:30 p.m. Quotations for U.S. Government Securities, or any
successor publication, published by the Federal Reserve Bank
of New York (including any such successor publication, the
"Composite 3:30 p.m. Quotations") for such day under the
caption "Federal Funds Effective Rate". If such rate is not
published in the Composite 3:30 p.m. Quotations for any
Business Day, the rate for such day will be the arithmetic
mean of the rates for the last transaction in overnight
federal funds arranged prior to 9:00 a.m., Boston time, on
such day by each of three leading brokers of federal funds
transactions in New York City, selected by the Administrative
Agent. The Federal Funds Rate for any day which is not a
Business Day shall be the rate for the immediately preceding
Business Day.
"Fees" means collectively, the Closing Fees, Commitment
<PAGE>
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Fees and Agents Fees.
"Final Order" means an order of the Bankruptcy Court
confirming the Reorganization Plan, as entered in the docket
of each Reorganization Case, which has not been reviewed,
stayed, modified or amended, and as to which the time to
appeal or seek certiorari has expired and no appeal or
petition for certiorari has been timely taken, or as to which
any appeal that has been or may be taken or any petition for
certiorari that has been or may be filed has been resolved by
the highest court to which the order was appealed or from
which certiorari was sought.
"Fiscal Month" means any fiscal month of a Fiscal Quarter.
"Fiscal Quarter" means any fiscal quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive
calendar months ending on December 31; references to a Fiscal
Year with a number corresponding to any calendar year (e.g.
the "1992 Fiscal Year") refer to the Fiscal Year ending on
December 31 of such calendar year.
"Fixed Charge Coverage Ratio" is defined in Section 8.2.4.
"F.R.S. Board" means the Board of Governors of the Federal
Reserve System.
"GAAP" is defined in Section 1.4.
"GABCO" is defined in the introductory paragraph hereto.
"GABCO 13% Note Exchange Agreement" means the Note Exchange
Agreement, dated as of September 30, 1993, by and among GABCO
and the holders of the Old 13% Notes, providing for the
exchange of GABCO 13% Notes for Old 13% Notes.
"GABCO 13% Notes" means the 13% Senior Subordinated Notes
due 2001 of GABCO issued pursuant to the GABCO 13% Note
Exchange Agreement, including the GABCO 13% PIK Notes.
"GABCO 13% PIK Notes" means the 13% Senior Subordinated
Notes due 2001 of GABCO issued pursuant to the GABCO 13% Note
Exchange Agreement representing payment-in-kind for interest
due to the holders of the GABCO 13% Notes.
"GABCO Pledge Agreement" means a pledge agreement to be
executed and delivered on or prior to the Effective Date by
GABCO and a collateral agent or trustee to be selected by
GABCO, providing for the pledge by GABCO of the Capital Stock
of GABCO Sub as security for the obligations of GABCO under
the GABCO 13% Notes and the GABCO 13% Note Exchange
Agreement.
"GABCO Sub" means Great American Television and Radio
Holdings, Inc., an Ohio corporation.
"GABCO Subsidiaries" means, collectively, GABCO Sub, the
Borrower and each of the other Subsidiaries of GABCO.
<PAGE>
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"GACC" means Great American Communications Company, a
Florida corporation. GACC will be the surviving corporation
of the GACC Merger.
"GACC Affiliate" means any one of GACC, Holding I, Holding
II, GABCO, GABCO Sub or any Associated Person.
"GACC 14% Note Indenture" means the 14% Note Indenture, to
be executed on or prior to the Effective Date by GACC and a
trustee selected by GACC, providing for the issuance of GACC
14% Notes.
"GACC 14% Note Payment Agreement" means the Payment
Agreement to be executed and delivered by and among GACC and
certain holders of GACC 14% Notes on or prior to the
Effective Date.
"GACC 14% Notes" means the 14% Senior Extendible Notes due
2001 of GACC, issued pursuant to the 14% Note Indenture,
including the GACC 14% PIK Notes.
"GACC 14% PIK Notes" means 14% Senior Extendible Notes due
2001 of GACC issued pursuant to the GACC 14% Note Indenture
representing payment-in-kind for accrued interest on
outstanding GACC 14% Notes.
"GACC Mergers" means the mergers of Holding I and Holding
II with and into GACC in accordance with the GACC Merger
Agreements.
"GACC Merger Agreements" means (a) the Merger Agreement
between GACC and Holding I, to be executed, delivered and
effective on or prior to the Effective Date, and (b) the
Merger Agreement between GACC and Holding II, to be executed,
delivered and effective on or prior to the Effective Date,
providing for the GACC Mergers.
"GACC Pledge Agreement" means a pledge agreement to be
executed and delivered on or prior to the Effective Date by
GACC and a collateral agent or trustee to be selected by
GACC, providing for the pledge by GACC of the Capital Stock
of GABCO as security for the obligations of GACC under the
GACC 14% Notes and the GACC 14% Note Indenture.
"GACC Undertaking" means the letter agreement to be
executed and delivered on or prior to the Effective Date by
GACC in favor of the holders of GABCO 13% Notes, providing
for certain covenants and agreements of GACC relating to the
GACC 14% Note Indenture and the refinancing of Indebtedness
evidenced by the GACC 14% Notes.
"Governmental Authority" means any foreign, federal, state,
regional, local, municipal or other government, or any
department, commission, board, bureau, agency, public
authority or instrumentality thereof, or any court or
arbitrator.
"Governing Documents" means, relative to any Person, its
certificate or articles of incorporation, its by-laws and all
<PAGE>
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shareholder agreements, voting trusts and similar
arrangements applicable to any of its authorized shares of
Capital Stock.
"Group" is defined in Section 4.1.
"Guaranties" means, collectively, the guaranties of each of
the Guarantors to the Lenders contained in Article V, as such
Guaranties are originally given, or, if varied or
supplemented from time to time, as so varied or supplemented.
"Guarantors" is defined in Section 5.1.
"Hanna-Barbera LC Documents" means "LC Documents", as such
term is defined in the Collateral Assignment of Hanna Barbera
LC Documents.
"Hanna-Barbera Proceeds" means any cash or other Property
which becomes payable to or receivable by any of the
Principal Companies under or in respect of the Hanna-Barbera
LC Documents.
"Hanna-Barbera Reorganization Agreement" means the
Agreement and Plan of Reorganization, dated as of October 28,
1991, among GACC, GABCO, the Borrower, The Great American
Entertainment Company, HB Holding Co. and HB Acquisition
Corp.
"Hazardous Material" means
(a) any "hazardous substance", as defined in CERCLA;
(b) any "hazardous waste", as defined in the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material or substance within
the meaning of any other applicable Environmental Laws.
"Historical Financials" is defined in Section 7.4.
"Holding I" means GACC Holding Company, a Delaware
corporation. Holding I will be merged with and into GACC
pursuant to the GACC Mergers.
"Holding II" means New GACC Holdings, Inc., a Delaware
corporation. Holding II will be merged with and into GACC
pursuant to the GACC Mergers.
"Holding Preferred Stock" is defined in Section 6.1.1.
"Impermissible Qualification" means, relative to the
opinion or certification of the Independent Public Accountant
as to any financial statement of GACC, GABCO or the Borrower,
any qualification or exception to such opinion or
certification
<PAGE>
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(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination
of matters relevant to such financial statement; or
(c) which relates to the treatment or classification of
any item in such financial statement and which, as a
condition to its removal, would require an adjustment to
such item the effect of which would be to cause the
Principal Companies to be in default of any of their
obligations under Section 8.2.4.
"Indebtedness" means, in relation to any Person at any
time, all of the obligations of such Person which, in
accordance with GAAP, would be included as liabilities on the
liability side of the balance sheet of such Person prepared
as at such time, and in any event shall include:
(a) all indebtedness of such Person arising or incurred
under or in respect of any agreement, contingent or
otherwise, made by such Person
(i) to purchase any indebtedness of any other Person
or to advance or supply funds for the payment or
purchase of any indebtedness of any other Person, or
(ii) to purchase, sell or lease (as lessee or lessor)
any Property, or to purchase or sell transportation or
services, primarily for the purpose of enabling any
other Person to make payment of any indebtedness of
such other Person or to assure the owner of such other
Person's indebtedness against loss, regardless of the
delivery or non-delivery of the Property, or the
furnishing or non-furnishing of the transportation or
services, or
(iii) to make any Investment in any other Person for
the purpose of assuring a minimum equity, asset base,
working capital or other balance sheet condition for or
as at any date, or to provide funds for the payment of
any liability, dividend or stock liquidation payment,
or otherwise to supply funds to or in any manner invest
in any other Person;
(b) all indebtedness of such Person of any kind
(including all Capitalized Lease Obligations of such
Person) arising or incurred under or in respect of any
lease or other similar agreement or contract (whether
written or oral) pursuant to which such Person shall (as
lessee) lease or hire from any other Person or Persons any
Property;
(c) all indebtedness, obligations and liabilities
secured by or arising under or in respect of any Lien
upon or in any Property owned by such Person, even
though such Person has not assumed or become liable for
the payment of such indebtedness, obligations and
liabilities; provided, however, that for purposes of
determining the amount of any Indebtedness of the type
<PAGE>
- 22 -
described in this clause, if recourse with respect to
such Indebtedness is limited to such Property, the
amount of such Indebtedness shall be limited to the fair
market value of such Property;
(d) all indebtedness created or arising under any
conditional sale or other title retention agreement with
respect to Property acquired by such Person, even though
recourse with respect to such indebtedness is limited to
such Property;
(e) all obligations, contingent or otherwise,
relative to the face amount of all letters of credit,
whether or not drawn, and bankers' acceptances issued
for the account of such Person;
(f) net obligations under Rate Protection Agreements
of such Person;
(g) any asserted withdrawal liability of such Person
(or any other Person which together with such Person
would be a "single employer" or a member of the same
"controlled group" as a "contributing sponsor" with
respect to a Plan, in each case within the meaning of
Section 4001 of ERISA);
(h) all dividends declared but not yet paid by such
Person on any of its Capital Stock; and
(i) all indebtedness of such Person arising or
incurred under or in respect of any Contingent
Obligation.
"Indebtedness for Borrowed Money" means, in relation to any
Person at any time, all Indebtedness of such Person for
borrowed money (including all notes payable and drafts
accepted representing extensions of credit and all
obligations evidenced by bonds, debentures, notes or other
similar instruments on which interest charges are
customarily paid), all Contingent Obligations of such Person
in respect of any such Indebtedness of any other Person, all
obligations of such Person constituting Capitalized Lease
Obligations and all obligations of such Person for the
deferred purchase price of Property or services (except, in
any event, trade payables and payment obligations in respect
of film license contracts of any Broadcasting Station, in
each case arising in the ordinary course of business).
"Indemnified Liabilities" is defined in Section 12.4.
"Indemnified Party" is defined in Section 12.4.
"Independent Public Accountant" means Ernst & Young or any
other firm of certified public accountants of recognized
national standing selected by GACC and acceptable to the
Managing Agents.
"Initial Syndication Period" is defined in Section 11.1.1.
<PAGE>
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"Installment" is defined in Section 3.3.1.
"Instrument" means any contract, agreement, indenture,
mortgage or other document or writing (whether by formal
agreement, letter or otherwise) under which any obligation is
evidenced, assumed or undertaken, or any right to any Lien is
granted or perfected.
"Intercompany Subordination Agreement" means the
Intercompany Subordination Agreement, substantially in the
form of Exhibit N attached hereto, to be executed and
delivered by GACC and its Subsidiaries on or prior to the
Effective Date in favor of the Collateral Agent for the
benefit of the Secured Parties.
"Interest Period" means, relative to any Eurodollar
Tranche, the period, selected in accordance with Section
4.4.1, for which such Tranche bears interest at the
Eurodollar Rate (Reserve Adjusted).
"Investment" means, in relation to any Person,
(a) any loan, advance, or other extension of credit
made by such Person to any other Person;
(b) the creation of any Contingent Obligation of such
Person to support the obligations of any other Person;
(c) any capital contribution by such Person to, or
purchase of Capital Stock or other Securities or
partnership interests by such Person in, any other Person,
or any other investment evidencing an ownership or similar
interest of such Person in any other Person; and
(d) any Sale of Property by such Person to any other
Person other than upon full payment, in cash, of not less
than the agreed sale price or the fair value of such
Property, whichever is higher.
"Lenders" is defined in the introductory paragraph hereto.
"Letter Agreement" means the Letter Agreement, to be
executed and delivered by and among AFC, each member of the
Apollo Group (other than Apollo) and certain other holders of
Common Stock, on or prior to the Effective Date.
"Lien" means any mortgage, security interest, pledge,
hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory, judgment or otherwise), preference, priority
or other security agreement or preferential arrangement of
any kind or nature whatsoever (including any conditional sale
or other title retention agreement, any financing lease
involving substantially the same economic effect as any of
the foregoing and the filing of any financing statement under
the Uniform Commercial Code or comparable law of any
jurisdiction).
"Lindner" means Carl H. Lindner, Jr., a resident of the
<PAGE>
- 24 -
State of Ohio.
"Loans" is defined in Section 2.1.
"Loan Documents" means, collectively, this Agreement, the
Notes, the Collateral Documents, the Agents Fee Letter, the
Rate Protection Agreements, the Accession Agreement, the WGHP
Subordination Agreement, the Intercompany Subordination
Agreement, any Assignment and Acceptance Agreement, and each
other Instrument executed and delivered pursuant to or in
connection with any thereof.
"Lockbox Agreements" means the Lockbox Agreements,
substantially in the form of Exhibit J attached hereto, to be
executed and delivered by the Borrower and the Sub-Agents on
or prior to March 31, 1994 in favor of the Collateral Agent
for the benefit of the Secured Parties.
"LSI" means Leisure Systems, Inc., a Wisconsin corporation.
"Managing Agents" means, collectively, Continental and Bank
of Boston, acting in the capacity as Managing Agents for the
Lenders under this Agreement and the other Loan Documents,
and such other Lenders or financial institutions as shall
have been subsequently appointed as successor Managing Agents
pursuant to Section 10.3.
"Material Subsidiaries" means, collectively, LSI and any
other Subsidiary of GABCO (a) with assets greater than or
equal to two percent (2%) of all assets of GACC and its
Subsidiaries, computed and consolidated in accordance with
GAAP, (b) with stockholders' equity greater than or equal to
two percent (2%) of the stockholders' equity of GACC and its
Subsidiaries, computed and consolidated in accordance with
GAAP or (c) which generated two percent (2%) or more of the
gross revenues of GACC and its Subsidiaries during the most
recently completed period of four (4) consecutive Fiscal
Quarters.
"Materially Adverse Effect" means, in relation to any event
or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration or governmental
investigation or proceeding),
(a) a materially adverse effect on the business,
Property, operations, prospects or condition, financial or
otherwise, of (i) the Borrower, (ii) the Borrower and its
Subsidiaries, taken as a whole or (iii) on and after the
Effective Date, GACC and its Subsidiaries, taken as a
whole;
(b) a materially adverse effect on the ability of any
Transaction Party to perform any of its payment or other
material Obligations under any Loan Document to which it is
a party; or
(c) a material impairment of the validity or
enforceability of any Loan Document or any material
impairment of the rights, remedies or benefits available to
<PAGE>
- 25 -
any Secured Party under any Loan Document.
"Maturity Date" means December 31, 1998.
"Mortgaged Property" means the real property of the
Borrower described in Schedule III to this Agreement.
"Mortgages" is defined in Section 6.1.9.
"Multiemployer Plan" means a Plan which is a "multiemployer
plan" as defined in Section 4001(a)(3) of ERISA.
"Net Debt Proceeds" means, with respect to the issuance of
any Securities evidencing Indebtedness of GACC or any of its
Subsidiaries, the gross amount of cash proceeds received by
GACC or any of its Subsidiaries in respect of such issuance,
less (to the extent applicable and without duplication)
reasonable underwriting commissions, legal, investment
banking and accounting fees and disbursements, printing
expense and governmental fees incurred in connection with
such issuance and payable by the issuer of such Securities.
"Net Disposition Proceeds" means, with respect to any Sale
of any Property by GABCO or any GABCO Subsidiary (other than
any Permitted Disposition or any Sale of Capital Stock of
GABCO Sub by GABCO), the gross amount of cash consideration
payable to or receivable by GACC or any of its Subsidiaries
from such Sale, less (to the extent applicable and without
duplication)
(a) the amount, if any, of all estimated taxes payable
as a result of gain realized from such Sale,
(b) reasonable expenses (other than those payable to
any Associated Person) that are incurred in connection with
such Sale and are payable by the seller or the transferor
of the Property to which such Sale relates, and
(c) the amount of any Indebtedness for Borrowed Money
that is secured by perfected Liens ranking prior (whether
by virtue of time of perfection or by contract) to Liens of
the Collateral Agent in such Property and that is required
to be repaid or prepaid and is in fact repaid or prepaid
with such cash consideration substantially
contemporaneously with such sale, provided that such
Indebtedness for Borrowed Money and such prior Liens are
permitted by this Agreement.
If GACC or any of its Subsidiaries receives any Property
(other than cash) as part of the consideration for such Sale,
Net Disposition Proceeds shall be deemed to include any cash
payments in respect of such Property when and to the extent
received by such Person. To the extent that any taxes
referred to in clause (a) are not actually paid, then 100% of
such unpaid amount shall become due and payable (and treated
for purposes of Section 3.3.2(b) as Net Disposition Proceeds)
immediately upon it becoming apparent that such amount will
not be timely paid to the relevant tax authorities.
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"Net Securities Proceeds" means, with respect to the
issuance by GACC of any Capital Stock, the gross amount of
cash consideration payable to or receivable by GACC in
respect of such issuance, less (to the extent applicable and
without duplication) reasonable sales and underwriting
commissions, legal, investment banking and accounting fees
and disbursements, printing expense and any governmental fees
incurred in connection with such issuance and payable by the
issuer of such Capital Stock. If GACC receives any Property
(other than cash) as part of the consideration for any such
issuance, Net Securities Proceeds shall be deemed to include
any cash payments in respect of such Property when and to the
extent received by GACC.
"Notes" is defined in Section 3.2.
"Obligations" means, collectively, all of the indebtedness,
obligations and liabilities existing on the date of this
Agreement or arising from time to time thereafter, whether
direct or indirect, joint or several, actual, absolute or
contingent, matured or unmatured, liquidated or unliquidated,
secured or unsecured, arising by contract, operation of law
or otherwise, of any Transaction Party, to any Agent, any
Lender or any other Secured Party (a) in respect of the Loans
made to the Borrower by the Lenders pursuant to this
Agreement, or (b) under or in respect of any one or more of
the other Loan Documents.
"Old 13% Notes" is defined in Section 6.1.1.
"Old Debt Securities" is defined in Section 6.1.1.
"Other Debt Documents" means, collectively, (a) the GACC
14% Notes and the GACC 14% Note Indenture, (b) the GABCO 13%
Notes and the GABCO 13% Note Exchange Agreement, (c) the WGHP
Loan Agreement, and (d) all other Instruments evidencing,
guarantying or securing any Indebtedness outstanding under
any Instrument referred to in any of clauses (b), (d), (f) or
(h) of Section 8.2.2.
"PBGC" means the Pension Benefit Guaranty Corporation and
any entity succeeding to any and all of its functions under
ERISA.
"paid (or payment) in full" means paid (or payment) in full
in cash.
"Participants" is defined in Section 11.1.1.
"Percentage" of any Lender means, at any time, the
percentage set forth opposite such Lender's name on Schedule
I hereto (or, if such Lender has executed an Assignment and
Acceptance Agreement, opposite such Lender's signature on the
most recent Assignment and Acceptance Agreement then executed
by it).
"Perfection Certificate" means a certificate duly executed
by an Authorized Officer of each Transaction Party,
substantially in the form of Exhibit E attached hereto.
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"Permitted Capital Stock" means any Capital Stock of any
Person with respect to which such Person has no obligation to
(a) declare or pay any dividend, (b) make any redemption,
repurchase, retirement or acquisition, whether through a
Subsidiary of such Person, or otherwise, (c) make any return
of capital to the holder thereof or (d) make any other
distribution of any kind.
"Permitted Disposition" means:
(a) any Sale by any Transaction Party of its inventory
in the ordinary course of its business;
(b) any Sale by any Transaction Party in the ordinary
course of its business of its equipment or other tangible
Property that is obsolete or no longer useful or necessary
to its business; provided, that such Sales shall constitute
Permitted Dispositions only to the extent that the
aggregate proceeds of all such Sales for all Transaction
Parties does not exceed $500,000 for any Fiscal Year;
(c) any Sale by any Transaction Party in the ordinary
course of its business, and in a manner consistent with its
customary and usual cash management practices, of its
Permitted Investments of the kind described in paragraph
(b) of the definition thereof; and
(d) the creation or incurrence of any Liens in any
Property of any Transaction Party that are described in and
permitted by Section 8.2.3.
"Permitted Indebtedness" means any of the following
Indebtedness:
(a) Indebtedness of any Principal Company or any of its
Subsidiaries in respect of taxes, assessments, levies or
other governmental charges, and Indebtedness of any
Transaction Party in respect of accounts payable incurred
in the ordinary course of business, and in respect of
claims against it for labor, materials, or supplies, to the
extent that (in each case) the payment thereof shall not at
the time be required to be made in accordance with the
provisions of Section 8.1.4;
(b) Indebtedness of any Transaction Party secured by
Liens of carriers, warehousemen, mechanics, landlords or
materialmen that constitute Permitted Liens under clause
(c) or (e) of the definition thereof;
(c) Indebtedness of any Principal Company or any of its
Subsidiaries in respect of judgments or awards which have
been in force for less than the applicable appeal period so
long as (i) (in each case) execution is not levied or in
respect of which any Principal Company or any such
Subsidiary shall at the time in good faith be prosecuting
an appeal or proceedings for review and in respect of which
execution thereof shall have been stayed pending such
appeal or review, and (ii) the aggregate amount of such
Indebtedness outstanding at any time (determined on a
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consolidated basis in accordance with GAAP) does not exceed
$500,000;
(d) Indebtedness incurred by any Transaction Party in
connection with the acquisition, construction or
improvement by such Transaction Party of equipment used or
to be used in the ordinary course of business of such
Transaction Party; provided, that (i) the aggregate amount
of all such Indebtedness outstanding at any time
(determined on a consolidated basis in accordance with
GAAP) does not exceed $1,000,000 and (ii) any Liens on such
equipment securing such Indebtedness constitute Permitted
Liens under clause (g) of the definition thereof;
(e) Indebtedness under or in respect of Contingent
Obligations of any Transaction Party as sublessor or
assignor under subleases entered into in the ordinary
course of business of such Transaction Party;
(f) Indebtedness under or in respect of Contingent
Obligations of any Transaction Party in respect of letters
of credit or surety or other bonds issued in the ordinary
course of business of any Transaction Party in connection
with Liens that constitute Permitted Liens under clause (c)
of the definition thereof;
(g) Indebtedness arising in the ordinary course of
business of the Borrower representing payment obligations
in respect of film license contracts of any of the
Borrower's Broadcasting Stations;
(h) Indebtedness of the Borrower or any of its
Subsidiaries that (i) is existing on the date of this
Agreement and is not otherwise permitted by this Agreement,
(ii) is identified and described in Section 8.2.2 of the
Disclosure Schedule and (iii) is not required to be repaid
with the proceeds of the Loans pursuant to Section 3.8 or
discharged or cancelled as of the Effective Date in
connection with the Reorganization; and
(i) any extension, refunding or renewal of any
Indebtedness referred to in paragraph (h), so long as (i)
such Indebtedness is not increased or secured by additional
Property, (ii) the maturity date of any such refunded or
renewed Indebtedness is not earlier than the maturity date
of the Indebtedness so refunded or renewed, (iii) the
mandatory repayment, prepayment, redemption, repurchase,
defeasance, sinking fund and similar obligations in respect
of such refunded or renewed Indebtedness shall not exceed
similar such obligations in respect of the Indebtedness so
refunded or renewed and (iv) the covenants, events of
default and other provisions contained in the Securities or
other Instruments governing such renewed or refunded
Indebtedness, individually and taken as a whole, are not
more restrictive or burdensome than those contained in the
Instruments governing the Indebtedness so refunded or
renewed.
"Permitted Investments" means any of the following
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Investments by any Transaction Party:
(a) Investments that (i) are held or are outstanding or
in effect on the date of this Agreement, and (ii) are
identified and described in Section 8.2.7 of the Disclosure
Schedule;
(b) Investments in cash and Cash Equivalents;
(c) Investments in the form of accounts receivable
arising from sales of goods or services in the ordinary
course of business, provided that, for any accounts
receivable that are more than 120 days overdue, appropriate
reserves or allowances have been established in accordance
with GAAP;
(d) Investments in the form of advances or prepayments
to suppliers in the ordinary course of business; and
(e) Investments in the form of loans or advances to
employees in the ordinary course of business for travel
expenses, drawing accounts or other similar business
related expenses.
"Permitted LMA Transaction" means any agreement or
arrangement pursuant to which the Borrower purchases
broadcast time on any Broadcasting Station (other than any
Broadcasting Station owned by the Borrower) for the purpose
of programming such broadcast time, so long as:
(a) such Broadcasting Station operates in a market in
which the Borrower then owns and operates a Broadcasting
Station;
(b) the aggregate amount of payments required to be
made by the Borrower under all such agreements or
arrangements shall not exceed $500,000 during any Fiscal
Year;
(c) the Borrower shall have demonstrated to the
reasonable satisfaction of the Required Lenders (based on,
among other things, operating and financial projections and
pro-forma financial statements delivered to the Lenders and
certified by the chief financial Authorized Officer of the
Borrower) that, after giving effect to the agreement or
arrangement, all covenants (including all covenants
contained in Section 8.2.4) contained herein will be
satisfied on a pro-forma basis through the Maturity Date,
based on operating and financial projections that are
consistent with historical results and results that
conservatively can be expected for the future;
(d) no Default is continuing immediately prior to the
effectiveness of such agreement or arrangement, and no
Default would result from such agreement or arrangement;
and
(e) all payments to be made by the Borrower under such
agreement or arrangement are reasonable and fair to the
<PAGE>
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Borrower.
"Permitted Liens" means any of the following Liens:
(a) Liens that (i) are in existence on the date of this
Agreement, (ii) are identified and described in Section
8.2.3 of the Disclosure Schedule, and (iii) secure
Indebtedness of any Transaction Party constituting
Permitted Indebtedness under clause (h) of the definition
thereof;
(b) Liens to secure taxes, assessments, levies or other
governmental charges imposed upon any Principal Company or
any of its Subsidiaries, and Liens to secure claims against
any Principal Company or any of its Affiliates for labor,
materials or supplies, to the extent (in each case) that
the payment thereof shall not at the time be required to be
made in accordance with the provisions of Section 8.l.4;
(c) deposits or pledges made by any Transaction Party
in the ordinary course of its business (i) in connection
with, or to secure payment of, workers' compensation,
unemployment insurance, or other forms of governmental
insurance or benefits, (ii) to secure the performance of
bids, tenders, statutory obligations, leases and contracts
(other than contracts relating to borrowed money), or (iii)
to secure surety, appeal, indemnity or performance bonds,
in each case in the ordinary course of the business of the
Transaction Party, and in each case only to the extent that
payment thereof shall not at the time be required to be
made in accordance with the provisions of Section 8.1.4;
(d) Liens in respect of judgments or awards against the
Principal Companies or any of their Subsidiaries to the
extent that such judgments or awards constitute Permitted
Indebtedness under clause (c) of the definition thereof;
(e) Liens of carriers, warehousemen, mechanics,
landlords or materialmen incurred in the ordinary course of
the business of any Transaction Party, in each case, for
sums not overdue or being contested in good faith by
appropriate proceedings, and for which appropriate reserves
with respect thereto have been established and maintained
on the consolidated books of GACC and its Subsidiaries in
accordance with GAAP to the extent required under such
principles;
(f) easements, right-of-way, zoning and similar
restrictions and other similar encumbrances or title
defects which, in the aggregate, are not substantial in
amount, and which do not in any case materially detract
from the value of the Property subject thereto or interfere
with the ordinary conduct of the business of any
Transaction Party;
(g) Liens given by any Transaction Party to secure the
payment of the cost of equipment acquired, constructed or
improved by such Transaction Party after the date of this
Agreement and which Liens are created contemporaneously
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with or within 360 days after the acquisition, construction
or improvement of the equipment subject thereto (all Liens
of the type described in this clause (g) being hereinafter
called "Purchase Money Liens"); provided, however, that:
(i) any equipment subject to any such Purchase
Money Lien is used or to be used in the ordinary
course of business of any Transaction Party
permitted by Section 8.2.1;
(ii) no such Purchase Money Lien on any such
equipment shall extend to or cover any Property of
such Transaction Party other than such equipment;
(iii) the aggregate amount of the Indebtedness
secured by any such Purchase Money Lien in respect
of any such equipment (whether or not such
Transaction Party shall assume or otherwise become
liable for such Indebtedness) shall not exceed the
lesser of the cost or fair market value (in each
case, as delivered, installed and tested) of such
equipment at the time of acquisition, construction
or improvement thereof; and
(iv) the aggregate amount of all of the
Indebtedness of the Transaction Parties
outstanding at any time and secured by such
Purchase Money Liens on equipment (determined on
a consolidated basis in accordance with GAAP)
shall at no time exceed $1,000,000.
(h) extensions, renewals and replacements of Liens
described in clauses (a) and (g) of this definition,
provided that each such extension, renewal or replacement
Lien is limited to the Property covered by the Lien so
extended, renewed or replaced and does
not secure any Indebtedness that is different from or in
excess of that secured immediately prior to such extension,
renewal or replacement.
"Person" means any natural person, corporation,
partnership, joint venture, association, Governmental
Authority or any other entity, whether acting in an
individual, fiduciary or other capacity.
"Plan" means any employee pension benefit plan within the
meaning of Section 3(2) of ERISA which is subject to Title IV
of ERISA, and is maintained or contributed to by the
Borrower, any Principal Company or any ERISA Affiliate for
any employees of any such Person.
"Pledge Agreement" means the Pledge Agreement,
substantially in the form of Exhibit D attached hereto, to be
executed and delivered by the Borrower and GABCO Sub on or
prior to the Effective Date in favor of the Collateral Agent
for the benefit of the Secured Parties.
"Principal Companies" means (a) at all times prior to the
Effective Date, GABCO and the Borrower and (b) from and after
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the Effective Date, GACC, GABCO, GABCO Sub and the Borrower.
"Projections" is defined in Section 7.5.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, and whether tangible
or intangible.
"Pro-forma Capital Structure" is defined in Section 7.15.
"Purchasing Lender" is defined in Section 11.2.1.
"Ratable" or "Ratably" means, with respect to any Lender
vis-a-vis all other Lenders, such Lender's Percentage of the
amount in question.
"Rate Protection Agreement" means any interest rate swap,
cap, collar or similar agreement or arrangement entered into,
from time to time, by any Transaction Party and a
Counterparty to protect a Transaction Party against
fluctuations in interest rates on Indebtedness of a
Transaction Party.
"Reference Lenders" means, collectively, for purposes of
determining the Eurodollar Rate and in connection with other
matters pertaining to Eurodollar Rate Tranches, Continental,
Bank of Boston and all other Lenders designated in a notice
to the Borrower and all Lenders by the Administrative Agent
(after consultation with the Borrower and with the prior
approval of the Required Lenders) to be Reference Lenders.
"Reference Period" means each period of four (4)
consecutive Fiscal Quarters.
"Register" is defined in Section 11.2.4.
"Registration Statement" means GACC's Registration
Statement on Form S-4 relating to the Reorganization.
"Relative" means, in relation to any Person, any spouse,
parent, grandparent, child, grandchild, brother or sister of
such Person, or the spouse of any of the foregoing.
"Release" means a "release," as such term is defined in
CERCLA.
"Reorganization" is defined in Section 6.1.1.
"Reorganization Cases" means the joint reorganization cases
commenced in the Bankruptcy Court under Chapter 11 of the
Bankruptcy Code by GACC, Holding I and Holding II (and not
GABCO or any of its Subsidiaries) seeking confirmation of the
Reorganization Plan.
"Reorganization Plan" means the joint prepackaged plan of
reorganization under Chapter 11 of the Bankruptcy Code, for
GACC, Holding I and Holding II (and not for GABCO or any of
its Subsidiaries).
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"Repayment Dates" means the dates on which the fixed
quarter-annual installments of principal of the Notes shall
become due and payable in accordance with this Agreement.
"Representative" means, with respect to the holders of any
Indebtedness of GACC or any of its Subsidiaries, any agent,
trustee or similar representative of such holders.
"Required Lenders" means, at the time any determination
thereof is to be made, (a) if the initial Loans have not been
made, Lenders having in the aggregate more than 66 2/3% of
the aggregate Commitments and (b) if the initial Loans have
been made, Lenders holding in the aggregate more than 66 2/3%
of the aggregate outstanding principal amount of the Notes.
"Reserved Net Disposition Proceeds" is defined in clause
(b) of Section 8.2.9.
"Restricted Payments" means, in relation to GACC and its
Subsidiaries,
(a) any declaration or payment of dividends by GACC or
any of its Subsidiaries on any shares of its Capital Stock,
or any payment or other distribution on account of the
purchase, redemption, retirement or other acquisition of
shares of the Capital Stock of GACC or any of its
Subsidiaries, or the exercise by GACC or any of its
Subsidiaries of any options, warrants or other rights to
purchase, redeem or acquire for cash any shares of its
Capital Stock, or the making by GACC or any of its
Subsidiaries of any other payments or distributions in
respect of any shares of its Capital Stock;
(b) any payment or prepayment by GACC or any of its
Subsidiaries (whether of principal, premium, interest or
any other sum) of or on account of, any payment or other
distribution on account of the redemption, repurchase,
defeasance, retirement or other acquisition for value of,
or any sinking fund payment in respect of, (i) any
Indebtedness of GACC, Holding I, Holding II, GABCO or GABCO
Sub (regardless of whether such Indebtedness is
subordinated to the Obligations) or (ii) any Indebtedness
of the Borrower or any of its Subsidiaries which is
subordinated to the Obligations;
(c) any loan or advance by GACC or any of its
Subsidiaries to, or any other Investment by GACC or any of
its Subsidiaries in, any Associated Person or any holder of
any Indebtedness described in clause (b) of this
definition; and
(d) any other payment or distribution (whether by cash,
obligations, Securities or other Property) to any
Associated Person or any holder (in its capacity as such)
of any Indebtedness described in clause (b) of this
definition.
For the purposes of this Agreement and the other Loan
Documents, the term "Restricted Payments" shall not include
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any salaries, bonuses or advances to employees made by any
Transaction Party in the ordinary course of its business.
"Sale" means any sale, lease, conveyance, exchange,
transfer, assignment, pledge, hypothecation or other
disposition of any Property.
"SEC" means the Securities and Exchange Commission.
"Secured Parties" means, collectively, the Agents, the
Lenders and any Counterparty to any Rate Protection Agreement
that was a Lender as of the date of execution of such Rate
Protection Agreement.
"Securities" means any Capital Stock, partnership
interests, voting trust certificates, bonds, debentures,
notes, or other evidences of Indebtedness, secured or
unsecured, convertible, subordinated or otherwise, or in
general any instruments commonly known as "securities" or any
certificates of interest, shares or participations in
temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or
acquire, any of the foregoing.
"Security Agreement" means the Security Agreement,
substantially in the form of Exhibit F attached hereto, to be
executed and delivered by each of the Transaction Parties
(other than GACC) on or prior to the Effective Date in favor
of the Collateral Agent for the benefit of the Secured
Parties.
"Security Instrument" means any security agreement, chattel
mortgage, assignment, financing or similar statement or
notice, continuation statement, other agreement or Instrument
or amendment or supplement to any thereof, providing for,
evidencing or perfecting any Lien.
"Single Employer Plan" means any Plan other than a
Multiemployer Plan.
"Sold Station" is defined in clause (c) of Section 8.2.9.
"Special Covenant Conditions" means, in relation to any
date on which any Indebtedness is to be created, incurred or
assumed, any Restricted Payment is to be made or declared,
any Affiliate Transaction is to be entered into, or any Sale
or Acquisition is to be made or consummated, in each case, by
GACC or any of its Subsidiaries, each of the following
conditions:
(a) no Default shall have occurred and be continuing on
or as of such date; and
(b) no Default shall occur or shall be continuing
immediately after giving effect to the creation, incurrence
or assumption of such Indebtedness, the declaration or
making of such Restrictive Payment, the entering into of
such Affiliate Transaction or the consummation of such Sale
or Acquisition.
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"Special Prepayments" is defined in paragraph (f) of
Section 3.3.2.
"Sub-Agent" means a banking institution which shall have
delivered to the Collateral Agent an executed Lockbox
Agreement.
"Subsidiary" means, in relation to any Person (in this
paragraph called the "parent") at any time, any corporation,
partnership or other Person (a) of which shares of Capital
Stock, partnership interests or other ownership interests
having ordinary voting power to elect a majority of the board
of directors or other managers of such corporation,
partnership or other Person, or representing a majority of
the equity interests in such corporation, partnership or
other Person, are at the time owned, controlled or held,
directly or indirectly, by the parent, or (b) the management
of which is otherwise controlled, directly or indirectly, by
the parent.
"Subsidiary Guaranty" means the Guaranty, substantially in
the form of Exhibit I attached hereto, to be executed and
delivered by LSI on or prior to the Effective Date in favor
of the Collateral Agent for the benefit of the Secured
Parties.
"Tax Sharing Agreement" means the Agreement of Allocation
of Payment of Federal Income Taxes, dated as of October 2,
1987, as supplemented as of October 7, 1987, among GACC and
its Subsidiaries.
"Taxes" is defined in Section 3.7.
"Theme Park Partnership" means The Theme Park Partnership,
an Australian partnership in which GABCO holds a 35.85%
interest as of the date hereof, and which in turn owns, as of
the date hereof, a 66.25% interest in a joint venture known
as Australian Wonderland.
"Total Debt to Consolidated Broadcast Cash Flow Ratio" is
defined in Section 8.2.4.
"Trademark Security Agreement" means the Trademark Security
Agreement, substantially in the form of Exhibit G attached
hereto, to be executed and delivered by the Transaction
Parties (other than GACC) on or prior to the Effective Date
in favor of the Collateral Agent for the benefit of the
Secured Parties.
"Tranche" is defined in Section 4.1.
"Transaction Parties" means, collectively, the Principal
Companies, the Material Subsidiaries and any other Subsidiary
of any Principal Company that may become a party to any
Collateral Document.
"Transfer Effective Date" is defined in Section 11.2.1.
"Transferee" is defined in Section 11.3.
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"United States" or "U.S." means the United States of
America, its fifty States, and the District of Columbia.
"WGHP-TV" means the television Broadcasting Station
(WGHP-TV), Greensboro/High Point, North Carolina owned by the
Borrower.
"WGHP Loan" means the term loan or loans, in the aggregate
principal amount of up to $17,500,000, to be made to the
Borrower pursuant to the WGHP Loan Agreement on the Effective
Date.
"WGHP Loan Agreement" means the loan agreement, to be
executed on or prior to the Effective Date by the Borrower
and AFC, as a lender thereunder and as agent, governing the
terms of the WGHP Loan.
"WGHP Pay Off Letter" means a letter agreement between the
Borrower and Bank of New York, as agent, relating to the
payment in full on the Effective Date of all obligations of
the Borrower under the Existing WGHP Loan Agreement.
"WGHP-TV Operating Assets" means all of the operating
assets, including all FCC licenses, of WGHP-TV.
"WGHP Subordination Agreement" means the Subordination
Agreement to be executed by the Borrower, the Agents and AFC,
as agent for the lenders under the WGHP Loan Agreement,
pursuant to which all obligations of the Borrower under the
WGHP Loan Agreement shall be subordinated to Senior
Indebtedness (as defined therein).
"1994 Hanna-Barbera Proceeds Distribution" is defined in
clause (d)(i) of Section 3.3.2.
"1996 Hanna-Barbera Proceeds Distribution" is defined in
clause (d)(ii) of Section 3.3.2.
SECTION 1.2. Use of Defined Terms. Terms for which
meanings are provided in this Agreement shall, unless
otherwise defined or the context otherwise requires, have
such meanings when used in the Notes, the Disclosure
Schedule, each Continuation/Conversion Notice, each
Compliance Certificate, each Loan Document and each notice
and other communication delivered from time to time in
connection with this Agreement or any Instrument hereafter
executed pursuant hereto.
SECTION 1.3. Cross-References. Unless otherwise
specified, references in this Agreement and in each Loan
Document to any Article or Section are references to such
Article or Section of this Agreement or such Loan Document,
as the case may be, and unless otherwise specified,
references in any Article, Section or definition to any
clause are references to such clause of such Section, Article
or definition.
SECTION 1.4. Accounting and Financial Determinations.
Where the character or amount of any asset or liability or
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item of income or expense is required to be determined, or
any accounting computation is required to be made, for the
purpose of this Agreement, such determination or calculation
shall, to the extent applicable and except as otherwise
specified in Section 7.5, be made in accordance with
generally accepted accounting principles ("GAAP") applied on
a basis consistent with the consolidated financial statements
of GACC for the 1992 Fiscal Year (and without giving effect
to any subsequent changes to GAAP) except insofar as:
(a) the Principal Companies shall have elected (with
the concurrence of the Independent Public Accountant and
upon prior written notification to the Lenders) to adopt
more recently promulgated generally accepted accounting
principles (which election shall continue to be effective
for subsequent years); and
(b) each of the Managing Agents and the Required
Lenders shall have consented to such election (it being
understood that such consent may be conditioned upon the
negotiation of such changes to this Agreement, including
Section 8.2.4, as the Managing Agents and the Required
Lenders may in their sole discretion deem appropriate).
SECTION 1.5. General Provisions Relating to Definitions.
Terms for which meanings are defined in this Agreement shall
apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter
forms. The term "including" means including, without
limiting the generality of any description preceding such
term. Each reference herein to any Person shall include a
reference to such Person's successors and assigns.
References to any Instrument defined in this Agreement refer
to such Instrument as originally executed or, if subsequently
varied, replaced or supplemented from time to time, as so
varied, replaced or supplemented and in effect at the
relevant time of reference thereto.
ARTICLE II
COMMITMENTS OF THE LENDERS
SECTION 2.1. Commitments. Subject to the terms and
conditions of this Agreement, each Lender, severally and for
itself alone, agrees to make a term loan to the Borrower
(collectively the "Loans" and individually each a "Loan") on
the Effective Date in an amount up to the amount of such
Lender's Percentage of the aggregate Commitments; provided
that the principal amount of the Loan of any Lender shall not
exceed such Lender's Commitment.
SECTION 2.2. Commitments Several. The failure of any
Lender to make its Loan shall not relieve any other Lender of
its obligation (if any) to make its Loan, but no Lender shall
be responsible for the failure of any other Lender to make
any Loan to be made by such other Lender.
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SECTION 2.3. Termination of Commitments. The Commitments
shall terminate immediately upon the occurrence of any
Commitment Termination Event.
ARTICLE III
LOANS AND NOTES
SECTION 3.1. Borrowing Procedure. The Borrower shall give
written or telephonic notice to the Administrative Agent of
the proposed borrowing of the Loans not later than (a) in the
event that there are to be only Base Rate Tranches initially,
10:00 A.M., Boston time, at least one Business Day prior to
the proposed date of such borrowing, and (b) in the event
that any Eurodollar Tranches are to be included in the
initial borrowing, 10:00 A.M., Boston time, at least three
Business Days prior to the proposed date of such borrowing.
Such notice shall be effective upon receipt by the
Administrative Agent and shall specify the date, amount and
type of each Tranche and, in the case of each Group of
Eurodollar Tranches, the initial Interest Period therefor,
all of which shall be selected in accordance with Section 4.1
and 4.4. Promptly upon receipt of such notice, the
Administrative Agent shall advise each Lender thereof. Not
later than noon, Boston time, on the Effective Date, each
Lender shall provide the Administrative Agent at its Domestic
Office with immediately available funds covering such
Lender's Percentage of the proposed borrowing and, subject to
the satisfaction of the conditions precedent set forth in
Article VI hereof, the Administrative Agent shall pay over
the requested amount to the Borrower on the Effective Date.
SECTION 3.2. Notes. The Loan of each Lender shall be
evidenced by a promissory note (each a "Note" and
collectively for all Lenders the "Notes") substantially in
the form set forth in Exhibit A attached hereto, with
appropriate insertions, dated the Effective Date, payable to
the order of such Lender in the principal amount of the Loan
made by such Lender.
SECTION 3.3. Principal Payments. Repayments and
prepayments of principal of the Loans shall be made in
accordance with this Section 3.3. No amount of principal of
the Loans repaid or prepaid may be reborrowed.
SECTION 3.3.1. Repayments. The Borrower promises to make
payment in full of all of the unpaid principal of each Loan
on the Maturity Date. Prior thereto, the Borrower shall, on
each Repayment Date set forth below, make a scheduled payment
of the outstanding principal amount of the Loans in an
aggregate amount equal to the amount set forth below opposite
such date (each such payment, an "Installment"):
Repayment Date Installment
March 31, 1994 $ 4,750,000
June 30, 1994 $ 4,750,000
September 30, 1994 $ 5,250,000
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December 31, 1994 $ 5,250,000
March 31, 1995 $ 6,250,000
June 30, 1995 $ 6,250,000
September 30, 1995 $ 6,250,000
December 31, 1995 $ 6,250,000
March 31, 1996 $ 5,000,000
June 30, 1996 $ 5,000,000
September 30, 1996 $ 5,000,000
December 31, 1996 $ 5,000,000
March 31, 1997 $ 6,500,000
June 30, 1997 $ 6,500,000
September 30, 1997 $ 6,500,000
December 31, 1997 $ 6,500,000
March 31, 1998 $ 5,000,000
June 30, 1998 $ 5,000,000
September 30, 1998 $ 5,000,000
December 31, 1998 $114,000,000
If the aggregate amount of 1994 Hanna-Barbera Proceeds
Distributions received by GACC or any of its Subsidiaries on
or prior to March 31, 1995 is less than $5,000,000, each
Installment due during the 1995 Fiscal Year shall be reduced
by one-fourth of the amount of such shortfall. If the
aggregate amount of 1996 Hanna-Barbera Proceeds Distributions
received by GACC or any of its Subsidiaries on or prior to
March 31, 1997 is less than $10,000,000, each Installment due
during the 1997 Fiscal Year shall be reduced by one-fourth of
the amount of such shortfall. The Installment due on the
Maturity Date shall be increased by the amount of any
reductions to the Installments due during the 1995 Fiscal
Year or the 1997 Fiscal Year pursuant to the preceding two
sentences.
SECTION 3.3.2. Prepayments.
(a) Voluntary Prepayments. The Borrower may, from time
to time on any Business Day prepay the Loans in whole or in
part, provided that (i) the Borrower shall irrevocably give
the Administrative Agent (which shall promptly advise each
Lender) not less than three Business Days' prior written
notice thereof, specifying the Tranches to be prepaid and
the date and amount of prepayment, (ii) each partial
prepayment of the Loans shall be in an aggregate minimum
amount of at least $1,000,000 or an integral multiple of
$1,000,000 in excess thereof. Any voluntary prepayment of
principal of the Loans pursuant to this paragraph (a) shall
reduce the remaining Installments as provided in paragraph
(f).
(b) Net Disposition Proceeds.
(i) The Borrower shall, concurrently with the
receipt by GACC or any of its Subsidiaries of
any Net Disposition Proceeds, prepay principal
of the Loans in an amount equal to the amount of
such Net Disposition Proceeds. Any prepayment
of principal of the Loans pursuant to this
paragraph (b) shall reduce each remaining
Installment by the amount of such prepayment
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multiplied by a fraction having a numerator of
one (1) and a denominator equal to the remaining
number of Installments.
(ii) Notwithstanding the foregoing provisions of
paragraph (b)(i), the Borrower shall not be required to
prepay the Loans with any Reserved Net Disposition
Proceeds that are pledged to the Collateral Agent in
compliance with clause (b) of Section 8.2.9 and
thereafter used to acquire a Broadcasting Station in
compliance with all the conditions set forth in clause
(c) of Section 8.2.9.
(c) Net Securities Proceeds. All Net Securities
Proceeds received by GACC shall be used, substantially
contemporaneously with such receipt, at the option of the
Principal Companies, (i) by the Borrower to prepay
principal of the Loans, (ii) by GABCO to pay, prepay or
redeem Indebtedness under the GABCO 13% Notes and the GABCO
13% Note Exchange Agreement in compliance with clause (e)
of Section 8.2.8, and/or (iii) by GACC to pay, prepay or
redeem Indebtedness under the GACC 14% Notes and the GACC
14% Note Indenture in compliance with clause (i) of Section
8.2.8. Any prepayment of principal of the Loans pursuant
to this paragraph (c) shall reduce the remaining
Installments by the amount of such prepayment in the
inverse order of maturity thereof, beginning with the
Installment due on the Maturity Date.
(d) Hanna-Barbera Proceeds. The Borrower shall,
concurrently with the receipt by GACC or any of its
Subsidiaries of any Hanna-Barbera Proceeds, prepay
principal of the Loans in an amount equal to the amount of
such Hanna-Barbera Proceeds. Any prepayment of principal
of the Loans pursuant to this paragraph (d) shall reduce
the remaining Installments as provided below in this
paragraph (d).
(i) Application of Hanna-Barbera Proceeds
Scheduled to be Received in December, 1994. Any
prepayment of principal of the Loans made pursuant to
this paragraph (d) with Hanna-Barbera Proceeds
scheduled on the date hereof to be received by the
Borrower in December, 1994 ("1994 Hanna-Barbera
Proceeds Distributions") shall, if such Hanna-Barbera
Proceeds are received by GACC or any of its
Subsidiaries (whether pursuant to Section 10.6(d)(v) or
10.6(d)(vi) of the Hanna-Barbera Reorganization
Agreement) (A) on or prior to March 31, 1995, reduce
each Installment due during the 1995 Fiscal Year by an
amount equal to one-fourth of the amount of such
prepayment, and (B) after March 31, 1995, reduce the
remaining Installments by the amount of such prepayment
in the inverse order of maturity thereof, beginning
with the Installment due on the Maturity Date.
(ii) Application of Hanna-Barbera Proceeds
Scheduled to be Received in December, 1996. Any
prepayment of principal of the Loans made pursuant to
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this paragraph (d) with Hanna-Barbera Proceeds
scheduled on the date hereof to be received by the
Borrower in December, 1996 ("1996 Hanna-Barbera
Proceeds Distributions") shall, if such Hanna-Barbera
Proceeds are received by GACC or any of its
Subsidiaries (whether pursuant to Section 10.6(d)(vii)
or 10.6(d)(viii) of the Hanna-Barbera Reorganization
Agreement) (A) on or prior to March 31, 1997, reduce
each Installment due during the 1997 Fiscal Year by an
amount equal to one-fourth of the amount of such
prepayment, and (B) after March 31, 1997, reduce the
remaining Installments by the amount of such prepayment
in the inverse order of maturity thereof, beginning
with the Installment due on the Maturity Date.
(e) Excess Cash Flow. The Borrower shall prepay the
Loans on March 31 of each year, commencing March 31, 1995,
in an amount equal to the lesser of (i) the Excess Cash
Flow of GACC and its Subsidiaries for the prior calendar
year and (ii) the amount that would reduce the cash and
Cash Equivalents of the Borrower and its Subsidiaries as of
such date of prepayment (after giving effect to all other
payments made on such date) to $7,500,000. Any prepayment
of principal of the Loans pursuant to this paragraph (e)
shall reduce the remaining Installments as provided in
paragraph (f).
(f) Application of Voluntary Prepayments and Excess
Cash Flow Prepayments to Remaining Installments.
(i) Prepayments in 1994 and 1995. Any voluntary
prepayment of principal of the Loans pursuant to
paragraph (a) and any mandatory prepayment of
principal of the Loans pursuant to paragraph (e)
(collectively, "Special Prepayments") made during the
1994 and 1995 Fiscal Years shall (A) first, reduce the
remaining Installments by the amount of such prepayment
in the inverse order of maturity thereof, beginning
with the Installment due on the Maturity Date, until
the aggregate amount of such Special Prepayments during
the 1994 and 1995 Fiscal Years equals $2,000,000, (B)
second, reduce each Installment thereafter due during
the 1995 Fiscal Year by the amount of such prepayment
multiplied by a fraction having a numerator of one (1)
and a denominator equal to the number of Installments
thereafter due during the 1995 Fiscal Year that have
not been paid in full prior to the date of such
prepayment and (C) third, after all Installments due
during the 1995 Fiscal Year have been paid in full,
reduce the remaining Installments in the inverse order
of maturity thereof, beginning with the Installment due
on the Maturity Date.
(ii) Prepayments in 1996. Any Special Prepayment
made during the 1996 Fiscal Year shall (A) first,
reduce the remaining Installments by the amount of such
prepayment in the inverse order of maturity thereof,
beginning with the Installment due on the Maturity
Date, until the aggregate amount of Special Prepayments
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(including Special Prepayments made during the 1994 and
1995 Fiscal Years) that have reduced the remaining
Installments in the inverse order of maturity equals
$4,000,000, (B) second, reduce each Installment
thereafter due during the 1996 Fiscal Year by the
amount of such prepayment multiplied by a fraction
having a numerator of one (1) and a denominator equal
to the number of Installments due during the 1996
Fiscal Year that have not been paid in full prior to
the date of such prepayment and (C) third, after all
Installments due during the 1996 Fiscal Year have been
paid in full, reduce the remaining Installments in the
inverse order of maturity thereof, beginning with the
Installment due on the Maturity Date.
(iii) Prepayments in 1997 and Thereafter. Any
Special Prepayment made during the 1997 Fiscal Year (or
thereafter) shall reduce the remaining Installments by
the amount of such prepayment in the inverse order of
maturity thereof, beginning with the Installment due on
the Maturity Date.
(g) Application of Prepayments While Event of Default
is Continuing. Notwithstanding anything to the contrary in
paragraphs (a) through (f), any prepayment of principal of
the Loans made or required to be made pursuant to
paragraphs (a) through (e) while any Event of Default is
continuing shall reduce the remaining Installments by the
amount of such prepayment in the order specified by the
Required Lenders.
SECTION 3.4. Interest Payments. The Borrower shall make
payments of interest in accordance with this Section.
SECTION 3.4.1. Interest Rates. The Borrower hereby
absolutely and unconditionally promises to pay interest on
the unpaid principal amount of each Loan for the period
commencing on the date of such Loan until such Loan is paid
in full, as follows:
(a) on any portion of such Loan that constitutes a Base
Rate Tranche, at a rate per annum equal to the Alternate
Base Rate from time to time in effect plus the Alternate
Base Rate Margin in effect at such time; and
(b) on any portion of such Loan that constitutes a
Eurodollar Tranche, at a rate per annum equal to the
Eurodollar Rate (Reserved Adjusted) applicable to each
Interest Period for such Tranche plus the Eurodollar Rate
Margin in effect at such time;
provided, that in no event shall the rate of interest on any
Tranche exceed the maximum rate permitted by Applicable Law.
SECTION 3.4.2. Interest on Overdue Amounts. The Borrower
will, on demand, pay interest on any overdue Installments, or
any portion thereof which shall become due under Section
3.3.2, and, to the maximum extent permitted by Applicable
Law, on any overdue interest, fees and other amounts owing to
<PAGE>
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any Agent or any Lender at a rate per annum that is at all
times equal to the sum of (a) the highest rate per annum
applicable to any Tranche determined in accordance with
Section 3.4.1, plus (b) two percent (2%).
SECTION 3.4.3. Payment Dates. Interest accrued on each
Loan shall be payable, without duplication, on:
(a) the Maturity Date;
(b) with respect to the outstanding principal amount of
all Base Rate Tranches, on the last day of each Fiscal
Quarter, commencing with the first such date following the
Effective Date;
(c) with respect to the outstanding principal amount of
all Eurodollar Tranches, the last day of each applicable
Interest Period (and, if such Interest Period shall exceed
three months, on the last day of each three-month period
occurring during such Interest Period);
(d) with respect to that portion of the outstanding
principal amount of the Loans converted into Base Rate
Tranches or Eurodollar Tranches on a day when interest
would not otherwise have been payable pursuant to clause
(b) or (c), the date of such conversion; and
(e) with respect to any portion of any Eurodollar
Tranche prepaid pursuant to Section 3.3.2, the date of such
repayment or prepayment;
Interest accrued pursuant to Section 3.4.2 on any overdue
Installment or portion thereof and, to the extent permitted
by Applicable Law, on any overdue interest, fees and other
amounts, shall be payable upon demand and, in any event, on
the last Business Day of each month.
SECTION 3.5. Fees.
SECTION 3.5.l. Closing Fees. The Borrower shall pay to
the Administrative Agent, for the account of the Lenders,
fees (the "Closing Fees"), in two installments, payable as
follows: (a) $1,797,343.75 of Closing Fees shall be paid to
the Administrative Agent on the date of this Agreement (the
"Initial Installment"); and (b) $5,392,031.25 of Closing Fees
shall be paid to the Administrative Agent on the date the
initial Loans are made (the "Effective Date Installment").
The Administrative Agent shall allocate each payment of
Closing Fees among the Lenders (including Bank of Boston and
Continental) in accordance with the following schedules:
Allocation of
Lender Initial Installment
Bank of Boston $304,687.50
Continental $304,687.50
Chase Manhattan Bank, N.A. $304,687.50
The Bank of New York $232,031.25
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Bank of Montreal $168,750.00
National Westminster
Bank USA $168,750.00
Chemical Bank $137,500.00
Banque Paribas $103,125.00
Star Bank, N.A. $ 50,625.00
The Provident Bank $ 22,500.00
Allocation of
Effective Date
Lender Installment
Bank of Boston $914,062.50
Continental $914,062.50
Chase Manhattan Bank, N.A. $914,062.50
The Bank of New York $696,093.75
Bank of Montreal $506,250.00
National Westminster
Bank USA $506,250.00
Chemical Bank $412,500.00
Banque Paribas $309,375,00
Star Bank, N.A. $151,875.00
The Provident Bank $ 67,500.00
SECTION 3.5.2. Commitment Fees. The Borrower shall pay to
the Administrative Agent, for the account of the Lenders,
fees ("Commitment Fees") on the amount of each Lender's
unused Commitment during the period commencing May 26, 1993
and ending on the earlier to occur of the date the
Commitments shall terminate and the date the initial Loans
are made. Commitment Fees shall be computed at the annual
rate of one-half of one percent (.5%), and shall be payable
in arrears on the last day of each Fiscal Quarter beginning
September 30, 1993, and on the earlier to occur of the date
the Commitments shall terminate and the date the initial
Loans are made.
SECTION 3.5.3. Agents Fee. The Borrower shall pay to the
Administrative Agent, for the account of the Managing Agents,
an agents fee (the "Agents Fee"), in accordance with the
terms of the Agents Fee Letter. Each payment of the Agents
Fee, Commitment Fees and Closing Fees shall be
non-refundable.
SECTION 3.6. Making and Proration of Payments;
Computations; etc.
SECTION 3.6.1. Making of Payments. All payments of
principal of and interest on the Notes, and all payments of
Fees, shall be made by the Borrower to the Administrative
Agent in immediately available funds at its Domestic Office
not later than noon, Boston time, on the date due, and funds
received after that hour shall be deemed to have been
received by the Administrative Agent on the next following
Business Day. The Administrative Agent shall promptly remit
to each Lender or Agent its share (if any) of all such
payments received in collected funds by the Administrative
Agent. All payments under Sections 4.5, 4.8, 12.3 and 12.4
<PAGE>
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shall be made by the Borrower directly to the Lender or
Lenders entitled thereto. Each payment of principal shall be
applied to such Tranches as the Borrower shall direct by
notice to be received by the Administrative Agent on or
before the date of payment, or, in the absence of such
notice, as the Administrative Agent shall determine in its
discretion. Concurrently with its remittance to any Lender
of its share of any such payment, the Administrative Agent
shall advise such Lender as to the application of such
payment.
SECTION 3.6.2. Setoff. Each Principal Company agrees that
each Agent and each Lender shall have all rights of set-off
and bankers' lien provided by Applicable Law, and in addition
thereto, each Principal Company agrees that if at any time
any payment or other amount owing by such Principal Company
under this Agreement is then due to any Agent or any Lender,
such Agent or Lender may apply to the payment of such payment
or other amount any and all balances, credits, deposits,
accounts or moneys of such Principal Company then or
thereafter deposited or held by such Person.
SECTION 3.6.3. Proration of Payments. If any Lender or
other holder of a Note shall obtain by payment or other
recovery (whether voluntary, involuntary, by application of
setoff or otherwise) of principal of or interest on any Note
in excess of its Ratable share of payments and other
recoveries obtained by all Lenders or other holders of Notes
(other than in respect of an Affected Tranche), such Lender
or other holder shall purchase from the other Lenders or
holders such participations in the Notes held by them as
shall be necessary to cause such purchasing Lender or other
holder to share the excess payment or other recovery Ratably
with each of them; provided, however, that if all or any
portion of the excess payment or other recovery is thereafter
recovered from such purchasing Lender or holder, the
purchase of such participation shall be rescinded and the
purchase price restored to the extent of such recovery. The
Borrower agrees that any Lender or other holder of a Note so
purchasing a participation from another Lender or holder
pursuant to this Section shall be entitled to all rights of
set-off and bankers' lien with respect to such participation
as fully as if such Lender were a direct holder of Loans in
the amount of such participation.
SECTION 3.6.4. Due Date Extension. If any payment of
principal of or interest on any of the Notes, or of any Fees,
falls due on a day which is not a Business Day, then such due
date shall be extended to the next following Business Day
(unless, in the case of interest due on the principal amount
of any Eurodollar Tranche, such next following Business Day
is the first day of a calendar month, in which case such due
date shall be the immediately preceding Business Day), and
additional interest and Commitment Fees shall accrue and be
payable for the period of such extension.
SECTION 3.6.5. Notice of Changes in Alternate Base Rate;
Notice of Eurodollar Rates. Changes in the rate of interest
on any Base Rate Tranches shall take effect simultaneously
<PAGE>
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with each change in the Alternate Base Rate. The
Administrative Agent shall give notice promptly to the
Borrower and the Lenders of changes in the Alternate Base
Rate. The applicable Eurodollar Rate for each Interest
Period shall be determined by the Administrative Agent, and
notice thereof shall be given by the Administrative Agent
promptly to the Borrower and each Lender. Each determination
of the Alternate Base Rate and the applicable Eurodollar Rate
by the Administrative Agent shall be conclusive and binding
upon the parties hereto, in the absence of manifest error.
The Administrative Agent shall, upon written request of the
Borrower or any Lender, deliver to the Borrower or such
Lender a statement showing the computations used by the
Administrative Agent in determining any applicable Eurodollar
Rate hereunder. Each Reference Lender agrees to furnish to
the Administrative Agent timely information for determining
the applicable Eurodollar Rate. If any one or more of the
Reference Lenders shall fail to timely furnish such
information to the Administrative Agent for any such interest
rate, the Administrative Agent shall determine such interest
rate on the basis of the information furnished by the
remaining Reference Lenders.
SECTION 3.6.6. Computations. Interest and Commitment Fees
shall be computed based on the actual number of days elapsed
and a year of 360 days.
SECTION 3.6.7. Recordkeeping. Each Lender shall record in
its records, or at its option on the schedule attached to its
Note, the date and amount of the Loan made by such Lender,
each repayment and prepayment thereof and, in the case of
each Eurodollar Tranche, the principal amount thereof and the
dates on which each Interest Period for such Tranche shall
begin and end. The aggregate unpaid principal amount so
recorded shall be rebuttable presumptive evidence of the
principal amount owing and unpaid on such Note. The failure
to so record any such amount or any error in so recording any
such amount shall not, however, limit or otherwise affect the
obligations of the Borrower or any Guarantor hereunder or
under any Note to repay the principal amount of the Loan
evidenced by such Note together with all interest accruing
thereon.
SECTION 3.7. Taxes. All payments of principal of and
interest on the Notes and of all Fees and other amounts
payable hereunder or under any of the other Loan Documents
shall be made free and clear of and without deduction for any
present or future income, excise, stamp or franchise taxes or
other taxes, fees, duties, withholdings or charges of any
nature whatsoever imposed by any Governmental Authority, but
excluding franchise taxes imposed on any Lender and taxes
imposed on any Lender measured by such Lender's net income or
receipts (all non-excluded items being called "Taxes"). If
any withholding or deduction from any such payment to be made
hereunder or under any of the other Loan Documents is
required in respect of any Taxes pursuant to any Applicable
Law, then the Borrower or other Transaction Party obligated
to make such payment will:
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(a) pay directly to the relevant Governmental Authority
the full amount required to be so withheld or deducted;
(b) promptly forward to the Administrative Agent an
official receipt or other documentation satisfactory to the
Administrative Agent evidencing that the Borrower or other
Transaction Party obligated to make such payment has made
such payment to such Governmental Authority; and
(c) pay to the Administrative Agent such additional
amounts as are necessary to ensure that the net amount
actually received by each Secured Party will equal the full
amount such Secured Party would have received had no such
withholding or deduction been required.
Moreover, if any Taxes are directly asserted against any
Secured Party with respect to any payment received by such
Secured Party hereunder or under any of the other Loan
Documents, such Secured Party may pay such Taxes and the
Borrower or other Transaction Party obligated to make such
payment will promptly pay such additional amounts (including
any penalty, interest and expense) as are necessary in order
that the net amount received by such Secured Party after the
payment of such Taxes (including any Taxes on such additional
amount) shall equal the amount such Secured Party would have
received had such Taxes not been asserted.
If any Transaction Party fails to pay any Taxes when due to
the appropriate Governmental Authority or fails to remit to
the Administrative Agent when due any payments required by
this Section 3.7 or any required receipts or other required
documentary evidence, the Borrower shall indemnify the
Secured Parties for any incremental Taxes, interest or
penalties that may become payable by any Secured Party as a
result of any such failure and shall promptly pay to the
Administrative Agent any amounts not paid when due to the
Administrative Agent as required by this Section 3.7.
SECTION 3.8. Use of Proceeds. The Borrower covenants and
agrees that the proceeds of the Loans made pursuant hereto
will be applied:
(a) first, to the payment or prepayment in full on the
Effective Date of all Obligations (as defined in the
Existing Loan Agreement) then outstanding,
(b) second, to the payment or prepayment in full on the
Effective Date of all obligations then outstanding of the
Borrower under the Loan Agreement, dated as of December 23,
1991, among the Borrower, the lenders party thereto, and
The Bank of New York, as agent (the "Existing WGHP Loan
Agreement"), and
(c) third, for general working capital purposes, and to
pay costs and expenses incurred by the Borrower in
connection with the transactions contemplated hereby.
ARTICLE IV
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FUNDING OPTIONS
SECTION 4.1. Pricing Tranches of Each Loan.
The outstanding principal amount of the Loan made
by each Lender may be allocated among pricing
tranches (individually, a "Tranche" and
collectively, "Tranches") selected by the Borrower
from time to time in accordance with Sections 3.1,
4.2 and 4.3 hereof. Each Tranche shall be either a
Base Rate Tranche or a Eurodollar Tranche (each a
"type" of Tranche), as the Borrower shall specify
in the initial notice of borrowing pursuant to
Section 3.1, or any Continuation/Conversion Notice
pursuant to Section 4.2 or 4.3. All Base Rate
Tranches, and all Eurodollar Tranches having the
same Interest Period, may sometimes be referred to
as a "Group" of Tranches.
SECTION 4.2. Conversion Procedures. Subject
to the provisions of Section 4.4, the Borrower may
convert all or any part of any outstanding Group of
Tranches into a Group of Tranches of a different
type by delivering a Continuation/Conversion Notice
to the Administrative Agent not later than (a) in
the case of conversion into a Base Rate Tranche,
9:30 A.M., Boston time, on the proposed date of
such conversion, and (b) in the case of a
conversion into a Eurodollar Tranche, 9:30 A.M.,
Boston time, at least three (3) Business Days prior
to the proposed date of such conversion. Each such
notice shall be irrevocable upon receipt by the
Administrative Agent and shall specify the date and
amount of such conversion, the Group of Tranches
(or portion thereof) to be so converted, the type
of Tranche to be converted into and, in the case of
a conversion into a Eurodollar Tranche, the initial
Interest Period therefor; provided, however, that
no Eurodollar Tranche shall be converted on any day
other than the last day of its Interest Period.
Promptly upon receipt of such notice, the
Administrative Agent shall advise each Lender
thereof. Subject to the provisions of this Section
4.2 and Section 4.4, each Tranche shall be so
converted on the requested date of conversion.
SECTION 4.3. Continuation Procedures. Subject
to the provisions of Section 4.4, the Borrower may
continue all or any part of any outstanding Group
of Eurodollar Tranches for an additional Interest
Period commencing upon the conclusion of the
Interest Period then in effect for such Group of
Eurodollar Tranches, by delivering a
Continuation/Conversion Notice to the
Administrative Agent not later than 9:30 A.M.,
Boston time, at least three (3) Business Days prior
to the end of such then-current Interest Period.
Each such notice shall be irrevocable upon receipt
by the Administrative Agent and shall specify the
amount to be so continued, the date of such
<PAGE>
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continuation and the Interest Period therefor that
is to commence upon the termination of the
then-current Interest Period. Promptly upon
receipt of such notice, the Administrative Agent
shall advise each Lender thereof.
SECTION 4.4. Limitations on Interest Periods
and Continuation and Conversion Elections. The
Borrower's rights under Sections 3.1, 4.2 and 4.3
hereof shall be subject to the following
limitations.
SECTION 4.4.1. Interest Periods. Each
Interest Period for a Eurodollar Tranche shall
commence on the date the Loan is made, if
applicable, or on the date such Tranche is
converted from a Base Rate Tranche, or, in the case
of a continuation, on the expiration of the
immediately preceding Interest Period for such
Eurodollar Tranche, and shall end on the date which
is one, two, three or six months thereafter, as the
Borrower may specify in the related notice of
borrowing pursuant to Section 3.1, or
Continuation/Conversion Notice pursuant to Section
4.2 or 4.3; provided, however, that:
(a) each Interest Period for a Eurodollar
Tranche that would otherwise end on a day which
is not a Business Day shall end on the
immediately succeeding Business Day (unless
such immediately succeeding Business Day is the
first Business Day of a calendar month, in
which case such Interest Period shall end on
the immediately preceding Business Day);
(b) the Borrower may not select any
Interest Period which would end after the
Maturity Date;
(c) the Borrower may not specify any
Interest Period scheduled to end after any
Repayment Date set forth in Section 3.3.1
unless the aggregate principal amount of all
Base Rate Tranches and all Eurodollar Tranches
having Interest Periods ending prior to such
Repayment Date shall not be less than the
aggregate amount of the Installment due on such
Repayment Date and all unpaid Installments due
on any prior Repayment Date; and
(d) absent the timely selection of a new
Interest Period for a then outstanding
Eurodollar Tranche, or any part thereof, such
Eurodollar Tranche or such part, as the case
may be, shall, immediately upon the expiration
of such Interest Period, automatically and
without further action, be converted into a
Base Rate Tranche.
<PAGE>
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SECTION 4.4.2. Conditions Precedent. No
portion of the outstanding principal amount of any
Loan may be continued as, or converted into, one or
more Eurodollar Tranches unless, on and as of the
requested date of continuation or conversion, all
of the conditions precedent set forth in Section
6.2 have been satisfied.
SECTION 4.4.3. Other Limitations. At all
times:
(a) the aggregate amount of all Tranches of
each Lender's Loan shall equal the outstanding
principal amount of such Lender's Loan;
(b) the aggregate principal amount of each
Group of Eurodollar Tranches shall be in an
integral multiple of $1,000,000;
(c) the total number of Eurodollar Tranches
in effect at any time shall not exceed twelve
(12); and
(d) each Lender shall at all times have a
Ratable share of each Group of Tranches, except
for any Group of Base Rate Tranches that
includes an Affected Tranche.
SECTION 4.5. Increased Costs.
(a) If (i) Regulation D of the F.R.S.
Board, or (ii) after the date hereof, the
adoption of any Applicable Law, or any change
therein or in any existing Applicable Law, 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 (or any Eurodollar Office of such
Lender) with any request or directive (whether
or not having the force of law) of any such
Governmental Authority:
(A) shall subject any Lender (or any
Eurodollar Office of such Lender) to any
tax, duty or other charge with respect to
its Eurodollar Tranches, its Note or its
obligation to make Eurodollar Tranches
available, or shall change the basis of
taxation of payments to any Lender of the
principal of or interest on its Eurodollar
Tranches or any other amounts due under
this Agreement in respect of its Eurodollar
Tranches or its obligation to make
Eurodollar Tranches available (except for
changes in the rate of tax on the overall
net income of such Lender or its Eurodollar
Office imposed by the jurisdiction in which
such Lender's principal executive office or
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Eurodollar Office is located); or
(B) shall impose, modify or deem
applicable any reserve (including, without
limitation, any reserve imposed by the
F.R.S. Board), special deposit or similar
requirement against assets of, deposits
with or for the account of, or credit
extended by any Lender (or any Eurodollar
Office of such Lender); or
(C) shall impose on any Lender (or its
Eurodollar Office) any other condition
affecting its Eurodollar Tranches, its Note
or its obligation to make Eurodollar
Tranches available;
and the result of any of the foregoing is to
increase the cost to (or in the case of
Regulation D referred to above, to impose a
cost on) such Lender (or any Eurodollar Office
of such Lender) of making or maintaining any
Eurodollar Tranche, or to reduce the amount of
any sum received or receivable by such Lender
(or its Eurodollar Office) under this Agreement
or under its Note with respect thereto, then
upon demand by such Lender, the Borrower shall
pay directly to such Lender such additional
amount as will compensate such Lender for such
increased cost or such reduction.
(b) If any Lender shall reasonably
determine that the adoption or phase-in of any
Applicable Law regarding capital adequacy, or
any change therein or in any existing
Applicable Law, 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 (or its Eurodollar
Office) or any Person controlling such Lender
with any request or directive regarding capital
adequacy (whether or not having the force of
law) of any such Governmental Authority, has or
would have the effect of reducing the rate of
return on such Lender's or such controlling
Person's capital as a consequence of such
Lender's obligations hereunder (including,
without limitation, such Lender's Commitment)
to a level below that which such Lender or such
controlling Person could have achieved but for
such adoption, phase-in, change or compliance
(taking into consideration such Lender's or
such controlling Person's policies with respect
to capital adequacy) by an amount deemed by
such Lender or such controlling Person to be
material, then from time to time, upon demand
by such Lender, the Borrower shall pay to such
Lender such additional amount or amounts as
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will compensate such Lender or such controlling
Person for such reduction.
SECTION 4.6. Interest Rate Inadequate or
Unfair. If with respect to any Interest Period:
(a) deposits in Dollars (in the applicable
amounts) are not being offered to one or more
Lenders in the relevant market for such
Interest Period, or the Administrative Agent
otherwise determines (which determination shall
be binding and conclusive on the Borrower) that
by reason of circumstances affecting the
interbank eurodollar market, adequate and
reasonable means do not exist for ascertaining
the applicable Eurodollar Rate; or
(b) the Required Lenders advise the
Administrative Agent that the Eurodollar Rate
(Reserve Adjusted) as determined by the
Administrative Agent will not adequately and
fairly reflect the cost to such Lenders of
maintaining or funding Eurodollar Tranches for
such Interest Period, or that the maintaining
or funding of Eurodollar Tranches has become
impracticable as a result of an event occurring
after the date of this Agreement which in the
opinion of such Lenders materially affects
Eurodollar Tranches, then the Administrative
Agent shall promptly notify the Borrower and
the Lenders thereof and, so long as such
circumstances shall continue, (i) no Lender
shall thereafter have any obligation to fund or
make available Eurodollar Tranches and (ii) on
the last day of the current Interest Period for
any Eurodollar Tranche, such Tranche shall,
unless then repaid in full, automatically
convert to a Base Rate Tranche.
SECTION 4.7. Changes in Law Rendering
Eurodollar Tranches Unlawful. In the event that
the adoption or phase-in of any Applicable Law, or
any change therein or in any existing Applicable
Law or any change in the interpretation thereof by
any Governmental Authority charged with the
interpretation or administration thereof, shall
make it (or in the good faith judgment of any
Lender cause a substantial question as to whether
it is) unlawful for any Lender to maintain or fund
Eurodollar Tranches, then such Lender shall
promptly notify the Borrower, the other Lenders and
the Administrative Agent and, so long as such
circumstances shall continue, (a) such Lender shall
thereafter have no obligation to fund or make
available Eurodollar Tranches (but shall fund Base
Rate Tranches concurrently with the making of the
Loans, or the continuation or conversion into
Eurodollar Tranches by the Lenders which are not so
affected, in each case in an amount equal to such
<PAGE>
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Lender's Ratable share of all Eurodollar Tranches
that would be funded at such time in the absence of
such circumstances) and (b) on the last day of the
current Interest Period for any Eurodollar Tranche
of such Lender (or, in any event, if such Lender so
requests, on such earlier date as may be required
by the relevant Applicable Law), such Eurodollar
Tranche shall, unless then repaid in full,
automatically convert to a Base Rate Tranche. Each
Base Rate Tranche funded by a Lender which, but for
the circumstances described in the foregoing
sentence, would have been a Eurodollar Tranche (an
"Affected Tranche") shall, notwithstanding any
other provision of this Agreement, remain
outstanding for the same period as the Group of
Eurodollar Tranches of which such Affected Tranche
would have been part absent such circumstances.
SECTION 4.8. Funding Losses. The Borrower
hereby agrees that, upon demand by any Lender, the
Borrower will indemnify such Lender against any net
loss or expense which such Lender may sustain or
incur (including, without limitation, any net loss
or expense incurred by reason of the liquidation or
employment of deposits or other funds acquired by
such Lender to maintain or fund any Eurodollar
Tranche), as reasonably determined by such Lender,
as a result of (a) any payment, repayment,
prepayment or conversion of any Eurodollar Tranche
of such Lender on a date other than the last day of
an Interest Period for such Tranche (including any
conversion pursuant to Section 4.7) or (b) any
failure of the Borrower to borrow, continue or
convert any Tranche on a date specified therefor in
a notice of borrowing pursuant to Section 3.1 or in
any Continuation/Conversion Notice pursuant to
Section 4.2 or 4.3.
SECTION 4.9. Right of Lenders to Fund Through
Other Offices. Each Lender may, if it so elects,
fulfill its commitment as to any Eurodollar Tranche
by causing the Eurodollar Office of such Lender to
fund such Eurodollar Tranche, provided that in
such event for the purposes of this Agreement such
Tranche shall be deemed to have been funded by such
Lender and the obligation of the Borrower to repay
such Tranche shall nevertheless be to such Lender
and shall be deemed held by it, to the extent of
such Tranche, for the account of such Eurodollar
Office.
SECTION 4.10. Discretion of Lenders as to
Manner of Funding. Notwithstanding any provision
of this Agreement to the contrary, each Lender
shall be entitled to maintain and fund all or any
part of its Loan in any manner it sees fit, it
being understood, however, that for purposes of
this Agreement all determinations hereunder
(including determinations of any net loss or
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expense under Section 4.8) shall be made as if such
Lender had actually funded and maintained each
Eurodollar Tranche during each Interest Period for
such Tranche actually funded or requested by the
Borrower to be funded through the purchase of a
deposit on the first day of such Interest Period
having a principal amount equal to the principal
amount of such Tranche, having a maturity
corresponding to such Interest Period and bearing
an interest rate equal to the Eurodollar Rate for
such Interest Period.
SECTION 4.11. Conclusiveness of Statements;
Survival of Provisions. Demands made by any Lender
to the Borrower under Section 4.5 or 4.8 shall be
accompanied by a statement setting forth the basis
for the calculations of the amounts being claimed,
and a copy of such statement shall be furnished to
the Administrative Agent. Such statements, and all
other determinations and statements of any Lender
pursuant to Sections 4.5, 4.6, 4.7 or 4.8, shall be
conclusive absent manifest error. Lenders may use
reasonable averaging and attribution methods in
determining compensation under Sections 4.5 and
4.8, and the provisions of such sections shall
survive repayment of the Loans, cancellation of the
Notes and any termination of this Agreement.
ARTICLE V
GUARANTIES
SECTION 5.1. Guaranty.
SECTION 5.1.1. Guaranty of Payment. Each of
the Principal Companies (in their capacities as
guarantors under this Article V, the Guarantors")
hereby absolutely, unconditionally and irrevocably
guaranties to the Lenders the full and punctual
payment when due, whether at stated maturity, by
scheduled repayment, required prepayment,
declaration, acceleration, demand or otherwise
(including, without limitation, all amounts which
would have become due but for the operation of the
automatic stay under Section 362(a) of the Federal
Bankruptcy Code, 11 U.S.C. 362(a)), of the
Obligations, in accordance with their respective
terms, whether such Obligations are outstanding on
the date of this Agreement or arise or are incurred
at any time or times thereafter. The Guaranties
hereby made constitute guaranties of payment when
due and not of collection, and each of the
Guarantors individually agrees that it shall not be
necessary or required that any Secured Party or any
holder of any Note exercise any rights, assert any
claim or demand or enforce any remedy whatsoever
against any Transaction Party before or as a
condition to the obligations of the Guarantors
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hereunder. The liability of each of the Guarantors
to the Lenders under its respective Guaranty made
hereunder shall be unlimited.
SECTION 5.1.2. Guaranty of Performance.
Without prejudice to any of the obligations of the
Guarantors to the Lenders under Section 5.1.1,
which obligations are absolute and unconditional,
but as a separate undertaking on the part of the
Guarantors, each of the Guarantors hereby
absolutely, unconditionally and irrevocably
covenants and agrees to cause each of the other
Transaction Parties to perform and comply with all
of the covenants, agreements and conditions to be
complied with by any such Transaction Party under
the Loan Documents, and each of the Guarantors
hereby agrees to take or to cause to be taken,
promptly and without any expense to any of the
Secured Parties, all such measures as may be
appropriate and can be lawfully effected by such
Guarantor to prevent the occurrence of any Default
and to cure or make good promptly any Default which
may occur at any time or times.
SECTION 5.2. Guaranty Absolute. The
obligations of the Guarantors under Section 5.1.1
are and shall be construed as continuing, absolute
and unconditional guaranties of payment, and shall
remain in full force and effect, until all
Obligations have been paid in full in cash. The
Guarantors guarantee that the Obligations will be
paid strictly in accordance with the terms of this
Agreement and the other Loan Documents, regardless
of any Applicable Law now or hereafter in effect in
any jurisdiction affecting any of such terms or the
rights of any Secured Party with respect thereto.
The liability of the Guarantors under the
Guaranties hereby made shall be absolute,
unconditional and irrevocable irrespective of:
(a) any lack of validity or enforceability
of this Agreement or any other Loan Document or
any other agreement or Instrument relating to
any thereof or to any of the Obligations;
(b) any change in the corporate existence,
structure or ownership of any Transaction
Party, or any insolvency, bankruptcy,
reorganization or other similar proceeding
affecting any Transaction Party or any Property
of any Transaction Party or any resulting
release or discharge of any Obligation
contained in this Agreement or any other Loan
Document;
(c) the failure of any Secured Party
(i) to assert any claim or
demand or to enforce any right or
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remedy against the Borrower, any
Guarantor, any other Transaction
Party or any other Person under the
provisions of this Agreement or any
other Loan Document or any other
agreement or Instrument relating to
any thereof or under any Applicable
Law, or
(ii) to exercise any right or
remedy against any Collateral;
(d) any change in the time, manner or place
of payment of, or in any other term of, all or
any of the Obligations, or any other
compromise, renewal, extension, acceleration or
release with respect thereto, or any other
amendment to, rescission, waiver or other
modification of or any consent to departure
from any of the terms of this Agreement or any
other Loan Document or any other Instrument
relating to any thereof;
(e) any increase, reduction, limitation,
impairment or termination of the Obligations
for any reason, including any claim of waiver,
release, surrender, alteration or compromise,
and any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason
of the invalidity, illegality, nongenuineness,
irregularity, compromise, or unenforceability
of, or any other event or occurrence affecting,
any of the Obligations (and the Guarantors
hereby waive any right to or claim of any such
defense or set-off, counterclaim, recoupment or
termination);
(f) any exchange, release or non-perfection
of any Collateral, or any amendment to or
waiver or release of, or consent to departure
from any other guaranty held by any Secured
Party securing all or any of the Obligations;
(g) any defense, set-off or counterclaim
which may at any time be available to or be
asserted by the Borrower or any other
Transaction Party against any other Transaction
Party or against any Secured Party; or
(h) any other circumstance which might
otherwise constitute a suretyship or other
defense available to, or a legal or equitable
discharge of, the Borrower, any Guarantor, or
any other Transaction Party.
SECTION 5.3. Reinstatement, etc. The
Guarantors agree that the Guaranties hereby made
shall continue to be effective or be reinstated, as
the case may be, if at any time any payment (in
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whole or in part) of any of the Obligations is
rescinded or must otherwise be restored by any
Secured Party upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, all as
though such payment had not been made.
SECTION 5.4. Waiver. Each of the Guarantors
hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any
of the Obligations or its Guaranty and any
requirement that the Collateral Agent or any other
Secured Party protect, secure, perfect or insure
any Lien or any Property subject thereto or exhaust
any right or take any action against the Borrower,
any Guarantor, any Transaction Party or any other
Person or entity or any Collateral.
SECTION 5.5. Subordination of Subrogation
Rights. The rights which any Guarantor shall
acquire against any of the other Transaction
Parties as a consequence of making any payment
under its Guaranty are, in this Section 5.5,
collectively called the "Subrogation Rights." In
the event of any proceeding for the distribution,
division or application of all or any part of the
Property of any of the other Transaction Parties,
whether such proceeding be for the liquidation,
dissolution or winding up of any of the other
Transaction Parties, a receivership, insolvency or
bankruptcy proceeding, an assignment for the
benefit of creditors, or a proceeding by or against
any of the other Transaction Parties for relief
under any bankruptcy, reorganization or insolvency
law, if all of the Obligations have not been paid
and satisfied in full at the time, the
Administrative Agent is hereby irrevocably
authorized by such Guarantor at any such
proceeding:
(a) to enforce all of the Subrogation
Rights of such Guarantor, either in the name of
the Administrative Agent or the Lenders or in
the name of such Guarantor, by proof of debt,
proof of claim, suit or otherwise;
(b) to collect any Property of any of the
other Transaction Parties distributed or
applied by way of dividend or payment on
account of such Subrogation Rights, and to
apply the same, or the proceeds of any
realization thereof, towards the payment of the
Obligations until all the Obligations have been
paid and satisfied in full; and
(c) to vote all claims arising under or in
respect of all such Subrogation Rights.
So long as any Obligations remain unpaid, no
Guarantor shall take any action of any kind to
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enforce any of its Subrogation Rights, and no
Guarantor shall receive or accept from any Person
any payments or other distributions in respect of
any of its Subrogation Rights. Should any payment
on account of any of the Subrogation Rights be
received by any Guarantor, such payment shall be
delivered by such Guarantor forthwith to the
Administrative Agent for the benefit of the Secured
Parties in the form received by such Guarantor,
except for the addition of any endorsement or
assignment necessary to effect transfer of all
rights therein to the Collateral Agent. Until so
delivered, each such payment shall be held by such
Guarantor in trust for the benefit of the Secured
Parties and shall not be commingled with any other
funds of such Guarantor.
ARTICLE VI
CONDITIONS TO LENDING
SECTION 6.1. Conditions to Making the Loans.
The obligations of each Lender to make its Loan on
the Effective Date is subject to the fulfillment of
the following conditions precedent prior to or
simultaneously with the making of the initial
Loans.
SECTION 6.1.1. Completion of Reorganization.
The Administrative Agent shall have received
evidence (in the form of legal opinions, copies of
Instruments, certificates or otherwise as it shall
require) reasonably satisfactory to the Managing
Agents that the following events and transactions
(collectively, the "Reorganization") have occurred
or have been completed:
(a) Reorganization Plan. The Bankruptcy
Court shall have approved the Reorganization
Plan under the applicable provisions of the
Bankruptcy Code, and the Confirmation Order
shall have become a Final Order. The
Registration Statement shall be substantially
in the form of Amendment No. 2 thereto, filed
with the SEC on September 27, 1993, and the
Reorganization Plan shall be substantially in
the form thereof attached to such Amendment
No. 2. All of the transactions contemplated to
occur in connection with the effectiveness of
the Reorganization Plan shall have been
consummated in accordance with the terms
contained in the Registration Statement and the
Reorganization Plan without any waiver of any
material condition precedent contained in the
Reorganization Plan not previously approved by
the Managing Agents and the Required Lenders.
Any modifications to the Reorganization Plan
that would adversely affect the Lenders shall
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have been previously approved by the Required
Lenders.
(b) Corporate Reorganizations.
(i) GACC Mergers. The GACC Mergers
shall have been completed, and GACC
shall hold 100% of the outstanding
shares of Capital Stock of GABCO.
(ii) GABCO Sub. GABCO shall have
organized GABCO Sub as a direct
wholly-owned Subsidiary of GABCO, and
GABCO Sub shall own 100% of the
outstanding shares of Capital Stock of
the Borrower, LSI and each of the other
companies indicated as direct
Subsidiaries of GABCO Sub in the
Pro-forma Capital Structure.
(c) Treatment of 13% Notes.
(i) Exchange of Old 13% Notes for
GABCO 13% Notes. The holders of all of
the 13% Senior Subordinated Notes due
2000 of GABCO (the "Old 13% Notes")
shall have received, in full
satisfaction of their claims thereunder
or relating thereto, (A) GABCO 13%
Notes, (B) the payment of accrued
unpaid interest on the outstanding
principal amount of Old 13% Notes, and
on the amount of the deferred payment
of interest on Old 13% Notes originally
due on June 15, 1993, in each case, at
a rate not in excess of thirteen
percent (13%), (C) payment of a
restructuring fee, in an
aggregate amount not in excess of $225,000,
and (D) payment of all out-of-pocket
expenses, including reasonable fees and
expenses of counsel and advisors, incurred
by such holders in connection with the
transactions contemplated by the GABCO 13%
Note Exchange Agreement. Interest on the
GABCO 13% Notes shall begin to accrue on
the Effective Date. The principal amount
of GABCO 13% Notes issued pursuant to the
GABCO 13% Note Exchange Agreement shall not
exceed $111,500,000. The GABCO 13% Note
Exchange Agreement shall be substantially
in the form of the draft thereof
distributed to the Lenders on or about
October 9, 1993; the GABCO 13% Notes and
the GABCO Pledge Agreement shall be
substantially in the form of the applicable
Exhibits to such draft; and the GACC
Undertaking shall be substantially in the
form of the draft thereof distributed to
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the Lenders on or about November 2, 1993.
(ii) No Remaining Claims Under Old 13%
Notes. All claims of holders of Old 13%
Notes under the Old 13% Notes and under any
Instruments governing the Old 13% Notes
shall have been discharged, terminated,
cancelled and released.
(d) Treatment of Old Debt Securities Under
Reorganization Plan.
(i) Old Debt Securities. The holders of
all of the outstanding (A) 9 1/2% Senior
Secured Notes due 2000 of Holding II, (B)
14 1/8% Senior Notes due 1996 of Holding I,
(C) 20 1/2% Senior Extendable Reset Notes
due 1995 of Holding I, (D) 14 3/8% Senior
Subordinated Debentures due 1999 of GACC,
(E) 11% Senior Debentures due 1995 of GACC,
(F) 9% Senior Subordinated Notes due 1993
of GACC and (G) Variable Rate Convertible
Subordinated Debentures due 1993 of GACC
(collectively, the "Old Debt Securities")
shall have received, in full satisfaction
of their claims thereunder or relating
thereto, (X) GACC 14% Notes and/or (Y)
shares of Common Stock. The principal
amount of GACC 14% Notes issued pursuant to
the GACC 14% Note Indenture shall not
exceed the sum of $72,500,000 plus interest
accrued thereon from July 1, 1993. The
GACC 14% Note Indenture shall be
substantially in the form of the draft
thereof distributed to the Lenders on or
about October 9, 1993; and the GACC 14%
Notes and the GACC Pledge Agreement shall
be substantially in the form of the
applicable Exhibits to such draft.
(ii) No Remaining Claims Under Old Debt
Securities. All claims of holders of Old
Debt Securities under such Old Debt
Securities and under any Instruments
governing such Old Debt Securities shall
have been discharged, terminated and
cancelled.
(e) AFC Loan Agreement; Other Advances.
(i) AFC Loan Agreement. AFC shall have
received, in full satisfaction of its
claims under the Loan Agreement, dated as
of October 6, 1987, between AFC and GACC
(the "AFC Loan Agreement") and all other
Instruments relating thereto, shares of
Common Stock. All claims of AFC under the
AFC Loan Agreement and all other
Instruments relating thereto shall have
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been discharged, terminated and cancelled.
The AFC Loan Agreement shall have been
cancelled. The Agents and the Lenders
acknowledge that, from and after the
Effective Date, GACC shall have no further
right to require or receive any loans from
AFC under the AFC Loan Agreement.
(ii) Other AFC Advances. All claims of
AFC with respect to all loans and advances
made by AFC to GACC, Holding I and Holding
II (other than loans under the AFC Loan
Agreement) shall have been discharged,
terminated and cancelled.
(f) Treatment of Claims and Interests of
Holders of Preferred Stock. All of the holders
of shares of Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock of
Holding I (the "Holding Preferred Stock") shall
have received, in full satisfaction of their
claims as holders of shares of Holding
Preferred Stock, shares of Common Stock. All
claims and interests of holders of Holding
Preferred Stock as holders of Holding Preferred
Stock shall have been discharged, terminated
and cancelled. All shares of Holding Preferred
Stock shall have been cancelled.
(g) Comprehensive Settlement Agreement.
The Administrative Agent shall have received a
counterpart of the Comprehensive Settlement
Agreement, duly executed and delivered by each
of the parties thereto. The Comprehensive
Settlement Agreement shall be substantially in
the form of Exhibit U attached hereto, with
such changes as shall have been approved in
writing by the Required Lenders and the
Managing Agents.
(h) AFC Investment. GACC shall have
received at least $7,500,000 of cash proceeds
of an Investment by AFC in Common Stock and
GACC 14% Notes.
(i) WGHP Loan. The Borrower shall have
received all of the cash proceeds of the WGHP
Loan, in an aggregate amount of up to
$17,500,000. The WGHP Loan Agreement and the
WGHP Subordination Agreement shall be
substantially in the form of Exhibit T and
Exhibit U attached hereto, respectively.
(j) Letter Agreement; AFC Control. The
Administrative Agent shall have received copies
of the Letter Agreement, duly executed and
delivered by each of the parties thereto. The
Letter Agreement shall be substantially in the
form of Exhibit X attached hereto, with such
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changes as shall have been approved by the
Required Lenders and the Managing Agents.
After giving effect to the Reorganization, (i)
AFC shall own and control at least (A) 39% of
the issued and outstanding shares of Class A
Common Stock and (B) 33% of the issued and
outstanding shares of Common Stock and (ii) AFC
designees shall constitute a majority of the
members of the Board of Directors of GACC.
(k) Existing Financing Arrangements. All
the Obligations (as defined in the Existing
Loan Agreement) and all the obligations of the
Borrower under the Existing WGHP Loan Agreement
shall have been paid in full in cash. The
Administrative Agent shall have received a
fully executed copy of the WGHP Pay Off Letter.
The WGHP Pay Off Letter shall be in form and
substance satisfactory to the Administrative
Agent.
(l) Effective Date Certificate. The
Administrative Agent shall have received the
Effective Date Certificate, dated the Effective
Date, duly executed and delivered by an
Authorized Officer of the Borrower.
SECTION 6.1.2. Execution and Delivery of
Agreement, Notes, etc. The Administrative Agent
shall have received (a) counterparts of this
Agreement, duly executed and delivered by the
Principal Companies, the Agents and the Lenders and
(b) for the account of each Lender, such Lender's
Note, dated the Effective Date, duly executed and
delivered by the Borrower and containing
appropriate insertions and conforming to the
requirements of Section 3.2.
SECTION 6.1.3. Accession Agreement. The
Administrative Agent shall have received
counterparts of the Accession Agreement, dated as
of the Effective Date, duly executed and delivered
by GACC and GABCO Sub.
SECTION 6.1.4. Subsidiary Guaranty. The
Administrative Agent shall have received
counterparts of the Subsidiary Guaranty, dated as
of the Effective Date, duly executed and delivered
by LSI.
SECTION 6.1.5. Pledge Agreement. The
Administrative Agent shall have received
counterparts of the Pledge Agreement, dated as of
the Effective Date, duly executed and delivered by
the Borrower, GABCO Sub and the Collateral Agent,
together with certificates evidencing the Initial
Pledged Shares identified in Attachment 1 attached
thereto (accompanied by undated stock powers duly
executed in blank).
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SECTION 6.1.6. Security Agreement; UCC
Filings, etc. The Administrative Agent shall have
received counterparts of the Security Agreement,
dated as of the Effective Date, duly executed and
delivered by each of the Transaction Parties (other
than GACC) and the Collateral Agent, together with
(a) acknowledgment copies of proper
Financing Statements (Form UCC-1), or such
other evidence of filing or arrangements for
filing as may be acceptable to the Collateral
Agent, naming the applicable Transaction Party
as the debtor, and the Collateral Agent as the
secured party for the benefit of the Secured
Parties, and other similar Instruments or
documents, filed under the Uniform Commercial
Code in the States listed on Attachment 1 to
the Security Agreement;
(b) executed copies of proper Financing
Statements (Form UCC-3) necessary to release
all Liens and other rights of any Person in the
collateral described in any security agreement
previously granted by any Transaction Party (or
an undertaking satisfactory to the Collateral
Agent by the secured
party under any such security agreement to
execute and deliver all Financing Statements
(Form UCC-3) required by the Collateral Agent
necessary to release all such Liens), except
for any Lien that constitutes a Permitted Lien
under clause (a) of the definition thereof; and
(c) certified copies of search reports,
dated a date reasonably near (but prior to) the
Effective Date, listing all effective financing
statements which name any Transaction Party
(under its present name or any previous name)
as debtor and which are filed in the
jurisdictions in which filings were made
pursuant to clause (a), together with copies of
such financing statements; and accompanied by
judgment and tax lien searches with respect to
each of the Transaction Parties;
Any other action, including the taking of
possession of specific Collateral by the Collateral
Agent, required by the Collateral Agent to create
in favor of the Collateral Agent for the benefit of
the Secured Parties a perfected Lien on the
Collateral described in the Security Agreement
shall have been properly taken in order to create
such a perfected Lien.
SECTION 6.1.7. Trademark Security Agreement.
The Administrative Agent shall have received
counterparts of the Trademark Security Agreement,
dated as of the Effective Date, duly executed and
delivered by each of the Transaction Parties (other
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than GACC) and the Collateral Agent, and in form
satisfactory for filing with the United States
Patent and Trademark Office, together with evidence
satisfactory to the Collateral Agent that each such
Transaction Party has identified all of its
federally registered trademarks and service marks
on the appropriate schedules to the Trademark
Security Agreement.
SECTION 6.1.8. Collateral Assignment. The
Administrative Agent shall have received
counterparts of the Collateral Assignment of
Hanna-Barbera LC Documents, dated as of the
Effective Date, duly executed and delivered by the
Borrower and the Collateral Agent, together with
acknowledgment copies of proper Financing
Statements (Form UCC-1), or such other evidence of
filing or arrangements for filing as may be
acceptable to the Collateral Agent, naming the
Borrower as debtor and the Collateral Agent as
secured party for the benefit of the Secured
Parties, and other similar Instruments filed under
the Uniform Commercial Code in the States listed as
the location of the Borrower's principal business
offices on Attachment 1 to the Security Agreement.
SECTION 6.1.9. Mortgages. The Administrative
Agent shall have received counterparts of real
estate mortgages or deeds of trust, dated as of the
Effective Date (collectively, the "Mortgages"),
substantially in the form of Exhibit L attached
hereto (with such variations as are appropriate for
the jurisdiction in which the particular Mortgaged
Property is located and are acceptable to the
Collateral Agent), with respect to each of the
Mortgaged Properties, duly executed and delivered
by the Borrower, the Collateral Agent and one or
more trustees, where necessary, together with
evidence satisfactory to the Collateral Agent that
such Mortgages have been duly filed and recorded,
or that arrangements satisfactory to the Collateral
Agent have been made for filing and recording such
Mortgages, in such public offices as the Collateral
Agent shall have specified.
SECTION 6.1.10. Title Matters. With respect to
each Mortgaged Property, the Administrative Agent
shall have received the following items:
(a) a title insurance policy in form and
with endorsements reasonably satisfactory to
the Collateral Agent, issued in amounts and by
one or more title insurance companies
satisfactory to the Collateral Agent, subject
to no exceptions other than those reasonably
acceptable to the Collateral Agent;
(b) copies of all documents referred to in
the title insurance policies and requested by
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the Collateral Agent;
(c) certified copies of all licenses,
approvals and permits (including certificates
indicating that certificates of occupancy were
issued) from Governmental Authorities affecting
such Mortgaged Property that are reasonably
requested by the Collateral Agent; and
(d) affidavits from the Borrower, if
requested by the title insurers insuring the
Lien of such Mortgages, sufficient to enable
such title insurers to issue title insurance
policies in accordance with clause (a) of this
Section 6.1.10.
SECTION 6.1.11. MAI Appraisals. If the
Required Lenders determine that appraisals are
required under any Applicable Law, including 12
U.S.C. Section 93a, Title XI of the Financial
Institution Reform, Recovery and Enforcement Act of
1989 or the regulations promulgated thereunder,
with respect to the value of all or any of the
Mortgaged Properties, the Administrative Agent
shall have received (at the expense of the
Borrower) copies of appraisals on each such
Mortgaged Property, performed by MAI appraisers
(Members of the American Institute of Real Estate
Appraisers) selected by the Collateral Agent. The
value of the Mortgaged Properties shown by such
appraisals (if required) shall be satisfactory to
the Required Lenders.
SECTION 6.1.12. Environmental Audits. If the
Managing Agents determine that environmental
assessments or audits are required by any
Applicable Law, or if the Required Lenders
determine that environmental assessments or audits
are required by their internal credit policies, in
each case with respect to all or any of the
Mortgaged Properties, the Administrative Agent
shall have received (at the expense of the
Borrower) copies of reports of environmental
assessments or audits of such Mortgaged Properties,
prepared by hydrologists or other qualified
independent engineers, consultants or experts
satisfactory to the Required Lenders. The scope of
such environmental assessments or audits (if
required), and the information contained in such
reports, shall be satisfactory to the Required
Lenders.
SECTION 6.1.13. Cash Collateral Arrangements,
etc. The Administrative Agent shall have received
counterparts of the Concentration Account and
Sub-Agency Agreement, dated as of the Effective
Date, duly executed and delivered by the Borrower,
Bank of Boston and the Collateral Agent.
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SECTION 6.1.14. Amendment to Tax Sharing
Agreement. The Administrative Agent shall have
received copies of an amendment to the Tax Sharing
Agreement, in form and substance satisfactory to
the Required Lenders and the Managing Agents. Such
amendment shall provide that the maximum tax
liability of any Subsidiary of GACC to GACC under
the Tax Sharing Agreement for any period shall be
that portion of the actual consolidated tax
liability of GACC and its Subsidiaries for such
period attributable (determined on a basis
satisfactory to the Required Lenders and the
Managing Agents) to such Subsidiary.
SECTION 6.1.15. Loan Documents and Ancillary
Documents.
(a) Each of the Loan Documents and each of
the Ancillary Documents shall have been duly
and properly authorized, executed and delivered
by the respective party or parties thereto and
shall be in full force and effect.
(b) The Administrative Agent shall have
received counterparts of each Loan Document
(other than the Notes and the Mortgages) in
sufficient number for distribution to each
Lender, and copies of each Ancillary Document.
Each Loan Document and Ancillary Document
(other than Loan Documents and Ancillary
Documents referred to in Section 6.1.1, which
are subject to the special provisions contained
therein) shall, where applicable, be
substantially in the form of an Exhibit
attached hereto, and all other Loan Documents
and Ancillary Documents shall be in form and
substance satisfactory to the Required Lenders
and the Managing Agents. All exhibits,
schedules or other attachments to any of the
Collateral Documents and any of the Ancillary
Documents shall be in form and substance
satisfactory to the Required Lenders and the
Managing Agents.
SECTION 6.1.16. Opinions of Counsel. The
Administrative Agent shall have received opinions,
dated the Effective Date (a) addressed to each
Agent and Lender, from (i) Keating, Muething &
Klekamp, general counsel to the Transaction
Parties, substantially in the form of Exhibit M-1
attached hereto, and otherwise in form and
substance reasonably satisfactory to the Managing
Agents, (ii) Koteen & Naftalin, special FCC counsel
to the Transaction Parties, substantially in the
form of Exhibit M-2 attached hereto, and otherwise
in form and substance reasonably satisfactory to
the Managing Agents, (iii) local real estate
counsel in each State in which any Mortgage is to
be recorded, in form and substance reasonably
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satisfactory to the Managing Agents, and (iv)
Jones, Day, Reavis & Pogue, special bankruptcy
counsel to the Transaction Parties, substantially
in the form of Exhibit M-4 attached hereto, and
otherwise in form and substance reasonably
satisfactory to the Managing Agents, and (b)
addressed to each Lender, from Bingham, Dana &
Gould, special counsel to the Managing Agents,
substantially in the form of Exhibit M-3 attached
hereto.
SECTION 6.1.17. Compliance Certificate. The
Administrative Agent shall have received a duly
executed and completed Compliance Certificate,
dated the Effective Date.
SECTION 6.1.18. Solvency Certificate. The
Administrative Agent shall have received a
certificate, dated the Effective Date, in the form
of Exhibit O attached hereto, duly executed by the
chief financial, accounting or executive Authorized
Officer of the Borrower.
SECTION 6.1.19. Perfection Certificate. The
Administrative Agent shall have received a
certificate, dated the Effective Date, in the form
of Exhibit E attached hereto, duly executed by an
Authorized Officer of each Transaction Party (other
than GACC).
SECTION 6.1.20. Document Acceptance Agreements.
The Administrative Agent shall have received from
each of the Lenders a duly executed and delivered
Document Acceptance Agreement.
SECTION 6.1.21. Resolutions, etc. The
Administrative Agent shall have received:
(a) from each of the Transaction Parties, a
certificate, dated the Effective Date, of its
Secretary or any Assistant Secretary as to
(i) resolutions of its Board of
Directors then in full force and effect
authorizing the execution, delivery and
performance of, in each case, to the extent
such Transaction Party is a party thereto,
this Agreement and each of the other Loan
Documents;
(ii) the incumbency and signatures of
the officers of each such Transaction Party
(the "Authorized Officers") authorized to
act with respect to (in each case to the
extent such Transaction Party is a party
thereto), this Agreement and each of the
other Loan Documents, (upon which
certificate the Agents and the Lenders may
conclusively rely until the Administrative
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Agent shall have received a further
certificate of such Transaction Party
canceling or amending such prior
certificate, which further certificate
shall be reasonably satisfactory to the
Administrative Agent);
(iii) each Governing Document of such
Transaction Party; and
(iv) any shareholder agreement, stock
subscription agreement, voting trust
agreement, securities purchase agreement or
similar agreement to which it is a party;
and
(b) such other documents (certified as of
the Effective Date) as the Required Lenders or
the Managing Agents may reasonably request with
respect to any matter relevant to this
Agreement, the other Loan Documents or the
transactions contemplated hereby or thereby.
Each of such documents shall be in form and
substance reasonably satisfactory to the Managing
Agents and the Required Lenders.
SECTION 6.1.22. Certificates of Good Standing.
The Administrative Agent shall have received a
certificate signed by the Secretary of State of the
State of incorporation of each Transaction Party,
dated a date reasonably near (but prior to) the
Effective Date, stating that such Transaction Party
is a corporation duly organized, validly existing
and in good standing under the laws of such State.
SECTION 6.1.23. Financial Statements. The
Borrower shall have furnished to each of the
Lenders the Historical Financials and the
Projections.
SECTION 6.1.24. No Materially Adverse Effect.
No event or events shall have occurred since
December 31, 1992 which, individually or in the
aggregate, have had or are reasonably likely to
have a Materially Adverse Effect.
SECTION 6.1.25. Restricted Payments; Affiliate
Transactions; Other Corporate Transactions.
(a) Restricted Payments; Affiliate
Transactions. Since the date of this
Agreement, no Transaction Party shall have made
any Restricted Payments or entered into,
performed or completed any Affiliate
Transactions, except (i) payments of dividends,
loans or advances by the Borrower to GACC,
Holding I, Holding II or GABCO, in an aggregate
amount not in excess of $2,500,000 (less any
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such payments made during the period between
March 31, 1993 and the date of this Agreement),
the proceeds of which are used solely to pay
costs and expenses incurred in connection with
the Reorganization, (ii) the payments and other
transactions described in Section 6.1.1, and
(iii) payments of principal of, and interest
on, Indebtedness under the Existing Loan
Agreement. The Administrative Agent shall have
received evidence (in the form of a statement
of sources and uses of funds or otherwise as it
shall require) reasonably satisfactory to it
that the costs and expenses of GACC, Holding I
and Holding II incurred in connection with the
Reorganization have been paid on or prior to
the Effective Date, or that adequate provision
has been made for such payment after the
Effective Date.
(b) Other Corporate Transactions. Since
the date of this Agreement, neither GACC nor
any of its Subsidiaries shall have (i) merged
or consolidated with any other Person, except
pursuant to the GACC Mergers, or (ii) sold,
transferred or disposed of any Broadcasting
Station.
SECTION 6.1.26. Compliance with Warranties;
Absence of Litigation; No Default. The
Administrative Agent shall have received, with
counterparts for each Lender, a duly executed
certificate of an Authorized Officer of the
Borrower, dated the Effective Date, to the effect
provided in Section 6.2.1.
SECTION 6.1.27. Fees and Expenses. The
Administrative Agent shall have received payment in
full of all of the Fees required to be paid on or
prior to the Effective Date in accordance with
Section 3.5, and shall have received payment in
full of its out-of-pocket costs and expenses
(including counsel fees and disbursements) payable
in accordance with Section 12.3 for which invoices
have been submitted on or prior to such date.
SECTION 6.1.28. Insurance. The Collateral
Agent shall have received evidence that all
insurance policies, coverages and riders required
pursuant to Section 8.1.5 remain or are in full
force and effect.
SECTION 6.2. All Credit Extensions. The
obligations of each Lender to make each Credit
Extension (including the initial Credit Extensions)
shall also be subject to the satisfaction of each
of the conditions precedent set forth in this
Section.
SECTION 6.2.1. Compliance with Warranties,
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Absence of Litigation, No Default, etc. The
representations and warranties set forth in Article
VII, in the Collateral Documents and in the other
Loan Documents shall have been true and correct in
all material respects as of the date made, and,
both immediately before and immediately after
giving effect to such Credit Extension,
(a) such representations and warranties
shall be true and correct in all material
respects with the same effect as if then made
(except for any such representation or warranty
that relates solely to a prior date);
(b) no development shall have occurred in
any litigation, arbitration or governmental
investigation or proceeding disclosed by the
Principal Companies to the Lenders in
Section 7.8 of the Disclosure Schedule that, in
the opinion of the Required Lenders or the
Managing Agents, has a reasonable likelihood of
having a Materially Adverse Effect; and
(c) no Default shall have occurred and be
continuing.
SECTION 6.2.2. Notice of Borrowing;
Continuation/ Conversion Notice. The
Administrative Agent shall have received a notice
of borrowing in compliance with Section 3.1 or a
Continuation/Conversion Notice, as the case may be,
for such Credit Extension. The delivery of such
notice of borrowing or such Continuation/Conversion
Notice shall constitute a representation and
warranty by the Borrower that on and as of the
requested date of such Credit Extension, and before
and after giving effect to such Credit Extension,
all representations and warranties required by
Section 6.2.1 are true and correct.
SECTION 6.2.3. Legality of Transactions. It
shall not be unlawful (a) for any Agent or any
Lender to perform any of their obligations under
any of the Loan Documents or (b) for any
Transaction Party to perform any of its obligations
under any of the Loan Documents.
SECTION 6.2.4. Satisfactory Legal Form, etc.
All documents executed or submitted pursuant hereto
by or on behalf of any of the Principal Companies
or any of their Subsidiaries shall be satisfactory
in form and substance to the Managing Agents and
their counsel; the Managing Agents and their
counsel shall have received all information, and
such counterpart originals or such certified or
other copies of such materials, as the Managing
Agents or their counsel or any Lender may request;
and all legal matters incident to the transactions
contemplated by this Agreement and the
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Reorganization shall be satisfactory to counsel to
the Managing Agents.
ARTICLE VII
WARRANTIES, ETC.
In order to induce the Agents and the Lenders
to enter into this Agreement and to make Loans
hereunder, each of the Principal Companies
represents and warrants unto each Agent and each
Lender as set forth in this Article.
SECTION 7.1. Organization, etc. Each of the
Transaction Parties is a corporation duly
organized, validly existing and in good standing
under the laws of the jurisdiction of its
incorporation, is duly qualified to do business and
is in good standing as a foreign corporation in
each jurisdiction where the nature of its business
makes such qualification necessary and where the
failure to so qualify could reasonably be expected
to have a Materially Adverse Effect, and has full
power and authority and holds all requisite
governmental licenses, permits and other Approvals
to own or hold under lease its Property and to
conduct its business substantially as currently
conducted by it and as proposed to be conducted.
SECTION 7.2. Power, Authority. Each of the
Transaction Parties has taken all necessary action,
corporate or otherwise, to authorize the execution,
delivery and performance of the Loan Documents and
Ancillary Documents to be executed by it. The
execution, delivery and performance of each of the
Loan Documents and each of the Ancillary Documents
to which any Transaction Party is or is to be a
party on and as of the Effective Date will not
(except for Approvals which will have been already
made or obtained) require any Approval, will not
conflict with, result in any violation of, or
constitute any default under (a) any provision of
any Governing Document of any Transaction Party,
(b) any Contractual Obligation of any of the
Principal Companies or any of their Subsidiaries or
(c) any Applicable Law, and will not result in or
require the creation or imposition of any Lien on
any of their Property pursuant to the provisions of
any agreement (excluding, however, the Liens
created by the Collateral Documents) or other
Instrument binding upon or applicable to any of the
Transaction Parties or any of their Property. As
of the Effective Date, the Confirmation Order will
duly ratify GACC's execution and delivery of each
Loan Document and each Ancillary Document to be
executed by it, and will duly authorize GACC to
perform its obligations under this Agreement and
each such Loan Document and Ancillary Document.
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SECTION 7.3. Validity, etc. This Agreement
has been duly executed and delivered by the
Principal Companies, and constitutes the legal,
valid, and binding obligation of the Principal
Companies, enforceable in accordance with its
terms. Each of the Loan Documents to which any of
the Transaction Parties is or is to be a party does
or will constitute the legal, valid and binding
obligation of such Transaction Party, enforceable
in accordance with its terms. The enforceability
of this Agreement and the Loan Documents against
the Transaction Parties shall be subject to
bankruptcy, insolvency, reorganization, moratorium
or similar laws at the time in effect affecting the
enforceability of the rights of creditors
generally.
SECTION 7.4. Financial Information. All
balance sheets, all statements of income and of
cash flows, and all other financial statements
which have been furnished by or on behalf of any of
the Principal Companies to any Lender, or any
Managing Agent for the purposes of or in connection
with this Agreement or any transaction contemplated
hereby, including
(a) the audited consolidated balance sheet
at December 31, 1992 and December 31, 1991 and
the related audited consolidated statements of
income, of shareholders' equity and of cash
flows, for each of the Fiscal Years then ended,
of GACC and its Subsidiaries, certified by the
Independent Public Accountant; and
(b) the unaudited consolidated balance
sheets dated March 31, 1993, and the related
unaudited consolidated statements of income and
of cash flows, for the three-month period then
ended of GACC and its Subsidiaries
(collectively, the "Historical Financials").
have been prepared in accordance with GAAP
consistently applied throughout the periods
involved (except as disclosed therein) and present
fairly (subject to normal year-end adjustments in
the case of the financial statements delivered
pursuant to clause (b)) the consolidated financial
condition of the corporations covered thereby as at
the dates thereof and the results of their
operations for the periods then ended. Neither
GACC nor any of its Subsidiaries has any material
contingent liability or liabilities for taxes,
long-term leases or unusual forward or long-term
commitments which are not reflected in the
Historical Financials or in the notes thereto.
SECTION 7.5. Projections. The projected
consolidated balance sheets as at December 31,
1993, 1994, 1995, 1996, 1997, and 1998, and the
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projected consolidated statements of income for the
Fiscal Years ending on such dates, all of which
have been delivered to the Lenders prior to the
date of this Agreement (collectively, the
"Projections"), have been prepared based on the
assumptions accompanying them and reflect the best
good faith estimate of the Principal Companies of
the performance and financial condition of the
Principal Companies and their Subsidiaries for the
periods then ended based on such assumptions.
SECTION 7.6. Materially Adverse Effect.
(a) For purposes of the Credit Extension to
be made on the Effective Date, no event or
events have occurred since December 31, 1992
which, individually or in the aggregate, have
had or are reasonably likely to have, a
Materially Adverse Effect.
(b) For purposes of Credit Extensions
requested to be made after the Effective Date,
no event or events have occurred since the
Effective Date which, individually or in the
aggregate, have had or are reasonably likely to
have a Materially Adverse Effect.
SECTION 7.7. Existing Indebtedness; Absence of
Default. With respect to each item of Indebtedness
listed in Section 8.2.2 of the Disclosure Schedule,
the Principal Companies have delivered to the
Administrative Agent a true and complete copy of
each Instrument evidencing such Indebtedness or
pursuant to which such Indebtedness was issued or
secured (including each amendment, consent, waiver,
or similar Instrument executed and/or delivered in
respect thereof), as the same is in effect on the
date hereof. Except as set forth in Section 8.2.2
of the Disclosure Schedule, none of the Principal
Companies or any of their Subsidiaries is in
default in the payment of any such Indebtedness, or
in the performance of any obligation under any
Instrument evidencing such Indebtedness or pursuant
to which such Indebtedness was issued or secured.
SECTION 7.8. Litigation, etc. Except as to
matters discussed in Section 7.8 of the Disclosure
Schedule, there is no pending or, to the best
knowledge of the Principal Companies (after due
inquiry), threatened litigation, arbitration, or
governmental investigation or proceeding against
any of the Principal Companies or any of their
Subsidiaries or to which any of the Property of any
thereof is subject which
(a) if adversely determined, could have a
Materially Adverse Effect;
(b) relates to this Agreement or any other
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Loan Document or to the Reorganization; or
(c) seeks to enjoin or otherwise prevent
the consummation of, or to recover any damages
or obtain relief as a result of, the
transactions contemplated by or in connection
with this Agreement, any other Loan Documents
or the Reorganization.
None of such pending or threatened proceedings has
a reasonable likelihood of having a Materially
Adverse Effect.
SECTION 7.9. Regulations G, U and X. None of
the Principal Companies or any of their
Subsidiaries or Affiliates is engaged principally,
or as one of its important activities, in the
business of extending credit for the purpose of
purchasing or carrying margin stock. None of the
proceeds of the Loans will be used for the purpose
of, or be made available by the Borrower in any
manner to any other Person to enable or assist such
Person in, directly or indirectly purchasing or
carrying margin stock. Terms for which meanings
are provided in F.R.S. Board Regulation G, U or X
or any regulations substituted therefor, as from
time to time in effect, are used in this Section
with such meanings.
SECTION 7.10. Government Regulation. None of
the Principal Companies or any of their
Subsidiaries or Affiliates is an "investment
company" or a "company controlled by an investment
company" within the meaning of the Investment
Company Act of 1940, as amended, or 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," within the meaning of the Public Utility
Holding Company Act of 1935, as amended. No
Transaction Party is a Person prohibited from
acquiring or holding a Broadcasting Station by the
Communications Act, including (i) an alien or
representative of an alien, (ii) a corporation
organized under the laws of any foreign government,
(iii) any corporation of which any officer or
director is an alien or of which more than
one-fifth of the stock is owned of record or voted
by aliens or their representatives or by a foreign
government or representative thereof or by any
corporation organized under the laws of a foreign
country, and/or (iv) any corporation directly or
indirectly controlled by any other corporation of
which any officer or more than one-fourth of the
directors are aliens or of which more than
one-fourth of the stock is owned of record or voted
by aliens, their representatives, or by a foreign
government or representative thereof, or by any
corporation organized under the laws of a foreign
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country. Each Transaction Party is in compliance
with the Communications Act with regard to alien
control or ownership. None of the Transaction
Parties is subject to any Applicable Law that
regulates the incurring of Indebtedness for
Borrowed Money.
SECTION 7.11. Burdensome Agreements; Restricted
Payments.
(a) From and after the Effective Date, none
of the Principal Companies or any of their
Subsidiaries will be a party to any Instrument
or other agreement (other than the Loan
Documents and the Ancillary Documents) or
subject to any Applicable Law, Governing
Document or Contractual Obligation which could
have a Materially Adverse Effect.
(b) Section 7.11(b) of the Disclosure
Schedule fully and accurately describes, as of
the date of this Agreement, all (if any)
Restricted Payments made since December 23,
1992.
SECTION 7.12. Taxes. Each of the Principal
Companies and each of their Subsidiaries has filed
all tax returns and reports required by Applicable
Law to have been filed by it and has paid all taxes
and governmental charges thereby shown to be owing,
except any such taxes or charges which are being
contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with
GAAP shall have been set aside on its books. No
tax Liens have been filed with respect to any of
the Principal Companies or any of their
Subsidiaries and, to the best knowledge of the
Principal Companies (after due inquiry), no claims
are being asserted with respect to any such taxes
or charges (and no basis exists for any such
claims), which Liens and claims, individually or in
the aggregate, could have a Materially Adverse
Effect. All tax liabilities are adequately
provided for on the books of the Principal
Companies and their Subsidiaries. The federal
income tax liabilities of the Principal Companies
and their Subsidiaries have been finally determined
by the Internal Revenue Service for all Fiscal
Years up to and including the 1987 Fiscal Year.
SECTION 7.13. Compliance with ERISA. All
Single Employer Plans are in substantial compliance
with ERISA; no Multiemployer Plan is insolvent or
in reorganization (each such term as defined for
purposes of Title IV of ERISA) or has notified the
Borrower, any Principal Company or any ERISA
Affiliate that it intends to terminate or has been
terminated; no Single Employer Plan has an
accumulated or waived funding deficiency or has
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applied for an extension of any amortization period
within the meaning of Section 412 of the Code; none
of the Principal Companies or any of their
Subsidiaries and no ERISA Affiliate has incurred
any liability to or on account of a Single Employer
Plan pursuant to Section 4062, 4063, 4064 or a
Multiemployer Plan pursuant to Sections 515, 4201
or 4204 of ERISA; no proceedings have been
instituted to terminate any Plan; and no condition
exists which presents a material risk to any of the
Principal Companies or any of their Subsidiaries of
incurring a liability to or on account of a Plan
pursuant to any of the foregoing Sections of ERISA
or the Code. Except as set forth in Section 7.13
of the Disclosure Schedule, the aggregate present
value of all benefit liabilities (within the
meaning of Section 4001 of ERISA) of each Single
Employer Plan does not exceed the aggregate current
value of all assets of such Plan based upon the
most recent estimated actuarial data that has been
provided to the Principal Companies by the
consulting actuaries of such Plan, and there is no
withdrawal liability (and would be no withdrawal
liability assuming a complete withdrawal from all
such Plans) to any Multiemployer Plan. Each
employee welfare benefit plan (within the meaning
of Section 3(a) or 3(2)(B) of ERISA) maintained or
contributed to by any of the Principal Companies or
any of their Subsidiaries requires that no benefits
are due unless the event giving rise to the benefit
entitlement occurs prior to plan termination
(except as required by Title I, Part 6 of ERISA or
applicable state insurance laws). The Principal
Company or Subsidiary, as appropriate, may
terminate each such employee welfare benefit plan
at any time (or at any time subsequent to the
expiration of any applicable bargaining agreement)
in the discretion of the Principal Company or
Subsidiary, without liability to any Person.
SECTION 7.14. Labor Controversies. Except as
disclosed in Section 7.14 of the Disclosure
Schedule, there are no labor controversies pending
or, to the best knowledge of the Principal
Companies (after due inquiry), threatened against
any of the Principal Companies or any of their
Subsidiaries, which, if adversely determined, could
have a Materially Adverse Effect.
SECTION 7.15. Corporate Structure.
(a) Section 7.15(a) of the Disclosure
Schedule accurately and completely sets forth,
as of the date hereof, the corporate structure
of GACC and its Subsidiaries.
(b) Section 7.15(b) of the Disclosure
Schedule accurately and completely sets forth,
on a pro-forma basis as of the Effective Date,
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the corporate structure of GACC and its
Subsidiaries immediately following the
Reorganization (the "Pro-forma Capital
Structure"). Each of the Subsidiaries
indicated as "Inactive" is inactive and will
remain inactive from and after the Effective
Date, meaning that such company has and will
have no Property other than its nominal
capitalization, has and will have no
liabilities, and is and will be conducting no
business.
(c) Section 7.15(c) of the Disclosure
Schedule accurately and completely lists, with
respect to each of the Principal Companies and
their Subsidiaries reflected on the Pro-Forma
Capital Structure, as of the Effective Date,
(i) the State of incorporation of each such
corporation, (ii) the classes and number of
authorized and outstanding shares of Capital
Stock of each such corporation, and the owners
of such outstanding shares of Capital Stock
(provided, that only those Persons who will
hold five percent (5%) or more of the
outstanding shares in any class of Capital
Stock of GACC are listed) and (iii) the
business(es) in which each such corporation
will be engaged.
(d) All issued and outstanding shares of
Capital Stock of each of the Principal
Companies (other than GACC) and their
Subsidiaries, from and after the Effective
Date, will have been duly and validly issued,
fully-paid and non-assessable, and will be
owned as set forth in Section 7.15(c) of the
Disclosure Schedule free and clear of any Liens
or restrictions on transfer (except such as are
permitted by Section 8.2.3).
(e) From and after the Effective Date,
there will be no outstanding warrants, options,
contracts or commitments of any kind entitling
any Person to purchase or otherwise acquire any
Capital Stock of any of the Principal Companies
(other than GACC) or any of their Subsidiaries
nor will there be outstanding any Securities
(other than Class B Common Stock) which are
convertible into or exchangeable for any
Capital Stock of any of the Principal Companies
or any of their Subsidiaries. From and after
the Effective Date, there will be no
outstanding commitments, options, warrants,
calls or other agreements (whether written or
oral) binding on any of the Principal Companies
(other than GACC) or any of their Subsidiaries
to issue, sell, grant, transfer, assign,
mortgage, pledge or otherwise dispose of any
Capital Stock of any of the Principal Companies
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or any of their Subsidiaries (except such as
are permitted by Section 8.2.3).
SECTION 7.16. Ownership of Properties, Liens.
Section 7.16 of the Disclosure Schedule sets forth
a true, correct and complete description of all of
the real Property owned or leased by GACC and its
Subsidiaries as of the Effective Date. Each
Principal Company and each of its Subsidiaries has
valid fee or leasehold interests in all of its
respective real Property and good and marketable
title to all of its respective material owned
personal Property, and none of such Property will
be subject to any Lien (except such as are
permitted by Section 8.2.3).
SECTION 7.17. Patents, Trademarks, etc. Each
Transaction Party owns and possesses all such
patents, patent rights, trademarks, trademark
rights, trade names, trade name rights, service
marks, service mark rights and copyrights necessary
for the conduct of the businesses of such
Transaction Party as now conducted without,
individually or in the aggregate, any infringement
upon any proprietary or other rights of any other
Person. None of the Transaction Parties owns or
possesses any patents or patent rights, or any
federally registered copyrights. From and after
the Effective Date, all of the trademarks and
service marks of the Transaction Parties registered
with the United States Patent and Trademark Office
will be identified in the Trademark Security
Agreement.
SECTION 7.18. Reorganization; Accuracy of
Information. The Registration Statement accurately
describes in all material respects the terms and
conditions, including the tax and other
consequences, of the Reorganization and the Plan of
Reorganization. All factual information heretofore
or contemporaneously furnished by or on behalf of
GACC or any of its Subsidiaries in writing to any
Agent or any Lender for purposes of or in
connection with this Agreement or any transaction
contemplated hereby, including the Registration
Statement, is, and all other such factual
information hereafter furnished by or on behalf of
any Transaction Party to any Agent or any Lender
will be, true and accurate in every material
respect on the date as of which such information is
dated or certified, and not incomplete by omitting
to state any material fact necessary to make such
information not misleading.
SECTION 7.19. The Collateral Documents. The
provisions of the Collateral Documents will be,
from and after the Effective Date, effective to
create, in favor of the Collateral Agent for the
benefit of the Secured Parties, legal, valid and
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enforceable Liens in all right, title and interest
of the Transaction Parties in any and all of the
Collateral described therein, securing the
Obligations from time to time outstanding. Each of
the Collateral Documents will create a fully
perfected Lien in all right, title and interest of
the Transaction Parties in the Collateral described
therein superior in right to any Liens, existing or
future, which any Transaction Party, or any
creditor of or purchaser from any Transaction
Party, or any other Person, may have against such
Collateral therein, except to the extent otherwise
provided herein and in the other Loan Documents.
SECTION 7.20. Environmental Matters. Except as
listed in Section 7.20 of the Disclosure Schedule:
(a) all Property (including underlying
groundwater) owned or leased by any of the
Principal Companies or any of their
Subsidiaries have been, and continue to be,
owned or leased by the Principal Companies and
their Subsidiaries in compliance with all
Environmental Laws;
(b) there have been no past, and there are
no pending or, to the knowledge of the
Principal Companies, threatened
(i) claims, complaints, notices or
requests for information received by any of
the Principal Companies or any of their
Subsidiaries from any Governmental
Authority with respect to any alleged
violation of any Environmental Laws, or
(ii) complaints, notices or inquiries to
any of the Principal Companies or any of
their Subsidiaries from any Governmental
Authority alleging liability under any
Environmental Laws;
(c) there have been no Releases of
Hazardous Materials at, on or under Property
now or (to the best knowledge of the Principal
Companies) previously owned or leased by any of
the Principal Companies or any of their
Subsidiaries, the costs to address which would
reasonably be expected, individually or in the
aggregate, to have a Materially Adverse Effect;
(d) each of the Principal Companies and
each of their Subsidiaries have been issued and
are in material compliance with all permits,
certificates, approvals, licenses and other
authorizations relating to environmental
matters and required under Environmental Laws
for their businesses;
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(e) no Property now or, to the knowledge of
the Principal Companies, previously owned or
leased by any of the Principal Companies or any
of their Subsidiaries, is listed or proposed
for listing (with respect to owned Property
only) on the National Priorities List pursuant
to CERCLA, on the CERCLIS or on any similar
state list of sites requiring investigation or
clean-up;
(f) there are no underground storage tanks,
active or abandoned, including petroleum
storage tanks, on or under any Property now
owned or leased by any of the Principal
Companies or any of their Subsidiaries;
(g) no Principal Company and no Subsidiary
of any Principal Company has transported or
arranged for the transportation of any
Hazardous Material to any location (i) which is
listed or proposed for listing on the National
Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list or (ii)
which is the subject of federal, state or local
enforcement actions or other investigations
which would reasonably be expected to lead to
material claims against any Principal Company
or any Subsidiary thereof for any remedial
work, damage to natural resources or personal
injury, including claims under CERCLA;
(h) there are no polychlorinated biphenyls
or asbestos present at any property now owned
or leased by any of the Principal Companies or
any of their Subsidiaries; and
(i) no conditions exist at, on or under any
property now or previously owned or leased by
any of the Principal Companies or any of their
Subsidiaries which, with the passage of time,
or the giving of notice, or both, would
reasonably be expected to give rise to
liability under any Environmental Laws, and
have, individually or in the aggregate, a
Materially Adverse Effect.
SECTION 7.21. Licenses and Approvals.
(a) Each of the Transaction Parties is in
compliance in all material respects with all
Applicable Laws, including the Communications
Act, and all other Applicable Laws relating to
the transmission of radio, television, cable
and microwave signals.
(b) Each of the Transaction Parties has all
requisite power and authority and necessary
licenses and permits, including all FCC
Licenses, to own and operate its Property
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(including all Broadcasting Stations owned or
operated by it) and to carry on its businesses
as now conducted.
(c) Set forth in Section 7.21 of the
Disclosure Schedule is a true and complete
description of all FCC Licenses material to the
operation of any of the Broadcasting Stations
of the Transaction Parties and the dates on
which such FCC Licenses expire. Each such FCC
License is validly issued and in full force and
effect. Each Transaction Party has fulfilled
and performed all of its obligations with
respect to each such FCC License. No event has
occurred which: (i) has resulted in, or after
notice or lapse of time or both would result
in, or would permit, revocation or termination
of any such FCC License, or (ii) materially and
adversely affects or in the future may
materially adversely affect any of the rights
of any Transaction Party thereunder. No
license or franchise, other than the FCC
Licenses described in Section 7.21 of the
Disclosure Schedule, is material to the
operation of any of the Broadcasting Stations
of the Transaction Parties, or to the conduct
of the business of GACC or any of its
Subsidiaries. No FCC Licenses or other
franchises or licenses require that any present
employee of any Transaction Party remain an
employee of such Transaction Party, or that any
transfer of control of such Transaction Party
must be approved by any Governmental Authority
other than the FCC.
(d) No Transaction Party is a party to and
no Transaction Party has knowledge of any
investigation, notice of violation, order or
complaint issued by or before any Governmental
Authority, including the FCC, or of any other
proceedings (other than proceedings relating to
the radio industry generally) which could in
any manner threaten or adversely affect the
validity or continued effectiveness of any of
the FCC Licenses listed on Section 7.21 of the
Disclosure Schedule. No Principal Company has
reason to believe (other than in connection
with there being no legal assurance thereof)
that any of the FCC Licenses described in
Section 7.21 of the Disclosure Schedule will
not be renewed in the ordinary course. Each
Transaction Party has filed all material
reports, applications, documents, instruments
and information required to be filed by it
pursuant to applicable rules and regulations or
requests of every regulatory body having
jurisdiction over any of its FCC Licenses or
the activities of the Transaction Parties with
respect thereto.
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SECTION 7.22. Transactions with Affiliates.
(a) Section 7.22(a) of the Disclosure
Schedule sets forth a true, correct and
complete description of all (if any)
Indebtedness (i) of any GABCO Subsidiary to any
GACC Affiliate, and (ii) of GABCO to any GACC
Affiliate.
(b) Section 7.22(b) of the Disclosure
Schedule sets forth a true, correct and
complete description of all (if any)
Contractual Obligations (other than contracts
between GABCO or any GABCO Subsidiary and an
Associated Person that would be permitted by
Section 8.2.11(d)) between (i) any GABCO
Subsidiary, on the one hand, and any GACC
Affiliate, on the other hand, and (ii) GABCO,
on the one hand, and any GACC Affiliate, on the
other hand.
(c) Except as disclosed in Section 7.22(a)
or Section 7.22(b) of the Disclosure Schedule,
as of the date of this Agreement, no Affiliate
Transaction has been entered into, performed or
completed since December 23, 1992 (other than
Affiliate Transactions that would be permitted
by Section 8.2.11(d)).
SECTION 7.23. Representations in Loan Documents
and Ancillary Documents. Each of the
representations and warranties made by the
Principal Companies in the Loan Documents is true
and correct. Each of the representations and
warranties made by the Principal Companies in the
Ancillary Documents is true and correct, and each
Principal Company makes to each Agent and each
Lender each such representation and warranty made
therein to the same extent and with the same effect
as if such representation or warranty were set
forth herein in full.
ARTICLE VIII
COVENANTS
SECTION 8.1. Certain Affirmative Covenants.
Each Principal Company agrees with the Agents and
the Lenders and warrants that, from and after the
Effective Date (or in the case of Section 8.1.12,
from and after March 31, 1994), and until all of
the Obligations have been paid in full, each
Principal Company will, and will cause each of its
Subsidiaries, to:
SECTION 8.1.1. Financial Information, etc.
Furnish to each Agent and each Lender copies of the
following financial statements, reports and
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information:
(a) promptly when available and in any
event within ninety (90) days after the close
of each Fiscal Year,
(i) a consolidated balance sheet as at
the close of such Fiscal Year, and related
consolidated statements of income,
shareholders' equity and cash flows for
such Fiscal Year, of GACC and its
Subsidiaries (with comparable information
as at the close of and for the prior Fiscal
Year), such statements for such Fiscal Year
to be audited and accompanied by an audit
report issued without Impermissible
Qualification by the Independent Public
Accountant,
(ii) consolidating balance sheets as at
the close of such Fiscal Year, and related
consolidating statements of income for such
Fiscal Year (including the internal
earnings report of each Broadcasting
Station of the Borrower for such Fiscal
Year), of GACC and its Subsidiaries (with
comparable information as at the close of
and for the prior Fiscal Year) certified by
the principal accounting or financial
Authorized Officer of GACC,
(iii) a Compliance Certificate
calculated as at the close of such Fiscal
Year, and
(iv) a written statement of the
Independent Public Accountant (A) stating
that in making the examination necessary to
make the audit report on the financial
statements delivered pursuant to clauses
(i) and (ii), they obtained no knowledge of
any default by GACC or any of its
Subsidiaries in the performance or
observance of any of the covenants
contained in Article VIII, or, if such
Independent Public Accountants shall have
obtained knowledge of any such default,
specifying all such defaults and the nature
and status thereof and (B) setting forth in
reasonable detail the calculations made to
determine compliance with Sections 8.2.4,
8.2.5, 8.2.6, 8.2.8.
(b) promptly when available and in any
event within sixty (60) days after the close of
each of the first three Fiscal Quarters of each
Fiscal Year,
(i) a consolidated balance sheet as at
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the close of each such Fiscal Quarter, and
related consolidated statements of income,
shareholders' equity and cash flows for
such Fiscal Quarter and for the portion of
the Fiscal Year then ended, of GACC and its
Subsidiaries (with comparable information
as at the close of and for the
corresponding Fiscal Quarter of the prior
Fiscal Year and for the corresponding
portion of such prior Fiscal Year),
(ii) consolidating balance sheets as at
the close of such Fiscal Quarter, and
related consolidating statements of income
for such Fiscal Quarter and for the portion
of the Fiscal Year then ended (including
the internal earnings report of each
Broadcasting Station of the Borrower for
such Fiscal Quarter and portion of such
Fiscal Year), of GACC and its Subsidiaries
(with comparable information as at the
close of and for the corresponding Fiscal
Quarter of the prior Fiscal Year and for
the corresponding portion of such prior
Fiscal Year), and
(iii) a Compliance Certificate
calculated as at the close of such Fiscal
Quarter;
(c) promptly upon receipt thereof, copies
of all detailed financial and management
reports, if any, submitted to GACC or any of
its Subsidiaries by any independent public
accountant in connection with each annual or
interim audit made by any such independent
public accountant of the books of GACC or any
of its Subsidiaries;
(d) promptly upon completion thereof and in
any event not later than the first day of
February of each Fiscal Year, a copy of the
annual consolidated budget for such Fiscal Year
and the annual budget for each Broadcasting
Station for such Fiscal Year, including, in
each case, budgeted results for each Fiscal
Quarter and for the Fiscal Year as a whole,
together with an explanation of any differences
between the sum of the individual Broadcasting
Station budgets and the consolidated totals,
and upon the delivery of any financial
statements relating to a period included in
such budget, a summary comparing the actual
financial performance of GACC and its
Subsidiaries during such period to that
provided for in such budget;
(e) promptly upon any filing thereof by
GACC or any of its Subsidiaries with the SEC,
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any annual, periodic or special reports or
registration statements which GACC or any of
its Subsidiaries may file with the SEC or with
any other securities exchange and copies of any
financial statements which GACC or any of its
Subsidiaries may file with any Governmental
Authority;
(f) promptly upon the release or
distribution thereof, copies of all press
releases and other written statements made
available generally by GACC or any of its
Subsidiaries to stockholders of GACC or to one
or more financial news services concerning
material developments in the business of GACC
or any of its Subsidiaries;
(g) promptly, such additional financial and
other information with respect to GACC or any
of its Subsidiaries as any Lender (through the
Administrative Agent) may from time to time
reasonably request.
SECTION 8.1.2. Maintenance of Corporate
Existence, etc. In the case of each Transaction
Party, maintain and preserve its corporate
existence, rights and franchises; continue to own
and hold, legally and beneficially, free and clear
of all Liens (except Liens permitted by Section
8.2.3), all of the outstanding shares of Capital
Stock of each of its Subsidiaries; and take all
reasonable steps to maintain its identity as a
separate legal entity and to make it apparent to
third parties that it is a corporation with
Property and liabilities distinct from those of any
Affiliate of such Transaction Party. Without
limiting the generality of the foregoing, each
Transaction Party shall use its best efforts to:
(a) compensate all consultants and agents
directly, from such Transaction Party's bank
accounts, for services provided to such
Transaction Party by such consultants and
agents and, to the extent any employee,
consultant or agent of a Transaction Party is
also an employee, consultant or agent of an
Affiliate, allocate the compensation of such
employee, consultant or agent between such
Transaction Party and such Affiliate on a basis
which reflects the services rendered to such
Transaction Party and such Affiliate;
(b) allocate all overhead and operating
expenses for items shared between such
Transaction Party and each Affiliate on the
basis of actual use to the extent practicable
and, to the extent such allocation is not
practicable, on a basis reasonably related to
actual use;
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(c) maintain the books and records of such
Transaction Party complete and separate from
those of any Affiliate;
(d) not maintain bank accounts or other
depository accounts to which any Affiliate is
an account party, into which any Affiliate
makes deposits or from which any Affiliate has
the power to make withdrawals;
(e) not permit any Affiliate to pay any of
the operating expenses of such Transaction
Party (except pursuant to allocation
arrangements reasonably satisfactory to the
Required Lenders);
(f) refrain from filing or otherwise
initiating or supporting the filing of a motion
in any Bankruptcy or Insolvency Proceeding to
substantively consolidate the Borrower with any
Affiliate of the Borrower;
(g) remain solvent; and
(h) conduct all of its business solely in
its own name.
SECTION 8.1.3. Foreign Qualification. Cause
to be done at all times all things necessary to be
duly qualified to do business and be in good
standing as a foreign corporation in each
jurisdiction where the nature of its business makes
such qualification necessary and where the failure
to so qualify could reasonably be expected to have
a Materially Adverse Effect.
SECTION 8.1.4. Payment of Taxes, etc. Pay and
discharge, as the same become due and payable, all
federal, state and local taxes, assessments and
other governmental charges or levies against or on
any of its income, profits or Property, as well as
all claims of any kind, including all claims for
labor, materials and supplies, which, if unpaid,
might become a Lien upon any of its Property, and
will pay before they become delinquent (subject to
any applicable subordination provisions) all other
material obligations and liabilities; provided,
however, that the foregoing shall not require any
of the Principal Companies or any of their
Subsidiaries to pay or discharge any such tax,
assessment, charge, levy, claim, obligation or
liability (a) which is not yet due and payable or
(b) so long as it shall contest the validity
thereof in good faith by appropriate proceedings
and shall set aside on its books adequate reserves
in accordance with GAAP with respect thereto.
Nothing in this Section 8.1.4 shall impair the
absolute and unconditional obligations of the
Principal Companies to pay all the Obligations as
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and when due and payable.
SECTION 8.1.5. Maintenance of Property;
Insurance. Keep all of its Property that is useful
and necessary in its businesses in good working
order and condition (ordinary wear and tear
excepted) and maintain or cause to be maintained
with insurance companies reasonably acceptable to
the Managing Agents insurance with respect to its
Property and businesses against such casualties and
contingencies and of such types, including, without
limitation, replacement cost insurance on all
Property constituting a material part of any
Broadcasting Station operated by the Borrower or
any of its Subsidiaries, and in such amounts and
with such deductibles as are customary in the case
of similar businesses; and, upon request of the
Administrative Agent or the Required Lenders
(through the Administrative Agent), furnish to the
Administrative Agent (in sufficient quantity for
distribution to each Lender) at reasonable
intervals a certificate of an Authorized Officer of
the Borrower setting forth the nature and extent of
all insurance maintained by the Transaction
Parties in accordance with this Section 8.1.5.
SECTION 8.1.6. Notice of Default, Litigation,
etc. Upon obtaining knowledge thereof, give
written notice (accompanied by a reasonably
detailed explanation with respect thereto)
immediately to each Lender and the Administrative
Agent of:
(a) the occurrence of
(i) any Default, and
(ii) any default under any Ancillary
Document;
(b) any litigation, arbitration, or
governmental investigation or proceeding not
previously disclosed by the Borrower to the
Lenders which has been instituted or, to the
best knowledge of the Borrower (after due
inquiry), is threatened against any Principal
Company or any of its Subsidiaries or to which
any of their respective Property is subject
which
(i) if adversely determined, could have
a Materially Adverse Effect, or
(ii) relates to this Agreement, any
other Loan Document, the Reorganization, or
any Ancillary Document;
(c) any material adverse development which
shall occur in any litigation, arbitration, or
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governmental investigation or proceeding
previously disclosed by the Principal Companies
to the Lenders;
(d) any development in the business,
operations, Property, financial condition or
prospects of any Principal Company or any of
its Subsidiaries which, in the reasonable
judgment of the Borrower, could have a
Materially Adverse Effect; and
(e) any termination, amendment,
modification or supplement of any Governing
Document of any Transaction Party or any
Ancillary Document or any waiver under any
Ancillary Document, or any notice, document,
other Instrument, financial statement, proxy
statement or other materials of any kind,
delivered or received by any Transaction Party
with respect to any Other Debt Document, which
written notice shall include a copy (if in
writing) or a description (if not in writing)
of any such termination, modification,
supplement, waiver, notice, document,
Instrument, financial statement, proxy
statement or other materials.
SECTION 8.1.7. Notice of Restricted Payments.
Without in any way limiting the obligations of the
Principal Companies under any other provisions of
this Agreement,
(a) deliver to the Administrative Agent,
simultaneously with its delivery thereof to any
holder or holders of any Indebtedness under any
Other Debt Document, or any Representative of
any such holder or holders, copies of all
offers to make and notices regarding any offer
or intention to make any Restricted Payment in
respect of any Indebtedness under any Other
Debt Document; and
(b) not later than twenty (20) days prior
to making any Restricted Payment (other than
Restricted Payments permitted by clauses (a),
(b)(i)(B), (b)(ii)(B), (b)(iii), (k), and (m)
of Section 8.2.8) or commencing any Affiliate
Transaction, deliver to the Administrative
Agent written notice of such proposed
Restricted Payment or Affiliate Transaction
describing the same in reasonable detail,
specifying the proposed amount, payor and
recipient of any funds pursuant thereto and
including any calculations necessary to
determine compliance with Section 8.2.8 of this
Agreement.
SECTION 8.1.8. Performance of Loan Documents
and Ancillary Documents.
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(a) Promptly and faithfully perform all of
its Obligations hereunder and under each other
Loan Document executed by it.
(b) Promptly and faithfully perform all of
its obligations under each of the Ancillary
Documents executed by it (subject to any
applicable subordination provisions), without
giving effect to any modification, amendment or
waiver thereof, unless such modification,
amendment or waiver has been consented to in
writing by the Managing Agents and the Required
Lenders.
SECTION 8.1.9. Books and Records. Keep proper
books and records reflecting all of its business
affairs and transactions in accordance with GAAP
and permit any Agent, any Lender or any of their
respective representatives, at reasonable times and
intervals during ordinary business hours, to visit
any of its offices and Properties, discuss
financial matters relating to the Principal
Companies and their Subsidiaries with its officers
and Independent Public Accountants (and each
Principal Company hereby authorizes such
Independent Public Accountants to discuss its
financial matters with any Agent, any Lender or any
of their representatives) and examine and make
abstracts or photocopies from any of its books or
other corporate records, all at the Borrower's
expense for any charges imposed by such accountants
or for making such abstracts or photocopies.
SECTION 8.1.10. Compliance with Laws, etc.
(a) Obtain all such Approvals and take all
such other actions with respect to any
Governmental Authority as may be required for
the execution, delivery and performance of this
Agreement, the other Loan Documents and the
Ancillary Documents, and duly perform and
comply with all of the terms and conditions of
all Approvals so obtained;
(b) Comply in all material respects with
all Applicable Laws;
(c) (i) Operate its Broadcasting Stations
in accordance and in compliance in all material
respects with the Communications Act,
(ii) file in a timely manner all necessary
applications for renewals of all FCC Licenses
that are material to the operations of its
Broadcasting Stations and (iii) use its best
efforts to defend any proceedings which could
result in the termination, forfeiture or
non-renewal of any such FCC License;
(d) Promptly furnish or cause to be
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furnished to the Administrative Agent:
(i) a copy of any order or notice of any
Communications Regulatory Authority which
designates any of its FCC Licenses for a
hearing or which refuses renewal or
extension thereof, or revokes or suspends
its authority to operate a Broadcasting
Station,
(ii) a copy of any competing application
filed with respect to any of its
franchises, licenses (including FCC
Licenses), rights, permits, consents or
other authorizations pursuant to which it
operates any Broadcasting Station;
(iii) a copy of any citation, notice of
violation or order to show cause issued by
any Communications Regulatory Authority in
relation to any of its Broadcasting
Stations, and
(iv) a copy of any notice or application
by it requesting authority to cease
broadcasting on any Broadcasting Station or
to cease operating any Broadcasting Station
for any period in excess of five (5) days.
SECTION 8.1.11. Provision of Additional
Collateral; MAI Appraisals. From time to time at
its own cost and expense, promptly create or cause
to be created in favor of the Collateral Agent for
the benefit of the Secured Parties, as security for
all the Obligations, perfected Liens (subject only
to Liens permitted by this Agreement) with respect
to all (if any) of its Property which is not then
subject to a perfected Lien in favor of the
Collateral Agent, to the extent the Managing Agents
or the Required Lenders shall so request, all such
Liens to be created under Security Instruments in
form and substance satisfactory to the Managing
Agents; deliver or cause to be delivered to the
Collateral Agent (with copies to the Managing
Agents) all such instruments (including legal
opinions, title insurance policies, Lien search
results and releases and termination statements) as
the Managing Agents or the Required Lenders shall
reasonably request to evidence satisfaction of the
obligations created by this Section 8.1.11;
promptly provide such evidence as the Managing
Agents or the Required Lenders shall request as to
the perfection and priority of such Liens and any
other Liens created pursuant to any of the
Collateral Documents; and deliver or cause to be
delivered to the Collateral Agent (at the expense
of the Borrower), with copies for each Lender,
copies of appraisals of the value of the Mortgaged
Properties as shall be required (in the judgment of
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the Required Lenders) under Applicable Law
(including 12 U.S.C. Section 93a, Title XI of the
Financial Institution Reform, Recovery and
Enforcement Act of 1989 or the regulations
promulgated thereunder), performed by MAI
appraisers (Members of the American Institute of
Real Estate Appraisers) selected by the Collateral
Agent.
SECTION 8.1.12. Cash Collateral
Arrangements. In the case of the Borrower,
(a) cause each deposit account maintained
by it with any financial institution other than
Bank of Boston (other than any deposit account
maintained by WGHP-TV) to be a Collection
Deposit Account subject to and governed by a
Lockbox Agreement duly executed by a Sub-Agent
of the Collateral Agent;
(b) notify, direct and use its best efforts
to cause each Person making payments to the
Borrower (other than to WGHP-TV relating
exclusively to its revenues) to make all such
payments to a Collection Deposit Account;
(c) on a daily basis, whether or not any
Default is continuing, cause each Sub-Agent to
transfer all available funds held in each
Collection Deposit Account maintained with such
Sub-Agent to the Concentration Account
maintained with Bank of Boston, as agent for
the Collateral Agent, all on the terms
contained in the Concentration Account and
Sub-Agency Agreement; and
(d) in the event that it receives any
payments or remittances, notwithstanding the
arrangement for payment directly into the
Collection Deposit Accounts, hold such payments
and remittances in trust for the benefit of the
Collateral Agent and the Lenders, subject to
the Lien granted by the Security Agreement, and
cause such payments and remittances to be
deposited into a Collection Deposit Account
with a Sub-Agent, or the Concentration Account
with Bank of Boston, as Agent for the
Collateral Agent, as soon as practicable after
the Borrower's receipt thereof.
The Borrower shall have no right or power to
withdraw any funds from any Collection Deposit
Account. The covenants of the Borrower contained
in this Section 8.1.12 shall terminate if the Total
Debt to Consolidated Broadcast Cash Flow Ratio for
any Reference Period is less than 5.00:1.0;
provided, that no Defaults are continuing. Upon
the occurrence of any Default at any time following
such termination, or if the Total Debt to
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Consolidated Broadcast Cash Flow Ratio for any
subsequent Reference Period is equal to or greater
than 5.00:1.0, the covenants contained in this
Section 8.1.12 may be reinstated at the direction
of the Required Lenders. Upon such reinstatement
the Borrower shall have a period of thirty (30)
days to comply with such covenants.
SECTION 8.1.13. Rate Protection Agreements. In
the case of the Borrower, at all times during the
period commencing ninety (90) days after the
Effective Date and ending three (3) years after the
Effective Date, maintain one or more Rate
Protection Agreements consisting of one or more
interest rate caps or collars,
(a) with an aggregate notional principal
amount equal to at least 50% of the outstanding
principal amount of the Loans then outstanding;
(b) with a Counterparty; and
(c) having other material terms and
conditions which are reasonably acceptable to
the Required Lenders and the Managing Agents.
SECTION 8.1.14. ERISA Notices.
(a) Upon the request of the Managing
Agents, furnish or cause to be furnished to the
Managing Agents a copy of the most recent
actuarial statement required to be submitted
under Section 103(d) of ERISA and Annual
Reports, Form 5500, with all required
attachments, in respect of each Single Employer
Plan; and
(b) Promptly upon receipt or dispatch,
furnish to the Managing Agents any notice,
report or demand sent or received in respect of
any Single Employer Plan under Section 302,
4041, 4042, 4043, 4063, 4065, 4066 and 4068 of
ERISA, or in respect of any Multiemployer Plan
under Section 4041A, 4202, 4219, 4242 or 4245
of ERISA.
SECTION 8.1.15. Environmental Compliance.
(a) Use and operate all of its Properties
in compliance with all Environmental Laws, keep
all necessary permits, approvals, certificates,
licenses and other authorizations relating to
environmental matters in effect and remain in
compliance therewith, and handle all Hazardous
Materials in compliance with all applicable
Environmental Laws;
(b) Provide written notice to the Managing
Agents of (i) any violation of any
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Environmental Law regarding any of its Property
or any of its business operations, (ii) any
known Release, or threat of Release, of any
Hazardous Substances at, from or into any of
its Property which it is required to report in
writing to any Governmental Authority or which
could have a Materially Adverse Effect, (iii)
any written notice of violation of any
Environmental Law or of any Release or
threatened Release of any Hazardous Substance,
including any notice or claim of liability or
potential responsibility from any third party
(including any Governmental Authority), and
including notice of any formal inquiry,
proceeding, demand, investigation or other
action with regard to (A) the operation of any
of its Property, (B) contamination on, from or
into any of its Property or (C) investigation
or remediation of offsite locations at which it
or any of its predecessors are alleged to have
disposed of Hazardous Substances, or (D) any
expense or loss incurred by any Governmental
Authority in connection with the assessment,
containment, removal or remediation of any
Hazardous Substances with respect to which it
may be liable or for which a Lien may be
imposed on any of its Property;
(c) Cause the prompt containment and
removal of any Hazardous Substances Released or
disposed of on any of its Property, as
necessary to comply with all Environmental Laws
and to preserve the value of such Property; and
(d) After reasonable notice by the Managing
Agents (which notice shall be given at the
direction of the Required Lenders), whether or
not a Default shall have occurred, permit any
Agent, in its discretion for the purpose of
assessing and ensuring the value of any
Property of any Transaction Party, to obtain,
at the expense of the Borrower, one or more
environmental assessments or audits of any such
Property prepared by a hydrologist or other
qualified independent engineer, consultant or
expert selected by such Agent to confirm (i)
whether any Hazardous Substances are present in
the soil or water at such Property and (ii)
whether the use and operation of the Property
complies with all Environmental Laws.
SECTION 8.2. Certain Negative Covenants. Each
Principal Company agrees with the Agents and the
Lenders and warrants that, from and after the
Effective Date, and until all the Obligations have
been paid in full, each Principal Company will not,
and will not cause or permit any of its
Subsidiaries to:
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SECTION 8.2.1. Limitation on Nature of
Business.
(a) At any time undertake, conduct or
transact, directly or indirectly, any business
except the business in which it is presently
engaged as described in Section 7.15(c) of the
Disclosure Schedule, and any other businesses
reasonably incidental or related thereto, or
undertake, conduct or transact any business in
a manner prohibited by Applicable Law. Neither
GACC, GABCO nor GABCO Sub will undertake,
conduct or transact, directly or indirectly,
any material business except owning the Capital
Stock of its direct Subsidiaries shown in the
Pro-forma Capital Structure, and activities
reasonably related thereto.
(b) In the case of the Principal Companies,
(i) permit any Subsidiary identified as
"Inactive" in Section 7.15(b) of the Disclosure
Schedule to conduct or engage in any business
or operations of any kind, to own any Property
other than its nominal capitalization and
rights under immaterial agreements or contracts
that do not require any payments by such
Subsidiaries, to incur or assume or permit to
exist any Indebtedness or to make or permit to
exist any Investment (other than Investments in
nominal aggregate amounts) or (ii) create or
acquire any new direct or indirect Subsidiary
(other than pursuant to an Acquisition
permitted by clause (c) of Section 8.2.9).
(c) With respect to the Borrower and any
Broadcasting Station owned by the Borrower,
(i) enter into any so called
"local market agreements" or any
other arrangements with any other
Broadcasting Station (other than
another Broadcasting Station owned
by the Borrower) whereby the
parties agree to function
cooperatively in terms of
programming, advertising, sales,
management, consulting or similar
services, except for any such
agreements or arrangements existing
on the date of this Agreement and
described in Section 8.2.1 of the
Disclosure Schedule; or
(ii) enter into any so-called
"time brokerage agreements" or any
other agreements or arrangements
under which any Broadcasting
Station owned by the Borrower shall
(A) sell broadcast time to any
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other Broadcasting Station (other
than another Broadcasting Station
owned by the Borrower) which
programs such broadcast time and
sells its own commercial
advertising announcements during
such broadcast time or (B) purchase
broadcast time on any other radio
or television station (other than
another Broadcasting Station owned
by the Borrower) for the purpose of
programming such broadcast time and
selling its commercial
advertisements during such time,
except (A) any such agreement or
arrangement existing on the date of
this Agreement and described in
Section 8.2.1 of the Disclosure
Schedule and (B) Permitted LMA
Transactions; or
(iii) otherwise enter into any
oral or written agreement with any
other Person pursuant to which any
employee or any Property owned by
any Transaction Party would be
used by or shared with any other
Person.
SECTION 8.2.2. Indebtedness. Create, incur,
assume, or suffer to exist or otherwise become or
be liable in respect of any Indebtedness, except:
(a) Indebtedness in respect of the Loans
and the other Obligations;
(b) Permitted Indebtedness;
(c) Indebtedness of GACC under GACC 14%
Notes in the maximum aggregate principal amount
of $72,500,000 plus the aggregate principal
amount of GACC 14% PIK Notes issued in
compliance with clause (g) of Section 8.2.8,
less, in each case, any repayments,
prepayments, redemptions, repurchases,
defeasances or cancellations of such
Indebtedness, plus, in each case, all accrued
unpaid interest on such Indebtedness at a rate
not in excess of fourteen percent (14%) per
annum;
(d) Indebtedness of GACC under Securities
issued by GACC (other than in connection with a
Bankruptcy or Insolvency Proceeding), all Net
Debt Proceeds of which are used exclusively to
repay, prepay or redeem all Indebtedness under
the GACC 14% Notes and the GACC 14% Note
Indenture, in the maximum aggregate principal
amount equal to such principal amount on the
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date of issuance thereof (which principal
amount shall not exceed the aggregate
outstanding Indebtedness under the GACC 14%
Notes and the GACC 14% Note Indenture at the
time of such refinancing), less any repayments,
prepayments, redemptions, repurchases,
defeasances or cancellations of such
Indebtedness, plus all accrued unpaid interest
thereon; provided, however, that the Managing
Agents and the Required Lenders are satisfied
on the date of issuance of such Securities and
at all times thereafter that (i) all
Indebtedness in respect of such Securities is
expressly subordinated in right of payment and
exercise of remedies to the prior payment in
full of all Senior Debt (as defined in the
GABCO 13% Note Exchange Agreement as in effect
on the Effective Date), on terms reasonably
satisfactory to the Managing Agents and the
Required Lenders, (ii) the stated maturity date
of such Indebtedness is not earlier than the
stated maturity of the GACC 14% Notes on the
Effective Date, (iii) all mandatory repayment,
prepayment, redemption, repurchase, defeasance,
sinking fund and similar obligations in respect
of such Indebtedness do not exceed similar such
obligations in respect of the GACC 14% Notes
and the GACC 14% Note Indenture as in effect on
the Effective Date, (iv) the contract interest
rate payable on such Indebtedness is less than
the contract interest rate payable on the GACC
14% Notes, as in effect on the Effective Date,
(v) the covenants, events of default and other
provisions contained in the Securities or other
Instruments governing such Indebtedness,
individually and taken as a whole, are not more
restrictive or burdensome than those contained
in the GACC 14% Notes and the GACC 14% Note
Indenture, as in effect on the Effective Date,
and (vi) such Indebtedness is not secured by
any Property of GACC or any of its
Subsidiaries, except the Capital Stock of
GABCO, and no Subsidiary of GACC has any
Contingent Obligation in respect of such
Indebtedness;
(e) Indebtedness of GABCO under GABCO 13%
Notes in the maximum aggregate principal amount
of $111,500,000 plus the aggregate principal
amount of GABCO 13% PIK Notes issued in
compliance with clause (c) of Section 8.2.8,
less, in each case, any repayments,
prepayments, repurchases, redemptions,
defeasances or cancellations of such
Indebtedness, plus, in each case, all accrued
unpaid interest on such Indebtedness at a rate
not in excess of thirteen percent (13%) per
annum for amounts not due and payable and not
in excess of fourteen percent (14%) per annum
<PAGE>
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on amounts due and payable;
(f) Indebtedness of GABCO or GACC under
Securities issued by GABCO or GACC (other than
in connection with a Bankruptcy or Insolvency
Proceeding), all Net Debt Proceeds of which are
used exclusively to repay, prepay or redeem all
Indebtedness under the GABCO 13% Notes and the
GABCO 13% Note Exchange Agreement, in the
maximum aggregate principal amount equal to
such principal amount on the date of issuance
thereof (which principal amount shall not
exceed the aggregate outstanding Indebtedness
under the GABCO 13% Notes and the GABCO 13%
Note Exchange Agreement at the time of such
refinancing), less any repayments, prepayments,
redemptions, repurchases, defeasances or
cancellations of such Indebtedness, plus all
accrued unpaid interest thereon; provided,
however that the Managing Agents and the
Required Lenders are satisfied on the date of
issuance of such Securities and at all times
thereafter that (i) all such Indebtedness shall
be expressly subordinated in right of payment
and exercise of remedies to the prior payment
in full of all Senior Debt (as such term is
defined in the GABCO 13% Note Exchange
Agreement, as in effect on the Effective Date)
on terms no less favorable to the holders of
such Senior Debt than the subordination
provisions contained in the GABCO 13% Note
Exchange Agreement, as in effect on the
Effective Date, (ii) the stated maturity date
of such Indebtedness is not earlier than one
(1) year after the Maturity Date, (iii) all
"put" rights, and all mandatory repayment,
prepayment, redemption, repurchase, defeasance,
sinking fund and similar obligations in respect
of such Indebtedness shall not exceed similar
such rights and obligations under the GABCO 13%
Notes and the GABCO 13% Note Exchange Agreement
as in effect on the Effective Date, (iv) the
contract and default interest rates payable on
such Indebtedness are not greater than the
corresponding contract and default interest
rates payable on the GABCO 13% Notes, (v) the
covenants, events of default and other
provisions contained in the Securities or other
Instruments governing such Indebtedness,
individually and taken as a whole, are not more
restrictive or burdensome than those contained
in the GABCO 13% Notes and the GABCO 13% Note
Exchange Agreement, as in effect on the
Effective Date and (vi) such Indebtedness is
not secured by any Property of GACC or any of
its Subsidiaries, except the Capital Stock of
GABCO Sub (if such Securities are issued by
GABCO) or the Capital Stock of GABCO (if such
Securities are issued by GACC), and neither
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GACC nor any of its Subsidiaries (other than
the issuer of such Securities) has any
Contingent Obligation in respect of such
Indebtedness;
(g) Indebtedness of the Borrower under the
WGHP Loan Agreement, in the maximum aggregate
principal amount of $17,500,000, less any
repayments, prepayments, redemptions,
repurchases, defeasances or cancellations of
such Indebtedness, plus all accrued unpaid
interest thereon at a rate not to exceed at any
time or for any period 9 1/2% per annum for
amounts not due and payable and 10 1/2% per
annum for amounts due and payable;
(h) Indebtedness of the Borrower that is
incurred at any time after the Effective Date
and is not otherwise permitted by any of the
other clauses of this Section 8.2.2, provided,
that the Managing Agents and the Required
Lenders are satisfied on the date of incurrence
of such Indebtedness and at all times
thereafter that (i) all such Indebtedness is
expressly subordinated, upon written terms and
conditions completely satisfactory in form and
substance to the Managing Agents and the
Required Lenders, in right of payment and
exercise of remedies to the prior payment in
full of all the Obligations (and any
obligations refinancing or refunding the
Obligations), (ii) the aggregate amount of all
such Indebtedness does not at any time exceed
$10,000,000, (iii) none of such Indebtedness is
secured by any Lien on any Property (including
any Capital Stock) of GACC or any of its
Subsidiaries, and neither GACC nor any of its
Subsidiaries (other than the Borrower) has any
Contingent Obligation in respect of such
Indebtedness, (iv) each of the Special Covenant
Conditions is satisfied on and as of the date
of incurrence of such Indebtedness, (v) all
mandatory payment, prepayment, redemption,
repurchase, defeasance, sinking fund and
similar obligations, all interest rates and
payment dates, and all covenants, conditions,
events of default and other provisions in
respect of such Indebtedness are satisfactory
in form and substance to the Managing Agents
and the Required Lenders, and (vi) the proceeds
of all such Indebtedness are used by the
Borrower for general working capital purposes;
(i) Indebtedness of any Subsidiary of GACC
to GACC under the Tax Sharing Agreement;
(j) intercompany Indebtedness in respect of
Investments permitted by clause (c) or (d) of
Section 8.2.7;
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(k) Indebtedness of the Borrower under any
Rate Protection Agreements; and
(l) Indebtedness of any Principal Company
or any of its Subsidiaries consisting of
dividends declared but not paid, to the extent
that such dividends are permitted by clause (a)
of Section 8.2.8.
SECTION 8.2.3. Liens. Create, incur, assume,
or suffer to exist any Lien upon any of its
Property (including Capital Stock of any
Subsidiary), whether now owned or hereafter
acquired, except:
(a) Liens in favor of the Collateral Agent
securing the Loans and other Obligations;
(b) Permitted Liens;
(c) Liens on the Capital Stock of GABCO
securing Indebtedness of GACC that is permitted
by clause (c), (d) or (f) of Section 8.2.2;
(d) Liens on the Capital Stock of GABCO Sub
securing Indebtedness of GABCO that is
permitted by clause (e) or (f) of Section
8.2.2; and
(e) Liens on the WGHP-TV Operating Assets
securing Indebtedness of the Borrower permitted
by clause (g) of Section 8.2.2.
SECTION 8.2.4. Financial Covenants.
(a) Bank Debt to Consolidated Broadcast
Cash Flow Ratio. Permit the Bank Debt to
Consolidated Broadcast Cash Flow Ratio (as
hereinafter defined) for any Reference Period
ending in any period identified below to be
greater than the ratio specified below opposite
such period:
Maximum Bank Debt
to
Consolidated
Broadcast
Period Cash Flow Ratio
12/31/93 to 9/30/94 3.75:1.0
10/01/94 to 9/30/95 3.25:1.0
10/01/95 to 9/30/96 2.75:1.0
10/01/96 to 9/30/97 2.25:1.0
10/01/97 to 9/30/98 1.75:1.0
Thereafter 1.50:1.0
"Bank Debt to Consolidated Broadcast Cash Flow
<PAGE>
- 100 -
Ratio" means, in relation to any Reference
Period, the ratio of (i) the outstanding
principal amount of the Loans at the end of
such Reference Period, to (ii) the Consolidated
Broadcast Cash Flow of GACC and its
Subsidiaries for such Reference Period. For
purposes of determining the Bank Debt to
Consolidated Broadcast Cash Flow Ratio for any
period, the Consolidated Broadcast Cash Flow of
GACC and its Subsidiaries for such period shall
exclude all such Consolidated Broadcast Cash
Flow for such period attributable to WGHP-TV.
(b) Total Debt to Consolidated Broadcast
Cash Flow Ratio. Permit the Total Debt to
Consolidated Broadcast Cash Flow Ratio (as
hereinafter defined) for any Reference Period
ending in any period identified below to be
greater than the ratio specified below opposite
such period:
Maximum Total Debt
to
Consolidated
Broadcast
Period Cash Flow Ratio
12/31/93 to 9/30/94 7.00:1.0
10/01/94 to 9/30/95 6.50:1.0
10/01/95 to 9/30/96 6.00:1.0
10/01/96 to 9/30/97 5.25:1.0
10/01/97 to 9/30 98 4.75:1.0
Thereafter 4.25:1.0
"Total Debt to Consolidated Broadcast Cash Flow
Ratio" means, in relation to any Reference
Period, the ratio of (i) the Consolidated
Funded Debt of GACC and its Subsidiaries at the
end of such Reference Period, to (ii) the
Consolidated Broadcast Cash Flow of GACC and
its Subsidiaries for such Reference Period.
(c) Consolidated Operating Cash Flow to
Total Cash Interest Ratio. Permit the
Consolidated Operating Cash Flow to Total Cash
Interest Ratio for any Reference Period ending
in any period identified below to be less than
the ratio specified below opposite such period:
M i n i m u m
Consolidated
Operating Cash Flow
to Total Cash
Period Interest Ratio
12/31/93 to 12/31/95 2.00:1.0
Thereafter 1.50:1.0
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"Consolidated Operating Cash Flow to Total Cash
Interest Ratio" means, in relation to any
Reference Period, the ratio of (i) the
Consolidated Operating Cash Flow of GACC and
its Subsidiaries for such Reference Period, to
(ii) the Consolidated Cash Interest Charges of
GACC and its Subsidiaries for such Reference
Period.
(d) Fixed Charge Coverage Ratio. Permit
the Fixed Charge Coverage Ratio for any
Reference Period to be less than 1.00:1.0.
"Fixed Charge Coverage Ratio" means, in
relation to any Reference Period, the ratio of
(i) the sum of (A) the Consolidated
Operating Cash Flow of GACC and its
Subsidiaries for such Reference Period,
plus (B) the aggregate amount of federal,
state and local income taxes paid by GACC
and its Subsidiaries for such Reference
Period,
to
(ii) the sum of (A) the Cash
Debt Service of GACC and its
Subsidiaries for such Reference
Period, plus (B) the Consolidated
Capital Expenditures of GACC and
its Subsidiaries for such Reference
Period, plus (C) the aggregate
amount of federal, state and local
income taxes paid by GACC and its
Subsidiaries for such Reference
Period.
SECTION 8.2.5. Capital Expenditures. Make any
Consolidated Capital Expenditures, except
Consolidated Capital Expenditures made during any
Fiscal Year which do not exceed the Base Capex
Amount (as defined below) for such Fiscal Year,
plus (provided that no Events of Default are
continuing) the Carry-Forward Capex Amount (as
defined below) for such Fiscal Year.
As used in this Section 8.2.5:
"Base Capex Amount" for any Fiscal Year means
$6,000,000, provided that (i) if the Consolidated
Broadcast Cash Flow of GACC and its Subsidiaries
for the 1993, 1994 or 1995 Fiscal Year equals or
exceeds $68,700,000, $72,100,000 or $75,700,000,
respectively, then the Base Capex Amount shall be
$7,000,000 for the immediately following Fiscal
Year, and (ii) if the Total Debt to Consolidated
Broadcast Cash Flow Ratio for any Fiscal Year is
less than 5.0 to 1.0, then the Base Capex Amount
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shall be $8,000,000 for the immediately following
Fiscal Year.
"Carry-Forward Capex Amount" for the 1994
Fiscal Year means $0, and for the 1995 Fiscal Year
and each Fiscal Year thereafter means the excess
(if any) of the aggregate Base Capex Amount for the
Antecedent Fiscal Years (as defined below) over the
actual Consolidated Capital Expenditures of GACC
and its Subsidiaries for such Antecedent Fiscal
Years.
"Antecedent Fiscal Years" means (i) in relation
to the 1995 Fiscal Year, the 1994 Fiscal Year, (ii)
in relation to the 1996 Fiscal Year, the 1994 and
1995 Fiscal Years, (iii) in relation to the 1997
and 1998 Fiscal Years, the three immediately
preceding Fiscal Years.
SECTION 8.2.6. Consolidated Corporate Overhead.
Permit the Consolidated Corporate Overhead of GACC
and its Subsidiaries for any Fiscal Year
identified below to exceed the amount specified
below opposite such Fiscal Year:
M a x i m u m
Consolidated
Fiscal Year Corporate
Overhead
1994 $4,500,000
1995 $4,750,000
1996 $5,000,000
1997 $5,250,000
1998 $5,500,000
SECTION 8.2.7. Investments. Make, incur,
assume, or suffer to exist any Investment in any
other Person, except:
(a) Permitted Investments;
(b) Investments in Associated Persons
permitted by Section 8.2.11;
(c) Investments in the form of intercompany
loans or advances by (i) GACC to GABCO or GABCO
Sub, (ii) GABCO to GACC or GABCO Sub and (iii)
GABCO Sub to GACC, GABCO or LSI;
(d) Investments in the form of intercompany
loans or advances by the Borrower and LSI to
GABCO Sub, provided that such loans or advances
are permitted by clause (b) of Section 8.2.8;
(e) Investments (i) by GACC in Permitted
Capital Stock of GABCO, (ii) by GABCO in
Permitted Capital Stock of GABCO Sub and (iii)
by GABCO Sub in Permitted Capital Stock of the
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Borrower and LSI, provided that no Default
shall result from any such Investment;
(f) Investments in an Acquired Station made
with Reserved Net Disposition Proceeds,
provided that the Acquisition of such Acquired
Station is permitted by clause (c) of Section
8.2.9.
SECTION 8.2.8. Restricted Payments. Make or
make any offer to make any Restricted Payments,
except:
(a) the declaration and payment of cash
dividends by (i) any Subsidiary of the Borrower
to the Borrower, (ii) GABCO Sub to GABCO and
(iii) GABCO to GACC;
(b) payments by the Borrower and LSI of
cash dividends and intercompany loans and
advances to GABCO Sub in amounts (and only in
such amounts) necessary:
(i) to permit GABCO to make (and GABCO
shall use all proceeds of such payments to
make):
(A) Restricted Payments
permitted by clauses (c) and (f);
and
(B) payments to satisfy its
obligations in respect of live
action residual payments and
participations related to programs
sold to Worldvision Enterprises,
which payments, in the aggregate,
shall not exceed $3,500,000;
(ii) to permit GACC to make (and GACC
shall use all proceeds of such payments to
make) Restricted Payments permitted by
clauses (f), (g) and (j).
(iii) to permit GABCO and GACC to make
(and GABCO and GACC shall use all proceeds
of such payments to make) payments to
satisfy (A) obligations of GABCO and GACC
in respect of sublease shortfalls and
executive compensation and severance
arrangements for former employees, (B)
obligations of GABCO in respect of GABCO's
interests in Theme Park Partnership, which
payments described in clauses (A) and (B),
in the aggregate, shall not exceed
$2,200,000 during the 1994 Fiscal Year,
$1,900,000 during the 1995 Fiscal Year,
$900,000 during the 1996 Fiscal Year,
$800,000 during the 1997 Fiscal Year, and
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$800,000 during the 1998 Fiscal Year and
(C) obligations constituting Consolidated
Corporate Overhead, in an aggregate amount
for any Fiscal Year not in excess of the
maximum amount permitted by Section 8.2.6,
less the aggregate amount paid or accrued
for such Fiscal Year in respect of
Consolidated Corporate Overhead of the
Borrower and its Subsidiaries.
provided that no such payments by the Borrower
or LSI of such cash dividends or intercompany
loans or advances shall be permitted unless:
(x) at the time of the
declaration and payment of any such
dividends, and at the time of
payment of any such loans or
advances, and after giving effect
thereto, each of the Special
Covenant Conditions is satisfied;
and
(y) all proceeds of such
payments by the Borrower and LSI
are used and applied substantially
contemporaneously with the making
of such payments for the purposes,
and only for the purposes,
described in clauses (i), (ii) and
(iii) above, and the Managing
Agents have received such evidence
as they shall have reasonably
requested from the Principal
Companies of such use and
application;
(c) payments by GABCO of (i) accrued unpaid
interest on GABCO 13% Notes (A) from the Effective
Date to May 15, 1995, in cash at the annual rate of
eleven percent (11%) and in the form of GABCO 13%
PIK Notes at the annual rate of two percent (2%),
and (B) after May 15, 1995, in cash at the annual
rate of thirteen percent (13%), (ii) accrued unpaid
interest on amounts due and payable under the GABCO
13% Notes and the GABCO 13% Note Exchange Agreement
at the annual default rate not to exceed fourteen
percent (14%), (iii) scheduled mandatory
prepayments of GABCO 13% Notes required by Section
5.1 of the GABCO 13% Note Exchange Agreement, (iv)
fees, costs and expenses of holders of GABCO 13%
Notes payable by GABCO under the GABCO 13% Note
Exchange Agreement; provided that such payments
referred to in clauses (i) through (iv) are
required by the interest payment, scheduled
prepayment and fees, costs and expenses provisions,
and are not prohibited by the applicable
subordination provisions, of the GABCO 13% Note
Exchange Agreement, as in effect on the Effective
<PAGE>
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Date or as amended from time to time in compliance
with this Agreement and (v) the amounts described
in clauses (B), (C) and (D) of Section 6.1.1(c)(i);
(d) payments and prepayments by GABCO of
Indebtedness under the GABCO 13% Notes and the
GABCO 13% Note Exchange Agreement with Net Debt
Proceeds from the issuance by GACC or GABCO of
Indebtedness permitted by clause (f) of Section
8.2.2; provided that (i) such payments or
prepayments are made substantially
contemporaneously with the receipt by GACC or GABCO
of such Net Debt Proceeds, and (ii) such payments
are not prohibited by the applicable subordination
provisions contained in the GABCO 13% Note Exchange
Agreement, as in effect on the Effective Date or as
amended from time to time in compliance with this
Agreement;
(e) payments and prepayments by GABCO of
Indebtedness under the GABCO 13% Notes and the
GABCO 13% Note Exchange Agreement with Net
Securities Proceeds from the issuance by GACC of
Permitted Capital Stock; provided that (i) such
payments or prepayments are made substantially
contemporaneously with the receipt by GACC of such
Net Securities Proceeds, and (ii) such payments are
not prohibited by the applicable subordination
provisions of the GABCO 13% Note Exchange
Agreement, as in effect on the Effective Date or as
amended from time to time in compliance with this
Agreement;
(f) payments by GACC or GABCO (whichever of
such Persons issued the Securities governing the
Indebtedness permitted by clause (f) of Section
8.2.2) of (i) accrued unpaid interest, at the
non-default rate permitted by clause (f) of Section
8.2.2, and scheduled mandatory prepayment or
amortization obligations, in amounts permitted by
clause (f) of Section 8.2.2, in respect of
principal of Indebtedness permitted by clause (f)
of Section 8.2.2, (ii) accrued unpaid interest on
amounts due and payable under the Instruments
governing the Indebtedness permitted by clause (f)
of Section 8.2.2, at the default rate permitted by
clause (f) of Section 8.2.2, and (iii) fees, costs
and expenses of holders of Indebtedness permitted
by clause (f) of Section 8.2.2 payable by GACC or
GABCO, as applicable, under the Instruments
governing such Indebtedness; provided that such
payments are required by the interest payment,
scheduled prepayment or amortization and fees,
costs and expenses provisions, and are not
prohibited by the applicable subordination
provisions, contained in the Instruments governing
or relating to such Indebtedness as in effect on
the date of issuance of such Indebtedness or as
amended from time to time in compliance with this
<PAGE>
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Agreement;
(g) payments by GACC of accrued unpaid interest
on GACC 14% Notes (i) from the Effective Date until
(but not including) December 31, 1996, (A) in the
form of GACC 14% PIK Notes and (B) if any holder of
GACC 14% Notes would be entitled to interest on any
interest payment date in an amount that is not an
integral multiple of $100, in the form of cash in
an amount equal to the excess of the amount of such
interest over the highest integral multiple of $100
included in the amount of such interest, provided
that the amount of such cash interest payments to
all holders of GACC 14% Notes shall not exceed
$175,000 during any Fiscal Year and (ii) from and
after December 31, 1996, in cash, in each case at
the annual rate of fourteen percent (14%); provided
that such payments are required by the interest
payment provisions of the GACC 14% Note Indenture,
as in effect on the Effective Date or as amended
from time to time in compliance with this
Agreement;
(h) payments by GACC of Indebtedness under the
GACC 14% Notes and the GACC 14% Note Indenture with
Net Debt Proceeds from the issuance by GACC of
Indebtedness permitted by clause (d) of Section
8.2.2; provided that (i) such payments are made
substantially contemporaneously with the receipt by
GACC of such Net Debt Proceeds, and (ii) each of
the Special Covenant Conditions is satisfied at the
time of such payment;
(i) payments and redemptions by GACC of
Indebtedness under the GACC 14% Notes and the GACC
14% Note Indenture with Net Securities Proceeds
from the issuance by GACC of Permitted Capital
Stock; provided that (i) such payments or
redemptions are made substantially
contemporaneously with the receipt by GACC of such
Net Securities Proceeds, and (ii) each of the
Special Covenant Conditions is satisfied at the
time of such payment;
(j) payments by GACC of accrued unpaid
interest, at a rate permitted by clause (d) of
Section 8.2.2 in respect of principal of
Indebtedness permitted by clause (d) of Section
8.2.2; provided that such payments are required by
the interest payment provisions, and are not
prohibited by the applicable subordination
provisions, contained in the Instruments governing
or relating to such Indebtedness, as in effect on
the date of issuance of such Indebtedness or as
amended from time to time in compliance with this
Agreement;
(k) payments by the Borrower of (i) accrued
unpaid interest on outstanding Indebtedness under
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the WGHP Loan Agreement, at a rate permitted by
clause (g) of Section 8.2.2, (ii) principal on
outstanding Indebtedness under the WGHP Loan
Agreement, out of excess cash flow of WGHP-TV and
with net proceeds of sales of WGHP Operating Assets
and (iii) agents fees to the agent for the lenders
under the WGHP Loan Agreement, but only if such
agent is not AFC or one of its Affiliates, in an
aggregate amount not to exceed $20,000 in any
Fiscal Year; provided that such payments are
required by the interest payment, mandatory
prepayment and required fee provisions of the WGHP
Loan Agreement, and are not prohibited by the
applicable subordination provisions contained in
the WGHP Subordination Agreement, each as in effect
on the Effective Date or as amended from time to
time in compliance with this Agreement;
(l) payments by any Subsidiary of GACC to GACC
in respect of Indebtedness of such Subsidiary to
GACC under the Tax Sharing Agreement; and
(m) Restricted Payments to Associated Persons,
to the extent permitted by Section 8.2.11.
SECTION 8.2.9. Mergers; Acquisitions; Sales of
Property. Consolidate or merge with any Person,
engage in any Sale of any Broadcasting Station or
all or any substantial part of its Property (either
in a single transaction or a series of related
transactions) to any Person, engage in any
Acquisition of any Broadcasting Station or any
other Person, or sell and thereafter lease back all
or any part of its Property except
(a) any Permitted Disposition;
(b) any Sale by the Borrower of the
operating assets, including all FCC Licenses,
of any Broadcasting Station; provided, that:
(i) the sole consideration
payable to or receivable by the
Borrower in connection with such
Sale consists of cash payable at
the closing of such Sale in an
amount not less than the fair value
of the Property subject to such
Sale;
(ii) the operating cash flow of
such Broadcasting Station for the
most recently completed Reference
Period for which the Lenders shall
have received the financial
statements required by Section
8.1.1(b), plus the aggregate
operating cash flow of all other
Broadcasting Stations sold by the
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Borrower during such Reference
Period, shall not exceed ten
percent (10%) of the Consolidated
Operating Cash Flow of GACC and its
Subsidiaries for such Reference
Period (computed without regard to
such Sale);
(iii) on and as of the date of
such Sale, each of the Special
Covenant Conditions is satisfied;
and
(iv) the Borrower shall either
(A) prepay Loans with all Net
Disposition Proceeds of such Sale
on the date of such Sale or (B)
have demonstrated to the reasonable
satisfaction of the Managing Agents
and the Required Lenders on or
prior to the date of such Sale that
all Net Disposition Proceeds of
such Sale not used to prepay Loans
on the date of such Sale ("Reserved
Net Disposition Proceeds") will be
used in an Acquisition permitted by
clause (c), and shall pledge to the
Collateral Agent on the date of
such Sale, as security for the
obligations, pursuant to a cash
collateral pledge agreement in form
and substance satisfactory to the
Collateral Agent, all Reserved Net
Disposition Proceeds of such Sale.
All such Reserved Net Disposition
Proceeds shall be held by the
Collateral Agent in pledge until
such time as the Borrower is
prepared to complete the
Acquisition of a Broadcasting
Station in compliance with all the
conditions set forth in clause (c),
at which time the Collateral Agent
shall release to the Borrower all
Reserved Net Disposition Proceeds
required by the Borrower to
complete such Acquisition, and the
Borrower shall immediately use all
such proceeds to complete such
Acquisition.
Any excess Reserved Net Disposition Proceeds
shall be used to prepay Loans in accordance
with Section 3.3.2(b). Upon the failure of the
Borrower to satisfy any of the conditions set
forth in clause (c), all Reserved Net
Disposition Proceeds shall be used to prepay
Loans in accordance with Section 3.3.2(b); and
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(c) any Acquisition by the Borrower of a
Broadcasting Station with Reserved Net
Disposition Proceeds, provided, that
(i) the Borrower shall have
demonstrated to the reasonable
satisfaction of the Managing Agents
and the Required Lenders that the
Broadcasting Station to be acquired
(the "Acquired Station") will
generate operating cash flow
approximately equal to (A) the
historical operating cash flow of
the Broadcasting Station the Sale
of which has produced such Reserved
Net Disposition Proceeds (the "Sold
Station") multiplied by (B) a
fraction having as its numerator
the cash purchase price of the
Acquired Station and having as its
denominator the total amount of Net
Disposition Proceeds received from
the Sale of the Sold Station;
(ii) the Borrower shall have
entered into a binding purchase
agreement for the Acquisition of
the Acquired Station within ninety
(90) days after the Sale of the
Sold Station;
(iii) the Acquisition of the
Acquired Station is consummated
within two hundred ten (210) days
after the date the binding purchase
agreement for such Acquisition has
been entered into by the Borrower;
(iv) all of the Property of the
Acquired Station shall be owned
exclusively by the Borrower and
shall be pledged to the Collateral
Agent for the benefit of the
Secured Parties as security for all
the Obligations, pursuant to
Security Instruments satisfactory
to the Managing Agents, and all
filings, recordings and other
actions necessary in the reasonable
judgment of the Managing Agents to
create in favor of the Collateral
Agent a first-priority Lien on all
such Property shall have been
taken; and
(v) on and as of the date of such
Acquisition, each of the Special
Covenant Conditions has been
satisfied.
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SECTION 8.2.10. Modification, etc. of Certain
Agreements and Governing Documents. Consent to or
enter into or permit any amendment, supplement or
other modification of any Ancillary Document or any
Governing Document of any Transaction Party;
SECTION 8.2.11. Transactions with Affiliates.
Enter into any transaction or agreement with any
Associated Person, or permit any GABCO Subsidiary
to enter into, engage in, enter into any commitment
with respect to, or perform any, Affiliate
Transaction, except:
(a) the incurrence of Indebtedness by any GABCO
Subsidiary to GACC under the Tax Sharing Agreement
and the payment of any such Indebtedness by such
GABCO Subsidiary;
(b) Investments permitted by clauses (b), (c)
and (d) of Section 8.2.7;
(c) loans or advances to employees of any
Transaction Party in the ordinary course of
business for travel expenses, drawing accounts or
other similar business related expenses;
(d) the sale by the Borrower of advertising
time to an Associated Person that is not resold by
such Associated Person, or the purchase by a
Transaction Party of insurance from an Associated
Person that is an insurance carrier or through an
Associated Person that is an insurance agency, in
each case in the ordinary course of business,
provided that the terms of each such sale of
advertising time or purchase of insurance is no
less favorable to the Borrower or such Transaction
Parry, as the case may be, than would be the case
if such sale or purchase had been entered into with
a Person that is not an Associated Person; and
(e) any other agreements or transactions with
an Associated Person that would not otherwise be
permitted by any of the other provisions of this
Section 8.2.11, provided, that (i) the terms of
such agreement or transaction are no less favorable
to the Principal Companies and their Subsidiaries
than would be the case if such agreement or
transaction had been entered into with a Person
that is not an Associated Person, and (ii) the
potential aggregate value payable or receivable by
the Transaction Parties in connection with all such
transactions during any Fiscal Year shall not
exceed $1,000,000.
SECTION 8.2.12. Capital Stock. Issue, sell,
transfer, pledge, mortgage, assign or dispose of
any shares of any Capital Stock of any Principal
Company or any Subsidiary of any Principal Company,
except (a) the pledge of Capital Stock of the
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Borrower and LSI to the Collateral Agent for the
benefit of the Secured Parties pursuant to the
Pledge Agreement, (b) the pledge of Capital Stock
of GABCO for the benefit of the holders of the GACC
14% Notes pursuant to the GACC Pledge Agreement,
(c) the pledge of Capital Stock of GABCO Sub for
the benefit of the holders of the GABCO 13% Notes
pursuant to the GABCO Pledge Agreement, (d) the
issuance by GACC of shares of its Permitted Capital
Stock, provided that no Default is continuing at
the time of such issuance or would result from such
issuance, and (e) the issuance by GABCO, GABCO Sub,
the Borrower or LSI of such Person's Permitted
Capital Stock pursuant to Investments permitted by
clause (e) of Section 8.2.7; or
SECTION 8.2.13. Restrictive or Inconsistent
Agreements. Enter into or become bound by any
Contractual Obligation:
(a) (other than the Loan Documents and the
Other Debt Documents (as in effect on the Effective
Date or as amended from time to time in compliance
with this Agreement)) which, directly or
indirectly, prohibits or restrains, or has the
effect of prohibiting or restraining, or otherwise
imposes any materially adverse or burdensome
condition upon, the declaration or payment of
dividends, the incurrence of Indebtedness, the
granting of Liens, the making of loans or advances
to any other Principal Company or Transaction
Party, or the amendment or modification of any of
the Loan Documents; or
(b) containing any provision that would be
violated or breached by any Loan or by the
performance by any of the Transaction Parties of
their obligations hereunder or under any Loan
Document.
SECTION 8.2.14. Fiscal Year. Change its
Fiscal Year.
SECTION 8.2.15. Change of Location, Name or
Deposit Accounts. Change (a) the location of its
principal place of business, chief executive
office, major executive office, chief place of
business or records concerning its business and
financial affairs, or (b) its name or the name
under or by which it conducts its business, or (c)
with respect to the Borrower or LSI, open any new
account for the deposit of funds, in each case,
without first giving the Collateral Agent written
notice thereof and having taken any and all action
required by the Collateral Agent to maintain and
preserve the Liens in favor of the Collateral Agent
provided under the Collateral Documents.
SECTION 8.2.16. ERISA Compliance.
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(a) Permit any Single Employer Plan to incur an
"accumulated funding deficiency", as such term is
defined in Section 302 of ERISA, whether or not
such deficiency is or may be waived;
(b) Fail to contribute to any Single Employer
Plan to an extent which, or terminate any Single
Employer Plan in a manner which, could result in
the imposition of a Lien on the Property of any of
the Principal Companies or any of their
Subsidiaries; or
(c) Permit or take any action which would
result in the aggregate benefit liabilities (within
the meaning of Section 4001 of ERISA) of any Single
Employer Plan exceeding the value of the current
assets of such Plan.
SECTION 8.3. No Claims Against GABCO
Subsidiaries. GABCO and, upon its execution of the
Accession Agreement, GACC acknowledge and agree
with the Borrower, the Agents and the Lenders as
follows:
(a) The obligations of GACC under the GACC 14%
Note Indenture and the GACC 14% Notes, and of GABCO
under the GABCO 13% Note Exchange Agreement and the
GABCO 13% Notes are obligations of GACC and GABCO
only, and no GABCO Subsidiary has any Contingent
Obligation with respect thereto or with respect to
any other Indebtedness of GACC or GABCO.
(b) The GABCO Subsidiaries have no obligation
to pay dividends to or to make Investments in GACC
or GABCO for the purpose of funding payment
obligations of GACC or GABCO to the holders of GACC
14% Notes or GABCO 13% Notes or otherwise.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1. Events of Default. The term
"Event of Default" shall mean any of the events set
forth in this Section occurring or existing at any
time on or after the Effective Date (or, with
respect to any of the events described in Section
9.1.7, occurring at any time after the date of this
Agreement).
SECTION 9.1.1. Non-Payment of Obligations.
The Borrower (or, with respect to clause (c), any
Transaction Party) shall default
(a) in the payment or prepayment under this
Agreement or any Note when due of any principal of
the Loans, and such default shall continue
unremedied for a period of one (1) Business Day;
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(b) in the payment or prepayment when due under
this Agreement or any Note of any interest on any
Loan or any Fees payable under Section 3.5, and
such default shall continue unremedied for a period
of three (3) Business Days; or
(c) in the payment when due under this
Agreement or any of the other Loan Documents of any
other amount (other than an amount referred to in
clause (a) or (b)), and such default shall continue
unremedied for a period of five (5) Business Days.
SECTION 9.1.2. Non-Performance of Certain
Obligations. The Principal Companies shall default
in the due performance or observance of any of its
obligations under Section 8.1.2, 8.1.7, 8.1.12 or
Section 8.2 (including Section 8.2.1 through
8.2.16, inclusive).
SECTION 9.1.3. Non-Performance of Other
Obligations. Any Transaction Party shall default
in the due performance and observance of any of
its obligations in any of the Loan Documents (other
than those obligations specified in Section 9.1.1
or 9.1.2) and such default shall continue
unremedied for fifteen (15) days after notice
thereof shall have been given to the Borrower by
the Administrative Agent.
SECTION 9.1.4. Breach of Warranty. Any
representation or warranty of any Transaction Party
under any Loan Document is or shall be incorrect in
any material respect when made or deemed made.
SECTION 9.1.5. Default Under Other Debt
Documents. Any of the following events shall
occur:
(a) any Transaction Party shall fail to pay any
principal, interest or other amounts due in respect
of any Indebtedness under any Other Debt Document;
(b) any Indebtedness under any Other Debt
Document is accelerated or otherwise becomes due
and payable prior to its scheduled payment date;
(c) any default or event of default occurs
under any Other Debt Document;
(d) any holder or holders of any of the
Indebtedness under any Other Debt Document, or any
Representative of any such holder or holders, shall
exercise, purport to exercise, give any notice of
its intention to exercise or become entitled by the
terms of any Other Debt Document to exercise (i)
any right to accelerate Indebtedness outstanding
under any Other Debt Document, (ii) any right to
require any Restricted Payment to be made in
respect of such Indebtedness, or (iii) any other
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remedies under any Other Debt Document; or
(e) any Transaction Party shall make, offer to
make or become obligated to make or offer to make,
any Restricted Payment in respect of any
Indebtedness under any Other Debt Document (other
than Restricted Payments permitted by this
Agreement and other than offers to make a
Restricted Payment where the making of such
Restricted Payment is contingent on all the
Obligations first having been paid in full)
including any optional prepayment of principal
under any Other Debt Document, any payment required
by the GACC 14% Indenture or the GABCO 13% Note
Exchange Agreement upon a change in control, or any
payment required by the GABCO 13% Note Exchange
Agreement out of excess cash flow or upon a sale of
assets;
SECTION 9.1.6. Default Under Other
Instruments. Any Principal Company or any of its
Subsidiaries shall fail to make any payment of any
Indebtedness (other than the Obligations) the
outstanding principal amount of which exceeds
$500,000, or shall fail to perform or observe the
terms of any Instrument relating to such
Indebtedness, and such failure shall permit any
holder of such Indebtedness to declare such
Indebtedness to be immediately due and payable or
to otherwise be accelerated, or any Lien on any
Property of any Principal Company or any such
Subsidiary securing any such Indebtedness shall be
foreclosed upon.
SECTION 9.1.7. Bankruptcy, Insolvency, etc.
Any Principal Company or any Subsidiary of any
Principal Company shall
(a) generally fail to pay its debts as they
become due, or admit in writing its inability to
pay its debts as they become due;
(b) apply for, consent to, or acquiesce in, the
appointment of a trustee, receiver, sequestrator,
or other custodian for any Principal Company or any
such Subsidiary or any Property of any thereof, or
make a general assignment for the benefit of
creditors;
(c) in the absence of such application, consent
or acquiescence, permit or suffer to exist the
involuntary appointment of a trustee, receiver,
sequestrator or other custodian for any Principal
Company or any such Subsidiary or for a substantial
part of the Property of any thereof, and such
trustee, receiver, sequestrator or other custodian
shall not be discharged within thirty days;
(d) permit or suffer to exist the involuntary
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commencement of, or voluntarily commence, any
bankruptcy, reorganization, debt arrangement, or
other case or proceeding (other than the
Reorganization Cases) under any bankruptcy or
insolvency laws, or permit or suffer to exist the
involuntary commencement of, or voluntarily
commence, any dissolution, winding up or
liquidation proceeding (except for the voluntary
dissolution, not under bankruptcy or insolvency
law, of any such Person that is not a Transaction
Party), in each case, by or against any Principal
Company or any such Subsidiary, provided that if
not commenced by any Principal Company or any such
Subsidiary, such proceeding shall be consented to
or acquiesced in by any Principal Company or any
such Subsidiary, or shall result in the entry of an
order for relief or shall remain undismissed for
thirty (30) days;
(e) with respect to any Transaction Party,
permit or suffer to exist the commencement of any
case, proceeding or other action seeking the
issuance of a warrant of attachment, execution,
distraint or similar process against all or any
material part of its Property (except for any such
attachment or similar process that would constitute
a Permitted Lien); or
(f) take any corporate action authorizing, or
in furtherance of, any of the foregoing.
SECTION 9.1.8. Judgments. A final judgment
which, with other such outstanding final judgments
against any of the Principal Companies and any of
their Subsidiaries, exceeds an aggregate of
$500,000 (net of actual insurance coverage with
respect thereto), shall be rendered against any
Principal Company or any Subsidiary of any
Principal Company and, within thirty (30) days
after entry thereof, such judgment shall not have
been discharged or execution thereof stayed pending
appeal, or if, within thirty (30) days after the
expiration of any such stay, such judgment shall
not have been discharged.
SECTION 9.1.9. ERISA. Any of the following
events shall occur:
(a) any Single Employer Plan shall fail to
maintain the minimum funding standard required by
Section 412 of the Code for any plan year, or a
waiver of such standard or the extension of any
amortization period is sought or granted under
Section 412(d) or (e) of the Code;
(b) any Plan is or shall have been terminated
or the subject of termination proceedings under
ERISA, or an event shall have occurred entitling
the PBGC to terminate a Plan under Section 4042(a)
<PAGE>
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of ERISA; or
(c) any Principal Company, any Subsidiary of
any Principal Company or any ERISA Affiliate shall
have incurred or become likely to incur liability
to or an account of a termination of or a
withdrawal from a Plan under Section 4062, 4063,
4064, 4201, 4204 or 515 of ERISA;
and there shall result from any such event or
events either (i) the provision of security to
induce the issuance of a waiver or extension of any
funding requirement under Section 412 of ERISA, or
(ii) liability, or a material risk of incurring
liability, to the PBGC or a Plan or a trustee
appointed under Section 4042 or 4049 of ERISA in
excess of $500,000.
SECTION 9.1.10. Broadcasting Stations. Any of
the following events shall occur with respect to
any Broadcasting Station or FCC License material to
the operations of the Borrower:
(a) the commencement by any Communications
Regulatory Authority of any proceedings to suspend,
revoke, terminate, require the divestiture of or
adversely modify any such FCC License, which
proceedings are not dismissed or discharged within
thirty (30) days;
(b) on-the-air broadcasting operations of any
Broadcasting Station(s) owned by the Borrower
accounting for, in the aggregate, ten percent (10%)
or more of the consolidated net operating revenues
of the Borrower and its Subsidiaries (i) are
interrupted at any time for more than 120 hours
during any period of 20 consecutive days (the last
day of such period being hereinafter referred to as
the "Interruption Determination Date"), and (ii)
the Borrower shall not have satisfied the Required
Lenders by the 30th day following the Interruption
Determination Date that the Borrower will receive
proceeds of business interruption insurance
sufficient to cover the aggregate lost operating
revenues resulting from such interruption;
(c) the entry of any order by the FCC
suspending, revoking, terminating, requiring the
divestiture of or adversely modifying any such FCC
License;
(d) any loss, revocation or failure to timely
file for renewal of any such FCC License; or
(e) any designation of an application for
renewal of any such FCC License for an evidentiary
hearing.
SECTION 9.1.11. Impairment of Security, etc.
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Any Loan Document, or any Lien granted thereunder,
shall (except in accordance with its terms), in
whole or in part, terminate, cease to be effective,
or cease to be the legally valid, binding and
enforceable obligation of any Transaction Party
thereto; or any Transaction Party or any other
Person shall, directly or indirectly, contest in
any manner such effectiveness, validity, binding
nature or enforceability; or any Lien securing any
Obligations shall, in whole or in part, cease to
be a perfected first priority Lien, subject only to
those exceptions permitted by the Loan Documents.
SECTION 9.1.12. Change of Control. At any time
after the Effective Date, any of the following
shall occur:
(a) AFC shall cease to own and control, both
legally and beneficially, with the power to vote,
at least that number of shares of Class A Common
Stock equal to the greater of (i) the number of
shares of Class A Common Stock so owned by AFC on
the Effective Date (after giving effect to the
Reorganization) minus the number of shares of Class
A Common Stock equal to eight percent (8%) of the
shares of Class A Common Stock outstanding on the
Effective Date (after giving effect to the
Reorganization) and (ii) the number of shares of
Class A Common Stock equal to twenty-five percent
(25%) of the shares of Class A Common Stock
outstanding on the Effective Date (after giving
effect to the Reorganization) (in each case, with
appropriate proportional adjustments for any
dividend payable in shares of Class A Common Stock,
any stock split or other subdivision of shares of
Class A Common Stock or any reverse stock split or
other combination of shares of Class A Common
Stock);
(b) GACC shall cease to own and control, both
legally and beneficially, with the power to vote,
one hundred percent (100%) of the Capital Stock of
GABCO of every class;
(c) GABCO shall cease to own and control, both
legally and beneficially, with the power to vote,
one hundred percent (100%) of the Capital Stock of
GABCO Sub of every class;
(d) GABCO Sub shall cease to own and control,
both legally and beneficially, with the power to
vote, one hundred percent (100%) of the Capital
Stock of the Borrower of every class; or
(e) any Person or Persons and any Affiliates of
any such Person or Persons acting in concert shall
at any time own or control, legally or
beneficially, directly or indirectly, a number of
outstanding shares of Class A Common Stock of GACC
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in excess of the number of outstanding shares of
such class owned legally and beneficially by AFC at
such time; any Person or Persons and any Affiliates
of any such Person or Persons acting in concert
(other than AFC) shall possess, through ownership
of Capital Stock, contract, proxy or otherwise, the
power to elect or cause the election of a majority
of the members of the Board of Directors of GACC;
or a majority of the members of the Board of
Directors of GACC shall not have been nominated or
otherwise approved by AFC.
SECTION 9.1.13. Materially Adverse Effect.
Any event or events shall have occurred since the
Effective Date which, individually or in the
aggregate, have had or are reasonably likely to
have, a Materially Adverse Effect.
SECTION 9.2. Action if Bankruptcy. If any Event of
Default described in clauses (a) through (e) of Section 9.1.7
shall occur, the outstanding principal amount of all Loans
and the outstanding amount of all other Obligations shall
automatically be and become immediately due and payable, all
without notice, demand, presentment or other action of any
kind.
SECTION 9.3. Action if Other Event of Default. If any
Event of Default (other than an Event of Default described in
Section 9.2) shall occur for any reason, whether voluntary or
involuntary, and be continuing, the Administrative Agent,
upon the direction of the Required Lenders, shall, upon
notice or demand, declare all or any portion of the
outstanding principal amount of the Loans and the outstanding
amount of all other Obligations to be immediately due and
payable, whereupon such Loans and other Obligations shall be
and become immediately due and payable, in each case without
further notice, demand, presentment or other action of any
kind.
SECTION 9.4. Commitment Termination Event. If any
Commitment Termination Event shall occur, the Commitments
shall automatically terminate, all without notice, demand,
presentment or other action of any kind.
ARTICLE X
THE ADMINISTRATIVE AGENT, THE MANAGING AGENTS AND
THE COLLATERAL AGENT
SECTION 10.1. Actions. Each Lender and the holder of
each Note hereby authorizes the Administrative Agent, each
Managing Agent and the Collateral Agent to act on behalf of
such Lender or holder under this Agreement and the other Loan
Documents and, in the absence of other written instructions
from the Required Lenders received from time to time by the
Administrative Agent, either Managing Agent or the Collateral
Agent, as the case may be (with respect to which the
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Administrative Agent, either Managing Agent or the Collateral
Agent, as the case may be, agrees that it will, subject to
the next three sentences of this Section, comply in good
faith except to the extent that it is advised by counsel
that such compliance would be contrary to any Applicable
Law), to exercise such powers hereunder and thereunder as are
specifically delegated to or required of the Administrative
Agent, each Managing Agent or the Collateral Agent by the
terms hereof and thereof, together with such powers as may be
reasonably incidental thereto. Each Lender agrees (which
agreement shall survive any termination of this Agreement) to
indemnify each Agent, promptly upon demand, Ratably at the
time such demand is transmitted, from and against any and all
liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever (collectively, "Indemnified
Costs") which may at any time be imposed on, incurred by, or
asserted against such Agent, in any way relating to or
arising out of this Agreement or any of the other Loan
Documents, including the reimbursement of any Agent for all
reasonable out-of-pocket expenses (including reasonable fees
and disbursements of counsel, amounts paid in settlement and
court costs) incurred by such Agent hereunder or in
connection herewith or in enforcing the obligations of the
Transaction Parties under this Agreement or any of the other
Loan Documents, in all cases as to which such Agent is not
reimbursed by the Principal Companies; except for any portion
of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements
which (a) a court of competent jurisdiction has found, in a
final nonappealable order, resulted directly and primarily by
reason of such Agent's gross negligence or willful misconduct
or (b) have been reimbursed by the Principal Companies
pursuant to Section 12.4. No Agent shall be required to take
any action hereunder or under any other Loan Document, or to
prosecute or defend any suit in respect of this Agreement or
any other Loan Document, unless indemnified to its
satisfaction by the Lenders against any Indemnified Costs.
If any indemnity in favor of any Agent shall become impaired,
such Agent may call for additional indemnity and cease to do
the acts indemnified against until such additional indemnity
is given. Any of the Agents may delegate their duties
hereunder to Affiliates, agents or attorneys-in-fact selected
in good faith by the delegating Agent.
SECTION 10.2. Exculpation. Notwithstanding any
provision to the contrary elsewhere in this Agreement or any
of the other Loan Documents, none of the Agents shall have
any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist
against any Agent. Neither the Agents nor any of their
respective directors, officers, employees or agents
(collectively, the "Related Parties") shall be liable to any
Lender for any action taken or omitted to be taken by it
under this Agreement or any other Loan Document, or in
connection herewith or therewith, except for its own willful
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misconduct or gross negligence, nor shall any Agent or any of
the Related Parties be responsible for any recitals or
representations or warranties herein or therein, or for the
effectiveness, enforceability, validity, or due execution of
this Agreement or any other Loan Document, nor shall any
Agent or any of the Related Parties be obligated to make any
inquiry respecting the performance by the Transaction Parties
of their obligations hereunder or thereunder, or to inspect
the Properties, books or records of the Transaction Parties.
The Agents shall be entitled to rely upon advice of counsel
concerning legal matters and upon any notice, consent,
certificate, statement, or writing which it believes to be
genuine and to have been presented by a proper Person. The
Agents shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other
Loan Documents in accordance with a request of the Required
Lenders (or, to the extent this Agreement requires a higher
percentage, such higher percentage), 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
Obligations. The Agents shall be fully justified in failing
or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders (or, to the extent
this Agreement requires a higher percentage, such higher
percentage) as it deems appropriate.
SECTION 10.3. Successor. Subject to the appointment
and acceptance of a successor as provided below, the
Administrative Agent, each Managing Agent and the Collateral
Agent may resign as such at any time upon at least thirty
(30) days' prior notice to the Borrower and all Lenders and
any such Agent may be removed at any time with reasonable
cause by the Required Lenders. Upon any such resignation or
removal, the Required Lenders may, upon consultation with the
Borrower, appoint another Lender which is a commercial
banking institution or trust institution having a combined
capital and surplus of at least $500,000,000 as a successor
Administrative Agent, Managing Agent or Collateral Agent, as
the case may be. If the Required Lenders do not make such
appointment within ten days, the resigning or removed
Administrative Agent, Managing Agent or Collateral Agent, as
the case may be, shall, upon consultation with the Borrower,
appoint a new Administrative Agent, Managing Agent or
Collateral Agent, as the case may be, from among the Lenders
which are commercial banking or trust institutions having a
combined capital and surplus of at least $500,000,000 or, if
no Lender accepts such appointment, from among all other
commercial banking institutions or trust institutions having
a combined capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Administrative
Agent, Managing Agent or Collateral Agent, as the case may
be, such successor Administrative Agent, Managing Agent or
Collateral Agent shall thereupon become the Administrative
Agent, Managing Agent or Collateral Agent hereunder and under
the applicable Loan Documents and shall be entitled to
receive from the prior Administrative Agent, Managing Agent
or Collateral Agent, as the case may be, such documents of
transfer and assignment as it may reasonably request, and the
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resigning or removed Administrative Agent, Managing Agent or
Collateral Agent shall be discharged from its duties and
obligations under this Agreement and the other Loan
Documents.
SECTION 10.4. Collateral Documents, etc. Each Lender
hereby authorizes the Collateral Agent to enter into the
applicable Collateral Documents and the Administrative Agent
and each Managing Agent to enter into any other Loan
Documents and each thereof to take all action contemplated
thereby. Each Lender agrees that no Lender shall have any
right individually to seek to realize upon any security
granted by or guaranty provided by any Collateral Document,
it being understood and agreed that such rights and remedies
may be exercised by the Collateral Agent for the benefit of
the Lenders, the Collateral Agent, the Managing Agents and
the Administrative Agent upon the terms of the Collateral
Documents.
SECTION 10.5. Loans by Agents. Any Lender which may at
any time be acting as Administrative Agent, Managing Agent or
Collateral Agent and as a Lender hereunder, shall have the
same rights and powers with respect to any Loans made by it
and any Notes held by it as any Lender and may exercise the
same as if it were not the Administrative Agent, Managing
Agent or Collateral Agent, and the term "Lender" and, when
appropriate, "holder", shall include any Lender who is then
an Agent.
SECTION 10.6. Credit Decisions. Each Lender
acknowledges that it has, independently of the Administrative
Agent, each Managing Agent, the Collateral Agent and each
other Lender, and based on the financial information referred
to in Sections 7.4 and 7.5 and such other documents,
information, and investigations as it has deemed appropriate,
made its own credit decision to make its Commitment and its
Loan. Each Lender also acknowledges that it will,
independently of the Administrative Agent, each Managing
Agent, the Collateral Agent and each other Lender, and based
on such documents, information, and investigations as it
shall deem appropriate at any time, continue to make its own
credit decisions as to exercising or not exercising from time
to time any rights and privileges available to it under this
Agreement, the Collateral Documents, the Notes or the other
Loan Documents.
SECTION 10.7. Notices, etc. to the Administrative
Agent. The Administrative Agent will distribute to each
Lender each Instrument received for such Lender's account and
copies of all other communications received by the
Administrative Agent from the Borrower for distribution to
the Lenders by the Administrative Agent in accordance with
the terms of this Agreement.
ARTICLE XI
ADDITIONAL LENDERS AND PARTICIPANTS
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SECTION 11.1. Participations by Lenders.
SECTION 11.1.1 Participations. During the period
commencing with the date of this Agreement and ending ninety
(90) days after the Effective Date (the "Initial Syndication
Period"), the Managing Agents may, for their benefit as
Lenders and for the benefit of any other Lender that informs
the Managing Agents of its desire to sell participating
interests hereunder during such period, sell to one or more
banks or other entities ("Participants") participating
interests in any Loan owing to such Lender, any Note held by
such Lender, any Commitment of such Lender, or any other
interest of such Lender under this Agreement and under the
other Loan Documents (which sales shall be, as nearly as
practicable, and permitting customary rounding of such sales
and resulting retained interests, on a pro rata basis as to
the Loans, Notes, Commitments and other interests of all such
Lenders). After the expiration of the Initial Syndication
Period, any Lender may, in the ordinary course of its
business and in accordance with Applicable Law, sell to one
or more Participants participating interests in any Loan
owing to such Lender, any Note held by such Lender, or any
other interest of such Lender under this Agreement and under
the other Loan Documents. In the event of any such sale by a
Lender of participating interests to a Participant, such
Lender's Obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender
shall remain solely responsible for the performance thereof,
such Lender shall remain the holder of any such Note for all
purposes under this Agreement and the other Loan Documents,
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 and such Lender shall retain the
sole right to enforce the Obligations of the Borrower
relating to the Loans and to approve any amendment,
modification or waiver of any provision of this Agreement.
It is understood that nothing in the prior sentence or
elsewhere in this Section 11.1.1 shall prohibit a Lender from
agreeing with any Participant that such Lender will not take
any action that would require approval of all of the Lenders
under Section 12.14 without the consent of such Participant.
Each Lender hereby agrees that it will not agree with any
Participant that it will not take any action without such
Participant's consent unless such action would require
approval of all Lenders under Section 12.14.
SECTION 11.1.2. Participant's Right of Setoff in
Certain Cases. The Borrower agrees that each Participant
shall be deemed to have all rights of set-off and bankers'
lien provided by Applicable Law in respect of its
participating interest in amounts owing under this Agreement
and any Note to the same extent as if the amount of its
participating interest were owing directly to it as a Lender
under this Agreement or any Note, provided that such
Participant shall only be entitled to such right of setoff if
it shall have agreed, for the benefit of the Lenders and
holders of Notes, in the agreement pursuant to which it shall
have acquired its participating interest to purchase from the
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Lenders and holders of Notes such participations in the Notes
held by them as shall be necessary to cause such Participant
to share the amount recovered in exercising such right of
set-off or bankers' lien pro rata in accordance with the
aggregate unpaid principal and interest on the Loans held by
each of them.
SECTION 11.1.3. Rights of Participants. The Borrower
also agrees that each Participant shall be entitled to the
benefits of Sections 3.7, 4.5, 4.8 and 12.4 with respect to
its participation in the Loans outstanding from time to time
and all amounts to which any Participant is entitled
thereunder shall be paid by the Borrower directly to the
Lender; provided, that no Participant shall be entitled to
receive any greater amount pursuant to such Sections than the
transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by
such transferor Lender to such Participant had no such
transfer occurred.
SECTION 11.2. Assignments by Lenders.
SECTION 11.2.1. Assignments. During the Initial
Syndication Period, the Managing Agents may, for their
benefit as Lenders and the benefit of any other Lender that
informs the Managing Agents of its desire to assign its
rights and obligations under this Agreement and the other
Loan Documents during such period, assign and transfer to any
one or more additional banks or financial institutions
("Purchasing Lender"), all or any part of such Assigning
Lender's rights and obligations (including Commitments) under
this Agreement and the Notes (which assignments and transfers
shall be, as nearly as practicable, and permitting customary
rounding of such assignments and transfers, on a pro rata
basis as to the rights and obligations of all such Lenders).
After the Initial Syndication Period, any Lender (any such
Lender (including the Managing Agents, as Lenders, being
referred to herein as an "Assigning Lender"), may, in the
ordinary course of its business and in accordance with
Applicable Law, sell to any other Lender or any Affiliate of
such Assigning Lender and, with the consent of the Managing
Agents (such consent not to be unreasonably withheld), to one
or more other Purchasing Lenders all or any part of its
rights and obligations under this Agreement and the Notes.
Any such assignment and transfer ("Assignment") shall be made
pursuant to an Assignment and Acceptance Agreement,
substantially in the form of Exhibit R attached hereto (an
"Assignment and Acceptance Agreement"), executed by such
Purchasing Lender and such Assigning Lender (and, in the case
of a Purchasing Lender that is not then a Lender or an
Affiliate thereof, by the Administrative Agent) and delivered
to the Administrative Agent for its acceptance and recording
in the Register (as hereinafter defined); provided, however,
that (a) the aggregate amount of Loans of the Assigning
Lender being assigned pursuant to any such Assignment after
the Initial Syndication Period shall in no event be less
than $5,000,000 and shall be an integral multiple of
$1,000,000 (or, if less, the entire remaining amount of such
Lender's Loan), and (b) each such Assignment shall be of a
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constant, and not a varying, percentage of all of the
Assigning Lender's rights and obligations under this
Agreement. From and after the effective date specified in
each Assignment and Acceptance Agreement, which effective
date must be at least five (5) Business Days after the
execution and delivery of such Assignment and Acceptance
Agreement to the Administrative Agent and (if required) the
acceptance of such Assignment and Acceptance Agreement by the
Administrative Agent (the "Transfer Effective Date"): (i) the
Purchasing Lender thereunder shall be a party hereto and, to
the extent provided in such Assignment and Acceptance
Agreement, have the rights and obligations of a Lender
hereunder with respect to the Loans as set forth therein, and
(ii) the Assigning Lender thereunder shall, to the extent
provided in such Assignment and Acceptance Agreement, be
released from its obligations under this Agreement (and, in
the case of an Assignment of the entire remaining amount of
an Assigning Lender's Loans, such Assigning Lender shall
cease to be a party hereto).
SECTION 11.2.2. Effect of Assignment and Acceptance
Agreement. Each Assignment and Acceptance Agreement duly
executed and delivered in compliance with the foregoing
provisions of Section 11.2.1 shall be deemed to amend this
Agreement to the extent, and only to the extent, necessary to
reflect the addition of such Purchasing Lender as a Lender
hereunder and the resulting adjustment of Percentages.
SECTION 11.2.3. Delivery of New Notes By Borrower
Following Assignment. In the case of any Assignment under
Section 11.2.1 after the Effective Date, within five (5)
Business Days after the Transfer Effective Date determined
pursuant to the applicable Assignment and Acceptance
Agreement and Section 11.2.1, the Borrower, at its own
expense, shall execute and deliver to the Administrative
Agent, against surrender of the Note of the Assigning Lender
to the Administrative Agent, a new Note to the order of the
Purchasing Lender in an amount equal to the Loans assigned to
it pursuant to such Assignment and Acceptance Agreement and,
if the Assigning Lender has retained Loans hereunder, a new
Note to the order of the Assigning Lender in a principal
amount equal to the Loans retained by it hereunder. Such new
Notes shall be dated the Transfer Effective Date (or such
other date as may be agreed to by the Borrower, the
Administrative Agent, the Assigning Lender and the Purchasing
Lender) and shall otherwise be in the form of the Notes
replaced thereby. The Notes surrendered by the Assigning
Lender shall be returned by the Administrative Agent to the
Borrower marked "cancelled."
SECTION 11.2.4. Administrative Agent's Maintenance of
Register. The Administrative Agent shall maintain at its
address a copy of each Assignment and Acceptance Agreement
delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the
principal amount of the Loans owing to each Lender from time
to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the
Administrative Agent, the Collateral Agent and the Lenders
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may treat each Person whose name is recorded in the Register
as the owner of the Loans recorded therein for all purposes
of this Agreement. The Register shall be available for
inspection by the Borrower, any Managing Agent, the
Collateral Agent or any Lender at any reasonable time and
from time to time upon reasonable prior notice.
SECTION 11.2.5. Actions of Administrative Agent;
Fees. Upon its receipt of an Assignment and Acceptance
Agreement executed by an Assigning Lender and Purchasing
Lender (and, in the case of a Purchasing Lender that is not
then a Lender or an Affiliate thereof, by the Administrative
Agent), together with (in the case of a Purchasing Lender
that is not then a Lender or an Affiliate thereof) payment by
the Purchasing Lender to the Administrative Agent for the
account of the Administrative Agent of a registration and
processing fee of $2,500, the Administrative Agent shall (a)
promptly accept such Assignment and Acceptance Agreement, (b)
on the Transfer Effective Date determined pursuant thereto
and Section 11.2.1 record the information contained therein
in the Register and (c) give notice of such acceptance and
recordation to each of the Lenders and the Borrower.
SECTION 11.2.6. Assigning Lender, Purchasing Lender,
and Other Parties, Confirmations and Agreements. By
executing and delivering an Assignment and Acceptance
Agreement, the Assigning Lender thereunder and the Purchasing
Lender thereunder shall confirm to and agree with each other
and the other parties hereto as follows: (a) other than as
provided in such Assignment and Acceptance Agreement, such
Assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with
this Agreement or any of the other Loan Documents or the
execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any of the other Loan
Documents or any other Instrument furnished pursuant hereto;
(b) such Assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial
condition of any of the Principal Companies or the
performance or observance by any of the Principal Companies
of any of their Obligations under this Agreement, any of the
other Loan Documents or any other Instrument furnished
pursuant hereto; (c) such Purchasing Lender confirms that it
has received a copy of this Agreement, together with copies
of such financial statements and such other documents and
information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment
and Acceptance Agreement; (d) such Purchasing Lender will,
independently and without reliance upon any of the Agents,
such Assigning Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (e) such Purchasing
Lender appoints and authorizes the Managing Agents and the
Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement or
any of the other Loan Documents as are delegated to the
Managing Agents and the Administrative Agent by the terms
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hereof and thereof, together with such powers as are
reasonably incidental thereto; (f) such Purchasing Lender
agrees that it will perform in accordance with their terms
all of the obligations which by the terms of this Agreement
or any of the other Loan Documents are required to be
performed by it as a Lender; and (g) such Purchasing Lender
(i) consents in all respects to the provisions of the
Collateral Documents, (ii) agrees to be bound by the terms of
the Collateral Documents and (iii) authorizes the Collateral
Agent as Collateral Agent to act on its behalf under the
Collateral Documents and to exercise such powers under the
Collateral Documents as are delegated to the Collateral Agent
by the terms thereof, together with such powers as are
reasonably incidental thereto.
SECTION 11.3. Disclosure of Information. The Principal
Companies authorize each Lender to disclose to any
Participant or Purchasing Lender (each, a "Transferee") and
any prospective Transferee any and all information in such
Lender's possession concerning the Principal Companies which
has been delivered to such Lender by or on behalf of the
Principal Companies or any Agent pursuant to this Agreement
or which has been delivered to such Lender by or on behalf of
the Principal Companies or any Agent in connection with such
Lender's credit evaluation of the Principal Companies prior
to becoming a party to this Agreement; provided, that, prior
to any such disclosure, the Transferee or prospective
Transferee shall agree to be bound by the provisions of
Section 12.14.
SECTION 11.4. Assistance. In order to facilitate the
addition of Purchasing Lenders and Participants hereto, the
Principal Companies agree to cooperate fully and promptly
with each Assigning Lender, each Purchasing Lender and the
Managing Agents in connection therewith and to provide all
reasonable assistance requested by each Assigning Lender,
each Purchasing Lender or the Managing Agents relating
thereto, including, without limitation:
(a) the furnishing promptly of such written
materials and financial information regarding the
Principal Companies and their Subsidiaries as each such
Assigning Lender, Purchasing Lender or the Managing
Agents may reasonably request;
(b) the prompt execution of such documents as each
such Assigning Lender, Purchasing Lender or the Managing
Agents may reasonably request with respect thereto; and
(c) the participation by officers of the Principal
Companies and their Subsidiaries in a meeting or
teleconference call with prospective Purchasing Lenders
or prospective Participants, upon the request of each
such Assigning Lender, Purchasing Lender or the Managing
Agents.
SECTION 11.5. Taxes. If any interest in this Agreement
or any Note is transferred to any Transferee which is
organized under the laws of any jurisdiction other than the
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United States or any state thereof, the Assigning Lender
shall cause such Transferee, concurrently with the
effectiveness of such transfer, (a) to represent to the
Assigning Lender (for the benefit of the Assigning Lender,
the Agents and the Borrower) that under Applicable Law no
taxes will be required to be withheld by the Administrative
Agent, the Borrower or the Assigning Lender with respect to
any payments to be made to such Transferee in respect of the
Loans, (ii) to furnish to the Assigning Lender (and, in the
case of any Purchasing Lender registered in the Register, the
Administrative Agent and the Borrower) either U.S. Internal
Revenue Service Form 4224, U.S. Internal Revenue Service Form
1001 or U.S. Internal Revenue Service Form W-8 (wherein such
Transferee claims entitlement to complete exemption from U.S.
federal withholding tax on all interest payments hereunder)
and (iii) to agree (for the benefit of the Assigning Lender,
the Administrative Agent and the Borrower) to provide the
Assigning Lender (and, in the case of any Purchasing Lender
registered in the Register, the Administrative Agent and the
Borrower) a new Form 4224 or Form 1001 upon the expiration or
obsolescence of any previously delivered form and comparable
statements in accordance with Applicable Laws of the U.S. and
amendments duly executed and completed by such Transferee,
and to comply from time to time with Applicable Law with
regard to such withholding tax exemption.
SECTION 11.6. Federal Reserve Bank. Nothing herein
shall prohibit any Lender from pledging or assigning any Note
to any Federal Reserve Bank in accordance with Applicable
law.
ARTICLE XII
MISCELLANEOUS
SECTION 12.1. Waivers, Amendments, etc. The provisions
of this Agreement and the other Loan Documents may from time
to time be amended, modified or waived, and any Collateral
may be released, if such amendment, modification, waiver or
release is consented to in writing by the Required Lenders
and, in the case of any amendment or modification, the
Principal Companies party to the relevant Loan Document;
provided, however, that no such amendment, modification,
waiver or release:
(a) which would modify any requirement hereunder that
any particular action be taken by all the Lenders shall be
effective unless consented to by each Lender;
(b) which would modify this Section, change the
definition of "Required Lenders" or "Commitment Termination
Event", release any Guaranty, waive any condition precedent
contained in Section 6.1.1, increase the aggregate amount of
the Commitments above $220,000,000, or extend the Commitments
beyond March 15, 1994, shall be effective unless consented to
by each Lender;
(c) which would release any substantial (in the
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reasonable judgment of the Managing Agents) part of the
Collateral shall be effective unless consented to by each
Lender, unless either (i) such release is in connection with
the Sale of such Collateral, and substantially all Net
Disposition Proceeds of such Sale are used to prepay
principal of the Loans, (ii) such release is of Collateral
consisting of WGHP-TV Operating Assets in connection with the
Sale of such WGHP-TV Operating Assets, and substantially all
net cash proceeds of such Sale are used to prepay any
combination of principal of the WGHP Loan or principal of the
Loans, (iii) such release is of Collateral consisting of cash
and substantially all of such cash is used to prepay
principal of the Loans, or (iv) such release is in connection
with the Sale of such Collateral and substantially all the
Net Disposition Proceeds of such Sale are not used to prepay
principal of the Loans, provided that the aggregate amount of
Net Disposition Proceeds not used to prepay principal of the
Loans in all such Sales does not exceed $20,000,000 on a
cumulative basis;
(d) which would increase the Commitment or the
Percentage of any Lender, reduce any Fees described in
Section 3.5 payable to any Lender, extend the due date for,
or reduce (other than by application of prepayments) the
amount of, any Installment payable to any Lender, or any
interest on any Loan (or reduce the principal amount of or
rate of interest on any Loan) of any Lender shall be made
without the consent of each such Lender affected thereby; or
(e) which would adversely affect the interests, rights
or obligations of the Administrative Agent, either Managing
Agent or the Collateral Agent in its capacity as the
Administrative Agent, the Managing Agent or the Collateral
Agent, as the case may be, or would amend the provisions of
Section 3.1 or 3.6 relating to the transfer of funds between
the Administrative Agent and the Lenders (including the types
of funds or the method of such transfer), shall be made
without the consent of the Administrative Agent, each
Managing Agent or the Collateral Agent, as the case may be;
The provisions of this Section 12.1 are subject to the
provisions of Section 12.15. No failure or delay on the part
of the Administrative Agent, either Managing Agent, the
Collateral Agent, any Lender, or the holder of any Note in
exercising any power or right under this Agreement, the
Collateral Documents, the Notes or any other Loan Document
shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any
other or further exercise thereof or the exercise of any
other power or right. No notice to or demand on the Borrower
or any other Transaction Party in any case shall entitle it
to any notice or demand in similar or other circumstances,
unless otherwise required by the Loan Documents. The
remedies herein provided are cumulative and not exclusive of
any remedies provided in any of the other Loan Documents or
at law or in equity.
No waiver or approval by the Administrative Agent,
either Managing Agent, the Collateral Agent, any Lender, or
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the holder of any Note under this Agreement, the Collateral
Documents, the Notes or any other Loan Document shall, except
as may be otherwise stated in such waiver or approval, be
applicable to subsequent transactions. No waiver or approval
hereunder shall require any similar or dissimilar waiver or
approval thereafter to be granted hereunder.
SECTION 12.2. Notices. All notices and other
communications provided to any party hereto under this
Agreement, the Collateral Documents, the Notes or any other
Loan Document shall (except as otherwise specifically
provided herein or therein) be in writing or by facsimile
transmission and addressed or delivered to it at its address
designated for notices set forth below its signature hereto
in the case of the Principal Companies, and in the case of
the Administrative Agent, the Collateral Agent, each Managing
Agent and each Lender at the address specified on Schedule I
or at such other address as may be designated by such party
in a notice to the other parties. Any notice, if mailed and
properly addressed with postage prepaid, and any notice, if
transmitted by facsimile transmission, shall be deemed given
when received.
SECTION 12.3. Costs and Expenses. Each Principal
Company agrees to pay all reasonable out-of-pocket expenses
incurred by the Agents in connection with the structuring,
preparation, negotiation, review, execution and delivery of
this Agreement and each other Loan Document and Ancillary
Document, including schedules and exhibits, and any
amendments, consents or waivers to this Agreement, the other
Loan Documents or related documents as may from time to time
hereafter be required or requested (whether or not any of the
same become effective), including reasonable (a) costs and
expenses of syndication and (b) fees and expenses of counsel
(including all local and special counsel) for the Agents
from time to time incurred in connection therewith, whether
or not the transactions contemplated hereby or thereby are
consummated, and to pay all reasonable expenses of the Agents
(including reasonable fees and expenses of counsel to the
Agents) incurred in connection with the preparation and
review of the form of any Instrument relevant to this
Agreement, the consideration of legal questions relevant
hereto and thereto, and the consideration and/or conduct of
any proposed or actual restructuring or "workout" of any
Obligations. The Borrower also agrees to reimburse each
Agent and each Lender upon demand for all stamp or other
taxes payable in connection with the execution, delivery or
enforcement of this Agreement or any Instrument related
hereto and for all reasonable out-of-pocket expenses
(including reasonable attorneys' fees and legal expenses)
incurred by such Agent or such Lender in enforcing the
Obligations of the Principal Companies and the other
Transaction Parties under this Agreement or any other Loan
Document and the consideration and/or conduct of any proposed
or actual restructuring or "workout" of any Obligations.
SECTION 12.4. Indemnification. In consideration of the
execution and delivery of this Agreement by each Lender and
the extension of the Commitments, each Principal Company
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hereby indemnifies, exonerates and holds each of the Agents
and each of the Lenders and each of their respective
shareholders, officers, directors, employees, agents
subsidiaries and Affiliates (collectively the "Indemnified
Parties" and, individually, an "Indemnified Party") free and
harmless from and against any and all actions, causes of
action, suits, losses, costs, liabilities, damages, and
expenses actually incurred in connection therewith or any of
the transactions contemplated hereby (irrespective of whether
such Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable
fees and disbursements of counsel, amounts paid in settlement
and court costs (the "Indemnified Liabilities"), incurred by
the Indemnified Parties or any of them as a result of, or
arising out of, or relating to, or as a direct or indirect
result of:
(a) any transaction described in or contemplated by
Section 6.1 or financed or to be financed in whole or in part
or directly or indirectly with the proceeds of any Loan;
(b) the entering into or performance of this Agreement
or any of the other Loan Documents by any of the Indemnified
Parties or any of the Principal Companies; and
(c) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or
release from, any real property owned or operated by any of
the Principal Companies or any of their Subsidiaries of any
Hazardous Material (including, without limitation, any
losses, liabilities, damages, injuries, costs, expenses or
claims asserted or arising under Environmental Law),
regardless of whether or not caused by, or within the control
of, any of the Principal Companies or any of their
Subsidiaries;
except for any portion of such Indemnified Liabilities which
a court of competent jurisdiction has found, in a final,
nonappealable order, resulted solely by reason of such
Indemnified Party's gross negligence or willful misconduct or
breach by such Indemnified Party of its obligations under the
Loan Documents. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, each of the
Principal Companies hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under Applicable
Law, except as aforesaid to the extent not payable by reason
of the Indemnified Party's gross negligence or willful
misconduct or breach of such obligations.
SECTION 12.5. Survival. The obligations of the
Principal Companies under Sections 3.7, 4.5, 4.8, 12.3, and
12.4 and the obligations of the Lenders under Section 10.1
shall in each case survive any termination of this Agreement
and the repayment of the Obligations. The representations
and warranties made by the Transaction Parties in this
Agreement and in each other Loan Document, and in any
document, certificate or statement delivered pursuant hereto
or thereto or in connection herewith or therewith, shall
<PAGE>
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survive the execution and delivery of this Agreement and each
Loan Document and the making of the Loans.
SECTION 12.6. Severability. Any provision of this
Agreement, the Notes or any other Loan Document 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 of this Agreement, the Notes or such
other or enforceability of any such provision in any other
jurisdiction.
SECTION 12.7. Headings. The various headings of this
Agreement and of each Loan Document are inserted for
convenience only and shall not affect the meaning or
interpretation of this Agreement or such Loan Document or any
provisions hereof or thereof.
SECTION 12.8. Counterparts; Entire Agreement. This
Agreement may be executed by the parties hereto in several
counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the
same agreement. This Agreement, the Notes, the other Loan
Documents, and any Assignment and Acceptance Agreement
constitute the entire understanding among the parties hereto
with respect to the subject matter hereof and supersede any
prior agreements, written or oral, with respect thereto.
SECTION 12.9. CHOICE OF LAW. THIS AGREEMENT HAS BEEN
EXECUTED AND DELIVERED IN THE COMMONWEALTH OF MASSACHUSETTS
AND SHALL IN ALL RESPECTS BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF SUCH STATE APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE
AND, IN THE CASE OF PROVISIONS RELATING TO INTEREST RATES,
ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
SECTION 12.10. SERVICE OF PROCESS. EACH PRINCIPAL
COMPANY BY ITS EXECUTION HEREOF (A) HEREBY IRREVOCABLY
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE STATE COURTS
OF THE COMMONWEALTH OF MASSACHUSETTS AND TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS FOR THE PURPOSE OF ANY SUIT, ACTION
OR OTHER PROCEEDING ARISING OUT OF OR BASED UPON THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE SUBJECT MATTER
HEREOF OR THEREOF, AND (B) HEREBY, WAIVES TO THE EXTENT NOT
PROHIBITED BY APPLICABLE LAW, AND AGREES NOT TO ASSERT, BY
WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH
PROCEEDING, ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO
THE JURISDICTION OF THE ABOVE-NAMED COURTS, THAT ITS PROPERTY
IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT ANY
SUCH PROCEEDING BROUGHT IN ONE OF THE ABOVE-NAMED COURTS IS
IMPROPER, OR THAT THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT,
OR THE SUBJECT MATTER HEREOF OR THEREOF MAY NOT BE ENFORCED
IN OR BY SUCH COURT. EACH PRINCIPAL COMPANY HEREBY CONSENTS
TO SERVICE OF PROCESS IN ANY SUCH PROCEEDING IN ANY MANNER
PERMITTED BY CHAPTER 223A OF THE GENERAL LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS, AND AGREES THAT SERVICE OF
PROCESS BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, AT ITS ADDRESS SPECIFIED IN OR PURSUANT TO
<PAGE>
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SECTION 12.2 IS REASONABLY CALCULATED TO GIVE ACTUAL NOTICE.
SECTION 12.11. Successors and Assigns. This Agreement
shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns;
provided, however, that:
(a) no Principal Company may assign or transfer its
rights or obligations hereunder without the prior written
consent of all Lenders; and
(b) the rights of sale, assignment, participation and
transfer by the Lenders are subject to Article XI.
SECTION 12.12. Other Transactions; Consent to
Relationships. Nothing contained herein shall preclude the
Administrative Agent, the Managing Agents, the Collateral
Agent or any Lender from engaging in any transaction, in
addition to those contemplated by this Agreement or any Loan
Document, with any of the Principal Companies or any of their
Affiliates in which such Principal Company or such Affiliate
is not restricted hereby from engaging with any other Person.
SECTION 12.13. Further Assurances. Each of the
Principal Companies hereby agrees that it will, from time to
time at its own expense, promptly execute and deliver all
further Instruments, and take all further action, that may be
necessary or appropriate, or that the Administrative Agent,
either Managing Agent, the Collateral Agent or the Required
Lenders may reasonably request, in order to perfect or
protect any Lien granted or purported to be granted under the
Collateral Documents, to enable the Lenders, the
Administrative Agent, either Managing Agent or the Collateral
Agent to exercise and enforce their rights under this
Agreement and the other Loan Documents and otherwise to carry
out the intent of this Agreement and the other Loan
Documents.
SECTION 12.14. Confidentiality. Each Lender shall, for
a period of two (2) years, hold all non-public information
obtained pursuant to the requirements of this Agreement,
which has been identified in writing as confidential by any
Principal Company, in accordance with such Lender's customary
procedures for handling confidential information of this
nature and in accordance with safe and sound banking
practices, provided that in any event it is understood and
agreed that each Lender may make disclosure of such
information (a) at any time after an Event of Default, (b) to
its examiners, Affiliates, outside auditors, counsel, and
other professional advisors in connection with this
Agreement, (c) as reasonably required by any bona fide
prospective Participant or Purchasing Lender or actual
Participant or Purchasing Lender in connection with the
contemplated transfer of any Commitment, Loan or Note or any
participation therein or (d) as required or requested by any
Governmental Authority or pursuant to legal process;
provided, further, that,
(i) unless prohibited by any Applicable Law,
<PAGE>
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each Lender shall notify the Borrower promptly of any
request by any Governmental Authority (other than any
such request in connection with an examination of the
financial condition of such Lender by such Governmental
Authority) for disclosure of any such non-public
information and shall exercise its reasonable efforts to
permit the Principal Companies, if practical, to respond
to such notice prior to disclosure of such information;
and
(ii) in no event shall any Lender be obligated
or required to return any materials furnished by the
Principal Companies.
SECTION 12.15. Release of Collateral, Subordination of
Liens. Each Lender hereby authorizes the Collateral Agent to
execute and deliver, on behalf of all Lenders and without any
further consent or other action by the Lenders, (a) such
releases, termination statements and other documents as are
necessary or appropriate to release Collateral from the Lien
of the Collateral Documents in connection with any Sale
permitted by this Agreement or in connection with any release
of Collateral permitted by this Agreement or any of the
Collateral Documents, and (b) the WGHP Subordination
Agreement, providing for the subordination of the Liens
granted to the Collateral Agent in the WGHP-TV Operating
Assets to the Liens granted to or for the benefit of the WGHP
Lender in the WGHP-TV Operating Assets.
SECTION 12.16. WAIVER OF JURY TRIAL. TO THE EXTENT NOT
PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF
THE MANAGING AGENTS, THE COLLATERAL AGENT, THE ADMINISTRATIVE
AGENT AND THE LENDERS AND EACH PRINCIPAL COMPANY HEREBY
WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS
PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY
IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE SUBJECT MATTER
HEREOF OR THEREOF OR ANY OBLIGATION OR IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF YOU OR ANY
PRINCIPAL COMPANY IN CONNECTION WITH ANY OF THE ABOVE, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND
WHETHER IN CONTRACT OR TORT OR OTHERWISE. EACH PRINCIPAL
COMPANY ACKNOWLEDGES THAT THE PROVISIONS OF THIS
SECTION 12.16 CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH THE
MANAGING AGENTS, THE COLLATERAL AGENT, THE ADMINISTRATIVE
AGENT AND THE LENDERS ARE RELYING AND WILL RELY IN ENTERING
INTO THIS AGREEMENT AND ANY OTHER PRESENT OR FUTURE LOAN
DOCUMENT. ANY OF THE MANAGING AGENTS, THE COLLATERAL AGENT,
THE ADMINISTRATIVE AGENT OR THE LENDERS OR ANY PRINCIPAL
COMPANY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION 12.16 WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE MANAGING AGENTS, THE COLLATERAL AGENT, THE
ADMINISTRATIVE AGENT AND THE LENDERS AND EACH PRINCIPAL
COMPANY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
SECTION 12.17. Amendment and Restatement of Original
Loan Agreement. This Agreement represents an amendment and
restatement of the Loan Agreement, dated as of August 20,
<PAGE>
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1993, among the Borrower, GABCO, the financial institutions
party thereto as lenders, Bank of Boston, as administrative
agent, Continental, as collateral agent, Bank of Boston and
Continental as managing agents, and Bank of Boston,
Continental and The Chase Manhattan Bank, N.A., as co-agents.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers
hereunto duly authorized as of the day and year first above
written.
GREAT AMERICAN TELEVISION AND
RADIO COMPANY, INC.
By:
Its:
Address: One East Fourth Street
Cincinnati, Ohio 45202
Fax: (513) 721-8413
Attention: Gregory C. Thomas
GREAT AMERICAN BROADCASTING
COMPANY
By:
Its:
Address: One East Fourth Street
Cincinnati, Ohio 45202
Fax: (513) 721-8413
Attention: Gregory C. Thomas
CONTINENTAL BANK, N.A. as
Collateral Agent, as Managing
Agent, as Co-Agent and as one
of the Lenders
By:
Its:
THE FIRST NATIONAL BANK OF
BOSTON, as Administrative
Agent, as Managing Agent, as
Co-Agent and as one of the
Lenders
By:
Its:
<PAGE>
- 135 -
THE CHASE MANHATTAN BANK, N.A.,
as Co-Agent and as one of the
Lenders
By:
Its:
THE BANK OF NEW YORK, as one of
the Lenders
By:
Its:
BANK OF MONTREAL, as one of the
Lenders
By:
Its:
NATIONAL WESTMINSTER BANK USA,
as one of the Lenders
By:
Its:
CHEMICAL BANK, as one of the
Lenders
By:
Its:
BANQUE PARIBAS, as one of the
Lenders
By:
Its:
By:
Its:
STAR BANK, N.A., as one of the
Lenders
By:
Its:
<PAGE>
- 136 -
THE PROVIDENT BANK, as one of the
Lenders
By:
Its:
<PAGE>
GREAT AMERICAN TELEVISION AND RADIO COMPANY, INC.
GREAT AMERICAN BROADCASTING COMPANY
One East Fourth Street
Cincinnati, Ohio 45202
Continental Bank N.A., Banque Paribas
Individually, as Managing Agent Chemical Bank
and as Collateral Agent Bank of Montreal
The First National Bank of Boston, The Bank of New York
Individually, as Managing Agent The Provident Bank
and as Administrative Agent Star Bank, N.A.,
The Chase Manhattan Bank, N.A. Cincinnati
National Westminster Bank USA
Re: Modification No. 1 Dated as of:
December 17, 1993
Gentlemen:
We refer to the Loan Agreement, dated as of August 20,
1993, as amended and restated as of November 30, 1993 (as
amended from time to time and in effect, the "Loan
Agreement"), by and among Great American Television and Radio
Company, Inc. (the "Borrower"), Great American Broadcasting
Company ("GABCO"), the financial institutions party thereto as
lenders (the "Lenders"), The First National Bank of Boston
("Bank of Boston") and Continental Bank, N.A. ("Continental"),
as managing agents for the Lenders, Bank of Boston, as
administrative agent for the Lenders, and Continental, as
collateral agent for the Lenders. All terms in this letter
agreement (this "Agreement") that are not defined herein, but
that are defined in the Loan Agreement, shall have the
meanings specified for such terms in the Loan Agreement.
<PAGE>
The parties hereto hereby agree as follows:
ARTICLE I
MODIFICATIONS
Effective as of the date of this Agreement (the
"Modification Date"), the Loan Agreement is hereby amended in
each of the following respects:
SECTION 1.1. Amendments to Defined Terms. Section 1.1
of the Loan Agreement is hereby amended in each of the
following respects:
(a) Deletion of Defined Terms. The defined
terms "WGHP Loan", "WGHP Loan Agreement" and "WGHP
Subordination Agreement" are hereby deleted in their
entirety.
(b) New Defined Terms. The following new
defined terms are hereby added to Section 1.1 of the Loan
Agreement in appropriate alphabetical order:
"WGHP 9 1/2% Notes" means the 9 1/2% Notes due
December 31, 1999 of the Borrower, issued pursuant
to the WGHP 9 1/2% Notes Indenture.
"WGHP 9 1/2% Notes Indenture" means the
Indenture, to be executed on or prior to the
Effective Date by the Borrower and Star Bank, N.A.,
as trustee, providing for the issuance of WGHP 9
1/2% Notes.
"WGHP 9 1/2% Notes Purchase Agreement" means
the Securities Purchase Agreement to be executed on
or prior to the Effective Date by the Borrower and
each of the initial holders of WGHP 9 1/2% Notes.
"WGHP Subordination Agreement" means the
Subordination Agreement to be executed by the
Borrower, the trustee under the WGHP 9 1/2% Notes
Indenture, and the initial holders of WGHP 9 1/2%
Notes, pursuant to which all obligations of the
Borrower in respect of the WGHP 9 1/2% Notes shall
be subordinated to Senior Indebtedness (as defined
therein).
(c) Amendments. The definitions of each of
the following defined terms contained in Section 1.1 of
the Loan Agreement are hereby amended in the following
respects:
(i) The definition of "Excess Cash Flow"
<PAGE>
is hereby amended (A) by replacing the reference to "WGHP Loan
Agreement" appearing in clause (c) thereof with "WGHP 9 1/2%
Notes", and (B) by amending and restating clause (y) thereof
to read in its entirety as follows:
(y) there shall be excluded from payments or
prepayments of Consolidated Funded Debt of GACC and its
Subsidiaries during such Fiscal Year all redemptions of
WGHP 9 1/2% Notes during such Fiscal Year, and
(ii) The definition of "Net Disposition
Proceeds" is hereby amended by adding the following new
sentence at the conclusion thereof:
Net Disposition Proceeds shall not include any cash
consideration received by the Borrower from the Sale of
any WGHP-TV Operating Assets required by the WGHP
Subordination Agreement to be paid to the holders of
WGHP 9 1/2% Notes.
(iii) The definition of "Other Debt
Documents" is hereby amended by amending and restating clause
(c) thereof to read in its entirety as follows:
(c) the WGHP 9 1/2% Notes, the WGHP 9 1/2% Notes
Indenture and the WGHP 9 1/2% Notes Purchase Agreement,
SECTION 1.2. Amendments to Conditions Precedent.
Paragraph (i) of Section 6.1.1 of the Loan Agreement is hereby
amended and restated to read in its entirety as follows:
(i) WGHP 9 1/2% Notes. The Borrower shall have received
all of the cash proceeds of the sale of the WGHP 9 1/2%
Notes, in the aggregate amount of $17,500,000. The WGHP
9 1/2% Notes Indenture, the WGHP 9 1/2% Notes Purchase
Agreement and the WGHP Subordination Agreement shall be
substantially in the form of Exhibit T, Exhibit Y and
Exhibit U hereto, respectively.
SECTION 1.3. Amendments to Negative Covenants.
Section 8.2 of the Loan Agreement is hereby amended in each of
the following respects:
(a) Permitted Indebtedness. Paragraph (g) of
Section 8.2.2 of the Loan Agreement is hereby amended by
replacing the reference therein to the "WGHP Loan
Agreement" with "WGHP 9 1/2% Notes".
(b) Restricted Payments. Paragraph (k) of
Section 8.2.8 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
<PAGE>
(k) (i) payments by the Borrower of accrued unpaid
interest on outstanding Indebtedness under the WGHP 9 1/2%
Notes, at a rate permitted by clause g of Section 8.2.2.
and (ii) redemptions of WGHP 9 1/2% Notes out of
excess cash flow of WGHP-TV Operating Assets;
provided that such payments and redemptions are
required by the interest payment and mandatory
redemption provisions of the WGHP 9 1/2% Notes
Indenture, and are not prohibited by the applicable
subordination provisions contained in the WGHP
Subordination Agreement, each as in effect on the
Effective Date or as amended from time to time in
compliance with this Agreement;
SECTION 1.4. New Exhibits to Loan Agreement.
(a) WGHP 9 1/2% Notes Indenture. Exhibit T
annexed to the Loan Agreement is hereby replaced by the
form of WGHP 9 1/2% Notes Indenture attached hereto.
(b) WGHP Subordination Agreement. Exhibit U
annexed to the Loan Agreement is hereby replaced by the
form of WGHP Subordination Agreement attached hereto.
(c) WGHP 9 1/2% Notes Purchase Agreement. The
form of WGHP 9 1/2% Notes Purchase Agreement is hereby
added to the Loan Agreement as a new Exhibit Y.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
We hereby represent and warrant to each of you as
follows:
SECTION 2.01. Binding Effect of Documents, etc. This
Agreement has been duly executed and delivered by each
Principal Company and is in full force and effect. The
agreements and obligations of each Principal Company contained
in this Agreement constitute legal, valid and binding
obligations of such Principal Company enforceable against such
Principal Company in accordance with their respective terms,
except as such enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws
affecting generally the enforcement of creditors' rights or by
general equitable principles.
SECTION 2.02. Corporate Authority, etc. The execution
and delivery by each Principal Company of this Agreement have
been duly and properly authorized by all necessary corporate
or other action on the part of each Principal Company and do
not and will not (a) contravene any provision of the charter
or organizational documents or by-laws of any Principal
<PAGE>
Company, (b) conflict with, or result in a breach of the
terms, conditions or provisions of or constitute a default
under, any agreement, deed of trust, indenture, mortgage or
other instrument to which any Principal Company is a party or
by which any Principal Company or its properties is bound or
affected, (c) violate or contravene any provision of any law
or regulation or any order, ruling or interpretation
thereunder or any judgment, decree or order of any court or
governmental or regulatory authority, bureau, agency or
official (all as in effect and from time to time and
applicable to any Principal Company), (d) require any waivers,
consents or approvals from any of the creditors of any
Principal Company, or (e) require any consents or approvals
from any shareholders of any Principal Company.
ARTICLE III
CONSENT OF GUARANTOR
SECTION 3.01. Consent of Guarantor.
(a) The Guarantor, by its signature below, absolutely
and unconditionally consents to the execution, delivery and
performance by the Borrower of this Agreement.
(b) It is the express understanding and intention of the
Guarantor that all the Obligations of the Principal Companies
shall at all times hereafter continue to be entitled to all
the benefits of, and to all the security constituted by, its
Guaranty to the same extent as prior to the execution of this
Agreement.
ARTICLE V
PROVISIONS OF GENERAL APPLICATION
Except as otherwise expressly provided by this Agreement,
all of the terms, conditions and provisions of the Loan
Agreement and each of the other Loan Documents remain
unaltered. This Agreement and the rights and obligations
hereunder of each of the parties hereto shall be governed by
and interpreted and determined in accordance with the laws of
the Commonwealth of Massachusetts. This Agreement shall be
binding upon and inure to the benefit of each of the parties
hereto and their respective successors in title and permitted
assigns. This Agreement may be executed in any number of
counterparts, but all of such counterparts shall together
constitute but one and the same agreement. In making proof of
this Agreement, it shall not be necessary to produce or
account for more than one counterpart hereof signed by each of
the parties hereto.
If you are in agreement with the foregoing, please sign
the enclosed counterparts of this Agreement and return such
<PAGE>
counterparts to the undersigned.
Very truly yours,
GREAT AMERICAN BROADCASTING
COMPANY
By:____________________________
Title:
GREAT AMERICAN TELEVISION AND RADIO
COMPANY, INC.
By:____________________________
Title:
The foregoing Agreement is hereby accepted by each of the
undersigned on and as of the date first above written.
CONTINENTAL BANK N.A.,
Individually, as Managing Agent and as Collateral Agent
By: ______________________________
Title:
THE FIRST NATIONAL BANK OF BOSTON,
Individually, as Managing Agent and as Administrative Agent
By: ______________________________
Title:
THE CHASE MANHATTAN BANK, N.A.
By: ______________________________
Title:
CHEMICAL BANK
By: ______________________________
Title:
<PAGE>
NATIONAL WESTMINSTER BANK USA
By: ______________________________
Title:
THE BANK OF NEW YORK
By: ______________________________
Title:
BANQUE PARIBAS
By: ______________________________
Title:
By: ______________________________
Title:
BANK OF MONTREAL
By: ______________________________
Title:
THE PROVIDENT BANK
By: ______________________________
Title:
STAR BANK, N.A., CINCINNATI
By: ______________________________
Title:
<PAGE>
GREAT AMERICAN TELEVISION AND RADIO COMPANY, INC.
GREAT AMERICAN COMMUNICATIONS COMPANY
GREAT AMERICAN BROADCASTING COMPANY
GREAT AMERICAN TELEVISION AND RADIO HOLDINGS, INC.
LEISURE SYSTEMS, INC.
One East Fourth Street
Cincinnati, Ohio 45202
Continental Bank N.A., Banque Paribas
Individually, as Managing Agent Chemical Bank
and as Collateral Agent Bank of Montreal
The First National Bank of Boston, The Bank of New York
Individually, as Managing Agent The Provident Bank
and as Administrative Agent Star Bank, N.A.
The Chase Manhattan Bank, N.A. Cincinnati
National Westminster Bank USA
Re: Consent and Waiver Dated as of: February 3, 1994
Gentlemen:
We refer to the Loan Agreement, dated as of August 20,
1993, as amended and restated as of November 30, 1993 (as
amended from time to time and in effect, the "Loan
Agreement"), by and among Great American Television and Radio
Company, Inc. ("Borrower"), Great American Communications
Company ("GACC"), Great American Broadcasting Company
("GABCO"), Great American Television and Radio Holdings, Inc.
and Leisure Systems, Inc. ("LSI"), the financial institutions
party thereto as lenders ("Lenders"), The First National Bank
of Boston ("Bank of Boston") and Continental Bank, N.A.
("Continental"), as managing agents for the Lenders, Bank of
Boston, as administrative agent for the Lenders, and
Continental, as collateral agent for the Lenders. All terms
in this letter of agreement ("this Agreement") that are not
defined herein, but that are defined in the Loan Agreement,
shall have the meanings specified for such terms in the Loan
Agreement.
ARTICLE I
CONSENTS
SECTION 1.1. Proposed Transactions.
(a) Execution and Delivery of Note Purchase
Agreement. GACC proposes to execute and deliver a Note
Purchase Agreement, substantially in the form of the
<PAGE>
draft thereof attached hereto as Exhibit A ("Draft Note
Purchase Agreement") providing for the issuance and sale
by GACC of up to $200,000,000 of 9-3/4% promissory notes
("GACC 9-3/4% Notes") to the purchasers named therein.
(b) Delivery of Notices to Redeem GABCO 13%
Notes and GACC 14% Notes. GABCO proposes to deliver a
notice pursuant to Section 5.2 of the GABCO 13% Note Exchange
Agreement to repurchase all the outstanding GABCO 13%
Notes ("Notice to Repurchase GABCO 13% Notes"). GACC
proposes to deliver a notice pursuant to Section 3.3 of
the GACC 14% Note Indenture to redeem all the outstanding
GACC 14% Notes ("Notice to Redeem GACC 14% Notes", and,
together with the Notice to Repurchase GABCO 13% Notes,
the "Redemption Notices"). Drafts of the Redemption
Notices are attached hereto as Exhibits B-1 and B-2,
respectively (such drafts being hereinafter referred to
as the "Draft Redemption Notices").
SECTION 1.2. Requests for Consents and Waivers
under Loan Agreement. GACC, GABCO and the Borrower have
requested the Managing Agents and the Required Lenders to:
(a) grant all such waivers and consents as
are required under the Loan Agreement and the other Loan
Documents to permit:
(i) the execution and delivery by GACC
of a definitive note purchase agreement in or
substantially in the form of the Draft Note Purchase
Agreement (such definitive agreement being
hereinafter referred to as the "Definitive Note
Purchase Agreement"); and
(ii) the delivery by GACC and GABCO
of definitive redemption notices in or substantially
in the form of the Draft Redemption Notices (such
definitive notices being hereinafter referred to as
the "Definitive Redemption Notices"); and
(b) waive the Defaults and Events of Default
that would otherwise arise under Section 9.1.5 of the
Loan Agreement upon the delivery by GACC and GABCO of the
Definitive Redemption Notices.
SECTION 1.3. Required Lender Consents and Waivers.
Subject to the conditions, covenants and limitations contained
in Article II of this Agreement, the undersigned Required
Lenders hereby:
(a) grant all such consents and waivers as are
required under the Loan Agreement and the other Loan
Documents to permit:
<PAGE>
(i) the execution and delivery by GACC of
the Definitive Note Purchase Agreement; and
(ii) the delivery by GACC and GABCO of the
Definitive Redemption Notices; and
(b) waive any Defaults or Events of Default
that would otherwise arise as a result of the delivery of
the Definitive Redemption Notices.
ARTICLE II
CONDITIONS AND LIMITATIONS TO CONSENTS
The consents and waivers of the Required Lenders granted
pursuant to Section 1.3 are subject to each of the following
conditions, covenants and limitations:
SECTION 2.1. Form of Documents. Each of the Definitive
Note Purchase Agreement and the Definitive Redemption Notices
shall, when executed and/or delivered by GACC or GABCO, be in
the form of the draft thereof attached hereto, or
substantially in that form with only such variations as shall
have been expressly approved in writing by the Required
Lenders.
SECTION 2.2. No Amendments. GACC will not, at any time
after execution and delivery of the Definitive Note Purchase
Agreement, cause or permit the Definitive Note Purchase
Agreement to be modified, supplemented or amended in any
respect without (in each case) the express prior written
consent of the Required Lenders.
SECTION 2.3. No Implied Waivers or Consents. Anything
herein express or implied to the contrary notwithstanding, the
consents and waivers of the Required Lenders granted pursuant
to Section 1.3 do not cover, and shall not be construed to be
consents or approvals by the Lenders for, or agreements of the
Lenders with, any of the following transactions, arrangements
or matters:
(a) the execution and/or delivery of an
Indenture providing for the issuance of GACC 9-3/4%
Notes;
(b) the issuance and/or sale of any GACC 9-
3/4% Notes;
(c) the making of any Restricted Payment in
respect of the GABCO 13% Notes or the GACC 14% Notes; or
(d) the making of any offer or the giving of
any notice to make any Restricted Payment in respect of
the GABCO 13% Notes or GACC 14% Notes (other than any
<PAGE>
offer made or notice given pursuant to the Definitive
Redemption Notices).
SECTION 2.4. No Commitments. Nothing
contained herein shall constitute, imply, or be construed as:
(a) the approval by the Managing Agents or
the Lenders of the form of Indenture attached to the
Draft Note Purchase Agreement (or any other form of such
Indenture), including the terms of subordination
contained in Article 10 thereof; or
(b) any commitment on the part of the
Managing Agents or the Lenders to give their consent,
approval or agreement to the sale and/or issuance of GACC
9-3/4% Notes, or to the repurchase or redemption of GACC
14% Notes or GABCO 13% Notes.
Any such approval, commitment, consent or agreement will (if
and when given by the Managing Agents and Required Lenders) be
contained in a separate modification and consent agreement
that will include terms, conditions and other provisions
satisfactory to the Managing Agents, the Required Lenders and
the Principal Companies.
ARTICLE III
CONSENT OF GUARANTORS
The Guarantors and LSI, by their signature below,
absolutely and unconditionally consent to the execution,
delivery and performance of this Agreement by the Principal
Companies. It is the express understanding and intention of
the Guarantors and LSI that all the Obligations of the
Principal Companies shall at all times hereafter continue to
be entitled to all the benefits of, and to all the security
constituted by, the Guaranties, or, in the case of LSI, the
Subsidiary Guaranty, to the same extent as prior to the
execution of this Agreement.
ARTICLE IV
PROVISIONS OF GENERAL APPLICATION
Except as otherwise expressly provided by this Agreement,
all of the terms, conditions and provisions of the Loan
Agreement and each of the other Loan Documents remain
unaltered. This Agreement is a Loan Document. This
Agreement and the rights and obligations hereunder of each of
the parties hereto shall be governed by and interpreted and
determined in accordance with the laws of The Commonwealth of
Massachusetts. This Agreement shall be binding upon and inure
to the benefit of each of the parties hereto and their
respective successors in title and permitted assigns. This
<PAGE>
Agreement may be executed in any number of counterparts, but
all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Agreement, it
shall not be necessary to produce or account for more than one
counterpart hereof signed by each of the parties hereto.
If you are in agreement with the foregoing, please sign
the enclosed counterparts of this Agreement and return such
counterparts to the undersigned.
Very truly yours,
GREAT AMERICAN TELEVISION AND RADIO
COMPANY, INC.
By:____________________________
Title:
GREAT AMERICAN COMMUNICATIONS
COMPANY
By:____________________________
Title:
GREAT AMERICAN BROADCASTING
COMPANY
By:____________________________
Title:
GREAT AMERICAN TELEVISION AND RADIO
HOLDINGS, INC.
By:____________________________
Title:
LEISURE SYSTEMS, INC.
By:____________________________
Title:
<PAGE>
The foregoing Agreement is hereby accepted by the
undersigned Required Lenders on and as of the date first above
written.
CONTINENTAL BANK N.A.,
Individually, as Managing Agent and as Collateral Agent
By: ______________________________
Title:
THE FIRST NATIONAL BANK OF BOSTON,
Individually, as Managing Agent and as Administrative Agent
By: ______________________________
Title:
THE CHASE MANHATTAN BANK, N.A.
By: ______________________________
Title:
CHEMICAL BANK
By: ______________________________
Title:
NATIONAL WESTMINSTER BANK USA
By: ______________________________
Title:
THE BANK OF NEW YORK
By: ______________________________
Title:
BANQUE PARIBAS
By: ______________________________
Title:
<PAGE>
By: ______________________________
Title:
BANK OF MONTREAL
By: ______________________________
Title:
THE PROVIDENT BANK
By: ______________________________
Title:
STAR BANK, N.A.
By: ______________________________
Title:
<PAGE>
GREAT AMERICAN TELEVISION AND RADIO COMPANY, INC.
GREAT AMERICAN COMMUNICATIONS COMPANY
GREAT AMERICAN BROADCASTING COMPANY
GREAT AMERICAN TELEVISION AND RADIO HOLDINGS, INC.
LEISURE SYSTEMS, INC.
One East Fourth Street
Cincinnati, Ohio 45202
Continental Bank N.A., Banque Paribas
Individually, as Managing Agent Chemical Bank
and as Collateral Agent Bank of Montreal
The First National Bank of Boston, The Bank of New York
Individually, as Managing Agent The Provident Bank
and as Administrative Agent Star Bank, N.A.
The Chase Manhattan Bank, N.A. Cincinnati
National Westminster Bank USA
Re: Consent, Waiver and Amendment No. 3 to Loan Agreement
Dated as of: February 18, 1994
Gentlemen:
We refer to the Loan Agreement, dated as of August 20, 1993,
as amended and restated as of November 30, 1993 (as amended from
time to time and in effect, the "Loan Agreement"), by and among
Great American Television and Radio Company, Inc. ("Borrower"),
Great American Communications Company ("GACC"), Great American
Broadcasting Company ("GABCO"), Great American Television and
Radio Holdings, Inc. and Leisure Systems, Inc. ("LSI"), the
financial institutions party thereto as lenders ("Lenders"), The
First National Bank of Boston ("Bank of Boston") and Continental
Bank, N.A. ("Continental"), as managing agents for the Lenders,
Bank of Boston, as administrative agent for the Lenders, and
Continental, as collateral agent for the Lenders. All terms in
this letter of agreement ("this Agreement") that are not defined
herein, but that are defined in the Loan Agreement, shall have
the meanings specified for such terms in the Loan Agreement.
ARTICLE I
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CONSENTS
SECTION 1.1. Proposed Transactions.
(a) Issuance and Sale of GACC 9-3/4% Notes. GACC proposes to
issue and sell 9-3/4% promissory notes ("GACC 9-3/4% Notes"), in
an aggregate principal amount of $200,000,000, upon the terms and
subject to the conditions contained in (i) the Note Purchase
Agreement, dated as of February 3, 1994 ("Note Purchase
Agreement"), between GACC and the purchasers identified therein
("Purchasers"), (ii) the draft, in the form attached to the Note
Purchase Agreement, of the Indenture proposed to be entered into
by GACC and Shawmut Bank Connecticut, National Association, as
Trustee (the "Trustee") ("Draft GACC 9-3/4% Note Indenture"),
(iii) the draft, in the form attached to the Draft GACC 9-3/4%
Note Indenture, of the GACC 9-3/4% Notes ("Draft GACC 9-3/4%
Notes"), and (iv) the draft, in the form attached to the Note
Purchase Agreement, of the Registration Rights Agreement proposed
to be entered into by GACC and the Purchasers ("Draft
Registration Rights Agreement") (the Draft GACC 9-3/4% Note
Indenture, the Draft GACC 9-3/4% Notes and the Draft Registration
Rights Agreement, each as amended in the manner reflected in the
changed pages delivered to the Administrative Agent on February
15, 1994, being hereinafter referred to, collectively, as the
"Draft Transaction Documents").
(b) Prepayment and Redemption of GACC 14% Notes and GABCO 13%
Notes. With proceeds of the sale of GACC 9-3/4% Notes, (i) GACC
proposes to redeem all the outstanding GACC 14% Notes in
accordance with Section 3.7 of the GACC 14% Note Indenture and
(ii) GABCO proposes to prepay all the outstanding GABCO 13% Notes
in accordance with Section 5.2 of the GABCO 13% Note Exchange
Agreement.
SECTION 1.2. Requests for Consents and Waivers
under Loan Agreement. The Borrower and the other Principal
Companies have requested the Required Lenders to:
(a) grant all such waivers and consents as are required under
<PAGE>
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the Loan Agreement and the other Loan Documents to permit:
(i) the execution and delivery by GACC of definitive
agreements or instruments in or substantially in the form of the
Draft Transaction Documents (such definitive agreements and
instruments being hereinafter referred to, collectively, as the
"Definitive Transaction Documents");
(ii) the issuance and sale by GACC of GACC 9-3/4% Notes in
an aggregate principal amount of up to $200,000,000, upon the
terms and subject to the conditions set forth in the Note
Purchase Agreement and the Draft Transaction Documents ("Proposed
Sale of 9-3/4% Notes");
(iii) the redemption of all the outstanding GACC 14%
Notes in accordance with Section 3.7 of the GACC 14% Note
Indenture, and the prepayment of all the outstanding GABCO 13%
Notes in accordance with Section 5.2 of the GABCO 13% Note
Exchange Agreement, in each case with the proceeds of the Proposed
Sale of GACC 9-3/4% Notes ("Proposed Redemptions") (the Proposed
Sale of 9-3/4% Notes and the Proposed Redemptions being
hereinafter referred to, collectively, as the "Refinancing
Transactions"); and
(iv) the payment by GACC with the proceeds of the
Proposed Sale of 9-3/4% Notes of fees, costs and expenses,
including legal costs, of the Purchasers and the Trustee required
to be paid by GACC in accordance with the Definitive Transaction
Documents ("Required Payment of Expenses"); and
<PAGE>
-4-
(b) waive the Defaults and Events of Default that would
otherwise arise under Section 9.1.5 of the Loan Agreement upon
the making of the Proposed Redemptions.
SECTION 1.3. Required Lender Consents and Waivers. Subject to
the provisions of Section 1.4, the undersigned Required Lenders
hereby:
(a) grant all such consents and waivers as are required under
the Loan Agreement and the other Loan Documents to permit:
(i) the execution and delivery by GACC of the Definitive
Transaction Documents;
(ii) the Proposed Sale of 9-3/4% Notes;
(iii) the Proposed Redemptions; and
(iv) the Required Payment of Expenses; and
(b) waive any Defaults or Events of Default that would otherwise
arise under Section 9.1.5 of the Loan Agreement upon the making
<PAGE>
-5-
of the Proposed Redemptions.
SECTION 1.4. Conditions and Limitations to Consents and
Waivers. The consents and waivers of the Required Lenders
granted pursuant to Section 1.3 are subject to each of the
following conditions, covenants and limitations:
(a) Form of Definitive Transaction Documents. Each of the
Definitive Transaction Documents shall, when executed and
delivered by GACC, be in the form of the Draft Transaction
Documents, or substantially in that form, with only such material
variations as shall have been expressly approved in writing by
the Required Lenders.
(b) No Amendments. GACC will not (at any time on or prior
to the Transaction Completion Date) cause or permit the Note
Purchase Agreement or, at any time after the execution and
delivery thereof (and prior to the Transaction Completion Date),
any of the Definitive Transaction Documents, to be modified,
supplemented or amended in any respect without (in each case) the
express prior written consent of the Required Lenders.
(c) Use of Proceeds. GACC shall use all the proceeds of
the Proposed Sale of 9-3/4% Notes in the following manner:
(i) first, and immediately after its receipt thereof,
to redeem GACC 14% Notes or prepay GABCO 13% Notes, until the
GACC 14% Notes and GABCO 13% Notes are redeemed or prepaid in
full;
(ii) second, to make the Required Payment of Expenses;
and
(iii) thereafter, for any purpose not prohibited by
<PAGE>
-6-
the Loan Agreement.
(d) Limitation on Principal Amount. The consents and
waivers of the Required Lenders granted pursuant to Section 1.3
do not cover, and shall not be construed to be consents or
approvals by the Lenders for, the issuance or sale by GACC of
GACC 9-3/4% Notes in a principal amount in excess of
$200,000,000.
SECTION 1.5. Effectiveness of Consents and Waivers;
Termination. The consents and waivers of the Required Lenders
granted pursuant to Section 1.3 shall be effective on and as of
the date of this Agreement. Such consents and waivers shall
terminate and cease to be of any further force of effect upon
(a) any breach by GACC of any of the conditions, covenants or
limitations contained in Section 1.4 or (b) the termination of
this Agreement in accordance with Article V. The Lenders, by
their execution of this Agreement, authorize the Administrative
Agent to confirm to the Purchasers, based on such certificates
and other assurances from GACC as the Administrative Agent shall
require, that, on and as of the Transaction Completion Date,
there has been no breach of the conditions, covenants or
limitations contained in Section 1.4.
ARTICLE II
AMENDMENTS TO LOAN AGREEMENT
Effective on and as of the date on which all the Refinancing
Transactions have been completed ("Transaction Completion Date"),
but subject always to the provisions of Article V, the Loan
Agreement is hereby amended in each of the following respects:
SECTION 2.1. Amendments to Defined Terms.
(a) The following defined terms appearing in Section 1.1 of the
Loan Agreement are hereby amended and restated to read in their
entirety as follows:
<PAGE>
-7-
"Ancillary Documents" means, collectively, the Other Debt
Documents, the Reorganization Plan, the GATR 9-1/2% Note Purchase
Agreement, the GACC Merger Agreements, the GACC 9-3/4% Note
Purchase Agreement, the Registration Rights Agreement, the
Additional Funding Agreement, the Tax Sharing Agreement, the
Comprehensive Settlement Agreement, the Hanna-Barbera LC
Documents, and all other Instruments that shall be from time to
time identified by the Borrower and the Managing Agents as
Ancillary Documents for purposes of this Agreement.
"Other Debt Documents" means, collectively, (a) the GACC 9-3/4%
Notes and the GACC 9-3/4% Note Indenture, (b) the WGHP 9-1/2%
Notes and the WGHP 9-1/2% Note Indenture and (c) all other
Instruments evidencing, guarantying or securing any Indebtedness
outstanding under any Instrument referred to in any of clauses
(a) or (b) above, or clauses (b) or (h) of Section 8.2.2.
(b) The following defined terms are hereby added to Section 1.1
of the Loan Agreement in appropriate alphabetical order:
"Exchange Offer" means the offer to be made by GACC to exchange
securities of GACC for outstanding GACC 9-3/4% Notes pursuant to
Section 2 of the Registration Rights Agreement.
"GACC 9-3/4% Notes" means (i) at all times prior to the
consummation of the Exchange Offer, the 9-3/4% Senior
Subordinated Notes Due February 15, 2004 of GACC issued pursuant
to the GACC 9-3/4% Note Purchase Agreement and the GACC 9-3/4%
Note Indenture, and (ii) from and after the consummation of the
Exchange Offer, the securities issued pursuant to the Exchange
Offer on such consummation date in exchange for the GACC 9-3/4%
<PAGE>
-8-
Notes described in clause (i).
"GACC 9-3/4% Note Indenture" means (i) at all times prior to
consummation of the Exchange Offer, the Indenture, dated as of
February 18, 1994, by and between GACC and Shawmut Bank
Connecticut, National Association, as Trustee, providing for the
issuance by GACC of GACC 9-3/4% Notes, and (ii) from and after
the consummation of the Exchange Offer, the Indenture referred to
in clause (i), as amended on or prior to the effective date of
the Exchange Offer to permit the Indenture to be qualified under
the Trust Indenture Act of 1939, as amended.
"GACC 9-3/4% Note Purchase Agreement" means the Note Purchase
Agreement, dated as of February 3, 1994, by and among GACC and
the initial purchasers of GACC 9-3/4% Notes, providing for the
issuance by GACC of GACC 9-3/4% Notes.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of February 18, 1994, by and among GACC and
the initial purchasers of GACC 9-3/4% Notes, providing for the
Exchange Offer and the registration under the Securities Act of
1933 of GACC 9-3/4% Notes.
SECTION 2.2. Amendments to Section 3.3.2(c) - Net Securities
Proceeds. Section 3.3.2(c) of the Loan Agreement is hereby
amended and restated in its entirety to read as follows:
"(c) Net Securities Proceeds. All Net Securities Proceeds
received by GACC shall be used, substantially contemporaneously
with such receipt, to prepay principal of the Loans. Any
<PAGE>
-9-
prepayment of principal of the Loans pursuant to this paragraph
(c) shall reduce the remaining Installments by the amount of such
prepayment in the inverse order of maturity thereof, beginning
with the Installment due on the Maturity Date."
SECTION 2.3. Amendments to Section 8.1.7 - Notices. Section
8.1.7 of the Loan Agreement is hereby amended in each of the
following respects:
(a) by (i) deleting the period following paragraph (b) of
such Section 8.1.7, and (ii) inserting in its place the
following: "; and";
(b) by deleting the reference to clause (b)(ii)(B) of
Section 8.2.8 contained in paragraph (b) of such Section 8.1.7;
and
(c) by adding the following new paragraph (c) to such
Section 8.1.7:
"(c) not later than ten (10) days prior to appointing
any Person as a paying agent, trustee or other Representative for
holders of Indebtedness under any Other Debt Document, deliver
to the Administrative Agent written notice of such appointment,
together with a description of such Representative and the
identity, address, telephone and telecopier numbers of the Person
or Persons authorized to receive notices on behalf of such
Representative under the applicable Other Debt Documents."
SECTION 2.4. Amendments to Section 8.2.2 - Indebtedness.
Section 8.2.2 of the Loan Agreement is hereby amended in each of
the following respects:
<PAGE>
-10-
(a) by amending and restating paragraph (c) of such Section
8.2.2 to read in its entirety as follows:
"(c) Indebtedness of GACC under GACC 9-3/4% Notes in
the maximum aggregate principal amount of $200,000,000, less any
repayments, prepayments, redemptions, repurchases, defeasances or
cancellations of such Indebtedness, plus all accrued, unpaid
interest on such Indebtedness at a rate not in excess of nine and
three-quarters percent (9-3/4%) per annum;"; and
(b) by deleting the text of paragraphs (d), (e) and (f) of such
Section 8.2.2 and, in each case, inserting in place of such text
the following phrase: "Intentionally Deleted".
SECTION 2.5. Amendments to Section 8.2.3 - Liens. Section 8.2.3
of the Loan Agreement is hereby amended by deleting the text of
paragraphs (c) and (d) of such Section 8.2.3 and, in each case,
inserting in place of such text the following phrase:
"Intentionally Deleted".
SECTION 2.6. Amendments to Section 8.2.4 - Financial Covenants.
Section 8.2.4 of the Loan Agreement is hereby amended by amending
and restating the table contained in paragraph (c) of such
Section 8.2.4 to read in its entirety as follows:
<PAGE>
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Minimum Consolidated
Operating Cash Flow to
"Period Total Cash Interest
Ratio
12/31/93 1.75 : 1.0
to 12/31/96
Thereafter 2.00 : 1.0"
SECTION 2.7. Amendments to Section 8.2.8 - Restricted Payments.
Section 8.2.8 of the Loan Agreement is hereby amended in each of
the following respects:
(a) The preamble to Section 8.2.8 is hereby amended and restated
to read in its entirety as follows:
"SECTION 8.2.8. Restricted Payments. Make, offer to make, or
deliver any notice of the making of, any Restricted Payment,
except:"
(b) by amending and restating clauses (i) and (ii) of paragraph
(b) of such Section 8.2.8 to read in their entirety as follows:
"(i) to permit GABCO to make (and GABCO shall use all proceeds
of such payment to make) payments to satisfy its obligations in
respect of live action residual payments and participations
related to programs sold to Worldivision Enterprises, which
payments, in the aggregate, shall not exceed $3,500,000;
<PAGE>
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(ii) to permit GACC to make (and GACC shall use all proceeds of
such payments to make) Restricted Payments permitted by clauses
(c) and (d);"
(c) by amending and restating paragraphs (c), (d) and (e) of
such Section 8.2.8 to read in their entirety as follows:
"(c) payments by GACC of (i) accrued unpaid interest on GACC 9-
3/4% Notes in cash at the annual rate of nine and three-quarters
percent (9-3/4%), (ii) accrued unpaid interest on amounts due and
payable under the GACC 9-3/4% Notes and the GACC 9-3/4% Note
Indenture at the annual default rate equal to eleven and one-
quarter percent (11-1/4%)and (iii) fees, costs and expenses of
holders of GACC 9-3/4% Notes and the trustee under the GACC 9-
3/4% Note Indenture payable by GACC under the GACC 9-3/4% Note
Indenture and the Registration Rights Agreement; provided, that
such payments referred to in clauses (i), (ii) and (iii) are
required by the interest payment and fees, costs and expenses
provisions, and are not prohibited by the subordination
provisions, of the GACC 9-3/4% Note Indenture or the Registration
Rights Agreement, each as in effect on the original issue date of
the GACC 9-3/4% Notes or as amended from time to time in
compliance with this Agreement, and (iv) liquidated damages to
the holders of GACC 9-3/4% Notes that shall have accrued and
become payable in accordance with Section 4 of the Registration
Rights Agreement; provided, that such payments are not prohibited
by the subordination provisions of the GACC 9-3/4% Note
Indenture, as in effect on the original issue date of the GACC 9-
3/4% Notes or as amended from time to time in compliance with
this Agreement;
(d) the issuance of GACC 9-3/4% Notes in exchange for
existing GACC 9-3/4% Notes pursuant to the Exchange Offer;
provided that (i) the GACC 9-3/4% Notes issued in the Exchange
<PAGE>
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Offer are in the form of Exhibit B to the GACC 9-3/4% Note
Indenture, as in effect on the original issue date of the GACC 9-
3/4% Notes, except for such changes as shall have been approved
in writing by the Managing Agents and the Required Lenders and
(ii) in connection with the Exchange Offer, the GACC 9-3/4% Note
Indenture shall not have been amended or modified in any respect,
except for (A) such amendments or modifications as are required
to qualify the GACC 9-3/4% Note Indenture under the Trust
Indenture Act of 1939, as amended, and that do not adversely
affect GACC or the Lenders and (B) such changes as shall have
been approved in writing by the Managing Agents and the Required
Lenders;
(e) notices by GACC pursuant to Section 3.8 of the GACC 9-
3/4% Note Indenture informing the holders of GACC 9-3/4% Notes
that an offer to redeem GACC 9-3/4% Notes is being made pursuant
to Section 4.12 or 4.13 of the GACC 9-3/4% Note Indenture;
provided, that (i) the delivery of such notice is required by the
mandatory redemption provisions of the GACC 9-3/4% Note
Indenture, and (ii) prior to the giving of such notice the
Principal Companies shall have paid in full, or made arrangements
satisfactory to the Managing Agents (which arrangements shall
have been consented to in writing by the Managing Agents) to pay
in full, all the Obligations;"; and
(d) by deleting the text of paragraphs (f) through (j) of such
Section 8.2.8 and, in each case, inserting in place of such text
the following phrase: "Intentionally Deleted".
SECTION 2.8. New Section 8.2.8A. The following new Section
8.2.8A is hereby added to the Loan Agreement immediately after
the conclusion of Section 8.2.8 of the Loan Agreement:
"Section 8.2.8A. Special Covenants of the Principal Companies
<PAGE>
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Regarding Restricted Payments. Make any Restricted Payment that
would cause or have the effect of, or enter into any agreement or
other arrangement that would cause or have the effect of,
reducing the amount of "Senior Bank Debt" or "WGHP Debt"
permitted to be incurred under Section 4.7(c)(i) of the GACC 9-
3/4% Note Indenture (whether pursuant to Section 4.13(b) or (c)
of the GACC 9-3/4% Note Indenture, or otherwise), unless prior
thereto the Principal Companies shall have obtained the express
written consent of the Required Lenders to the Restricted
Payment, other agreement or arrangement, and the written consent
of the Administrative Agent to the corresponding reduction in the
permitted amount of such "Senior Bank Debt" or "WGHP Debt"."
SECTION 2.9. Amendment to Section 9.1.5 - Default Under Other
Debt Documents. Section 9.1.5 of the Loan Agreement is hereby
amended by amending and restating paragraph (e) of such Section
9.1.5 to read in its entirety as follows:
"(e) any Transaction Party shall make, offer to make,
deliver any notice of the making of, or become obligated to make,
offer to make or deliver any notice of the making of, any
Restricted Payment under any Other Debt Document (other than
Restricted Payments and notices to make Restricted Payments
permitted by this Agreement) including any optional prepayment of
principal under any Other Debt Document, any payment required by
the GACC 9-3/4% Note Indenture upon a change in control or sale
of assets, or any deposit with a trustee, paying agent or other
Representative for the holders of GACC 9-3/4% Notes for the
purpose of defeasing all or any part of GACC's obligations under
the GACC 9-3/4% Note Indenture and the GACC 9-3/4% Notes;
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Principal Companies hereby represent and warrant to the
Agents and the Lenders as of the date hereof and as of the
Transaction Completion Date as follows:
SECTION 3.1. Representations in Loan Documents. Each of
the representations and warranties made by or on behalf of the
Principal Companies to the Agents and the Lenders in the Loan
Documents was true and correct when made, is true and correct on
and as of the date hereof, and will be true and correct on and as
<PAGE>
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of the Transaction Completion Date, except, in each case, (a) as
effected by the consummation of the transactions contemplated by
the Loan Documents (including this Agreement) and (b) to the
extent that any such representation or warranty relates by its
express terms solely to a prior date.
SECTION 3.2. Corporate Authority, etc. The execution and
delivery by each Principal Company of this Agreement and by GACC
of the Note Purchase Agreement and each of the Definitive
Transaction Documents, the performance by each Principal Company
of its agreements and obligations under each of such documents,
and the implementation of all the transactions contemplated by
each of such documents, have been duly and properly authorized by
all necessary corporate or other action on the part of each
Principal Company, and do not and will not conflict with, result
in a violation of, or constitute any default under (a) any
provision of any Governing Document of any Principal Company, (b)
any Contractual Obligation of any Principal Company or (c) any
Applicable Law, and will not result in or require the creation or
imposition of any Lien on any Property of any of the Principal
Companies pursuant to the provisions of any Instrument binding
upon or applicable to any of the Principal Companies or any of
their Property.
SECTION 3.3. Binding Effect. Each of this Agreement, the
Note Purchase Agreement and the Definitive Transaction Documents
have been duly executed and delivered by each Principal Company
identified as a party thereto, and is in full force and effect.
The agreements and obligations of each Principal Company
contained in such documents constitute legal, valid and binding
obligations of such Principal Company, enforceable against such
Principal Company in accordance with their terms, except as such
enforceability may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting generally
the enforcement of creditors' rights or by general equitable
principles. All the Obligations are hereby ratified and
confirmed in all respects and are and will continue to be
entitled to all the benefits of the Collateral.
SECTION 3.4. Representations in Note Purchase Agreement
True. Each of the representations and warranties made by GACC
in the Note Purchase Agreement is true and correct, and GACC
hereby makes to each Agent and each Lender each such
representation and warranty made therein to the same extent and
with the same effect as if such representation or warranty were
set forth herein in full.
SECTION 3.5. No Defaults. After giving effect to this
Agreement, no Defaults or Events of Default will be continuing,
and no defaults or events of default will be continuing under any
<PAGE>
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of the Other Debt Documents or other Ancillary Documents.
SECTION 3.6. No Obligations of Subsidiaries. No Subsidiary
of GACC has or will have any obligation, direct or contingent,
matured or unmatured, under or in respect of the Note Purchase
Agreement, the GACC 9-3/4% Notes or any of the other Definitive
Transaction Documents (it being understood that the GACC 9-3/4%
Note Indenture requires GACC to cause its Subsidiaries to comply
with certain operating covenants).
ARTICLE IV
COVENANTS
SECTION 4.1. Delivery of Copies of Transaction Documents.
GACC shall deliver or cause to be delivered to the Administrative
Agent, within 10 days after the Transaction Completion Date, true
and complete copies of the Note Purchase Agreement and each of
the Definitive Transaction Documents, each as duly executed and
delivered by each of the parties thereto.
SECTION 4.2. Legal Opinion. The Principal Companies shall
cause to be delivered to the Administrative Agent, within 10 days
after the Transaction Completion Date, a written legal opinion,
addressed to the Managing Agents and the Lenders, dated as of the
Transaction Completion Date, from Keating, Muething & Klekamp,
counsel to the Principal Companies. Such legal opinion shall be
in form and substance satisfactory to the Managing Agents.
SECTION 4.3. Legal Fees. The Principal Companies shall
pay, promptly after receipt of invoices from the Managing Agents
therefor, the reasonable fees and disbursements of Bingham, Dana
& Gould, special counsel for the Managing Agents, incurred in
connection with the preparation, negotiation, review, execution
and delivery of this Agreement, the Note Purchase Agreement, the
Definitive Transaction Documents and the transactions and
arrangements contemplated hereby and thereby.
SECTION 4.4. Other Documents and Proceedings. The
Principal Companies shall deliver or cause to be delivered to the
Managing Agents, within five days after receipt of a request
therefor, such other documents and certificates as the Managing
Agents shall have reasonably requested, and such other documents
and certificates shall be satisfactory in form and substance to
the Managing Agents and their counsel.
ARTICLE V
<PAGE>
-17-
TERMINATION
On March 15, 1994, if the Refinancing Transactions have not
been completed prior to such date, this Agreement shall
terminate in its entirety with the same force and effect as if
this Agreement had never been executed. Upon any such
termination, and whether or not the Refinancing Transactions are
thereafter completed, the consents and waivers under the Loan
Agreement and the other Loan Documents granted pursuant to
Section 1.3 shall cease to be of any force or effect, and the
amendments to the Loan Agreement described in Article II shall be
null and void and, for all purposes of the Loan Agreement, have
noeffect whatsoever as if this Agreement had never been executed.
ARTICLE VI
CONSENT OF GUARANTORS
The Guarantors and LSI, by their signatures below,
absolutely and unconditionally consent to the execution, delivery
and performance of this Agreement by the Principal Companies. It
is the express understanding and intention of the Guarantors and
LSI that all the Obligations of the Principal Companies shall at
all times hereafter continue to be entitled to all the benefits
of, and to all the security constituted by, the Guaranties, or,
in the case of LSI, the Subsidiary Guaranty, to the same extent
as prior to the execution of this Agreement.
ARTICLE VII
PROVISIONS OF GENERAL APPLICATION
Except as otherwise expressly provided by this Agreement,
all of the terms, conditions and provisions of the Loan Agreement
and each of the other Loan Documents remain unaltered. This
Agreement is a Loan Document. This Agreement and the rights and
obligations hereunder of each of the parties hereto shall be
governed by and interpreted and determined in accordance with the
laws of The Commonwealth of Massachusetts. This Agreement shall
be binding upon and inure to the benefit of each of the parties
hereto and their respective successors in title and permitted
assigns. This Agreement may be executed in any number of
<PAGE>
-18-
counterparts, but all of such counterparts shall together
constitute but one and the same agreement. In making proof of
this Agreement, it shall not be necessary to produce or account
for more than one counterpart hereof signed by each of the
parties hereto.
If you are in agreement with the foregoing Consent, Waiver
and Amendment No. 3 to Loan Agreement, please sign the enclosed
counterparts of this Agreement and return such counterparts to
the undersigned, whereupon this Agreement, as so accepted by you,
shall become a binding agreement between you and the undersigned
Principal Companies on and as of February 18, 1994.
Very truly yours,
GREAT AMERICAN TELEVISION AND RADIO
COMPANY, INC.
By:____________________________
Title:
GREAT AMERICAN COMMUNICATIONS
COMPANY
By:____________________________
Title:
GREAT AMERICAN BROADCASTING
COMPANY
By:____________________________
Title:
GREAT AMERICAN TELEVISION AND
RADIO HOLDINGS, INC.
By:____________________________
Title:
LEISURE SYSTEMS, INC.
<PAGE>
-19-
By:____________________________
Title:
The foregoing Consent, Waiver and Amendment No. 3 to Loan
Agreement is hereby accepted by the undersigned Required Lenders
on and as of February 18, 1994.
CONTINENTAL BANK N.A.,
Individually, as Managing Agent and as Collateral Agent
By: ______________________________
Title:
THE FIRST NATIONAL BANK OF BOSTON,
Individually, as Managing Agent and as Administrative Agent
By: ______________________________
Title:
THE CHASE MANHATTAN BANK, N.A.
By: ______________________________
Title:
NATIONAL WESTMINSTER BANK USA
By: ______________________________
Title:
<PAGE>
-20-
BANQUE PARIBAS
By: ______________________________
Title:
By: ______________________________
Title:
CHEMICAL BANK
By: ______________________________
Title:
BANK OF MONTREAL
By: ______________________________
Title:
THE BANK OF NEW YORK
By: ______________________________
Title:
THE PROVIDENT BANK
By: ______________________________
Title:
STAR BANK, N.A.
By: ______________________________
Title:
GREAT AMERICAN COMMUNICATIONS COMPANY
AND
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION,
Trustee
___________________
INDENTURE
___________________
$250,000,000
PRINCIPAL AMOUNT
9 % Senior Subordinated Notes Due February 15, 2004
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE . . . 1
Section 1.1
Definitions . . . . . . . . . . . . . . 1
Section 1.2
Other Definitions . . . . . . . . . . . 22
Section 1.3
Incorporation by Reference of
TIA . . . . . . . . . . . . . . . . . . . . . . . 23
Section 1.4
Rules of Construction . . . . . . . . . 23
ARTICLE 2
THE NOTES . . . . . . . . . . . . 23
Section 2.1
Form and Dating . . . . . . . . . . . . 23
Section 2.2Execution and Authentication . . . . . 24
Section 2.3
Registrar and Paying Agent . . . . . . 24
Section 2.4
Paying Agent to Hold Money in
Trust . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.5
Holder Lists . . . . . . . . . . . . . 25
Section 2.6
Transfer and Exchange . . . . . . . . . 25
Section 2.7
Replacement Notes . . . . . . . . . . . 26
Section 2.8
Outstanding Notes . . . . . . . . . . . 26
Section 2.9
Treasury Notes . . . . . . . . . . . . 27
Section 2.10
Temporary Notes . . . . . . . . . . . . 27
Section 2.11
Cancellation . . . . . . . . . . . . . 27
Section 2.12
Defaulted Interest . . . . . . . . . . 28
Section 2.13
Record Date . . . . . . . . . . . . . . 28
Section 2.14
CUSIP Number . . . . . . . . . . . . . 28
ARTICLE 3
(i)
<PAGE>
Page
REDEMPTIONS AND OFFERS TO PURCHASE . . . . . 28
Section 3.1
Notices to Trustee . . . . . . . . . . 28
Section 3.2
Selection of Notes to be
Redeemed or Purchased . . . . . . . . . . . . . . 29
Section 3.3
Notice of Redemption . . . . . . . . . 30
Section 3.4
Effect of Notice of Redemption . . . . 30
Section 3.5
Deposit of Redemption Price . . . . . . 31
Section 3.6
Notes Redeemed in Part . . . . . . . . 31
Section 3.7
Optional Redemption . . . . . . . . . . 31
Section 3.8
Mandatory Offers . . . . . . . . . . . 33
ARTICLE 4
COVENANTS . . . . . . . . . . . . 35
Section 4.1
Payment of Notes . . . . . . . . . . . 35
Section 4.2
Reports . . . . . . . . . . . . . . . . 35
Section 4.3
Compliance Certificate . . . . . . . . 36
Section 4.4
Stay, Extension and Usury Laws . . . . 37
Section 4.5
Limitation on Restricted
Payments . . . . . . . . . . . . . . . . . . . . 37
Section 4.6
Corporate Existence . . . . . . . . . . 38
Section 4.7
Limitation on Indebtedness . . . . . . 38
Section 4.8
Limitation on Transactions with Affiliates . . . 40
Section 4.9
Limitation on Liens . . . . . . . . . . 41
Section 4.10
Payment of Taxes and Other
Claims . . . . . . . . . . . . . . . . . . . . . 42
Section 4.11
Restrictions Against
Limitations on Upstream Payments . . . . . . . . 42
(ii)
<PAGE>
Page
Section 4.12
Change of Control . . . . . . . . . . . 43
Section 4.13
Redemption from the Proceeds of Asset Sales . . . 44
Section 4.14
Maintenance of Office or
Agencies . . . . . . . . . . . . . . . . . . . . 47
Section 4.15Limitation on Certain Debt . . . . . 47
ARTICLE 5
SUCCESSORS . . . . . . . . . . . 50
Section 5.1
Merger or Consolidation . . . . . . . . 50
Section 5.2
Surviving Person Substituted . . . . . 51
ARTICLE 6
DEFAULTS AND REMEDIES . . . . . . . . . 51
Section 6.1
Events of Default . . . . . . . . . . . 51
Section 6.2
Acceleration . . . . . . . . . . . . . 52
Section 6.3
Other Remedies . . . . . . . . . . . . 53
Section 6.4
Waiver of Past Defaults . . . . . . . . 53
Section 6.5
Control by a Majority . . . . . . . . . 54
Section 6.6
Limitation on Suits . . . . . . . . . . 54
Section 6.7
Rights of Holders to Receive
Payment . . . . . . . . . . . . . . . . . . . . . 54
Section 6.8
Collection Suit by Trustee . . . . . . 55
Section 6.9
Trustee May File Proofs of
Claim . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.10
Priorities . . . . . . . . . . . . . . 55
Section 6.11
Undertaking for Costs . . . . . . . . . 56
ARTICLE 7
(iii)
<PAGE>
Page
TRUSTEE . . . . . . . . . . . . 56
Section 7.1
Duties of Trustee . . . . . . . . . . . 56
Section 7.2
Rights of Trustee . . . . . . . . . . . 57
Section 7.3
Individual Rights of Trustee . . . . . 58
Section 7.4
Trustee's Disclaimer . . . . . . . . . 58
Section 7.5
Notice of Defaults . . . . . . . . . . 58
Section 7.6
Reports by Trustee to Holders . . . . . 58
Section 7.7
Compensation and Indemnity . . . . . . 59
Section 7.8
Replacement of Trustee . . . . . . . . 59
Section 7.9
Successor Trustee by Merger,
etc. . . . . . . . . . . . . . . . . . . . . . . 60
Section 7.10
Eligibility; Disqualifications . . . . 60
Section 7.11
Preferential Collection of
Claims Against Company . . . . . . . . . . . . . 60
ARTICLE 8
DISCHARGE OF INDENTURE . . . . . . . . 61
Section 8.1
Discharge of Liability on
Notes; Defeasance . . . . . . . . . . . . . . . . 61
Section 8.2
Conditions to Defeasance . . . . . . . 62
Section 8.3
Application of Trust Money . . . . . . 62
Section 8.4
Repayment of Company . . . . . . . . . 62
Section 8.5
Indemnity for U.S. Government
Obligations . . . . . . . . . . . . . . . . . . . 63
Section 8.6
Reinstatement . . . . . . . . . . . . . 63
ARTICLE 9
AMENDMENTS . . . . . . . . . . . 63
(iv)
<PAGE>
Page
Section 9.1
Amendments and Supplements
Permitted Without Consent of Holders . . . . . . 63
Section 9.2
Amendments and Supplements
Requiring Consent of Holders . . . . . . . . . . 64
Section 9.3
Compliance with TIA . . . . . . . . . . 65
Section 9.4
Revocation and Effect of
Consents . . . . . . . . . . . . . . . . . . . . 65
Section 9.5
Notation on or Exchange of
Notes . . . . . . . . . . . . . . . . . . . . . . 66
Section 9.6
Trustee Protected . . . . . . . . . . . 66
Section 9.7
Amendments Requiring Consent of Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . 66
ARTICLE 10
SUBORDINATION . . . . . . . . . . . 67
Section 10.1
Agreement to Subordinate . . . . . . . 67
Section 10.2
Liquidation; Dissolution;
Bankruptcy . . . . . . . . . . . . . . . . . . . 67
Section 10.3
Default on Senior Indebtedness . . . . 68
Section 10.4
Acceleration of Notes . . . . . . . . . 69
Section 10.5
When Distributions Must be Paid Over . . . . . . 69
Section 10.6
Notice . . . . . . . . . . . . . . . . 69
Section 10.7
Subrogation . . . . . . . . . . . . . . 70
Section 10.8
Relative Rights . . . . . . . . . . . . 70
Section 10.9
The Company and Holders May Not Impair Subordination 71
Section 10.10
Distribution or Notice to
Representative . . . . . . . . . . . . . . . . . 72
(v)
<PAGE>
Page
Section 10.11
Rights of Trustee and Paying
Agent . . . . . . . . . . . . . . . . . 72
Section 10.12
Authorization to Effect
Subordination . . . . . . . . . . . . . . . . . . 72
Section 10.13
Payment . . . . . . . . . . . . . . . . 73
Section 10.14
Defeasance of this Article 10 . . . . . 73
Section 10.15
No Claims Against Subsidiaries . . . . 73
ARTICLE 11
MISCELLANEOUS . . . . . . . . . . . 74
Section 11.1
Trust Indenture Act Controls . . . . . 74
Section 11.2
Notices . . . . . . . . . . . . . . . . 74
Section 11.3
Communication by Holders with
Other Holders . . . . . . . . . . . . . . . . . . 75
Section 11.4
Certificate and Opinion as to
Conditions Precedent . . . . . . . . . . . . . . 75
Section 11.5
Statements Required in
Certificate or Opinion . . . . . . . . . . . . . 75
Section 11.6
Rules by Trustee and Agents . . . . . . 75
Section 11.7
Legal Holidays . . . . . . . . . . . . 76
Section 11.8
No Recourse Against Others . . . . . . 76
Section 11.9
Counterparts . . . . . . . . . . . . . 76
Section 11.10
Initial Appointments,
Compliance Certificates . . . . . . . . . . . . . 76
Section 11.11
Governing Law . . . . . . . . . . . . . 76
Section 11.12
No Adverse Interpretation of
Other Agreements . . . . . . . . . . . . . . . . 76
Section 11.13
Successors . . . . . . . . . . . . . . 76
(vi)
<PAGE>
Page
Section 11.14
Severability . . . . . . . . . . . . . 77
Section 11.15
Third Party Beneficiaries . . . . . . . 77
Section 11.16
Table of Contents, Headings,
Etc. . . . . . . . . . . . . . . . . . . . . . . 77
EXHIBIT A - Form of Series A Note
EXHIBIT B - Form of Series B Note
(vii)
<PAGE>
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a) (1) . . . . . . . . . . . 7.10
(a) (2) . . . . . . . . . . . 7.10
(a) (3) . . . . . . . . . . . N.A.
(a) (4) . . . . . . . . . . . N.A.
(a) (5) . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . 7.10
(c) . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . 2.5
(b) . . . . . . . . . . . . 11.3
(c) . . . . . . . . . . . . 11.3
313(a) . . . . . . . . . . . . 7.6
(b) (1) . . . . . . . . . . . N.A.
(b) (2) . . . . . . . . . . . 7.6
(c) . . . . . . . . . . . . 7.6, 11.2
(d) . . . . . . . . . . . . 7.6
314(a) . . . . . . . . . . . . 4.2, 11.2
(b) . . . . . . . . . . . . N.A.
(c) (1) . . . . . . . . . . . 11.4
(c) (2) . . . . . . . . . . . 11.4
(c) (3) . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . 11.5
(f) . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . 7.1
(b) . . . . . . . . . . . . 7.5
(c) . . . . . . . . . . . . 7.1
(d) . . . . . . . . . . . . 7.1
(e) . . . . . . . . . . . . 6.11
316(a) (last sentence) . . . . 2.9
(a) (1) . . . . . . . . . . . (A)6.5
(a) (1) . . . . . . . . . . . (B)6.4
(a) (2) . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . 6.4, 6.7
317(a) (1) . . . . . . . . . . . 6.8
(a) (2) . . . . . . . . . . . 6.9
(b) . . . . . . . . . . . . 2.4
(viii)
<PAGE>
318(a) . . . . . . . . . . . . 11.1
N.A. = not applicable
(ix)
<PAGE>
INDENTURE dated as of February 18 , 1994, between Great
American Communications Company, a Florida corporation (the
"Company") and Shawmut Bank Connecticut, National Association, a
national banking association organized under the laws of the
United States (the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the
Company's 9 % Senior Subordinated Notes Due February 15, 2004,
Series A and, if and when issued, the Company's 9 % Senior
Subordinated Notes Due February 15, 2004, Series B.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"Acquired Indebtedness" means, with respect to any specified
Person and any Person acquired by such specified Person,
Indebtedness of the Acquired Person existing at the time of the
acquisition, including Indebtedness issued in connection with or
in contemplation of, such acquisition.
"Acquired Person" means, with respect to any specified
Person, any other Person acquired by such specified Person,
whether by purchase, merger, consolidation, other business
combination or otherwise.
"Additional Notes" means Notes (either Series A Notes or
Series B Notes, but excluding Series B Notes issued with respect
to the exchange of Initial Notes in a Registered Exchange Offer),
if any, other than the Initial Notes, issued after the Issue Date
under this Indenture in an aggregate principal amount not to
exceed $50,000,000, provided that the Indebtedness evidenced by
such Notes was not Incurred in violation of this Indenture.
"AFC" means American Financial Corporation, an Ohio
corporation.
"Affiliate" means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified
Person. For purposes of this definition, "control" (including,
with correlative meanings, the terms "controlling", "controlled
by" and "under common control with") of any Person means the
possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement
or otherwise.
"Agent" means any Registrar, Paying Agent, Authenticating
Agent or co-registrar.
<PAGE>
"Applicable Documents" means collectively the Purchase
Agreement, the Registration Rights Agreement, this Indenture and
the Notes.
"Applicable Premium" means, with respect to any Note called
for redemption by the Company after a Change of Control, the
greater of (i) 1.0% of the then outstanding principal amount of
such Note, and (ii) the total, if greater than zero, of (A) the
present value of all required interest and principal payments due
on such Note, computed using a discount rate equal to the
Treasury Rate plus 75 basis points, minus (B) the then
outstanding principal amount of such Note, minus (C) any accrued
and unpaid interest paid on such Note on the Redemption Date.
"Approvals" means each and every approval, consent, filing
or registration by, or with any Governmental Body, or any
creditor or shareholder of the Company, necessary (i) to
authorize or permit the execution, delivery or performance by the
Company of the Applicable Documents, and (ii) for the validity or
enforceability of any of such Applicable Documents against the
Company.
"Asset Sale" by any Person means any transfer, conveyance,
sale, lease or other disposition by such Person or any of its
Subsidiaries (including a consolidation or merger or other sale
of any such Subsidiaries with, into or to another Person in a
transaction in which such Subsidiary ceases to be a Subsidiary,
but excluding a disposition by a Subsidiary of such Person to
such Person or a Wholly-Owned Subsidiary of such Person) of (i)
shares of Capital Stock (other than directors' qualifying shares)
or other ownership interests of a Subsidiary of such Person, (ii)
substantially all of the assets of such Person or any of its
Subsidiaries or (iii) other assets or rights of such Person or
any of its Subsidiaries, whether owned on the date of this
Indenture or thereafter acquired, in one or more related
transactions. The term "Asset Sale" shall not include (i) any
Permitted Disposition or (ii) any sale or issuance by the Company
of Qualified Capital Stock of the Company.
"Bank Agent Consent" means, with respect to any Asset Sale
Payment (as defined in Section 4.13), the written consent of the
Representative or Representatives of holders of at least a
majority in outstanding principal amount of Senior Bank Debt
(including unused commitments which, if funded, would constitute
Senior Bank Debt) delivered by such Representative or
Representatives to the Company, with a copy to the Trustee, prior
to such Asset Sale Payment, pursuant to which such Representative
or Representatives consent to such Asset Sale Payment and,
consequently, the related permanent reduction (in the amount of
such Asset Sale Payment) of the amount of Designated Senior Debt
available to be Incurred pursuant to Section 4.7(c)(i). As of
2
<PAGE>
the Issue Date, The First National Bank of Boston would be the
Representative entitled to give the Bank Agent Consent.
"Bank Credit Agreements" means (i) the Loan Agreement, dated
as of August 20, 1993, and amended and restated as of November
30, 1993, among GATR, the Company, Great American Television and
Radio Holdings, Inc., Leisure Systems, Inc., Great American
Broadcasting Company, Continental Bank, N.A. and The First
National Bank of Boston, as managing agents, and the lenders
party thereto, (ii) each instrument pursuant to which Obligations
under the Bank Credit Agreements described in (i) above, or any
subsequent Bank Credit Agreements, are amended, deferred,
extended, renewed, replaced, refunded or refinanced, in whole or
in part, and (iii) each instrument now or hereafter evidencing,
governing, guarantying or securing any Indebtedness under any
Bank Credit Agreements, in each case, as modified, amended,
restated or supplemented from time to time.
"Bank Lenders" means the lenders under the Bank Credit
Agreements.
"Bankruptcy Law" means Title 11, United States Code or any
similar Federal or State law for the relief of debtors.
"Board of Directors" means, with respect to any Person, the
Board of Directors of such Person or any committee of the Board
of Directors of such Person duly authorized, with respect to any
particular matter, to exercise the power of the Board of
Directors of such Person.
"Board Resolution" means, with respect to any Person, a duly
adopted resolution of the Board of Directors of such Person.
"Broadcasting Station" means all related licenses,
franchises and permits issued under federal, state or local laws
from time to time which authorize a Person to receive or
distribute, or both, over the airwaves, audio, visual, or
microwave signals within a geographic area for the purpose of
providing commercial broadcasting television or radio, together
with all Property owned or used in connection with the
programming provided pursuant to, and all interest of such Person
to receive revenues from any other Person which derives revenues
from or pursuant to, said licenses, franchises and permits.
"Business Day" means any day other than a Legal Holiday in
New York City, New York or Hartford, Connecticut.
"Capital Expenditure" means any amount paid in connection
with the purchase or construction of any assets acquired (other
than from an Affiliate) or constructed after the date hereof (a)
to the extent the purchase or construction prices for such assets
are or should be included in "addition to property, plant or
3
<PAGE>
equipment" in accordance with GAAP and (b) if the acquisition or
construction of such assets is not part of any acquisition of a
Person.
"Capital Lease Obligation" of any Person means the
obligation to pay rent or other payment amounts under a lease of
(or other Indebtedness arrangements conveying the right to use)
real or personal property of such Person which is required to be
classified and accounted for as a capital lease or a liability on
the face of a balance sheet of such Person in accordance with
GAAP. The stated maturity of such obligation shall be the date
of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty. Capital
Lease Obligation shall not include payments due under any Film
Contracts.
"Capital Stock" of any Person means any and all shares,
interests, rights, participations, each class of common stock and
preferred stock of such Person and/or other equivalents (however
designated) of corporate stock or equity participations,
including each class of common stock and preferred stock of such
Person and partnership interests, whether general or limited, of
such Person.
"Cash Equivalents" means:
(a) marketable obligations issued or unconditionally
guaranteed by the United States government, in each case
maturing within 360 days after the date of acquisition
thereof;
(b) marketable direct obligations issued by any state
of the United States or any political subdivision of any
such state or any public instrumentality thereof maturing
within 360 days after the date of acquisition thereof and,
at the time of acquisition, having the highest rating
obtainable from either Standard & Poor's Corporation or
Moody's Investors Service, Inc.;
(c) commercial paper maturing no more than 360 days
after the date of acquisition thereof, issued by a
corporation organized under the laws of any state of the
United States or of the District of Columbia and, at the
time of acquisition, having a rating in one of the two
highest rating categories obtainable from either Standard &
Poor's Corporation or Moody's Investors Service, Inc.;
(d) money market funds whose investments are made
solely in securities described in clause (a) maturing within
one (1) year after the date of acquisition thereof;
4
<PAGE>
(e) certificates of deposit maturing within 360 days
after the date of acquisition thereof, issued by any
commercial bank that is a member of the Federal Reserve
System that has capital, surplus and undivided profits (as
shown on its most recent statement of condition) aggregating
not less than $100,000,000 and is rated A or better by
Moody's Investors Service, Inc. or Standard & Poor's
Corporation; and
(f) repurchase agreements entered into with any
commercial bank of the nature referred to in clause (e),
secured by a fully perfected Lien in any obligation of the
type described in any of clauses (a) through (e), having a
fair market value at the time such repurchase agreement is
entered into of not less than 100% of the repurchase
obligation thereunder of such commercial bank.
"Change of Control" means any transaction or series of
transactions in which any of the following occurs: (i) any
Person or group (within the meaning of Rule 13d-3 under the
Exchange Act and Sections 13(d) and 14(d) of the Exchange Act),
other than (a) AFC or (b) funds managed by Fidelity Management &
Research Company or any of its Affiliates, becomes the direct or
indirect "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of (A) greater than 50% of the total voting power
(on a fully diluted basis as if all convertible securities had
been converted) entitled to vote in the election of directors of
the Company or GATR, or the Surviving Person (if other than the
Company), or (B) greater than 20% of the total voting power (on a
fully diluted basis as if all convertible securities had been
converted) entitled to vote in the election of directors of the
Company or GATR, or the Surviving Person (if other than the
Company), and such Person or group has the ability to elect,
directly or indirectly, a majority of the members of the Board of
Directors of the Company; or (ii) the Company or GATR
consolidates with or merges into another Person, another Person
consolidates with or merges into the Company or GATR, the Company
or GATR issues shares of its Capital Stock or all or
substantially all of the assets of the Company or GATR are sold,
assigned, conveyed, transferred, leased or otherwise disposed of
to any Person as an entirety or substantially as an entirety in
one transaction or a series of related transactions and the
effect of such consolidation, merger, issuance or sale is as
described in clause (i) above. Notwithstanding the foregoing, no
Change of Control shall be deemed to have occurred by virtue of
(I) the Company or any of its employee benefit or stock plans
filing (or being required to file after the lapse of time) a
Schedule 13D or 14D-1 (or any successor or similar schedule, form
or report under the Exchange Act) or (II) the purchase by one or
more underwriters of Capital Stock of the Company in connection
with a Public Offering.
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"Code" means the Internal Revenue Code of 1986, as the same
may be amended from time to time, or any successor thereto, and
the rules and regulations issued thereunder, as from time to time
in effect.
"Company" means the party named as such above until a
successor replaces it and thereafter means the successor.
"Consolidated Interest Expense" means, with respect to any
Person, for any period, the aggregate amount, to the extent such
amount was deducted in computing Consolidated Net Income, of
interest, whether expensed or capitalized, paid, accrued or
scheduled to be paid or accrued during such period (except to the
extent accrued in a prior period) in respect of all Indebtedness
of such Person and its subsidiaries (including, without
duplication, original issue discount on any Indebtedness
(including, in the case of the Company, any original issue
discount on the Notes) to the extent attributable to such
period), net of interest income. For purposes of this
definition, (a) interest on a Capital Lease Obligation shall be
deemed to accrue at an interest rate reasonably determined by the
Board of Directors of such Person (as evidenced by a Board
Resolution) to be the rate of interest implicit in such Capital
Lease Obligation in accordance with GAAP, and (b) interest shall
be increased or reduced by the net cost (including amortization
of discount) or benefit associated with Interest Rate or Currency
Protection Agreements attributable to such period.
"Consolidated Net Income," with respect to any Person and
its subsidiaries, for any period, means the aggregate of the net
income (or loss) of such Person and its subsidiaries for such
period, on a consolidated basis, determined in accordance with
GAAP; provided that (a) the net income of any other Person in
which such Person or any of its subsidiaries has an interest
(which interest does not cause the net income of such other
Person to be consolidated with the net income of such Person and
its subsidiaries in accordance with GAAP) shall be included only
to the extent of the amount of dividends or distributions
actually paid to such Person or such subsidiary by such other
Person in such period; (b) the net income of any subsidiary of
such Person that is subject to any Payment Restriction shall be
excluded to the extent such Payment Restriction actually
prevented the payment of an amount that otherwise could have been
paid to, or received by, such Person or a subsidiary of such
Person not subject to any Payment Restriction, provided, however,
that with respect to the Consolidated Net Income of the Company,
the Consolidated Net Income of the Company's Subsidiaries shall
not be so excluded, notwithstanding the existence of any such
Payment Restriction, so long as the terms of any such Payment
Restriction limiting the payment of dividends by the Company's
Subsidiaries are not more restrictive at the time of
determination of Consolidated Net Income than the Payment
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Restrictions limiting such payment of dividends in effect on the
Issue Date; and (c) there shall be excluded the following:
(i) such Person's share, determined in accordance with GAAP, of
the net loss of any other Person in which such Person or any of
its subsidiaries has an interest (which interest does not cause
the net loss of such other person to be consolidated with the net
income or loss of such Person and its subsidiaries in accordance
with GAAP), (ii) the net income (or loss) of any other Person
acquired in a pooling of interests transaction for any period
prior to the date of such acquisition, (iii) all gains realized
upon or in connection with or as a consequence of the issuance of
the Capital Stock of such Person or any of its subsidiaries and
any gains on pension reversions received by such Person or any of
its subsidiaries, (iv) all gains and losses, together with any
related provision for taxes, realized in connection with any sale
of assets by such Person during such period (including, without
limitation, dispositions pursuant to sale and leaseback
transactions), and (v) all extraordinary gains or losses,
together with any related provision for taxes, realized by such
Person during such period and (vi) the cumulative effect of a
change in accounting principles in the year of adoption of such
change.
"Corporate Trust Office" means the address of the Trustee
specified in Section 11.2 or such other address as the Trustee
may give notice to the Company.
"Cumulative Operating Cash Flow" means the Operating Cash
Flow of the Company and its Subsidiaries for the period beginning
January 1, 1994, through and including the end of the most
recently ended fiscal quarter (taken as one accounting period)
preceding the date of any proposed Restricted Payment.
"Cumulative Total Interest Expense" means the Total Interest
Expense of the Company and its Subsidiaries for the period
beginning January 1, 1994, through and including the end of the
most recently ended fiscal quarter (taken as one accounting
period) preceding the date of any proposed Restricted Payment.
"Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy
Law.
"Debt to Operating Cash Flow Ratio" means, with respect to
any date, the ratio of (a) the aggregate amount of all
outstanding Indebtedness of the Company and its Subsidiaries as
of such date on a consolidated basis to (b) Operating Cash Flow
of the Company and its Subsidiaries on a consolidated basis for
the four most recent full fiscal quarters ending immediately
prior to such date, determined on a pro forma basis after giving
effect to all acquisitions or dispositions (whether by merger,
consolidation, purchase or sale of securities or assets or
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otherwise) of any business or assets made by the Company and its
Subsidiaries from the beginning of such four-quarter period
through such date as if such acquisition or disposition had
occurred at the beginning of such four-quarter period.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default (as defined
in Section 6.1(a)).
"Designated Senior Debt" means and includes (i) the Senior
Bank Debt, and (ii), without duplication, the WGHP Debt.
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person
(whether or not such Person is the Surviving Person) or the sale,
assignment, transfer, lease, conveyance or other disposition of
all or substantially all of such Person's assets in one
transaction or a series of related transactions.
"Disqualified Capital Stock" means, (i) with respect to any
Person, any Capital Stock of such Person or its subsidiaries
that, by its terms, by the terms of any agreement related thereto
or by the terms of any security into which it is convertible,
puttable or exchangeable, is, or upon the happening of an event
or the passage of time would be, required to be redeemed or
repurchased by such Person or its subsidiaries, including at the
option of the holder, in whole or in part, or has, or upon the
happening of an event or passage of time would have, a redemption
or similar payment due, on or prior to the stated maturity date
of the Notes, or (ii) any other Capital Stock of such Person or
its subsidiaries designated as Disqualified Capital Stock by such
Person at the time of issuance.
"Dollars" and "$" mean lawful currency of the United States
of America.
"Excess Proceeds" means with respect to any Asset Sale by
any Person, the proceeds thereof in the form of cash (including
any cash received by way of deferred payment pursuant to, or
amortization of, a note or installment receivable or otherwise,
but only if, as and when received, and cash received upon sale of
securities or other Property or assets received as consideration
with respect to such Asset Sale, except to the extent that any of
the foregoing are financed or sold with recourse to the Company
or any Subsidiary) net of (i) brokerage commissions and other
reasonable fees and expenses (including fees and expenses of
counsel and investment bankers) related to such Asset Sale, (ii)
provisions for all taxes payable as a result of such Asset Sale,
(iii) payments made to retire Senior Indebtedness where such
payments are required by the instrument governing such
Indebtedness, (iv) amounts required to be paid to any Person
(other than the Company or any Subsidiary) owning a beneficial
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interest in the Property or assets the subject of such Asset Sale
and (v) appropriate amounts to be provided by the Company or any
Subsidiary, as the case may be, as a reserve, in accordance with
GAAP, against any liabilities associated with such Asset Sale and
retained by the Company or any Subsidiary, as the case may be,
after such Asset Sale, including, without limitation, pension and
other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as reflected in
an Officers' Certificate delivered to the Trustee.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"FCC" means the Federal Communications Commission, or any
Governmental Body succeeding to the functions thereof.
"Film Contracts" means contracts with suppliers that convey
the right to broadcast specified films, videotape motion
pictures, syndicated television programs or sports or other
programming.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such
entity as may be approved by a significant segment of the
accounting profession, which are applicable to the circumstances
as of the date of determination, as in effect from time to time,
consistently applied.
"GATR" means Great American Television and Radio Company,
Inc., an Ohio corporation.
"Governmental Body" means any nation or government, any
state or other political subdivision thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government and any
court or arbitrator.
"Guarantee" by any Person means any obligation, contingent
or otherwise, of such Person guaranteeing any Indebtedness of any
other Person (the "Primary Obligor") in any manner, whether
directly or indirectly, and including, without limitation, any
obligation of such Person, (i) to purchase or pay (or advance or
supply funds, for the purchase or payment of) such Indebtedness
or to purchase (or to advance or supply funds for the purchase
of) any security for the payment of such Indebtedness, (ii) to
purchase property, securities or services for the purpose of
assuring the holder of such Indebtedness of the payment of such
Indebtedness, or (iii) to maintain working capital, equity
9
<PAGE>
capital or other financial statement, condition or liquidity of
the Primary Obligor so as to enable the Primary Obligor to pay
such Indebtedness (and "Guaranteed," "Guaranteeing" and
"Guarantor" shall have meanings correlative to the foregoing);
provided, however, that the Guarantee by any Person shall not
include endorsements by such Person for collection or deposit, in
either case, in the ordinary course of business.
"Holder" means a Person in whose name a Note is registered.
"Incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (by conversion,
exchange or otherwise), assume, Guarantee or otherwise become
liable in respect of such Indebtedness or other obligation or the
recording, as required pursuant to GAAP or otherwise, of any such
Indebtedness or other obligation on the balance sheet of such
Person (and "Incurrence," "Incurred," "Incurrable" and
"Incurring" shall have meanings correlative to the foregoing);
provided, however, that a change in GAAP that results in an
obligation of such Person that exists at such time becoming
Indebtedness shall not be deemed an Incurrence of such
Indebtedness.
"Indebtedness" means, with respect to any Person, (i) all
liabilities, contingent or otherwise, of such Person (a) for
borrowed money (whether or not the recourse of the lender is to
the whole of the assets of such Person or only to a portion
thereof and whether short-term or long-term, secured or
unsecured), (b) evidenced by bonds, notes, debentures, drafts
accepted or similar instruments or letters of credit (including
such liabilities representing the balance deferred and unpaid of
the purchase price of any property, other than any such liability
that represents an account payable or any other monetary
obligation to a trade creditor created, incurred, assumed or
guaranteed by such Person in the ordinary course of business in
connection with obtaining goods, materials or services, which
account is not overdue according to the original terms of sale,
unless such account payable is being contested in good faith),
(c) for the payment of money relating to Capital Lease
Obligations; or (d) under the terms of any amendment, renewal,
extension or refunding of any liability of the types referred to
in the preceding clauses (a), (b) or (c); (ii) the maximum fixed
repurchase price of all Disqualified Capital Stock of such Person
or, if there is no such maximum fixed repurchase price, the
liquidation preference of such Disqualified Capital Stock, plus
accrued but unpaid dividends; (iii) reimbursement obligations of
such Person with respect to letters of credit or bankers'
acceptances issued for the benefit of such Person; (iv) net
obligations of such Person with respect to Interest Rate or
Currency Protection Agreements; (v) all liabilities of others of
the kind described in the preceding clause (i), (ii), (iii) or
(iv) that such Person has Guaranteed or that is otherwise its
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legal liability; and (vi) all obligations of others secured by a
Lien to which any of the Property or assets of such Person are
subject (other than obligations of a lessor under any operating
lease pursuant to which the Company or any of its Subsidiaries
leases Property, if such lessor grants a Lien on such lease to
secure such lessor's Indebtedness), whether or not the
obligations secured thereby shall have been assumed by such
Person or shall otherwise be such Person's legal liability
(provided that if the obligations so secured have not been
assumed by such person or are not otherwise such person's legal
liability, such obligations shall be deemed to be in an amount
equal to the fair market value of such properties or assets, as
determined in good faith by the Board of Directors of such
Person, which determination shall be evidenced by a Board
Resolution). For purposes of the preceding sentence, the
"maximum fixed repurchase price" of any Disqualified Capital
Stock that does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified
Capital Stock as if such Disqualified Capital Stock were
purchased on any date on which Indebtedness shall be required to
be determined pursuant to this Indenture, and if such price is
based upon, or measured by, the fair market value of such
Disqualified Capital Stock (or any equity security for which it
may be exchanged or converted), such fair market value shall be
determined in good faith by the Board of Directors of such
Person, which determination shall be evidenced by a Board
Resolution. For purposes hereof, Indebtedness incurred by any
Person that is a general partnership (other than non-recourse
Indebtedness) shall be deemed to have been incurred by the
general partners of such partnership pro rata in accordance with
their respective interests in the liabilities of such partnership
unless any such general partner shall, in the reasonable
determination of the Board of Directors of the Company, be unable
to satisfy its pro rata share of the liabilities of the
partnership, in which case the pro rata share of any Indebtedness
attributable to such partner shall be deemed to be incurred at
such time by the remaining general partners on a pro rata basis
in accordance with their interests.
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this
instrument and any such supplemental indenture, the provisions of
the TIA that are deemed to be a part of and govern this
instrument and any such supplemental indenture, respectively.
"Independent Financial Advisor" means a reputable
accounting, appraisal or a nationally recognized investment
banking firm that is, in the reasonable judgment of the Board of
Directors of the Company, qualified to perform the task for which
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such firm has been engaged hereunder and disinterested and
independent with respect to the Company and its Affiliates.
"Initial Notes" means Notes in the principal amount of
$200,000,000 issued to the Purchasers under this Indenture on the
Issue Date pursuant to the Purchase Agreement.
"Insolvency or Liquidation Proceeding" means, with respect
to any Person, (i) any insolvency or bankruptcy or similar case
or proceeding, or any reorganization, receivership, liquidation,
dissolution or winding up of such Person, whether voluntary or
involuntary, or (ii) any assignment for the benefit of creditors
or any other marshalling of assets and liabilities of such
Person.
"Interest Differential" means, with respect to any
Insolvency or Liquidation Proceeding involving the Company, the
difference between the rate of interest on the Notes and the rate
of interest on the Senior Bank Debt immediately prior to the
commencement of such Insolvency or Liquidation Proceeding,
excluding in each case any increase in the rate of interest
resulting from any default or event of default.
"Interest Payment Date" means the fifteenth day of each
February and August commencing August 15, 1994.
"Interest Rate or Currency Protection Agreement" means any
interest rate swap agreement, interest rate cap agreement,
currency swap agreement or other financial agreement or
arrangement designed to protect the Company or any Subsidiary
against fluctuations in interest rates or currency exchange rates
and which shall have a notional amount no greater than the
payments due with respect to Indebtedness being hedged thereby.
"Investment" by any Person in any other Person means any
investment by such Person in such other Person, whether by a
purchase of assets, in any transaction or series of related
transactions, individually or in the aggregate, purchase of
Capital Stock, capital contribution, loan, advance (other than
reasonable loans and advances to employees for moving and travel
expenses, as salary advances, and other similar customary
expenses incurred, in each case in the ordinary course of
business consistent with past practice) or similar credit
extension constituting Indebtedness of such other Person, and any
Guarantee of Indebtedness of such other Person.
"Issue Date" means the date of original issuance of the
Initial Notes.
"Lien" means any mortgage, pledge, lien, encumbrance, charge
or adverse claim affecting title or resulting in an encumbrance
against real or personal property, or a security interest of any
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kind (including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other
agreement to sell which is intended to constitute or create a
security interest, mortgage, pledge or lien, and any filing of or
agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction);
provided that in no event shall a true operating (as opposed to
financing) lease be deemed to constitute a Lien hereunder.
"Material Adverse Effect" means a material adverse effect on
the business, Property, operations, condition (financial or
otherwise) or prospects of the Company or the Company and its
Subsidiaries taken as a whole.
"Net Proceeds" shall mean with respect to any Public
Offering, the aggregate net cash proceeds received by the
Company, after payment of expenses, commissions and the like
incurred in connection therewith.
"Note" or "Notes" means the notes described herein,
including both the Initial Notes and the Additional Notes, the
Series A Notes and the Series B Notes, issued under this
Indenture.
"Obligations" with respect to any instrument or agreement
means any and all principal, interest, penalties, premiums, fees,
indemnifications, reimbursements, damages and other charges,
obligations and liabilities existing from time to time under such
instrument or agreement, whether direct or indirect, joint or
several, actual, absolute or contingent, matured or unmatured,
liquidated or unliquidated, secured or unsecured, arising by
contract, operation of law or otherwise, including any
obligations or liabilities to repay, redeem, repurchase, retire,
acquire or defease any Indebtedness under such instrument or
agreement, or any obligation to establish a sinking fund for any
such purpose.
"Offer" means an offer by the Company to repurchase Notes
after any Change of Control Trigger Date or Asset Sale Trigger
Date.
"Officer" means, with respect to any Person, the President,
the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice President of such Person.
"Officers' Certificate" means a certificate signed by two
Officers, one of whom must be the President, the Treasurer, a
Vice-President or the Secretary of the Company.
"Operating Cash Flow" means, with respect to any period, the
Consolidated Net Income of the Company and its Subsidiaries for
such period, plus (a) provision for taxes based on income or
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profits, to the extent such provision for taxes was included in
computing such Consolidated Net Income, plus (b) Consolidated
Interest Expense for such period, plus (c) depreciation,
amortization and all other non-cash charges, to the extent such
depreciation, amortization and other non-cash charges were
deducted in computing such Consolidated Net Income (including
amortization of goodwill and other intangibles, but excluding
amortization of Film Contracts and write-downs of Film
Contracts).
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company or the Trustee.
"pari passu," when used with respect to the ranking of any
Indebtedness of any Person in relation to other Indebtedness of
such Person, means that each such Indebtedness (a) either (i) is
not subordinated or junior in right of payment to any other
Indebtedness of such Person or (ii) is subordinate in right of
payment to the same Indebtedness of such Person as is the other
and is so subordinate to the same extent and (b) is not
subordinate in right of payment to the other or to any
Indebtedness of such Person as to which the other is not so
subordinate.
"Pari Passu Indebtness" means any Indebtedness of the
Company whether outstanding at the Issue Date or Incurred
thereafter, which (a) ranks pari passu with the Notes (including,
with respect to the Initial Notes, Indebtedness evidenced by the
Additional Notes) and (b) by its terms, or by the terms of any
agreement or instrument pursuant to which such Indebtedness is
Incurred, (i) does not provide for payments of principal of such
Indebtedness at the final stated maturity thereof or by way of a
sinking fund applicable thereto or by way of any mandatory
redemption, retirement or repurchase thereof by the Company
(including any redemption, retirement or repurchase which is
contingent upon events or circumstances, but excluding any
retirement required by virtue of acceleration of such
Indebtedness upon an event of default thereunder), in each case
prior to the final stated maturity of the Notes and (ii) does not
permit redemption or other retirement (including pursuant to an
offer to purchase made by the issuer) of such other Indebtedness
at the option of the holder thereof prior to the final stated
maturity of the Notes, other than a redemption or other
retirement at the option of the holder of such Indebtedness
(including pursuant to an offer to purchase made by the issuer)
which is conditioned upon the change of control of the Company
pursuant to provisions substantially similar to those contained
in Section 4.12 hereof.
"Payment Restriction" means, with respect to a subsidiary of
any Person, any encumbrance, restriction or limitation, whether
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by operation of the terms of its charter or by reason of any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation, on the ability of (i) such subsidiary to
(a) pay dividends or make other distributions on its Capital
Stock or make payments on any obligation, liability or
Indebtedness owed to such Person or any other subsidiary of such
Person, (b) make loans or advances to such Person or any other
subsidiary of such Person, or (c) transfer any of its properties
or assets to such Person or any other subsidiary of such Person,
or (ii) such Person or any other subsidiary of such Person to
receive or retain any such (a) dividends, distributions or
payments, (b) loans or advances, or (c) transfer of properties or
assets.
"Permitted Disposition" means (i) any transfer, conveyance,
sale, lease or other disposition (a "sale") by the Company or any
of its Subsidiaries of its inventory in the ordinary course of
its business; (ii) any sale by the Company or any of its
Subsidiaries in the ordinary course of its business of its
equipment or other tangible Property that is obsolete or no
longer useful or necessary to its business; (iii) any sale by the
Company or any of its Subsidiaries in the ordinary course of its
business, and in a manner consistent with its customary and usual
cash management practices, of its Permitted Investments of the
kind described in clause (iii) of the definition thereof;
(iv) the creation or incurrence of any Liens in any Property of
the Company or any of its Subsidiaries that are permitted by this
Indenture and (v) any sale of Property by or at the direction of
a secured party holding a Lien on such Property, which Lien is
permitted by this Indenture, pursuant to the exercise by such
secured party of its rights as a creditor.
"Permitted Investment" by any Person means (i) any Related
Business Investment, (ii) Investments in securities or other
Property not constituting cash or Cash Equivalents and received
in connection with an Asset Sale, to the extent permitted by
Section 4.13, or any other disposition of assets not constituting
an Asset Sale, (iii) cash and Cash Equivalents, (iv) Investments
existing on the Issue Date, (v) Investments by any Subsidiary in
other Subsidiaries, (vi) Investments by the Company in any of its
Subsidiaries required by any instrument or agreement governing
Senior Indebtedness to the extent that such Investments consist
of (A) performance under Guarantees Incurred by the Company in
compliance with this Indenture with respect to Indebtedness of
its Subsidiaries not Incurred in violation of this Indenture or
(B) Liens securing the Company's Obligations with respect to any
Guarantee described in the foregoing clause (A),
(vii) Investments in the form of accounts receivable arising from
sales of goods or services in the ordinary course of business,
provided that for any accounts receivable that are more than 120
days overdue, appropriate reserves or allowances have been
established in accordance with GAAP and (viii) Investments in the
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<PAGE>
form of advances or prepayments to suppliers or employees in the
ordinary course of business.
"Permitted Liens" shall mean (i) Liens for taxes,
assessments, and similar governmental charges to the extent (A)
not delinquent or (B) being contested in good faith by
appropriate proceedings and as to which reserves have been set
aside to the extent required by GAAP; (ii) statutory Liens of
landlords and carriers, warehousemen, mechanics, suppliers,
materialmen, repairmen, or other like Liens arising in the
ordinary course of business and with respect to amounts not yet
delinquent or being contested in good faith by appropriate
process of law, and for which a reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been
made; (iii) pledges or deposits in the ordinary course of
business to secure lease obligations or nondelinquent obligations
under workers' compensation, unemployment insurance or other
social security benefits; (iv) Liens to secure the performance of
public statutory obligations that are not delinquent, appeal
bonds, performance bonds or other obligations of a like nature
(other than for borrowed money); (v) zoning restrictions,
easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances
not interfering in any material respect with the business of the
Company or any Subsidiary incurred in the ordinary course of
business; (vi) Liens in respect of purchase money Indebtedness
Incurred to acquire furniture, fixtures, equipment or other
operating assets provided that (A) such Liens are limited to the
assets acquired after January 1, 1994 and (B) the principal
amount of the Indebtedness secured by such Lien does not exceed
the acquisition cost of such assets, (vii) Liens securing
Indebtedness which secure assets leased pursuant to Capital Lease
Obligations, (viii) Liens on any assets of any Acquired Person
securing Acquired Indebtedness which assets or Acquired Person
are acquired by the Company or a Subsidiary subsequent to the
date of the Indenture, and which Liens were in existence on or
prior to the acquisition of such assets or Acquired Person (to
the extent that such Liens were not created in connection with or
in contemplation of such acquisition), provided that such Liens
are limited to the assets or Acquired Person so acquired and the
proceeds thereof, and (ix) Liens imposed pursuant to condemnation
or eminent domain or substantially similar proceedings; provided
that in the case of clauses (vi) (vii) and (viii), any
Indebtedness secured by such Liens was not Incurred in violation
of Section 4.7.
"Person" means an individual, a partnership, a corporation,
a business trust, a joint stock company, a trust, an
unincorporated association, a joint venture, a Governmental Body
or any other entity of whatever nature.
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"Post-Petition Interest" means, with respect to any
Indebtedness of any Person, all interest accrued or accruing on
such Indebtedness after the commencement of any Insolvency or
Liquidation Proceeding against such Person in accordance with and
at the contract rate (including, without limitation, any rate
applicable upon default) specified in the agreement or instrument
creating, evidencing or governing such Indebtedness, whether or
not, pursuant to applicable law or otherwise, the claim for such
interest is allowed as a claim in such Insolvency or Liquidation
Proceeding.
"Preferred Stock" as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however
designated) that is preferred as to the payment of dividends, or
as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such corporation, over
shares of Capital Stock of any other class of such corporation.
"principal" of a debt security means the principal of the
security including the premium, if any, on the security.
"Property" means all types of real, personal, tangible,
intangible or mixed property.
"Prospectus" means the prospectus included in any
Registration Statement (including, without limitation, a
prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement
in reliance upon Rule 430A promulgated under the Securities Act),
as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Notes
covered by such Registration Statement, and all other amendments
and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
"Public Offering" means a firm commitment underwritten
primary public offering of Capital Stock of the Company.
"Purchase Agreement" means, collectively, all of the several
Note Purchase Agreements dated as of February 3, 1994, whereby
the Company agreed to issue and sell and the various Purchasers
named in such agreements agreed to purchase, in the aggregate,
$200,000,000 in principal amount of Notes, as the same may be
amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof.
"Purchasers" means the Purchasers named on the execution
pages of the Purchase Agreement.
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"Qualified Capital Stock" means, with respect to any Person,
any and all Capital Stock issued by such Person after the Issue
Date that is not Disqualified Capital Stock.
"Qualified Capital Stock Proceeds" shall mean, with respect
to any Person, (a) in the case of any sale of Qualified Capital
Stock (other than pursuant to a transaction in which such Person
Incurs, any Indebtedness Incurred in connection with the issuance
or acquisition of such Capital Stock), the aggregate net cash
proceeds received by such Person, net of attorney's fees,
accountant's fees and brokerage, consultation, underwriting and
other fees and expenses actually incurred in connection with such
issuance or sale and net of taxes paid or payable as a result
thereof or (b) in the case of any exchange, exercise, conversion
or surrender of any Indebtedness of such Person issued for cash
after the date of the Indenture for or into shares of Qualified
Capital Stock of such Person, the net book value of such
Indebtedness as adjusted on the books of such Person to the date
of such exchange, exercise, conversion or surrender, plus any
additional amount paid by the security holder to such Person upon
such exchange, exercise, conversion or surrender and less any and
all payments made to the security holders, and all other expenses
(including commissions and the like) incurred by such Person in
connection therewith.
"Redemption Date" when used with respect to any Note to be
redeemed, means the date fixed for such redemption pursuant to
this Indenture and the Notes.
"Redemption Price" when used with respect to any Note to be
redeemed, means the price fixed for such redemption pursuant to
this Indenture and the Notes.
"Refinancing Indebtedness" means Indebtedness of the Company
or any of its Subsidiaries Incurred or given in exchange for, or
the proceeds of which are used to, extend, refinance, renew,
replace, substitute, defease or refund any other Indebtedness of
the Company or any of its Subsidiaries (and related interest,
premium, penalties, breakage costs, fees, expenses and other
amounts owing in respect of such Indebtedness, to the extent
permitted to be Incurred by Section 4.7(c)(iv)) Incurred in
accordance with the terms of this Indenture, including
Section 4.7.
"Registered Exchange Offer" means the registration by the
Company under the Securities Act of Series B Notes pursuant to a
Registration Statement pursuant to which the Company offers each
Holder of Series A Notes the opportunity to exchange all
outstanding Series A Notes held by such Holder for Series B Notes
in an aggregate principal amount equal to the aggregate principal
amount of Registrable Securities held by such Holder, all in
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accordance with the terms and conditions of the Registration
Rights Agreement.
"Registration Rights Agreement" means the Registration
Rights Agreement between the Company and the Purchasers, dated as
of February 18, 1994, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with the terms
thereof.
"Registration Statement" means any registration statement of
the Company under which any of the Initial Notes are included
therein pursuant to the provisions of the Registration Rights
Agreement, including the Prospectus, amendments and supplements
to such registration statement, including post-effective
amendments, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such
registration statement.
"Related Business Investments" means (i) any Investment by a
Person in any other Person substantially all of whose revenues
are derived from the operation of one or more Broadcasting
Stations or from the sale of advertising time or the delivery,
transmission or dissemination of entertainment or information to
public viewers or subscribers, so long that, as a result of such
Investment, (A) such Person becomes a Wholly-Owned Subsidiary, or
(B) such Person either (1) is merged, consolidated or amalgamated
with or into the Company or one of its Wholly-Owned Subsidiaries
and the Company or such Wholly-Owned Subsidiary is the surviving
person, or (2) transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or one of its
Wholly-Owned Subsidiaries; (ii) the acquisition of all or
substantially all the assets of any Broadcasting Station; and
(iii) any Capital Expenditure or Investment, in each case
reasonably related to the business of selling advertising time or
delivering, transmitting or disseminating entertainment or
information to public viewers or subscribers.
"Relative" means, in relation to any Person, any spouse,
parent, grandparent, child, grandchild, brother or sister of such
Person, or the spouse of any of the foregoing.
"Reorganization Securities" means, with respect to any
Insolvency or Liquidation Proceeding involving the Company,
Capital Stock or other securities of the Company as reorganized
or readjusted (or Capital Stock or any other securities of any
other Person (other than a Subsidiary of the Company, unless the
Company is no longer in existence and such Subsidiary is the
Surviving Person)), provided for by a plan of reorganization or
readjustment and the payment of all of which Capital Stock or
other securities is subordinated, at least to the same extent as
the Notes, to the payment of all outstanding Senior Indebtedness
after giving effect to such plan of reorganization or
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readjustment; provided, however, that , (i) if Capital Stock,
such securities shall have no mandatory repurchase, redemption,
prepayment, sinking fund, or dividend obligations prior to six
months following the final scheduled maturity date of all Senior
Indebtedness (as modified by such plan of reorganization or
readjustment) and (ii) if debt securities: (A) such securities
shall not provide for amortization (including sinking fund and
mandatory redemption, repurchase, retirement, defeasance or
prepayment provisions) commencing prior to six months following
the final scheduled maturity of all Senior Indebtedness of the
Company (as modified by such plan of reorganization or
readjustment); (B) if the rate of interest on such securities is
fixed, such rate of interest shall not exceed the greater of (1)
the rate of interest on the Notes and (2) the sum of the rate of
interest on the Senior Bank Debt on the effective date of such
plan of reorganization or readjustment and the Interest
Differential; (C) if the rate of interest on such securities
floats, such rate of interest shall not exceed at any time the
sum of the interest rate on the Senior Bank Debt at such time and
the Interest Differential; (D) such securities shall not have
covenants or default provisions materially more burdensome to the
Company than those in effect with respect to the Notes on the
Issue Date; and (E) no Subsidiary of the Company (or the
Surviving Person, if other than the Company) has any obligation,
direct or indirect, to make, grant or Incur any Lien securing any
payment or distribution of any kind in respect of any
Reorganization Securities.
"Representative" means, with respect to any Senior
Indebtedness, the agent or other representative(s), if any, of
holders of such Senior Indebtedness.
"Restricted Payment" means, with respect to any Person,
without duplication: (i) any dividend or other distribution,
whether in cash or in Property or securities, declared or paid on
any shares of such Person's Capital Stock (other than (A) in the
case of the Company, dividends or distributions payable solely in
shares of Qualified Capital Stock of the Company or options,
warrants or other rights to acquire Qualified Capital Stock of
the Company and (B) any dividends, distributions or other
payments made to the Company or a Wholly-Owned Subsidiary by a
Subsidiary), or the making by such Person or any of its
subsidiaries of any other distribution in respect of, such
Person's Capital Stock or any warrants, rights or options to
purchase or acquire shares of any class of such Capital Stock
(other than exchangeable or convertible Indebtedness of such
person); (ii) the redemption, repurchase, retirement or other
acquisition for value by such Person or any of its subsidiaries,
directly or indirectly, of such person's Capital Stock (and, in
the case of a Subsidiary, Capital Stock of the Company) other
than Capital Stock owned by the Company or a Wholly-Owned
Subsidiary or any warrants, rights or options to purchase or
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acquire shares of any class of such Capital Stock (other than
exchangeable or convertible Indebtedness of such Person), and
other than, in the case of the Company, through the issuance in
exchange therefor solely of Qualified Capital Stock of the
Company; (iii) any payment to purchase, redeem, defease or
otherwise acquire or retire for value any Pari Passu Indebtedness
or Subordinated Indebtedness (other than with the proceeds of
Refinancing Indebtedness permitted under this Indenture), except
in accordance with the mandatory redemption or repayment
provisions set forth in the original documentation governing such
Indebtedness; and (iv) any Investment other than Permitted
Investments.
"Sale" means any sale, lease, conveyance, exchange,
transfer, assignment, pledge, hypothecation or other disposition
of any Property.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Senior Agent" means (i) until all Indebtedness under the
Bank Credit Agreements is paid in full in cash, the
administrative agent (or the institution performing similar
functions) under the Bank Credit Agreement under which the
greatest aggregate principal amount of Indebtedness is
outstanding, and (ii) if all Indebtedness under the Bank Credit
Agreements has been paid in full, the person (or the
Representative of the persons) holding the greatest amount of
Senior Indebtedness.
"Senior Bank Debt" means (i) the Indebtedness outstanding
under the Bank Credit Agreements up to a maximum principal amount
of $250,000,000 minus (A) the aggregate amount of Excess Proceeds
from Asset Sales applied to permanently reduce the principal of
Indebtedness under the Bank Credit Agreements pursuant to
Section 4.13(b), minus (B) the aggregate amount of Asset Sale
Payments made by the Company, provided that a reduction described
in this clause (B) that would otherwise be caused by a particular
Asset Sale Payment will not be effective without a Bank Agent
Consent with respect to such Asset Sale Payment if the effect of
such reduction would be to reduce the amount of Designated Senior
Debt available to be Incurred pursuant to Section 4.7(c)(i) to an
amount lower than the amount of Senior Bank Debt outstanding plus
the amount of WGHP Debt outstanding, in each case as of the
applicable Determination Time (including, in the case of Senior
Bank Debt, unused commitments which the Bank Lenders are
unconditionally obligated to fund at the Determination Time and
which, if funded, would constitute Senior Bank Debt). and
(ii) any interest, penalties, fees, indemnifications,
reimbursements, damages and other similar charges (including, but
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not limited to, all fees and expenses of counsel and all other
charges, fees and expenses) payable under the Bank Credit
Agreements.
"Senior Indebtedness" means and includes all principal of,
premium and interest (including Post-Petition Interest) on and
other Obligations with respect to (i) Designated Senior Debt and
(ii) any other Indebtedness of the Company (other than as
otherwise provided in this definition), whether outstanding on
the Issue Date or thereafter Incurred, other than the Notes;
provided, however, that the following shall not constitute Senior
Indebtedness: (A) any Indebtedness which by the terms of the
instrument creating or evidencing the same is pari passu,
subordinated or junior in right of payment to the Notes in any
respect, (B) that portion of any Indebtedness Incurred in
violation of this Indenture, (C) any Preferred Stock, or (D) any
Indebtedness of the Company (other than Designated Senior Debt)
which is subordinated to or junior in right of payment in any
respect to any other Indebtedness of the Company. Without
limiting the generality of the foregoing, "Senior Indebtedness"
shall include the principal of, premium, if any, and interest
(including Post-Petition Interest) and all other Obligations of
every nature of the Company and its Subsidiaries from time to
time in respect of Designated Senior Debt; provided, however,
that any Indebtedness under any refinancing, refunding or
replacement of the Designated Senior Debt shall not constitute
Senior Indebtedness to the extent that the Indebtedness
thereunder is by its express terms subordinate to any other
Indebtedness of the Company (other than Designated Senior Debt).
Notwithstanding the foregoing, "Senior Indebtedness" shall not
include (1) Indebtedness evidenced by the Notes, (2) Indebtedness
which when incurred and without respect to any election under
Section 1111(b) of Title 11, United States Code, is without
recourse to the Company, (3) any liability for foreign, federal,
state, local or other taxes owed or owing by the Company,
(4) Indebtedness of the Company to the extent such liability
constitutes Indebtedness to a Subsidiary or any other Affiliate
of the Company or any of such Affiliate's subsidiaries,
(5) Indebtedness for the purchase of goods or materials in the
ordinary course of business or (6) Indebtedness owed by the
Company for compensation to employees or for services.
"Series A Notes" means the Company's 9 % Senior Subordinated
Notes due February 15, 2004, Series A, as amended or supplemented
from time to time in accordance with the terms hereof, that are
issued pursuant to this Indenture.
"Series B Notes" means the Company's 9 % Senior Subordinated
Notes due February 15, 2004, Series B, as amended or supplemented
from time to time in accordance with the terms hereof, that are
issued pursuant to this Indenture in connection with a Registered
Exchange Offer.
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"Significant Subsidiary" means, with respect to any Person,
any Subsidiary of such Person that would be (i) a "significant
subsidiary" as defined in (a) or (b) of the definition of that
term in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect
on the Issue Date or (ii) material to the business, condition
(financial or other), business, operations or prospects of the
Company and its Subsidiaries taken as a whole.
"Subordinated Indebtedness" means Indebtedness of the
Company which is subordinated or junior in right of payment to
the Notes.
"Subordinated Obligations" means all Indebtedness and other
Obligations of the Company or any of its Subsidiaries, contingent
or otherwise, now or hereafter existing under or in respect of
the Notes (pursuant to the terms thereof or any other agreement
or instrument relating thereto), this Indenture, or any of the
other Applicable Documents.
"Subsidiary" means any corporation, association,
partnership, joint venture or other business entity of which the
Company and/or any Subsidiary of the Company, directly or
indirectly, either (a) in respect of a corporation, owns or
controls more than 50% of the outstanding Capital Stock having
ordinary voting power to elect a majority of the board of
directors or similar managing body, irrespective of whether or
not a class or classes shall or might have voting power by reason
of the happening of any contingency, or (b) in respect of an
association, partnership, joint venture or other business entity,
exercises sufficient control over and/or has a sufficiently large
interest in, such association, partnership, joint venture or
other business entity that the operations thereof are, in
accordance with GAAP, consolidated with those of the Company or
any Subsidiary.
"Subsidiary Debt Documents" means, collectively, the Bank
Credit Agreements and the WGHP Notes.
"Surviving Person" means, with respect to any Person
involved in or that makes any Disposition, the Person formed by
or surviving such Disposition or the Person to which such
Disposition is made.
"Tax Sharing Agreement" means the Agreement of Allocation of
Payment of Federal Income Taxes, to be dated as of December 28,
1993, among the Company and its Subsidiaries, as amended,
restated or supplemented from time to time.
"Taxes" means any present or future income, stamp or other
taxes, levies, imposts, duties, fees, assessments, deductions,
withholding or other charges of whatever nature, now or hereafter
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imposed, levied, collected, withheld, or assessed by any
Governmental Body.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Section 77aaa-77bbb) as in effect on the Issue Date.
"Total Interest Expense" of a Person means (i) the total
amount of interest expense (including amortization of original
issue discount and noncash interest payments or accruals and the
interest component of any Capital Lease Obligations but,
excluding any intercompany interest owed by any Subsidiary to any
other Subsidiary of such Person), (ii) all fees, commissions,
discounts and other charges of the Company and its Subsidiaries
with respect to letters of credit and bankers' acceptances,
determined on a consolidated basis in accordance with GAAP and
(iii) the product of (a) the total amount of dividends declared
on Disqualified Capital Stock other than common stock (whether
accrued or paid) of such Person and its consolidated
Subsidiaries, times (b) a fraction, the numerator of which is one
and the denominator of which is one minus the then current
combined federal, state and local statutory tax rate of such
Person, expressed as a decimal, in each case, on a consolidated
basis and in accordance with GAAP.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant
maturity (as complied by, and published in, the most recent
Federal Reserve Statistical Release H.15 (519) which has become
publicly available at least 2 Business Days prior to the date
fixed for redemption of the Notes following a Change of Control
(or, if such Statistical Release is no longer published, any
publicly available source of similar market data)) most nearly
equal to the then remaining Weighted Average Life to Maturity of
the Notes; provided, however, that if the Weighted Average Life
to Maturity of the Notes is not equal to the constant maturity of
a United States Treasury security for which a weekly average
yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year)
from the weekly average yields of Unites States Treasury
securities for which such yields are given, except that if the
Weighted Average Life to Maturity of the Notes is less than one
year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year
shall be used.
"Trustee" means the party named as such above until a
successor replaces it and thereafter means the successor.
"Trust Officer" means any officer or assistant officer of
the Trustee authorized by the Trustee to administer its corporate
trust matters.
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"Weighted Average Life to Maturity" means, when applied to
any Indebtedness at any date, the number of years obtained by
dividing (i) the sum of the products obtained by multiplying (a)
the amount of each then remaining installment, sinking fund,
serial maturity or other required scheduled payment of principal,
including payment at final maturity, in respect thereof, with (b)
the number of years (calculated to the nearest one-twelfth) that
will elapse between such date and the making of such payment, by
(ii) the then outstanding aggregate principal amount of such
Indebtedness.
"WGHP Debt" means (i) the Indebtedness outstanding under the
WGHP Notes up to a maximum principal amount of $17,500,000 minus
(A) the aggregate amount of Excess Proceeds from Asset Sales
applied to permanently reduce principal of Indebtedness under the
WGHP Notes pursuant to Section 4.13(b), minus (B) the aggregate
amount of Asset Sale Payments made by the Company pursuant to
Section 4.13(c) to the extent such amount has not already been
counted as a reduction of Senior Bank Debt pursuant to clause
(i)(B) of the definition of "Senior Bank Debt"; provided that a
reduction described in this clause (B) that would otherwise be
caused by a particular Asset Sale Payment will not be effective
without a Bank Agent Consent with respect to such Asset Sale
Payment if the effect of such reduction would be to reduce the
amount of Designated Senior Debt available to be Incurred
pursuant to Section 4.7(c)(i) to an amount lower than the amount
of WGHP Debt outstanding plus the amount of Senior Bank Debt
outstanding, in each case as of the applicable Determination Time
(including, in the case of Senior Bank Debt, unused commitments
which the Bank Lenders are unconditionally obligated to fund at
the Determination Time and which, if funded, would constitute
Senior Bank Debt).and (ii) any interest, penalties, fees,
indemnifications, reimbursements, damages and other similar
charges payable under the WGHP Notes.
"WGHP Notes" shall mean (i) the 9-1/2% promissory notes of
GATR issued pursuant to that certain Indenture, dated as of
December 28, 1993, between GATR and Star Bank, N.A., as Trustee,
(ii) each instrument pursuant to which obligations under the WGHP
Notes described in clause (i) above, or any subsequent WGHP Notes,
are amended, deferred, extended, renewed, replaced, refunded or
refinanced, in whole or in part, and (iii) each instrument now or
hereafter evidencing, governing, guarantying or securing any
Indebtedness under any such WGHP Notes, in each case, as
modified, amended, restated or supplemented from time to time.
"Wholly-Owned Subsidiary" means a Subsidiary 100% of the
equity interests in which (however measured) are owned by the
Company or a Wholly-Owned Subsidiary of the Company or the
Company and one or more Wholly-Owned Subsidiaries of the Company
taken together, except in any case for the minimum equity
interest required to be held by directors, if any, to satisfy the
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requirements of any applicable statute requiring that directors
own qualifying shares.
Section 1.2 Other Definitions.
Term Defined in Section
"Affiliate Transaction" . . . . . . . . . . . . 4.8
"Asset Sale Payment" . . . . . . . . . . . . . . 4.13(c)
"Asset Sale Redemption" . . . . . . . . . . . . 3.7(c)
"Authenticating Agent" . . . . . . . . . . . . . 2.2
"Asset Sale Trigger Date" . . . . . . . . . . . 4.13
"Available Proceeds" . . . . . . . . . . . . . . 4.13
"Change of Control Redemption" . . . . . . . . . 3.7(b)
"Change of Control Trigger Date" . . . . . . . . 4.12
"Covenant Defeasance Option" . . . . . . . . . . 8.1
"Determination Time" . . . . . . . . . . . . . . 4.13(c)
"Event of Default" . . . . . . . . . . . . . . . 6.1
"Legal Defeasance Option" . . . . . . . . . . . 8.1
"Legal Holiday" . . . . . . . . . . . . . . . . 11.7
"Nonpayment Default" . . . . . . . . . . . . . . 10.3
"Notice of Default" . . . . . . . . . . . . . . 6.1
"Offer" . . . . . . . . . . . . . . . . . . . . 3.8
"Paying Agent" . . . . . . . . . . . . . . . . . 2.3
"Payment Blockage Notice" . . . . . . . . . . . 10.3
"Payment Default" . . . . . . . . . . . . . . . 10.3
"Purchase Date" . . . . . . . . . . . . . . . . 3.8
"Registrar" . . . . . . . . . . . . . . . . . . 2.3
"Successor Company . . . . . . . . . . . . . . . 5.1
"Trustee Expenses" . . . . . . . . . . . . . . . 6.8
"U.S. Government Obligation" . . . . . . . . . . 8.1
Section 1.3 Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in, and made a part
of, this Indenture. Any terms incorporated by reference in this
Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by the Commission rule under the
TIA have the meanings so assigned to them therein.
Section 1.4 Rules of Construction.
Unless the context otherwise requires: (1) a term has the
meaning assigned to it in this Indenture; (2) an accounting term
not otherwise defined herein has the meaning assigned to it under
GAAP; (3) "or" is not exclusive; (4) words in the singular
include the plural, and in the plural include the singular; (5)
provisions apply to successive events and transactions; and (6)
any reference to a Section or Article refers to such Section or
Article of this Indenture.
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ARTICLE 2
THE NOTES
Section 2.1 Form and Dating.
The Series A Notes and the related Trustee's certificate of
authentication shall be substantially in the form of Exhibit A,
and the Series B Notes and the related Trustee's certificate of
authentication shall be substantially in the form of Exhibit B,
both of which exhibits are part of this Indenture. The Notes may
have notations, legends or endorsements required by law, stock
exchange rule or usage. The Company and the Trustee shall
approve the form of the Series A Notes and the Series B Notes and
any notation, legend or endorsement on them. Each Note shall be
dated the date of its authentication. The Notes shall be in
denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this
Indenture and to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound
thereby.
Section 2.2 Execution and Authentication.
Two Officers of the Company (each of whom shall have been
duly authorized by all requisite corporate actions) shall sign
each Note for the Company by manual or facsimile signature. If
an Officer whose signature is on a Note no longer holds that
office at the time the Note is authenticated, the Note shall
nevertheless be valid. The Company's seal shall be reproduced on
each Note.
A Note shall not be valid until authenticated by the manual
signature of the Trustee, and the Trustee's signature shall be
conclusive evidence that the Note has been authenticated under
this Indenture. The form of Trustee's certificate of
authentication to be borne by the Series A Notes and Series B
Notes shall be substantially as set forth in Exhibit A and
Exhibit B, respectively. The Trustee may appoint an
authenticating agent (the "Authenticating Agent") acceptable to
the Company to authenticate Notes. Unless limited by the terms
of such appointment, an Authenticating Agent may authenticate
Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes
authentication by such agent. An Authenticating Agent has the
same rights as an Agent to deal with the Company or any of its
Affiliates.
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With respect to the sale and issuance of the Initial Notes,
the Trustee shall, upon receipt of a written order signed by two
Officers of the Company, authenticate (i) Series A Notes for
issuance on the Issue Date up to $200,000,000 and (ii) Series B
Notes from time to time for issue only in an exchange pursuant to
the Registration Rights Agreement for a like principal amount of
Series A Notes. With respect to the sale and issuance of
Additional Notes, the Trustee shall, upon receipt of (A) an
Officers' Certificate to the effect that the issuance of such
Additional Notes is permitted by this Indenture, including
Section 4.7 hereof, and (B) a written order signed by two
Officers of the Company, authenticate Series A or Series B Notes
as specified in such order. In no case shall the aggregate
principal amount of outstanding Notes exceed $250,000,000 at any
time, except as provided in Section 2.7.
Section 2.3 Registrar and Paying Agent.
The Company shall maintain an office or agency (the
"Registrar") where Notes may be presented or surrendered for
registration of transfer or for exchange and an office or agency
(the "Paying Agent") where Notes may be presented or surrendered
for payment. The Registrar shall keep a register of the Notes
and of their transfer and exchange. The Company may appoint one
or more co-registrars and one or more additional paying agents
reasonably acceptable to the Trustee. The term "Paying Agent"
includes any additional paying agent. The Company may change the
Paying Agent, Registrar or co-registrar without prior notice to
any Holder. The Company shall notify the Trustee and the Trustee
shall notify the Holders of the name and address of any Agent not
a party to this Indenture. The Company shall enter into an
appropriate agency agreement with any Agent not a party to this
Indenture, and such agreement shall incorporate the provisions of
the TIA and implement the provisions of this Indenture that
relate to such Agent.
The Company initially appoints Securities Transfer Company
of Cincinnati, Ohio as Registrar, Paying Agent and agent for
service of notices and demands in connection with the Notes. The
Company or any of its Affiliates may act as Paying Agent,
Registrar or co-registrar. If the Company fails to appoint or
maintain a Registrar and/or Paying Agent, the Trustee shall act
as such, and shall be entitled to appropriate compensation in
accordance with Section 7.7.
Section 2.4 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in
trust for the Holders' benefit or the Trustee all assets the
Paying Agent holds for the redemption or purchase of the Notes or
for the payment of principal of, or premium, if any, or interest
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on, the Notes (whether such assets have been distributed to it by
the Company or any other obligor on the Notes), and will notify
the Trustee of any default by the Company (or any other obligor
on the Notes) in providing the Paying Agent with sufficient funds
to redeem or purchase Notes or make any payment on the Notes as
and to the extent required to be redeemed, purchased or paid
under the terms of this Indenture. While any such default
continues, the Trustee may require the Paying Agent to pay all
money it holds to the Trustee and to account for any assets
distributed. The Company at any time may require the Paying
Agent to pay all money it holds to the Trustee and to account for
any assets disbursed. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or any of its Affiliates)
shall have no further liability for the money it delivered to the
Trustee. If the Company or any of its Subsidiaries acts as
Paying Agent, it shall segregate and hold in a separate trust
fund for the Holders' benefit all money it holds as Paying Agent.
Section 2.5 Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of Holders and shall otherwise comply
with Section 312(a) of the TIA. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, at least 7
Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form
and as of such date as the Trustee may reasonably require that
sets forth the names and addresses of, and the aggregate
principal amount of Notes held by, each Holder, and the Company
shall otherwise comply with Section 312(a) of the TIA.
Section 2.6 Transfer and Exchange.
When Notes are presented to the Registrar or a co-registrar
with a request to register a transfer or to exchange them for an
equal principal amount of Notes of other authorized
denominations, the Registrar or co-registrar shall register the
transfer or make the exchange if its requirements for such
transaction are met; provided, however, that any Note presented
or surrendered for registration of transfer or exchange shall be
duly endorsed or accompanied by a written instruction of transfer
in form satisfactory to the Registrar or co-registrar and the
Trustee duly executed by the Holder of such note or by its
attorney duly authorized in writing. To permit registrations of
transfers and exchanges, the Company shall issue, and the Trustee
shall authenticate, Notes at the Registrar's request.
Neither the Company nor the Registrar shall be required to
issue, register the transfer of or exchange any Note (i) during a
period beginning at the opening of business on the day that the
Trustee receives notice of any redemption from the Company
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pursuant to Section 3.3 and ending at the close of business on
the date the notice of redemption is sent to Holders, (ii)
selected for redemption, in whole or in part, except the
unredeemed portion of any Note being redeemed in part may be
transferred or exchanged, and (iii) during an Offer if such Note
is tendered pursuant to such Offer and not withdrawn.
No service charge shall be made for any registration of
transfer or exchange (except as otherwise expressly permitted
herein), but the Company may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer tax or
similar governmental charge payable upon exchanges pursuant to
Section 2.10, 3.6 or 9.5, which the Company shall pay).
Prior to due presentment for registration of transfer of any
Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute
owner of such Note (whether or not such Note shall be overdue and
notwithstanding any notation of ownership or other writing on
such Note made by anyone other than the Company, the Registrar or
any co-registrar) for the purpose of receiving payment of
principal of, and premium, if any, and interest on, such Note and
for all other purposes, and notice to the contrary shall not
affect the Trustee, any Agent or the Company.
Section 2.7 Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or if
the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Note, the
Company shall issue and the Trustee shall, upon receipt of a
written order signed by two Officers of the Company, authenticate
a replacement Note if the Trustee's requirements are met, and
each such replacement Note shall be an additional obligation of
the Company. If the Trustee or the Company requires, the Holder
must supply an indemnity bond that is sufficient in the judgment
of the Trustee and the Company to protect the Company, the
Trustee, or any Agent from any loss that any of them may suffer
if a Note is replaced. The Company and the Trustee may charge
for its reasonable expenses in replacing a Note.
Section 2.8 Outstanding Notes.
The Notes outstanding at any time are all the Notes the
Trustee has authenticated except for those it has cancelled,
those delivered to it for cancellation, and those described in
this Section 2.8 as not outstanding. If a Note is replaced
pursuant to Section 2.7 (other than a mutilated Note surrendered
for replacement), it ceases to be outstanding unless the Trustee
receives proof satisfactory to it that a bona fide purchaser
holds the replaced Note. A mutilated Note ceases to be
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outstanding upon surrender of such Note and replacement thereof
pursuant to Section 2.7 hereof. If the entire principal of, and
premium, if any, and accrued interest on, any Note is considered
paid under Section 4.1, it ceases to be outstanding and interest
on it ceases to accrue. Subject to Section 2.9, a Note does not
cease to be outstanding because the Company or any Affiliate of
the Company holds such Note.
Section 2.9 Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any directions, waiver or
consent, Notes owned by the Company or any Subsidiary or
Affiliate of the Company shall be considered as though they are
not outstanding; provided, however, that for the purposes of
determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Notes that the
Trustee knows are so owned shall be so disregarded.
Notwithstanding the foregoing, Notes that the Company or any
Affiliate of the Company offers to purchase or acquires pursuant
to an exchange offer, tender offer or otherwise shall not be
deemed to be owned by the Company or any Affiliate of the Company
until legal title to such Notes passes to the Company or such
Affiliate, as the case may be.
Section 2.10 Temporary Notes.
Until definitive Notes are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of definitive
Notes but may have variations that the Company considers
appropriate for temporary Notes. Without unreasonable delay, the
Company shall prepare and the Trustee, upon receipt of a written
order signed by two Officers of the Company, shall authenticate
definitive Notes in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights,
benefits and privileges as definitive Notes.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar, any co-registrar, the Paying Agent,
the Company and its Subsidiaries shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange,
replacement, payment (including all Notes called for redemption
and all Notes accepted for payment pursuant to an Offer) or
cancellation, and the Trustee shall cancel all such Notes and
shall destroy all cancelled Notes (subject to the record
retention requirements of the Exchange Act) and deliver a
certificate of their destruction to the Company unless, by
written order signed by two Officers of the Company, the Company
shall direct that cancelled Notes be returned to it. The Company
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may not issue new Notes to replace any Notes that have been
cancelled by the Trustee or that have been delivered to the
Trustee for cancellation. If the Company or any Affiliate of the
Company acquires any Notes (other than by redemption pursuant to
Section 3.7 or an Offer pursuant to Section 4.12 or 4.13), such
acquisition shall not operate as a redemption or satisfaction of
the Indebtedness represented by such Notes unless and until such
Notes are delivered to the Trustee for cancellation pursuant to
this Section 2.11.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the
Notes, it shall pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted
interest, to Holders on a subsequent special record date, in each
case at the rate provided in the Notes and Section 4.1. The
Company shall, with the Trustee's consent, fix or cause to be
fixed each such special record date and payment date. At least
15 days before the special record date, the Company (or, at the
request of the Company, the Trustee in the name of, and at the
expense of, the Company) shall mail a notice that states the
special record date, the related payment date and the amount of
interest (including interest, if any, on the defaulted interest)
to be paid.
Section 2.13 Record Date.
The record date for purposes of determining the identity of
holders of Notes entitled to vote or consent to any action by
vote or consent authorized or permitted under this Indenture
shall be the later of 10 days prior to the first solicitation of
such consent or the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation.
Section 2.14 CUSIP Number.
A "CUSIP" number will be printed on the Notes, and the
Trustee shall use the CUSIP number in notices of redemption,
purchase or exchange as a convenience to Holders, provided that
any such notice may state that no representation is made as to
the correctness or accuracy of the CUSIP number printed in the
notice or on the Notes and that reliance may be placed only on
the other identification numbers printed on the Notes. The
Company will promptly notify the Trustee of any change in the
CUSIP number.
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ARTICLE 3
REDEMPTIONS AND OFFERS TO PURCHASE
Section 3.1 Notices to Trustee.
If the Company elects to redeem Notes pursuant to Section
3.7 it shall furnish to the Trustee, at least 10 but not more
than 15 days before notice of any redemption is to be mailed to
Holders (or such shorter time as may be satisfactory to the
Trustee), an Officers' Certificate stating that the Company has
elected to redeem Notes pursuant to Section 3.7, the date notice
of redemption is to be mailed to Holders, the Redemption Date,
the aggregate principal amount of Notes to be redeemed, the
Redemption Price for such Notes, the amount of accrued and unpaid
interest on such Notes as of the Redemption Date and the manner
in which Notes are to be selected for redemption if less than all
outstanding Notes are to be redeemed. If the Trustee is not the
Registrar, the Company shall, concurrently with delivery of its
notice to the Trustee of a redemption, cause the Registrar to
deliver to the Trustee a certificate (upon which the Trustee may
rely) setting forth the name of, and the aggregate principal
amount of Notes held by each Holder.
If the Company is required to offer to purchase Notes
pursuant to Section 4.12 or 4.13, it shall furnish to the
Trustee, at least 5 Business Days before notice of the Offer is
to be mailed to Holders, an Officers' Certificate setting forth
that the Offer is being made pursuant to Section 4.12 or 4.13, as
the case may be, the Purchase Date, the maximum principal amount
of Notes the Company is offering to purchase pursuant to the
Offer, the purchase price for such Notes, and the amount of
accrued and unpaid interest on such Notes as of the Purchase
Date.
The Company will also provide the Trustee with any
additional information that the Trustee reasonably requests in
connection with any redemption or Offer.
Section 3.2 Selection of Notes to be Redeemed or Purchased.
If less than all outstanding Notes are to be redeemed or if
less than all Notes tendered pursuant to an Offer are to be
accepted for payment, the Company shall select the outstanding
Notes to be redeemed or accepted for payment in compliance with
the requirements of the principal national securities exchange,
if any, on which the Notes are listed or, if the Notes are not
listed on a securities exchange, on a pro rata basis, by lot or
by any other method that the Trustee deems fair and appropriate;
provided, however, that if any Additional Notes are outstanding,
such selection shall be effected in such a manner as to ensure
that the ratio of the outstanding principal amount of the Initial
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Notes and the ratio of the outstanding principal amount of
Additional Notes, respectively, to the sum of the outstanding
principal amount of the Initial Notes and Additional Notes prior
to such selection is equal to such ratios after such selection.
If the Company elects to mail notice of a redemption to Holders,
the Trustee shall, at least 5 days prior to the date notice of
redemption is to be mailed, (i) select the Notes to be redeemed
from Notes outstanding not previously called for redemption, and
(ii) promptly notify the Company of the names of each Holder of
Notes selected for redemption, the principal amount of Notes held
by each such Holder and the principal amount of such Holder's
Notes that are to be redeemed. If less than all Notes tendered
pursuant to an Offer are to be accepted for payment, the Trustee
shall select on or prior to the Purchase Date for such Offer the
Notes to be accepted for payment; provided, however, that if any
Additional Notes are outstanding, such selection shall be
effected in such a manner as to ensure that the ratio of the
outstanding principal amount of the Initial Notes and the ratio
of the outstanding principal amount of Additional Notes,
respectively, to the sum of the outstanding principal amount of
the Initial Notes and Additional Notes prior to such selection is
equal to such ratios after such selection. The Trustee shall
select for redemption or purchase Notes or portions of Notes in
principal amounts of $1,000 or integral multiples of $1,000;
except that if all of the Notes of a Holder are selected for
redemption or purchase, the aggregate principal amount of the
Notes held by such Holder, even if not a multiple of $1,000, may
be redeemed or purchased. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called
for redemption or tendered pursuant to an Offer also apply to
portions of Notes called for redemption or tendered pursuant to
an Offer.
Section 3.3 Notice of Redemption.
(a) At least 30 days but not more than 60 days before
any Redemption Date, the Company shall mail by first class mail
to each such Holder's registered address a notice of redemption
to each Holder of Notes or portions thereof that are to be
redeemed. With respect to any redemption of Notes, the notice
shall identify the Notes or portions thereof to be redeemed and
shall state: (1) the Redemption Date; (2) the Redemption Price
for the Notes and the amount of unpaid and accrued interest on
such Notes as of the date of redemption; (3) if any Note is being
redeemed in part, the portion of the principal amount of such
Note to be redeemed and that, after the Redemption Date, upon
surrender of such Note, a new Note or Notes in principal amount
equal to the unredeemed portion will be issued; (4) the name and
address of the Paying Agent; (5) that Notes called for redemption
must be surrendered to the Paying Agent to collect the Redemption
Price for, and any accrued and unpaid interest on, such Notes;
(6) that, unless the Company defaults in making such redemption
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payment, interest on Notes called for redemption ceases to accrue
on and after the Redemption Date and the only remaining right of
the Holders of such Notes is to receive payment of the Redemption
Price upon surrender to the Paying Agent of the Notes redeemed;
and (7) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to
be redeemed and the aggregate principal amount of Notes to be
outstanding after such partial redemption.
(b) At the Company's request, the Trustee shall (at
the Company's expense) give the notice of any redemption to
Holders; provided, however, that the Company shall deliver to the
Trustee, at least 10 days prior to the date that notice of the
redemption is to be mailed to Holders, an Officers' Certificate
that (i) requests the Trustee to give notice of the redemption to
Holders, (ii) sets forth the information to be provided to
Holders in the notice of redemption, as set forth in the
preceding paragraph, and (iii) sets forth the aggregate principal
amount of Notes to be redeemed and the amount of accrued and
unpaid interest thereon as of the redemption date. If the
Trustee is not the Registrar, the Company shall, concurrently
with any such request, cause the Registrar to deliver to the
Trustee a certificate (upon which the Trustee may rely) setting
forth the name of, the address of, and the aggregate principal
amount of Notes held by, each Holder; provided further that any
such Officers' Certificate may be delivered to the Trustee on a
date later than permitted under this Section 3.3(b) if such later
date is acceptable to the Trustee.
Section 3.4 Effect of Notice of Redemption.
Once notice of redemption is mailed to the Holders, Notes
called for redemption become due and payable on the Redemption
Date at the Redemption Price. Upon surrender to the Trustee or
the Paying Agent, the Notes called for redemption shall be paid
at the Redemption Price.
Section 3.5 Deposit of Redemption Price.
(a) On or prior to any Redemption Date, the Company
shall deposit with the Paying Agent money sufficient to pay the
Redemption Price of, and accrued interest on, all Notes to be
redeemed on that date. After any Redemption Date, the Trustee or
the Paying Agent shall promptly return to the Company any money
that the Company deposited with the Trustee or the Paying Agent
in excess of the amounts necessary to pay the Redemption Price
of, and accrued interest on, all Notes to be redeemed.
(b) If the Company complies with the preceding
paragraph, unless the Company defaults in the payment of such
Redemption Price interest on the Notes to be redeemed will cease
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to accrue on such Notes on the applicable Redemption Date,
whether or not such Notes are presented for payment. If a Note
is redeemed on or after an interest record date but on or prior
to the related interest payment date, then any accrued and unpaid
interest shall be paid to the Person in whose name such Note was
registered at the close of business on such record date. If any
Note called for redemption shall not be so paid upon surrender
for redemption because of the failure of the Company to comply
with the preceding paragraph, interest will be paid on the unpaid
principal, premium, if any, and interest from the redemption date
until such principal, premium and interest is paid, at the rate
of interest provided in the Notes and Section 4.1.
Section 3.6 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the
Company shall issue and the Trustee shall authenticate for the
Holder at the Company's expense a new Note equal in principal
amount to the unredeemed portion of the Note surrendered.
Section 3.7 Optional Redemption.
(a) Except as otherwise provided in this Section 3.7,
the Notes may not be redeemed at the option of the Company prior
to February 15, 1999. Thereafter, the Notes will be subject to
redemption at the option of the Company, in whole or in part, at
the Redemption Prices (expressed as percentages of the principal
amount of the Notes) set forth below, plus any accrued and unpaid
interest to the Redemption Date, if redeemed during the twelve-
month period beginning on February 15 of the years indicated
below.
Year Percenta
ge
1999 . . . . . . . . . . . . . . . . . . . . . . . . 104.875%
2000 . . . . . . . . . . . . . . . . . . . . . . . . 103.250%
2001 . . . . . . . . . . . . . . . . . . . . . . . . 101.625%
2002 and thereafter . . . . . . . . . . . . . . . . . 100.000 %
Notwithstanding the foregoing, up to 25% in aggregate
principal amount of Notes originally issued under this Indenture
will be redeemable from time to time prior to December 31, 1996,
at the option of the Company, from the Net Proceeds of one or
more Public Offerings of the Company at a Redemption Price equal
to 108.75% of the principal amount thereof, together with accrued
and unpaid interest to the date of redemption; provided, however,
that any such redemption shall be permitted only if and to the
extent that, after giving effect thereto and to any simultaneous
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redemptions pursuant to Section 3.7(b) or Section 3.7(c), at
least $100,000,000 in principal amount of Initial Notes will
remain outstanding.
(b) Prior to February 15, 1999, the Notes will be
subject to redemption (a "Change of Control Redemption") at the
option of the Company, in whole or in part, at any time within
180 days after the later of (i) a Change of Control Trigger Date,
and (ii) the completion of an Offer made as a result of a Change
of Control, at a redemption price equal to the sum of (A) the
principal amount thereof, plus (B) accrued and unpaid interest to
the redemption date, plus (C) the Applicable Premium; provided,
however, that a Change of Control Redemption shall be permitted
only if and to the extent that, after giving effect thereto and
to any simultaneous redemptions pursuant to the last sentence of
Section 3.7(a) or Section 3.7(c), at least $100,000,000 in
principal amount of Initial Notes will remain outstanding, unless
such Change of Control Redemption is for all outstanding Notes.
(c) Prior to December 31, 1996 the Notes will be
subject to redemption (an "Asset Sale Redemption") at the option
of the Company, in whole or in part, following an Asset Sale in
connection with an Asset Sale Payment; provided that an Asset
Sale Redemption may be made by the Company only if, and to the
extent that, each of the following conditions is satisfied;
(i) only two Asset Sale Redemptions will be permitted under this
Indenture; (ii) the maximum aggregate principal amount of Notes
to be redeemed pursuant to an Asset Sale Redemption will be
limited to that amount which is necessary to make the ratio set
forth in Section 4.13(c), given the amount of the proposed Asset
Sale Payment, equal to (but not more or less than) 4.5:1; and
(iii) after giving effect to the proposed Asset Sale Redemption
and to any simultaneous redemptions pursuant to the last sentence
of Section 3.7(a) or Section 3.7(b), at least $100,000,000 in
principal amount of Initial Notes will remain outstanding. In
the event of an Asset Sale Redemption, the Notes will be
redeemable at the Redemption Prices (expressed as percentages of
the principal amount of the Notes) set forth below, plus any
accrued and unpaid interest to the date of redemption, if
redeemed during the periods indicated below.
Period Percentage
February 15, 1994 to July 31, 1994102.00%
August 1, 1994 to February 14, 1995103.00%
February 15, 1995 to December 31, 1996108.75%
Section 3.8 Mandatory Offers.
(a) Within 60 days after any Change of Control Trigger
Date, or within 10 Business Days after any Asset Sale Trigger
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Date, the Company shall mail a notice to each Holder (with a copy
to the Trustee) containing all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the
Offer and stating: (1) that an Offer is being made pursuant to
Section 4.12 or 4.13, as the case may be, the length of time the
Offer shall remain open, and the maximum aggregate principal
amount of Notes that the Company is required to purchase pursuant
to such Offer (2) the purchase price for the Notes (as set forth
in Section 4.12 or 4.13, as the case may be), the amount of
accrued and unpaid interest on such Notes as of the purchase
date, and the purchase date (which shall be no earlier than 30
days nor later than 40 days from the date such notice is mailed
(the "Purchase Date"); (3) that any Note not tendered will
continue to accrue interest if interest is then accruing; (4)
that, unless the Company fails to deposit with the Paying Agent
on the Purchase Date an amount sufficient to purchase all Notes
accepted for payment, interest shall cease to accrue on such
Notes after the Purchase Date; (5) that Holders electing to
tender any Note or portion thereof will be required to surrender
their Note, with a form entitled "Option of Holder to Elect
Purchase" completed, to the Paying Agent at the address specified
in the notice prior to the close of business on the Business Day
preceding the Purchase Date, provided that Holders electing to
tender only a portion of any Note must tender a principal amount
of $1,000 or integral multiples thereof; (6) that Holders will be
entitled to withdraw their election to tender Notes if the Paying
Agent receives, not later than the close of business on the
second Business Day preceding the Purchase Date, a telegram,
telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of Notes delivered for purchase,
and a statement that such Holder is withdrawing his election to
have such Note purchased; (7) that Holders whose Notes are
accepted for payment in part will be issued new Notes equal in
principal amount to the unpurchased portion of Notes surrendered,
provided that only Notes in a principal amount of $1,000 or
integral multiples thereof will be accepted for payment in part
and (8) if the Offer is made with respect to a Change of Control,
the circumstances and relevant facts regarding such Change of
Control.
(b) Notwithstanding anything in this Section 3.8 to
the contrary, the Company shall not be required to commence an
Offer as a result of a Change of Control if, within thirty (30)
days of the Change of Control Trigger Date, the Company notifies
the Holders that all outstanding Notes will be redeemed pursuant
to a Change of Control Redemption.
(c) Subject to the provisions of Article 10, on the
Purchase Date for any Offer, the Company will (i) in the case of
an Offer resulting from a Change of Control, accept for payment
all Notes or portions thereof tendered pursuant to such Offer
and, in the case of an Offer resulting from one or more Asset
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Sales, accept for payment the maximum principal amount of Notes
or portions thereof tendered pursuant to such Offer that can be
purchased out of Excess Proceeds from such Asset Sales, (ii)
deposit with the Paying Agent the aggregate purchase price of all
Notes or portions thereof accepted for payment and any accrued
and unpaid interest on such Notes as of the Purchase Date, and
(iii) deliver, or cause to be delivered, to the Trustee all Notes
tendered pursuant to the Offer, together with an Officers'
Certificate setting forth the name of each Holder of the tendered
Notes and the principal amount of the Notes or portions thereof
tendered by each such Holder. For purposes of this Section 3.8,
the Trustee shall act as the Paying Agent.
(d) With respect to any Offer, (i) if less than all of
the Notes tendered pursuant to an Offer are to be accepted for
payment by the Company for any reason, the Company and the
Trustee shall select on or prior to the Purchase Date the Notes
or portions thereof to be accepted for payment pursuant to
Section 3.2; provided, however, that if any Additional Notes are
outstanding, such selection shall be effected in such a manner as
to ensure that the ratio of the outstanding principal amount of
the Initial Notes and the ratio of the outstanding principal
amount of Additional Notes, respectively, to the sum of the
outstanding principal amount of the Initial Notes and Additional
Notes prior to such selection is equal to such ratios after such
selection, and (ii) if the Company deposits with the Paying Agent
on or prior to the Purchase Date an amount sufficient to purchase
all Notes accepted for payment, interest shall cease to accrue on
such Notes on the Purchase Date; provided, however, that if the
Company fails to deposit an amount sufficient to purchase all
Notes accepted for payment, the deposited funds shall be used to
purchase on a pro rata basis all Notes accepted for payment and
interest shall continue to accrue on all Notes not purchased.
(e) Subject to the provisions of Article 10, promptly
after the Purchase Date with respect to an Offer, (i) the Paying
Agent shall mail to each Holder of Notes or portions thereof
accepted for payment an amount equal to the purchase price for,
plus any accrued and unpaid interest on, such Notes, (ii) with
respect to any tendered Note not accepted for payment in whole or
in part, the Trustee shall return such Note to the Holder
thereof, and (iii) with respect to any Note accepted for payment
in part, the Trustee shall authenticate and mail to each such
Holder a new Note equal in principal amount to the unpurchased
portion of the tendered Note.
(f) The Company will (i) publicly announce the results
of the Offer on or as soon as practicable after the Purchase
Date, and (ii) comply with Rule 14e-1 under the Exchange Act and
any other securities laws and regulations to the extent such laws
and regulations are applicable to any Offer.
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ARTICLE 4
COVENANTS
Section 4.1 Payment of Notes.
Subject to the provisions of Article 10, the Company shall
pay the principal of, and premium, if any, and interest on, the
Notes on the dates and in the manner provided in the Notes.
Holders must surrender their Notes to the Paying Agent to collect
principal payments. Principal, premium, or interest shall be
considered paid on the date due if, by 11 a.m. Eastern Standard
Time on such date, the Company has deposited with the Paying
Agent money in immediately available funds designated for and
sufficient to pay such principal, premium or interest; provided,
however, that principal, premium or interest shall not be
considered paid within the meaning of this Section 4.1 if money
intended to pay such principal, premium or interest is held by
the Paying Agent for the benefit of holders of Senior
Indebtedness pursuant to the provisions of Article 10. The
Paying Agent shall return to the Company, no later than five days
following the date of payment, any money (including accrued
interest) that exceeds the amount then due and payable on the
Notes.
To the extent lawful, the Company shall pay interest
(including Post-Petition Interest) on overdue principal, premium
and interest (without regard to any applicable grace period) at a
rate equal to 1.5% per annum in excess of the then applicable
interest rate on the Notes, compounded semiannually.
Section 4.2 Reports.
(a) To the extent permitted by applicable law or
regulation, whether or not the Company is subject to the
requirements of Section 13 or 15(d) of the Exchange Act, the
Company shall file with the SEC all quarterly and annual reports
and such other information, documents or other reports (or copies
of such portions of any of the foregoing as the SEC may by rules
and regulations prescribe) required to be filed pursuant to such
provisions of the Exchange Act. The Company shall file with the
Trustee, within 5 days after it files the same with the SEC,
copies of the quarterly and annual reports and the information,
documents, and other reports (or copies of such portions of any
of the foregoing as the SEC may by rules and regulations
prescribe) that it is required to file with the SEC pursuant to
this Section 4.2. The Company shall also comply with the other
provisions of TIA Section 314(a). If the Company is not permitted
by applicable law or regulations to file the aforementioned reports,
the Company (at its own expense) shall file with the Trustee and
mail, or cause the Trustee to mail, to Holders at their addresses
appearing in the register of Notes at the time of such mailing
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within 5 days after it would have been required to file such
information with the SEC, all information and financial
statements, including any notes thereto and with respect to
annual reports, an auditors' report by an accounting firm of
established national reputation, and a "Management's Discussion
and Analysis of Financial Condition and Results of Operations,"
comparable to the disclosure that the Company would have been
required to include in annual and quarterly reports, information,
documents or other reports, including, without limitation,
reports on Forms 10-K, 10-Q and 8-K, if the Company was subject
to the requirements of such Section 13 or 15(d) of the Exchange
Act.
(b) At any time when the Company is not permitted by
applicable law or regulations to file the aforementioned reports,
upon the request of a Holder of a Series A Note, the Company will
promptly furnish or cause to be furnished such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto) to such Holder or to a
prospective purchaser of such Series A Note designated by such
Holder, as the case may be, in order to permit compliance by such
Holder with Rule 144A under the Securities Act.
Section 4.3 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within
135 days after the end of each fiscal year of the Company, an
Officers' Certificate stating that (i) a review of the activities
of the Company and its Subsidiaries during the preceding fiscal
year has been made to determine whether the Company has kept,
observed, performed and fulfilled all of its obligations under
this Indenture and the Notes, (ii) such review was supervised by
the Officers of the Company signing such certificate, and (iii)
that to the best knowledge of each Officer signing such
certificate, (a) the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a
Default or Event of Default occurred, describing all such
Defaults or Events of Default of which each such Officer may have
knowledge and what action the Company has taken or proposes to
take with respect thereto), and (b) no event has occurred and
remains in existence by reason of which payments on account of
the principal of, or premium, if any, or interest on, the Notes
are prohibited or if such event has occurred, a description of
the event and what action the Company is taking or proposes to
take with respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public
Accountants, the annual financial statements delivered pursuant
to Section 4.2 shall be accompanied by a written statement of the
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Company's independent public accountants (who shall be a firm of
established national reputation reasonably satisfactory to the
Trustee) that in making the examination necessary for
certification of such financial statements nothing has come to
their attention that would lead them to believe that the Company
has violated any provisions of Sections 4.1, 4.5, 4.7, 4.8, 4.9,
4.10, 4.11, 4.12, 4.13, 4.15 or Article 5, or if any such
violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants
shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
The Company will, so long as any of the Notes are
outstanding, deliver to the Trustee, promptly after any Officer
of the Company becomes aware of (i) any Default or Event of
Default, or (ii) any default or event of default under any other
mortgage, indenture or instrument that could result in an Event
of Default under Section 6.1, an Officers' Certificate specifying
such Default, Event of Default or default and what action the
Company is taking or proposes to take with respect thereto.
Section 4.4 Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that might affect the covenants or the
performance of its obligations under this Indenture and the
Notes; and the Company (to the extent it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law,
and covenants that it will not, by resort to any such law,
hinder, delay or impede the execution of any power granted to the
Trustee pursuant to this Indenture, but will suffer and permit
the execution of every such power as though no such law has been
enacted.
Section 4.5 Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any
Subsidiary to, directly or indirectly, make any Restricted
Payment, except (1) dividends, payments or other distributions
with respect of any Capital Stock by any Subsidiary to the
Company or any Wholly-Owned Subsidiary of the Company, (2)
repurchases, redemptions, retirements or acquisitions of Capital
Stock by a Wholly-Owned Subsidiary of the Company from the
Company or another Wholly-Owned Subsidiary of the Company, (3)
payments, prepayments, repurchases, redemptions and acquisitions
permitted under Section 4.7 with respect to Indebtedness not
incurred in violation of Section 4.7, and (4) Restricted Payments
by the Company if (i) at the time of and after giving effect to
the proposed Restricted Payment no Default or Event of Default
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shall have occurred and be continuing or would occur as a
consequence thereof, (ii) at the time of and immediately after
giving effect to the proposed Restricted Payment, the Company
could Incur at least $1.00 of additional Indebtedness pursuant to
Section 4.7(b) and (iii) at the time of and immediately after
giving effect to the proposed Restricted Payment (the value of
any such payment if other than cash, as determined by the Board
of Directors, whose determination shall be conclusive and
evidenced by a Board Resolution, provided that in the event such
value exceeds $3 million such determination shall be supported by
a fairness opinion of an Independent Financial Advisor) the
aggregate amount of all Restricted Payments (excluding all
payments, investments, redemptions, repurchases, retirements and
other acquisitions described in clause (ii) of Section 4.5(b))
declared or made after the Issue Date does not exceed an amount
equal to the sum of (A) Cumulative Operating Cash Flow of the
Company and its Subsidiaries less 1.4 times Cumulative Total
Interest Expense of the Company and its Subsidiaries, plus (B) an
amount equal to 100% of the aggregate Qualified Capital Stock
Proceeds received by the Company from the issuance and sale
(other than to a Subsidiary of the Company) of Qualified Capital
Stock to the extent that such proceeds are not used to redeem,
repurchase, return or otherwise acquire Capital Stock or any
Indebtedness of the Company or any Subsidiary pursuant to
clause (ii) of Section 4.5(b) and (C) $5,000,000.
(b) Notwithstanding Section 4.5(a), the following
Restricted Payments may be made: (i) the payment of any dividend
within 60 days after the date of declaration thereof, if at said
date of declaration such payment would have complied with the
provisions of this Indenture; (ii) the redemption, repurchase,
retirement or other acquisition for value of any Capital Stock or
any Indebtedness of the Company or any Subsidiary in exchange
for, or out of the Qualified Capital Stock Proceeds of, the
substantially concurrent sale (other than to the Company or a
Subsidiary of the Company) of Qualified Capital Stock of the
Company; and (iii) the redemption of Notes under the
circumstances provided in Article 3 and in Sections 4.12 and
4.13.
Section 4.6 Corporate Existence.
Subject to Section 4.13 and Article 5, the Company will do
or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence and the corporate,
partnership or other existence of each of its Significant
Subsidiaries in accordance with the respective organizational
documents of each of its Significant Subsidiaries and the rights
(charter and statutory), licenses and franchises of the Company
and each of its Significant Subsidiaries; provided, however, that
the Company shall not be required to preserve any such right,
license or franchise, or the corporate, partnership or other
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existence of any Significant Subsidiary, if the Board of
Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company
and its Significant Subsidiaries taken as a whole, and that the
loss thereof is not adverse in any material respect to the
Holders.
Section 4.7 Limitation on Indebtedness.
(a) Except as set forth in this Section 4.7, the
Company shall not, and shall not permit any Subsidiary, after the
Issue Date, directly or indirectly, to Incur any Indebtedness
(including Acquired Indebtedness and under any Additional Note).
For purposes of this Indenture, Indebtedness of any Acquired
Person that is not a Subsidiary, which Indebtedness is
outstanding at the time such Person is acquired by the Company or
a Subsidiary or becomes, or is merged into or consolidated with,
a Subsidiary, shall be deemed to have been Incurred by the
Company at the time such Acquired Person becomes, or is merged
into or consolidated with, a Subsidiary.
(b) Notwithstanding Section 4.7(a) and in addition to
Indebtedness permitted to be Incurred under Section 4.7(c), the
Company (subject to the limitations set forth in Section 4.15) or
any Subsidiary may Incur Indebtedness if (i) no Default or Event
of Default shall have occurred and be continuing at the time or
as a consequence of the Incurrence of such Indebtedness and
(ii) on the date of the Incurrence of such Indebtedness, the Debt
to Operating Cash Flow Ratio of the Company and its Subsidiaries
at the time of such Incurrence, after giving pro forma effect
thereto, is 7.0:1 or less.
(c) Notwithstanding Section 4.7(a) and in addition to
Indebtedness permitted to be Incurred under Section 4.7(b), the
Company and its Subsidiaries may Incur any of the following
Indebtedness:
(i) Designated Senior Debt;
(ii) Indebtedness evidenced by the Initial Notes;
(iii) Indebtedness to any Wholly-Owned Subsidiary
of the Company or Indebtedness of any Subsidiary to the
Company (provided that such Indebtedness is at all times
held by the Company or a Wholly-Owned Subsidiary of the
Company); provided, however, that for purposes of this
Section 4.7, upon either (A) the transfer or other
disposition by any such Wholly-Owned Subsidiary of any
Indebtedness so permitted to a Person other than the Company
or another Wholly-Owned Subsidiary of the Company or (B) the
issuance, sale, lease, transfer or other disposition of
shares of Capital Stock (including by consolidation or
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merger) of such Wholly-Owned Subsidiary to a Person other
than the Company or another such Wholly-Owned Subsidiary,
the provisions of this clause (iii) shall no longer be
applicable to such Indebtedness and such Indebtedness shall
be deemed to have been Incurred by the Company at the time
of such transfer or other disposition;
(iv) Refinancing Indebtedness with respect to
Indebtedness that was Incurred prior to the Issue Date or,
if incurred after the Issue Date, was Incurred in compliance
with the provisions of this Indenture; provided, however,
that (A) the principal amount of such Refinancing
Indebtedness shall not exceed the principal amount (or
accreted value, in the case of Indebtedness issued at a
discount) of the Indebtedness so extended, refinanced,
renewed, replaced, substituted, defeased or refunded (plus
the amount of fees, costs and expenses incurred and the
amount of any premium, penalties, breakage costs and other
similar amounts required to be paid in connection with such
refinancing pursuant to the terms of the instrument
governing the Indebtedness so extended, refinanced, renewed,
replaced, substituted, defeased or refunded or the amount of
any premium reasonably determined by the Company as
necessary to accomplish a refinancing by means of a tender
offer or privately negotiated repurchase, which
determination shall be supported by a fairness opinion from
an Independent Financial Advisor, plus the fees, costs and
expenses of such tender offer or repurchase); and (B) the
Refinancing Indebtedness shall (1) have a Weighted Average
Life to Maturity equal to or greater than the Weighted
Average Life to Maturity of the Indebtedness being extended,
refinanced, renewed, replaced, substituted, defeased or
refunded; (2) not have a final scheduled maturity earlier
than the final scheduled maturity of the Indebtedness being
extended, refinanced, replaced, renewed, substituted,
defeased or refunded; (3) not permit redemption at the
option of the holder earlier than the earliest date of
redemption at the option of the holder of the Indebtedness
being extended, refinanced, renewed, replaced, substituted,
defeased or refunded; and (4) rank no more senior or be at
least as subordinated, as the case may be, in right of
payment to the Notes as the Indebtedness being extended,
refinanced, replaced, renewed, substituted, defeased or
refunded; provided, further, that the limitations contained
in this clause (iv) shall not preclude the Company or any of
its Subsidiaries from Incurring additional Indebtedness
permitted to be Incurred at the time under Section 4.7(b) or
any other clause of this Section 4.7(c), notwithstanding
that such additional Indebtedness would fall within the
definition of "Refinancing Indebtedness;"
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(v) With respect to the Company, Guarantees of
obligations under existing Investments in The Theme Park
Partnership, an Australian partnership, up to an aggregate
amount not exceeding 4,033,125 Dollars (Australian);
(vi) Indebtedness with respect to Interest Rate or
Currency Protection Agreements; and
(vii) Indebtedness not otherwise permitted to be
Incurred pursuant to clauses (i) through (vi) above which,
together with any other outstanding Indebtedness Incurred
pursuant to this clause (vii), has an aggregate principal
amount not in excess of $25,000,000 at any one time
outstanding (plus Obligations for related payments for early
termination, interest, fees, expenses and indemnities and
other similar amounts payable thereunder or in connection
therewith).
Section 4.8 Limitation on Transactions with Affiliates.
(a) Neither the Company nor any of its Subsidiaries
shall enter into any transaction or series of transactions to
sell, lease, transfer, exchange or otherwise dispose of any of
its properties or assets to or to purchase any property or assets
from, or for the direct or indirect benefit of, an Affiliate of
the Company or of any Subsidiary of the Company, make any
Investment in or enter into any contract, agreement,
understanding, loan, advance or Guarantee with, or for the direct
or indirect benefit of, an Affiliate of the Company or of any
Subsidiary of the Company (each, including any series of
transactions with one or more Affiliates, an "Affiliate
Transaction"), unless such Affiliate Transaction is on terms that
are no less favorable to the Company or the relevant Subsidiary
than those that could have been obtained at that time in a
comparable transaction by the Company or such Subsidiary with an
unrelated Person.
(b) Neither the Company nor any of its Subsidiaries
shall enter into an Affiliate Transaction involving or having a
potential aggregate value of more than $1,000,000, other than
transactions in the ordinary course of business, including, but
not limited to, the sale of advertising time or the purchase of
insurance from an Affiliate that is an insurance carrier or
through an Affiliate that is an insurance agent or agency, unless
such transaction has been approved by a majority of the Board of
Directors who have no direct or indirect interest in the
Affiliate Transaction or in the Affiliate that is a party to the
Affiliate Transaction, or in any other party that is an Affiliate
of any such Affiliate.
(c) Neither the Company nor any of its Subsidiaries
shall enter into an Affiliate Transaction involving or having a
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potential aggregate value of more than $5,000,000 other than
transactions in the ordinary course of business, including, but
not limited to, the sale of advertising time that is used by the
purchaser thereof and is not resold unless the Board of Directors
shall first have received a written opinion from an Independent
Financial Advisor for the benefit of the Company and the Holders,
which firm is not receiving any contingent fee or other
consideration directly or indirectly related to the successful
completion of the Affiliate Transaction, to the effect that the
proposed Affiliate Transaction is fair to the Company from a
financial point of view.
(d) The provisions of this Section 4.8 shall (i) not
prohibit or restrict, if not otherwise in violation of this
Indenture, the execution by the Company or any of its
Subsidiaries of, the making by the Company or any of its
Subsidiaries of any loan, guarantee or other extension of credit
contemplated by, the performance by the Company or any of its
Subsidiaries of Obligations under, the making by the Company or
any of its Subsidiaries of any payment required by, or the
exercise by any person of such person's rights under, the
Subsidiary Debt Documents, (ii) not apply to any Restricted
Payment that is made in compliance with the provisions of
Section 4.5, (iii) not apply to the reasonable and customary fees
and compensation paid or indemnity provided on behalf of,
officers, directors, employees or consultants of the Company or
any Subsidiary, as determined by the Board of Directors of the
Company or such Subsidiary or the senior management thereof in
good faith, (iv) not apply to any dividend distribution or
redemption of Capital Stock of the Company that is made in
compliance with the provisions of Section 4.13 and (v) not apply
to transactions exclusively between or among the Company and any
Wholly-Owned Subsidiary or exclusively between or among
Wholly-Owned Subsidiaries provided such transactions are not
otherwise prohibited by this Indenture, including, but not
limited to, the payment by any Subsidiary of the Company of
obligations of such Subsidiary to the Company under the Tax
Sharing Agreement.
Section 4.9 Limitation on Liens.
The Company shall not, and shall not permit any of its
Subsidiaries to, Incur, assume, suffer to exist, create or
otherwise cause to be effective any Lien on any asset now owned
or hereafter acquired, or any income or profits therefrom or
assign or convey any right to receive income therefrom to secure
any Indebtedness except: (i) Permitted Liens, (ii) Liens
existing as of the Issue Date (and any extension, renewal or
replacement Liens upon the same Property subject to such Liens,
provided the principal amount of Indebtedness secured by each
Lien constituting such an extension, renewal or replacement Lien
shall not exceed the principal amount of Indebtedness secured by
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the Lien theretofore existing, plus amounts described in Section
4.7(iv)(A) with respect to permitted Refinancing Indebtedness),
(iii) Liens securing all or any Senior Indebtedness; (iv) Liens
securing Indebtedness of any Subsidiary of the Company, provided
that (A) such Liens are limited to Property or assets of such
Subsidiary, (B) the Indebtedness secured by such Liens was not
Incurred in violation of this Indenture and (C) the Indebtedness
secured by such Liens is not subordinated to or junior in right
of payment in any respect to any other Indebtedness of such
Subsidiary other than Senior Bank Debt; (v) Liens replacing,
extending or renewing, in whole or in part, any Lien described in
the foregoing clauses (i) through (iv), including in connection
with any refinancing of the Indebtedness, in whole or in part,
secured by any such Lien effected in accordance with Section 4.7,
provided that if any such clauses limit the amount secured by or
the Property or assets subject to such Liens, no such
replacement, extension or renewal shall increase the amount of
Indebtedness or the Property or assets subject to such Liens and
(vi) any other Lien securing Indebtedness Incurred in compliance
with Section 4.7, if the Notes are equally and ratably secured by
the Property or assets subject to such Lien, provided that if the
Company creates any Lien under this clause (vi) on its Property
or assets to secure any Subordinated Indebtedness, the Lien
securing such Subordinated Indebtedness shall be subordinated and
junior to the Lien securing the Notes with the same or lesser
priorities as such Subordinated Indebtedness has with respect to
the Notes.
Section 4.10 Payment of Taxes and Other Claims.
The Company shall, and shall cause each of its Significant
Subsidiaries to, pay or discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges
(including withholding taxes and any penalties, interest and
additions to taxes) levied or imposed upon it or any of its
Subsidiaries or properties of the Company or any of its
Subsidiaries and (ii) all lawful claims for labor, materials and
supplies that, if unpaid, might by law become a Lien upon the
property of it or any of its Subsidiaries; provided, however,
that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge
or claim if either (a) the amount, applicability or validity
thereof is being contested in good faith by appropriate
proceedings and an adequate reserve has been established therefor
to the extent required by GAAP or (b) the failure to make such
payment or effect such discharge (together with all other such
failures) would not have a Material Adverse Effect.
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Section 4.11 Restrictions Against Limitations on Upstream
Payments.
The Company will not, and will not permit any Subsidiary of
the Company, to create or otherwise cause or suffer to exist or
to become effective any Payment Restriction or other encumbrance
or restriction on the ability of any Subsidiary of the Company to
(a) pay dividends or make any other distributions on its Capital
Stock or any other interest or participation in, or measured by,
its profits owned by, or pay any Indebtedness owed to, the
Company or a Subsidiary of the Company, (b) make loans or
advances to the Company or a Subsidiary of the Company, or (c)
transfer any of its properties or assets to the Company or any
Subsidiary of the Company, except for such Payment Restrictions
or encumbrances existing under or by reasons of: (i) any
instrument governing Indebtedness of the Company or any of its
Subsidiaries not Incurred in violation of this Indenture,
provided that such Payment Restrictions or encumbrances are no
more restrictive in the aggregate with respect to such dividends
and other payments than those contained in the Subsidiary Debt
Documents as in effect on the Issue Date, (ii) applicable law,
(iii) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Company or any of its Subsidiaries as in
effect at the time of such acquisition (except to the extent such
Indebtedness was Incurred in contemplation of or in connection
with such acquisition), provided that such restriction is not
applicable to any Person, or the Property or assets of any
Person, other than the Acquired Person, (iv) non-assignment
provisions in leases entered into in the ordinary course of
business and consistent with past practices, (v) instruments
governing purchase money Indebtedness for Property acquired in
the ordinary course of business that only impose restrictions on
the Property so acquired, (vi) any agreement for the sale or
disposition of the Capital Stock or assets of such Subsidiary,
provided that such restriction is only applicable to such
Subsidiary or assets, as applicable, (vii) Refinancing
Indebtedness permitted under this Indenture with respect to
Indebtedness described in clauses (iii), (iv) or (v), provided
that the restrictions contained in the agreements governing such
Refinancing Indebtedness are no more restrictive in the aggregate
than those contained in the instrument governing the Indebtedness
being refinanced immediately prior to such refinancing.
Section 4.12 Change of Control.
(a) Upon the occurrence of a Change of Control (such
date being the "Change of Control Trigger Date"), each Holder
will have the right to require the Company to repurchase all or
any part of such Holder's Notes pursuant to the Offer (but, with
respect to any partial tender of Notes, the Company shall only be
required to purchase principal amounts in integral multiples of
$1,000) at a purchase price in cash equal to 101% of the
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aggregate principal amount thereof, plus accrued and unpaid
interest to the date of purchase. The Offer shall be effected in
accordance with Section 3.8 and Article 3 (to the extent
applicable) and the provisions of this Section 4.12.
(b) Prior to the time required for the mailing of
notice with respect to an Offer pursuant to Section 3.8, the
Company will in good faith (i) seek to obtain any required
consent of the holders of any Senior Indebtedness the terms of
which prohibit the Company from repurchasing Notes so as to
permit the making of the Offer and the purchase of Notes pursuant
to this Section 4.12, (ii) use its best efforts to repay all or a
portion of the holders of Senior Indebtedness to the extent
necessary (including, if necessary, payment in full of such
Indebtedness and payment of any prepayment premiums, fees,
expenses or penalties) to permit the making of the Offer and the
purchase of Notes pursuant to this Section 4.12 without such
consent or (iii) if such Indebtedness is not then prepayable to
such extent, make an offer to the holders of the Senior
Indebtedness from which consent is required and cannot be
obtained to repay such Indebtedness in full for an amount equal
to the outstanding principal balance thereof and accrued interest
to the date of repayment, plus any fees, expenses and penalties
required pursuant to the instruments governing such Indebtedness,
plus, in the event such Indebtedness is subsequently prepayable
at a premium, the premium payable when such Indebtedness is first
prepayable, and repay any holder who accepts such offer.
Following compliance by the Company with the requirements of the
foregoing sentence, the Company shall, within the time required
for the mailing of notice with respect to an Offer pursuant to
Section 3.8, mail notice of such Offer.
Section 4.13 Redemption from the Proceeds of Asset Sales.
(a) The Company will not, and will not permit any of
its Subsidiaries to, make any Asset Sale, whether in a single
transaction or a series of related transactions, unless: (i) the
Company or the applicable Subsidiary receives consideration at
the time of such Asset Sale at least equal to the fair market
value of the Property or securities sold or otherwise disposed of
(as determined in good faith by the Board of Directors of the
Company evidenced by a Board Resolution); (ii) at least 75% of
such consideration is in the form of cash; provided, however,
that the following shall be deemed to be cash for purposes of
this Section 4.13: (A) the amount of any liabilities (as shown
on the Company's or such Subsidiary's most recent balance sheet
or in the notes thereto) of the Company or such Subsidiary (other
than liabilities that are by their terms subordinated to the
Notes) that are assumed by the transferee of any such assets, and
(B) any notes or other obligations received by the Company or any
such Subsidiary from a transferee that are converted by the
Company or such Subsidiary into cash within six months of such
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Asset Sale; provided further, that the 75% limitation referred to
in clause (ii) above shall not apply (AA) to any sale, transfer
or other disposition of assets constituting one or more
Broadcasting Stations in which the cash portion of such
consideration received therefor, determined in accordance with
the foregoing proviso, is equal to or greater than what the
after-tax net proceeds would have been had such transaction
complied with the aforementioned 75% limitation or (BB) to a so-
called "like-kind" exchange of assets, so long as (1) the assets
so received consist principally of cash or Cash Equivalents, the
assumption of liabilities and the acquisition of assets to be
used for or in connection with the business of owning and
operating Broadcasting Stations, and (2) at the time of and after
giving effect to such exchange, and treating any Indebtedness
Incurred as a result of such exchange as having been Incurred at
the time of such exchange, no Default or Event of Default shall
have occurred and be continuing and the Company could Incur at
least $1.00 of additional Indebtedness pursuant to Section
4.7(b); provided yet further that the 75% limitation referred to
in clause (ii) above shall be deemed to have been satisfied if
(AAA) at the date of the Asset Sale and after giving effect
thereto, Section 4.5(a) would permit the Company to make a
Restricted Payment in an amount equal to the difference between
the actual cash consideration received by the Company or the
applicable Subsidiary with respect to such Asset Sale and 75% of
the fair market value of the Property or securities sold or
otherwise disposed of in such Asset Sale (determined as provided
above) and (BBB) the Company treats the receipt of non-cash
consideration in an amount equal to the amount set forth in the
foregoing clause (AAA) as a Restricted Payment under
Section 4.5(a), whether or not such receipt would otherwise be
classified as an Investment or a Permitted Investment; and (iii)
the Excess Cash Proceeds received by the Company or such
Subsidiary, as the case may be, from such Asset Sale are applied
in accordance with this Section 4.13.
(b) Within 360 days after the later of such sale or
the receipt of Excess Proceeds, the Excess Proceeds from such
sale may (i) be applied to permanently reduce Senior
Indebtedness, (ii) be used to make Related Business Investments
or Capital Expenditures on one or more of the Company's or its
Subsidiaries' Broadcasting Stations or to enter into a contract
to acquire one or more Broadcasting Stations using such Excess
Proceeds and such acquisition is completed within such 360 day
period, or (iii) be used to make a payment permitted by Section
4.13(c), which payment shall be counted as a permanent reduction
of the amount of Designated Senior Debt available to be Incurred
pursuant to Section 4.7(c)(i) subject to the definitions of
"Senior Bank Debt" and "WGHP Debt." Any Excess Proceeds from an
Asset Sale not applied or invested as provided in clauses (i),
(ii) or (iii) of this Section 4.13(b) will be deemed to
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constitute "Available Proceeds" and shall be applied as provided
in Section 4.13(d).
(c) The Company may use a portion of the Excess
Proceeds from an Asset Sale to pay dividends on the Company's
Capital Stock or redeem, repurchase or retire shares of the
Company's Capital Stock or warrants, rights or options to
purchase or acquire shares of the Company's Capital Stock (any
such dividend, redemption, repurchase or retirement out of Excess
Proceeds from a single Asset Sale an "Asset Sale Payment"),
subject to the conditions and limitations set forth in this
Section 4.13(c). An Asset Sale Payment may be made by the
Company only if, and to the extent that, each of the following
conditions is satisfied as of the time of the proposed Asset Sale
Payment (the "Determination Time"): (i) the Company shall have
obtained a Bank Agent Consent; (ii) such Asset Sale Payment (as
well as all prior Asset Sale Payments, if any) shall be counted
as a permanent reduction of the amount of Designated Senior Debt
available to be Incurred pursuant to Section 4.7(c)(i) subject to
the definitions of "Senior Bank Debt" and "WGHP Debt."; (ii) the
Determination Time occurs on or prior to December 31, 1996;
(iii) only two Asset Sale Payments will be permitted under this
Indenture; (iv) no Default or Event of Default shall have
occurred and be continuing at the Determination Time or as a
consequence of such Asset Sale Payment; and (v) after giving
effect to (A) the application of any Excess Proceeds from the
applicable Asset Sale in accordance with clauses (i) and (ii) of
Section 4.13(b) prior to the Determination Time, (B) any Asset
Sale Redemption of Notes pursuant to Section 3.7(c) out of any
Excess Proceeds from the applicable Asset Sale and (C) any Asset
Sale Payment out of any Excess Proceeds from the applicable Asset
Sale, the ratio set forth below is equal to (but not more or less
than) 4.5:1.
D-X
____________________
OCF + [(.065)(REP-X-Y)]
where:
D = the aggregate amount of all outstanding Indebtedness of
the Company and its Subsidiaries on a consolidated
basis as of the Determination Time, without giving
effect to the Asset Sale Redemption (if any)
represented by "X" in the formula.
X = the principal amount of Notes (if any) to be redeemed
in an Asset Sale Redemption pursuant to Section 3.7(c)
out of Excess Proceeds from the applicable Asset Sale
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in order to satisfy the conditions set forth in this
Section 4.13(c).
OCF = the Operating Cash Flow of the Company and its
Subsidiaries on a consolidated basis for the four most
recent full fiscal quarters ending immediately prior to
the Determination Time, determined on a pro forma basis
after giving effect to (i) the applicable Asset Sale
and any other Asset Sales consummated during such four-
quarter period as if they had occurred at the beginning
of such four-quarter period and (ii) all acquisitions
or other dispositions (whether by merger,
consolidation, purchase or sale of securities or assets
or otherwise) of any business or assets, made by the
Company and its Subsidiaries from the beginning of such
four-quarter period through the Determination Time as
if such acquisition or disposition had occurred at the
beginning of such four-quarter period.
REP = the total amount of Excess Proceeds from the applicable
Asset Sale remaining after deducting therefrom all
portions thereof applied prior to the Determination
Time pursuant to this Section 4.13, but without giving
effect to the Asset Sale Redemption (if any)
represented by "X" in the formula or to the Asset Sale
Payment represented by "Y" in the formula.
Y = the amount of the proposed Asset Sale Payment to be
made at the Determination Time pursuant to this
Section 4.13(c).
(d) As soon as practicable, but in no event later than
10 Business Days after any date (an "Asset Sale Trigger Date")
that the aggregate amount of Available Proceeds exceeds
$15,000,000, the Company shall, if and to the extent permitted by
the agreements governing any Senior Indebtedness of the Company,
subject to the provisions of Article 10, commence an offer to
purchase the maximum principal amount of Notes that may be
purchased out of such Available Proceeds, at an offer price in
cash equal to 100% of the principal amount thereof, plus accrued
and unpaid interest to the date of purchase. The Offer shall be
effected in accordance with Section 3.8 and Article 3 (to the
extent applicable) and the provisions of this Section 4.13. To
the extent that any Available Proceeds remain after completion of
an Offer, the Company may use the remaining amount for any
purpose permitted by this Indenture, but not, unless otherwise
permitted by Section 4.5, to offer to repurchase or otherwise
redeem, repurchase, retire or acquire for value any Pari Passu
Indebtedness or Subordinated Indebtedness. In the event that the
Company is prohibited under the terms of any agreement governing
outstanding Senior Indebtedness of the Company from repurchasing
Notes with Available Proceeds pursuant to an Offer as required by
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the first sentence of this Section 4.13(d), the Company shall
promptly use all Available Proceeds to permanently reduce
outstanding Senior Indebtedness of the Company.
(e) If, at any time, any funds are received by or for the
account of the Company or any of its Subsidiaries upon the sale,
conversion, collection or other liquidation of any non-cash
consideration received in respect of an Asset Sale, such funds
shall, when received, constitute Excess Proceeds and shall,
within 360 days after the receipt of such funds, be applied as
provided in this Section 4.13.
Section 4.14 Maintenance of Office or Agencies.
The Company will maintain in the City of New York, an office
or an agency (which may be an office of any Agent) where Notes
may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of
the Notes and this Indenture may be served. The Company will
give prompt written notice to the Trustee of any change in the
location of such office or agency. If at any time the Company
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the City of
New York, for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other
office or agency.
Section 4.15 Limitation on Certain Debt.
The Company shall not Incur or suffer to exist any
Indebtedness (other than Designated Senior Debt, purchase money
Indebtedness secured by a Lien described in clause (vi) of the
definition of Permitted Liens (so long as such Indebtedness was
not Incurred in violation of this Indenture), and the Notes) that
would rank subordinate to or junior in right of payment to any
other Indebtedness of the Company, unless the Indebtedness so
Incurred is either (i) Pari Passu Indebtedness or
(ii) Subordinated Indebtedness and by its terms, or by the terms
of any agreement or instrument pursuant to which such
Subordinated Indebtedness is Incurred, (A) such Subordinated
Indebtedness does not provide for payments of principal of such
Indebtedness at the stated maturity thereof or by way of a
sinking fund applicable thereto or by way of any mandatory
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redemption, defeasance, retirement or repurchase thereof by the
Company (including any redemption, retirement or repurchase which
is contingent upon events or circumstances, but excluding any
retirement required by virtue of acceleration of such
Indebtedness upon an event of default thereunder), in each case
prior to the final stated maturity of the Notes and (B) such
Subordinated Indebtedness does not permit redemption or other
retirement thereof (including pursuant to an offer to purchase
made by the Company) at the option of the holder thereof prior to
the final stated maturity of the Notes, other than a redemption
or other retirement at the option of the holder of such
Subordinated Indebtedness (including pursuant to an offer to
purchase made by the Company) which is conditioned upon a change
of control of the Company pursuant to provisions substantially
similar to those contained in Section 4.12; provided, however,
that the foregoing limitation shall not apply to (1) distinctions
between categories of Indebtedness which exist by reason of any
Liens arising or created in respect of some but not all
Indebtedness and (2) any intercreditor agreements (to which the
Company is not a party) among different classes of creditors of
the Company.
Section 4.16. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Significant
Subsidiary of the Company to be maintained and kept in good
condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary
so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided,
however, that nothing in this Section 4.16 shall prevent the
Company from discontinuing the operation or maintenance of any of
such properties if such discontinuance is, as determined by the
Company in good faith, desirable in the conduct of its business
or the business of any Significant Subsidiary and not
disadvantageous in any material respect to the Holders.
Section 4.17. Maintenance of Insurance.
The Company shall, and shall cause its Significant
Subsidiaries to, keep at all times all of their properties which
are of an insurable nature insured against loss or damage with
insurers believed by the Company to be responsible to the extent
that property of similar character is usually so insured by
corporations similarly situated and owning like properties in
accordance with good business practice. The Company shall, and
shall cause its Significant Subsidiaries to, use the proceeds
from any such insurance policy to repair, replace or otherwise
restore the property to which such proceeds relate, except to the
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extent that a different use of such proceeds is, as determined by
the Company, in good faith, desirable in the conduct of its
business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
Section 4.18. Compliance with Laws.
The Company shall comply, and shall cause each of its
Subsidiaries to comply, with all applicable statutes, rules,
regulations, orders and restrictions of the United States of
America, all states and municipalities thereof, and of any
governmental department, commission, board, regulatory authority,
bureau, agency and instrumentality of the foregoing, in respect
of the conduct of their respective businesses and the ownership
of their respective properties, except such as are being
contested in good faith and by appropriate proceedings and except
for such noncompliance as would not in the aggregate have a
Material Adverse Effect.
Section 4.19. Limitation on Issuances and Dispositions of
Capital Stock of Subsidiaries.
The Company (i) shall not, and shall not permit any
Subsidiary to, transfer, convey, sell, or otherwise dispose of
any Capital Stock, or securities convertible or exchangeable
into, or options, warrants, rights or any other interest with
respect to, Capital Stock of a Subsidiary to any Person (other
than the Company or a Wholly-Owned Subsidiary) unless such
transfer, conveyance, sale, lease or other disposition is of 100%
of the Capital Stock of such Subsidiary and the Excess Proceeds
from such transfer, conveyance or sale are applied in accordance
with Section 4.13 hereof and (ii) shall not permit any Subsidiary
to issue shares of its Capital Stock (other than directors'
qualifying shares), or securities convertible or exchangeable
into, or options, warrants, rights or any other interest with
respect to, its Capital Stock to any Person other than to the
Company or a Wholly-Owned Subsidiary; provided, however, that
this Section 4.19 shall not prevent the sale of less than 100% of
the Capital Stock of a Subsidiary of the Company if
(A) immediately after and giving pro forma effect to such
transaction as if the Company ceased to own any equity interest
in such Subsidiary on the first day of the four most recent full
fiscal quarters ending immediately prior to such transaction
(even if less than 100% of the Capital Stock of such Subsidiary
is sold) and the application of proceeds therefrom, the Company
could incur at least $1 of Indebtedness pursuant to Section
4.7(b) or (B) such Subsidiary accounted for 5% or less of
Operating Cash Flow for the four-quarter period described in
clause (A) and is projected by the Company in good faith (as set
forth in an Officers' Certificate delivered to the Trustee) to
account for less than 5% of Operating Cash Flow for the four
quarters immediately following such transaction.
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ARTICLE 5
SUCCESSORS
Section 5.1 Merger or Consolidation.
(a) The Company (i) shall not consolidate with or
merge into any other Person; (ii) shall not permit any other
Person to consolidate with or merge into the Company; (iii) shall
not permit any other Person to consolidate with, merge into or be
merged into by, any Subsidiary (in a transaction in which such
Subsidiary (or successor person) remains (or becomes) a
Subsidiary); and (iv) shall not directly or indirectly, transfer,
convey, sell, lease or otherwise dispose of all or substantially
all of its properties and assets as an entirety (except for any
Permitted Disposition, or the merger or consolidation of any
Subsidiary of the Company with or into, or the disposition of all
or substantially all of the assets of any Subsidiary of the
Company to, the Company or any Wholly-Owned Subsidiary of the
Company) unless, in any such transaction:
(A) in the case the Company shall
consolidate with or merge into another Person or shall
directly or indirectly transfer, convey, sell, lease or
otherwise dispose of all or substantially all of its
properties and assets as an entirety, the Person formed
by such consolidation or into which the Company is
merged or the Person which acquires by transfer,
conveyance, sale, lease or other disposition all or
substantially all of the properties and assets of the
Company as an entirety (for purposes of this Article 5,
a "Successor Company") shall be a corporation,
partnership or trust, shall be organized and validly
existing under the laws of the United States of
America, any State thereof or the District of Columbia
and shall expressly assume by an indenture supplemental
hereto executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if
any) and interest on all the Notes and the performance
of every covenant of this Indenture on the part of the
Company to be performed or observed;
(B) immediately before and after giving effect to
such transaction and treating any Indebtedness Incurred by
the Company or a Subsidiary of the Company as a result of
such transaction as having been Incurred by the Company or
such Subsidiary at the time of such transaction, no Default
or Event of Default shall have occurred and be continuing;
(C) immediately after giving effect to such
transaction, and treating any Indebtedness Incurred by the
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Company or any Subsidiary as a result of such transaction as
having been Incurred at the time of such transaction, the
Company or the Successor Company could Incur at least $1.00
of additional Indebtedness pursuant to Section 4.7(b);
(D) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance,
transfer, lease or acquisition and, if a supplemental
indenture is required in connection with such transaction,
such supplemental indenture, complies with this Article 5
and that all conditions precedent herein provided for
relating to such transaction have been complied with, and,
with respect to such Officers' Certificate, setting forth
the manner of determination of the ability to Incur
Indebtedness in accordance with Section 4.7(b) as required
by clause (C) of this Section 5.1 of the Company or, if
applicable, the Successor Company.
(b) For purposes of the foregoing, the transfer (by
lease, assignment, sale or otherwise, in a single transaction or
series of transactions) of all or substantially all of the
properties and assets of one or more Subsidiaries, the Capital
Stock of which constitutes all or substantially all of the
properties and assets of the Company shall be deemed to be the
transfer of all or substantially all of the properties and assets
of the Company.
Section 5.2 Surviving Person Substituted.
Upon any consolidation or merger, or any transfer of assets
in accordance with Section 5.1, the Surviving Person (if other
than the Company) formed by such consolidation or into which the
Company is merged or to which such transfer is made shall succeed
to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect
as if such successor person had been named as the Company herein.
When a Successor Company assumes all of the obligations of the
Company hereunder and under the Notes and agrees to be bound
hereby and thereby, the predecessor shall be released from such
obligations.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.1 Events of Default.
(a) Each of the following constitutes an "Event of
Default": (i) default for 30 days in the payment when due of
interest on any Notes (whether or not prohibited by the
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subordination provisions of this Indenture); (ii) default in the
payment when due, whether at maturity, upon acceleration,
redemption or otherwise, of principal on any Notes (whether or
not prohibited by the subordination provisions of this
Indenture); (iii) failure by the Company for 30 days after
receipt of notice from the Trustee or Holders of at least 25% of
the principal amount of the outstanding Notes to comply with any
other provisions of this Indenture or any Notes; (iv) default
under any mortgage, indenture or instrument under which there may
be Incurred or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its
Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Subsidiaries) whether such Indebtedness now
exists, or is created after the Issue Date if (A) such default
results in the acceleration of such Indebtedness prior to its
express maturity or shall constitute a default in the payment of
such Indebtedness at final maturity of such Indebtedness, and (B)
the principal amount of any such Indebtedness that has been
accelerated or not paid at maturity, when added to the aggregate
principal amount of all other such Indebtedness that has been
accelerated or not paid at maturity, exceeds $10,000,000; (v)
failure by the Company or any of its Significant Subsidiaries to
pay final judgments, the uninsured portion of which exceeds
$10,000,000, which judgments are not paid, discharged, bonded or
stayed for a period of 60 days after the date of entry thereof,
(vi) if under any Bankruptcy Law, (A) the Company or any
Significant Subsidiary commences a voluntary case, consents to
the entry of an order for relief against it in an involuntary
case, consents to the appointment of a Custodian of it or for all
or substantially all of its property, or makes a general
assignment for the benefit of its creditors, or (B) a court of
competent jurisdiction enters an order or decree, and such order
or decree remains unstayed and in effect for 60 days, that is for
relief against the Company or any Significant Subsidiary in an
involuntary case, appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially all of the
Property of the Company or any Significant Subsidiary, or orders
the liquidation of the Company or any Significant Subsidiary; and
(vii) any of the Applicable Documents shall cease, for any
reason, to be in full force and effect in any material respect,
except as a result of an amendment, waiver or termination thereof
as contemplated or permitted hereby or the Company shall so
assert in writing.
(b) Any notice of default delivered to the Company by
the Trustee or by Holders of Notes with a copy to the Trustee
must specify the Default, demand that it be remedied and state
that the notice is a "Notice of Default."
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Section 6.2 Acceleration.
(a) If an Event of Default (other than an Event of
Default under Section 6.1(a)(vi)) occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the
then outstanding Notes may declare all outstanding Notes to be
due and payable immediately and, upon such declaration, the
principal amount and premium, if any, of all such Notes, and any
accrued interest on, all such Notes to the date of payment shall
be due and payable immediately; provided, however, that if any
Indebtedness is outstanding pursuant to the Subsidiary Debt
Documents upon a declaration of acceleration of the Notes (other
than any such declaration as a result of an Event of Default
under Section 6.1(a)(iv)), the principal and interest on the
Notes will not be payable until the earlier of (1) the day which
is ten (10) Business Days after notice of acceleration is given
to the Company and the Senior Agent under the Bank Credit
Agreements, and (2) the date of acceleration of Indebtedness by
the Senior Agent.
(b) Notwithstanding anything to the contrary in this
Indenture, if an Event of Default arises under Section 6.1(a)(vi)
the principal amount of, and premium, if any, and any accrued and
unpaid interest on, all outstanding Notes shall ipso facto become
and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
(c) The Holders of a majority in aggregate principal
amount of the then outstanding Notes by notice to the Trustee may
rescind any declaration of acceleration of such Notes and its
consequences if (i) the rescission would not conflict with any
judgment or decree, (ii) if all existing Defaults and Events of
Default (other than the nonpayment of principal of, or premium,
if any, or interest on, the Notes which shall have become due by
such declaration) shall have been cured or waived, and (iii) the
Company has delivered an Officers' Certificate to the effect of
clauses (i) and (ii) above.
(d) In the event of a declaration of acceleration
under this Indenture because an Event of Default set forth in
Section 6.1(a)(iv) has occurred and is continuing, such
declaration of acceleration shall be automatically rescinded and
annulled if either (i) the holders of the Indebtedness which is
the subject of such Event of Default have waived such failure to
pay at maturity or have rescinded the acceleration in respect of
such Indebtedness within 10 days of such maturity or declaration
of acceleration, as the case may be, and no other Event of
Default has occurred during such 10-day period which has not been
cured or waived, or (ii) such Indebtedness shall have been
discharged or the maturity thereof shall have been extended such
that it is not then due and payable, or the underlying default
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has been cured within 10 days of such maturity or declaration of
acceleration as the case may be.
Section 6.3 Other Remedies.
Subject to the provisions of Article 10, if an Event of
Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal or interest
on the Notes or to enforce the performance of any provision of
the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.4 Waiver of Past Defaults.
Subject to the provisions of Sections 6.7 and 9.2 hereof,
the Holders of a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may on behalf of
all Holders waive any existing Default or Event of Default and
its consequences under the Indenture, except a continuing Default
or Event of Default in the payment of the principal of, or
premium, if any, or interest on, any Note (which may only be
waived with the consent of each Holder affected). Upon any such
waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; provided that no such waiver
shall extend to any subsequent or other Default or impair any
right consequent thereon.
Section 6.5 Control by a Majority.
Subject to Section 7.1(e), the Holders of a majority in
principal amount of the Notes may direct the time, method and
place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on it.
However, the Trustee may refuse to follow any direction that
conflicts with applicable law or this Indenture, is unduly
prejudicial to the rights of other Holders, or would involve the
Trustee in personal liability; provided that the Trustee may take
other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 6.6 Limitation on Suits.
A Holder may pursue any remedy with respect to this
Indenture or the Notes only if:
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(a) the Holder gives to the Trustee written notice of
a continuing Event of Default;
(b) the Holder or Holders of at least 25% in principal
amount of the Notes make a written request to the
Trustee to pursue the remedy;
(c) such Holder or Holders offer to the Trustee
indemnity satisfactory to the Trustee against any
loss, liability or expense to be incurred in
compliance with such request;
(d) the Trustee does not comply with the request
within 60 days after receipt of the request and
the offer of indemnity; and
(e) during such 60-day period the Holders of a
majority in principal amount of the Notes do not
give the Trustee a direction inconsistent with the
request.
A Holder may not use this Indenture to prejudice the rights
of another Holder or to obtain a preference or priority over any
other Holder. Holders of the Notes may not enforce this
Indenture, except as provided herein.
Section 6.7 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture but
subject to Article 10, the right of any Holder of a Note to
receive payment of principal and interest on the Note, on or
after the respective dates expressed in the Note, or to bring
suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the
consent of the Holder.
Section 6.8 Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(a)(i) or
(a)(ii) occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an express
trust against the Company for (i) the principal, premium, if any,
and interest remaining unpaid on the Notes, (ii) interest on
overdue principal and premium, if any, and, to the extent lawful,
interest in each case at the rate per annum expressly stated on
the Note, and (iii) such further amount as shall be sufficient to
cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel ("Trustee Expenses").
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Section 6.9 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers
or documents as may be necessary or advisable to have the claims
of the Trustee (including any claim for Trustee Expenses and for
amounts due under Section 7.7) and the Holders allowed in any
Insolvency or Liquidation Proceeding or other judicial proceeding
relative to the Company (or any other obligor upon the Notes),
its creditors or its property and shall be entitled and empowered
to collect, receive and distribute to Holders any money or other
property payable or deliverable on any such claims and each
Holder authorizes any Custodian in any such Insolvency or
Liquidation Proceeding or other judicial proceeding to make such
payments to the Trustee, and if the Trustee shall consent to the
making of such payments directly to the Holders, any such
Custodian is hereby authorized to make such payments directly to
the Holders, and to pay to the Trustee any amount due to it
hereunder for Trustee Expenses, and any other amounts due the
Trustee under Section 7.7; provided, however, that the Trustee
shall not be authorized to (i) consent to, accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of
any Holder, or (ii) vote in respect of the claim of any Holder in
any such Insolvency or Liquidation Proceeding. To the extent
that the payment of any such Trustee Expenses, and any other
amounts due the Trustee under Section 7.7 out of the estate in
any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a Lien on, and shall be paid out of,
any and all distributions, dividends, money, securities and other
properties which the Holders may be entitled to receive in such
proceeding, whether in liquidation or under any plan of
reorganization or arrangement or otherwise.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article,
it shall pay out the money in the following order:
First:
to the Holders of Senior Indebtedness to the extent
required or permitted by Article 10;
Second:
to the Trustee for amounts due under Section 7.7;
Third:
if, in accordance with Section 6.6, the Holders proceed
against the Company directly, without the Trustee, to the
Holders for their collection costs;
Fourth:
to Holders for amounts due and unpaid on the Notes
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for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and
payable on the Notes for principal and interest,
respectively; and
Fifth:to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action
taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.7,
or a suit by Holders of more than 10% in principal amount of the
Notes.
ARTICLE 7
TRUSTEE
Section 7.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a
prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that
are specifically set forth in this Indenture and
no others.
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture. However, the
Trustee shall examine the certificates and
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opinions to determine whether they conform to this
Indenture.
(c) The Trustee shall not be relieved from liability for
its own negligent action, its own negligent failure to
act, or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer,
unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith
in accordance with a direction received by it
pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way
relates to the Trustee shall be subject to paragraphs
(a), (b) and (c) of this Section.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any
liability. The Trustee may refuse to perform any duty
or exercise any right or power unless it receives
indemnity reasonably satisfactory to it against any
loss, liability or expense.
(f) The Trustee shall not be liable for interest on any
money received by it except as otherwise agreed in
writing with the Company. Money held in trust by the
Trustee need not be segregated from other funds except
to the extent required by law.
Section 7.2 Rights of Trustee.
(a) The Trustee may rely on any document believed to be
genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers'
Certificate or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to
take in good faith in reliance on the Certificate or
Opinion, provided that such action or omission does not
constitute gross negligence.
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(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any
agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be
authorized or within its rights or powers.
Section 7.3 Individual Rights of Trustee.
(1) The Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal
with the Company with the same rights it would have if it
were not Trustee. Any Agent or an Affiliate may do the same
with like rights. However, the Trustee is subject to
Sections 7.10 and 7.11.
Section 7.4 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes,
and it shall not be responsible for any statement in the Notes
other than its authentication.
Section 7.5 Notice of Defaults.
If a Default occurs and is continuing and if it is actually
known to the Trustee, the Trustee shall mail to each Holder
notice of the Default within 90 days after it occurs. Except in
the case of a Default in payment of the principal of or interest
on any Note, the Trustee may withhold the notice if and so long
as a committee of its Trust Officers in good faith determines
that withholding the notice is in the interest of the Holders.
The Trustee will not be deemed to have actual knowledge of an
event or circumstance for purposes of this Indenture unless (i)
it shall have received written notice thereof from the Company or
a Holder, (ii) it shall have been acting as Paying Agent when a
default under 6.1(a)(i) or 6.1(a)(ii) hereof shall have occurred
or (iii) a Trust Officer shall have actual knowledge thereof.
Section 7.6 Reports by Trustee to Holders.
After the Company qualifies the Indenture under the TIA, the
Trustee shall mail to each Holder a brief report dated within 60
days as of the reporting date that complies with TIA Section
313(a). The Trustee also shall comply with TIA Section
313(b)(2). The Trustee shall also transmit by mail all reports
required by TIA Section 313(c).
Commencing at the time this Indenture is qualified under the
TIA, a copy of each report at the time of its mailing to Holders
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shall be filed with the SEC and each stock exchange on which the
Notes are listed. The Company shall notify the Trustee when the
Notes are listed on any stock exchange.
Section 7.7 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services. The Trustee's
compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable disbursements, expenses
and advances incurred or made by it. Such expenses shall include
the reasonable compensation and disbursements and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee against, and hold
the Trustee harmless against, any loss or liability incurred by
it. The Trustee shall notify the Company promptly of any claim
for which it may seek indemnity. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any
settlement made without its consent.
The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through
negligence or bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Notes on all money or
Property held or collected by the Trustee, except that held in
trust to pay principal and interest on particular Notes.
When the Trustee incurs expenses or renders services after
an Event of Default specified in Section 6.1(a)(vi) occurs, the
expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
Section 7.8 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section.
The Trustee may resign by so notifying the Company. The
Holders of a majority in principal amount of the Notes may remove
the Trustee by so notifying the Trustee and the Company. The
Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
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(c) a receiver or public officer takes charge of the
Trustee or its Property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists
in the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in
principal amount of the Notes may appoint a successor Trustee to
replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of at least 10% in principal
amount of the Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder
may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company.
Thereupon the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all
the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee or the Company, with the
consent of the successor Trustee, shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly
transfer all Property held by it as Trustee to the successor
Trustee, subject to the Lien provided for in Section 7.7.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 shall
continue for the benefit of the retiring Trustee.
Section 7.9 Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts with or
into, or transfers all or substantially all of its corporate
trust business to, another corporation, the successor corporation
without any further act shall, if such resulting, surviving or
transferee corporation is otherwise eligible hereunder, be the
successor Trustee.
Section 7.10 Eligibility; Disqualifications.
At all times this Indenture shall have a Trustee which
satisfies the requirements of TIA Section 310(a)(l) and (5), and
the Trustee shall have a combined capital and surplus of at least
Fifty Million and 00/100 Dollars ($50,000,000.00) as stated in
Section 11.10. After such qualification, the Trustee shall
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comply with TIA Section 310(b), including the optional provision
permitted by the second sentence of TIA Section 310(b)(9).
Section 7.11 Preferential Collection of Claims Against Company.
After the Company qualifies this Indenture under the TIA,
the Trustee shall be subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). After such
qualification, a Trustee which has resigned or been removed shall
be subject to TIA Section 311(a) to the extent indicated.
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.1 Discharge of Liability on Notes; Defeasance.
(a) Subject to Sections 8.1(c) and 8.6, this Indenture
shall cease to be of any further effect after (i) either the
Company has delivered to the Trustee all outstanding Notes (other
than Notes replaced pursuant to Section 2.7) for cancellation or
all outstanding Notes have become due and payable and the Company
has irrevocably deposited with the Trustee or a Paying Agent
money and/or direct, non-callable obligations of, or non-callable
obligations guaranteed by, the United States of America for the
payment of which obligation or guarantee the full faith and
credit of the United States of America is pledged ("U.S.
Government Obligations") maturing as to principal and interest in
an amount sufficient (without reinvestment thereof and after
payment of all Federal, state and local taxes or other charges in
respect thereof payable by the Trustee) to pay when due all
principal of, premium, if any, and interest on, all outstanding
Notes (other than Notes replaced pursuant to Section 2.7), and
(ii) the Company pays all other sums payable under this
Indenture.
(b) Subject to Sections 8.1(c), 8.2, and 8.6, the
Company at any time may terminate (i) all its obligations under
this Indenture and the Notes ("Legal Defeasance Option"), or (ii)
its obligations under Sections 4.2, 4.3, 4.5, 4.6, 4.7, 4.8, 4.9,
4.10, 4.11, 4.12, 4.13, 4.14 and 4.15 ("Covenant Defeasance
Option"). The Company may exercise its Legal Defeasance Option
notwithstanding its prior exercise of its Covenant Defeasance
Option.
If the Company exercises its Legal Defeasance Option,
payment of the Notes may not be accelerated because of an Event
of Default. If the Company exercises its Covenant Defeasance
Option, payment of the Notes may not be accelerated because of an
Event of Default specified in 6.1(a)(iii), (iv) or (v).
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Upon satisfaction of the conditions set forth in Section 8.2
and upon the Company's request (and at the Company's expense),
the Trustee shall acknowledge in writing the discharge of those
obligations that the Company has terminated.
(c) Notwithstanding Sections 8.1(a) and (b), the
Company's obligations under Sections 2.3, 2.4, 2.5, 2.6, 2.7,
4.1, 4.4, 7.7, 7.8, 8.4, 8.5, and 8.6, and the obligations of the
Trustee and the Paying Agent under Section 8.4 shall survive
until the Notes have been paid in full. Thereafter the Company's
obligations under Section 7.7 and 8.5 and the obligations of the
Company, Trustee and Paying Agent under Section 8.4 shall
survive.
Section 8.2 Conditions to Defeasance.
The Company may exercise its Legal Defeasance Option or its
Covenant Defeasance Option only if: (i) the Company irrevocably
deposits in trust with the Trustee or a Paying Agent money and/or
U.S. Government Obligations in an amount that, in the opinion of
a nationally recognized firm of independent accountants, is
sufficient (without reinvestment thereof) for payment in full of
all principal of, and premium, if any, and interest on, the Notes
when due; provided, however, that the Company may only make such
deposit if Article 10 does not prohibit payments on the Notes at
the time of the deposit; (ii) 91 days have passed since the
Company's irrevocable deposit pursuant to Section 8.2; (iii) no
Default has occurred and is continuing on the date of such
deposit and after giving effect to it; (iv) such deposit does not
constitute a default under any other agreement binding on the
Company; (v) the Company delivers to the Trustee an Opinion of
Counsel to the effect that the trust resulting from the deposit
does not constitute, or is qualified as, a regulated investment
company under the Investment Company Act of 1940, as amended;
(vi) in the case of a Legal Defeasance Option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that
(1) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling, or (2) under
applicable federal income tax law, in either case, to the effect
that, and based thereon such Opinion of Counsel shall confirm
that, the Holders will not recognize income, gain or loss for
federal income tax purposes as a result of such defeasance and
will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if
such defeasance had not occurred; (vii) in the case of a Covenant
Defeasance Option, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders will
not recognize income, gain or loss for federal income tax
purposes as a result of such covenant defeasance and will be
subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
covenant defeasance had not occurred; and (viii) the Company
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delivers to the Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Notes contemplated by this
Article 8 have been satisfied.
Section 8.3 Application of Trust Money.
The Trustee or Paying Agent shall hold in trust money and/or
U.S. Government Obligations deposited with it pursuant to this
Article 8. The Trustee or Paying Agent shall apply the deposited
money and the money from U.S. Government Obligations in
accordance with this Indenture to the payment of principal of,
and premium, if any, and interest on, the Notes. Money deposited
with the Trustee or a Paying Agent pursuant to this Article 8
shall not be subject to the provisions of Article 10.
Section 8.4 Repayment of Company.
After the Notes have been paid in full, the Trustee and the
Paying Agent shall promptly turn over to the Company any excess
money or securities held by them.
Any money deposited with the Trustee or a Paying Agent
pursuant to this Article 8 for the payment of the principal of,
premium, if any, or interest on, any Note that remains unclaimed
for two years after becoming due and payable shall be paid to the
Company on its request; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such money shall cease;
provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, shall at the expense
of the Company cause to be published once, in The New York Times
and The Wall Street Journal (national edition), notice that such
money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 8.5 Indemnity for U.S. Government Obligations.
The Company shall pay and shall indemnify the Trustee and
any Paying Agent against any tax, fee or other charge imposed on
or assessed against cash and/or U.S. Government Obligations
deposited with it pursuant to this Article 8 or the principal and
interest received on such cash and/or U.S. Government
Obligations.
Section 8.6 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money
or U.S. Government Obligations in accordance with this Article 8
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by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant
to this Article 8 until such time as the Trustee or Paying Agent
is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article 8; provided, however,
that if the Company has made any payment of principal of, or
premium, if any, or interest on, any Notes because of the
reinstatement of its obligations under this Indenture and the
Notes, the Company shall be subrogated to the Holders' rights to
receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
Section 9.1 Amendments and Supplements Permitted Without
Consent of Holders.
(a) Notwithstanding Section 9.2, the Company and the
Trustee may amend or supplement this Indenture or the Notes
without the consent of any Holder to: (i) cure any ambiguity,
defect or inconsistency; provided that such amendment does not
adversely affect the rights of any Holder; (ii) provide for
uncertificated Notes in addition to or in place of certificated
Notes; (iii) provide for the assumption of the Company's
obligations to the Holders in the event of any Disposition
involving the Company that is permitted under Article 5 in which
the Company is not the Surviving Person; (iv) make any change
that would (1) provide any additional rights or benefits to
Holders or (2) not adversely affect the legal rights under the
Indenture of any Holder, (v) comply with the requirements of the
Commission in order to effect or maintain the qualification of
this Indenture under the TIA, or (vi) provide for the issuance of
the Series B Notes, which will have terms substantially identical
in all material respects to the Series A Notes (except that the
transfer restrictions contained in the Series A Notes will be
modified or eliminated as appropriate), and which will be
treated, together with any outstanding Series A Notes, as a
single issue of Notes.
(b) Upon the Company's request, after receipt by the
Trustee of a resolution of the Board of Directors authorizing the
execution of any amended or supplemental indenture, and the
documents described in Section 9.6, the Trustee shall join with
the Company in the execution of any amended or supplemental
indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations
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that may be contained in any such amended or supplemental
indenture, but the Trustee shall not be obligated to enter into
an amended or supplemental indenture that affects its own rights,
duties or immunities under this Indenture or otherwise.
Section 9.2 Amendments and Supplements Requiring Consent of
Holders.
(a) Except as otherwise provided in Section 9.1(a) and
9.2(c), the Indenture and the Notes may be amended or
supplemented with the written consent of the Holders of at least
a majority in aggregate principal amount of the then outstanding
Notes (including consents obtained in connection with a tender
offer or exchange offer for the Notes), and any existing Default
or Event of Default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of Holders
of at least a majority in principal of the then outstanding Notes
(including consents obtained in connection with a tender offer or
exchange offer for the Notes).
(b) Upon the Company's request and after receipt by
the Trustee of a resolution of the Board of Directors authorizing
the execution of any supplemental indenture, evidence of the
Holders' consent, and the documents described in Section 9.6, the
Trustee shall join with the Company in the execution of such
amended or supplemental indenture unless such amended or
supplemental indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to,
enter into such amended or supplemental indenture.
(c) Without the consent of each Holder affected, no
amendment, supplement or waiver to this Indenture shall: (i)
reduce the principal amount of Notes whose Holders must consent
to an amendment, supplement or waiver, (ii) reduce the principal
of or change the fixed maturity of any Note, or alter the
provisions with respect to the redemption of the Notes in a
manner adverse to the Holders, (iii) reduce the rate of or change
the time for payment of interest on any Note, (iv) waive a
Default or Event of Default in the payment of principal of, or
premium, if any, or interest on, the Notes (except that Holders
of at least a majority in aggregate principal amount of the then
outstanding Notes may (1) rescind an acceleration of the Notes
that resulted from a non-payment default, and (2) waive the
payment default that resulted from such acceleration), (v) make
any Note payable in money other than that stated in the Notes,
(vi) make any change in the provisions of the Indenture relating
to waivers of past Defaults or the rights of Holders to receive
payments of principal of, or premium, if any, or interest on, the
Notes, (vii) waive a redemption payment with respect to any Note,
(viii) make any change to the provisions of Article 10 that
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adversely affects Holders, or (ix) make any change in Section
6.4, Section 6.7 or this sentence.
(d) It shall not be necessary for the consent of the
Holders under this Section 9.2 to approve the particular form of
any proposed amendment or waiver, but it shall be sufficient if
such consent approves the substance thereof. After an amendment,
supplement or waiver under this Section 9.2 becomes effective,
the Company shall mail to each Holder affected thereby a notice
briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the
validity of any such amended or supplemental indenture or waiver.
Section 9.3 Compliance with TIA.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended supplemental indenture that
complies with the TIA as then in effect.
Section 9.4 Revocation and Effect of Consents.
(a) Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder of a Note is a continuing
consent by the Holder and every subsequent holder of a Note or
portion of a Note that evidences the same Indebtedness as the
consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder or subsequent Holder
may revoke the consent as to his or her Note or portion of a Note
if the Trustee receives the notice of revocation before the date
on which the Trustee receives an Officers' Certificate certifying
that the Holders of the requisite principal amount of Notes have
consented (and not theretofore revoked such consent) to the
amendment or waiver.
(b) The Company may, but shall not be obligated to,
fix a record date for the purpose of determining the holders of
Notes entitled to consent to any amendment or waiver. If a
record date is fixed, then notwithstanding the provisions of the
immediately preceding paragraph, those Persons who were holders
of Notes at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to consent to such
amendment or waiver or to revoke any consent previously given,
whether or not such Persons continue to be holders of Notes after
such record date. No consent shall be valid or effective for
more than 90 days after such record date.
(c) After an amendment or waiver becomes effective it
shall bind every Holder, unless it is of the type described in
Section 9.2(c), in which case the amendment or waiver shall only
bind each Holder that consented to it and every subsequent holder
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of a Note that evidences the same debt as the consenting Holder's
Note.
Section 9.5 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter
authenticated. The Company in exchange for all Notes may issue
and the Trustee shall authenticate new Notes that reflect the
amendment, supplement or waiver. Failure to make the appropriate
notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.
Section 9.6 Trustee Protected.
The Trustee shall sign any amendment or supplemental
indenture authorized pursuant to this Article 9 if the amendment
does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need
not, sign it. In signing such amendment or supplemental
indenture, the Trustee shall be entitled to receive and, subject
to Section 7.1, shall be fully protected in relying upon, an
Officers' Certificate and Opinion of Counsel pursuant to Sections
11.4 and 11.5 as conclusive evidence that such amendment or
supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will
be valid and binding upon the Company in accordance with its
terms. The Company may not sign an amendment or supplemental
indenture until the Board of Directors approves it.
Section 9.7 Amendments Requiring Consent of Holders of Senior
Indebtedness.
No amendment or modification to Article 10, this Section 9.7
or Section 11.15 may be made to this Indenture without the
consent of (a) so long as any Obligations with respect to any
Indebtedness under any Bank Credit Agreements remain unpaid,
holders of at least 66 % of the outstanding Indebtedness under
the Bank Credit Agreements (and, to the extent that there are
unused commitments under the Bank Credit Agreements, such unused
commitments), and (b) after all Indebtedness under the Bank
Credit Agreements has been paid in full, and all commitments of
each of the Bank Lenders thereunder have been terminated in full,
holders of at least 66 % of the outstanding Indebtedness under
the WGHP Notes (and to the extent there are outstanding
commitments under the WGHP Notes, such unused commitments).
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ARTICLE 10
SUBORDINATION
Section 10.1 Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Note
agrees, any provision of this Indenture or the Notes to the
contrary notwithstanding, that all Subordinated Obligations owed
under and in respect of the Notes or any of the other Applicable
Documents are subordinated in right of payment, to the extent and
in the manner provided in this Article 10, to the prior payment
in full in cash of all Obligations owed under and in respect of
all Senior Indebtedness of the Company, and that the
subordination of the Subordinated Obligations pursuant to this
Article 10 is for the benefit of all holders of all Senior
Indebtedness of the Company, whether outstanding on the Issue
Date or Incurred thereafter.
Section 10.2 Liquidation; Dissolution; Bankruptcy.
(a) Upon any distribution of cash, securities or other
property of the Company to creditors upon any Insolvency or
Liquidation Proceeding with respect to the Company, the holders
of any Senior Indebtedness will be entitled to receive payment in
full in cash or Cash Equivalents of all Obligations under or in
respect of such Senior Indebtedness (including Post-Petition
Interest) before the Holders will be entitled to receive any
payment or distribution (other than in Reorganization Securities)
on account of Subordinated Obligations and until all Obligations
with respect to such Senior Indebtedness are paid in full in cash
or Cash Equivalents, any payment or distribution (other than in
Reorganization Securities) on account of Subordinated Obligations
to which the Holders would be entitled shall be made to the
holders of the Company's Senior Indebtedness on a pro rata basis.
Upon any Insolvency or Liquidation Proceeding with respect to the
Company, any payment or distribution (other than in
Reorganization Securities), to which the Holders or the Trustee
would be entitled on account of Subordinated Obligations but for
the provisions of this Article 10 shall be paid by the Company,
any Custodian or other Person making such payment or
distribution, or by the Holders or by the Trustee or the Paying
Agent if received by them, directly to the holders of the Senior
Indebtedness (pro rata to such holders on the basis of the
amounts of Senior Indebtedness held by them) or their
Representatives, as their interests may appear, for application
to the payment of all outstanding Senior Indebtedness until all
such Senior Indebtedness has been paid in full in cash, after
giving effect to all other payments or distributions to, or
provisions made for, holders of Senior Indebtedness.
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(b) The consolidation of the Company with, or the
merger of the Company into, another Person or the liquidation or
dissolution of the Company following the conveyance or transfer
of all or substantially all of its Property and assets as an
entirety to another Person upon the terms and conditions set
forth in Article 5 shall not be deemed an Insolvency or
Liquidation Proceeding for the purposes of this Section 10.2 if
the Surviving Person shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions set
forth in Article 5.
(c) Notwithstanding anything to the contrary in this
Indenture, any Disposition by or involving the Company, or the
liquidation or dissolution of the Company following any
Disposition, shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section
10.2 if such Disposition is permitted under Article 5.
Section 10.3 Default on Senior Indebtedness.
Neither the Company nor any Trustee or Paying Agent shall
make any payment or distribution (other than in Reorganization
Securities) on account of Subordinated Obligations if (a) a
default in the payment of the principal of, or premium, if any,
or interest on, or any other amount owing with respect to any
Senior Indebtedness (a "Payment Default") occurs and is
continuing, whether at maturity or at a date fixed for prepayment
or by declaration of acceleration or otherwise, or (b) the
Trustee has received written notice (a "Payment Blockage Notice")
from the Senior Agent that a Nonpayment Default (as defined
below) has occurred and is continuing; provided, however, that
payments and distributions on account of Subordinated Obligations
shall resume, and all past due amounts on the Notes shall be paid
(i) in the case of a Payment Default, on the date on which such
default is cured or waived or shall have ceased to exist and all
Obligations then due and payable in respect of Senior
Indebtedness shall have been paid in full in cash or Cash
Equivalents and (ii) in the case of a Nonpayment Default, on the
earliest of (A) the date on which such Nonpayment Default is
cured or waived or shall have ceased to exist, (B) 179 days after
the date on which the Payment Blockage Notice with respect to
such Nonpayment Default was received by the Trustee, or (C) the
date on which such blockage period shall have been terminated by
written notice to the Company or the Trustee from the Senior
Agent unless the maturity of any Senior Indebtedness has been
accelerated and the Company has defaulted with respect to the
payment of such Senior Indebtedness. No more than one Payment
Blockage Notice may be given during any consecutive 365-day
period and during any consecutive 365-day period, the aggregate
number of days in which payments due on the Notes may not be made
as a result of Nonpayment Defaults on Senior Indebtedness shall
not exceed 179 days and there shall be a period of at least 186
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consecutive days in each consecutive 365-day period when such
payments are not prohibited. If the Senior Agent delivers a
Payment Blockage Notice to the Trustee in respect of any
Nonpayment Default, no Nonpayment Default that existed or was
continuing on the date of delivery of such notice shall be, or be
made, the basis for a subsequent Payment Blockage Notice unless
such default shall have been waived or cured for a period of not
less than 90 days. "Nonpayment Default" means any event of
default under the terms of any instrument governing any Senior
Indebtedness permitting one or more holders of such Senior
Indebtedness (or a Representative on behalf of the holders
thereof) to declare all or part of such Senior Indebtedness due
and payable prior to the date on which it would otherwise become
due and payable.
Section 10.4 Acceleration of Notes.
If payment of the Notes is accelerated because of an Event
of Default, the Company shall promptly notify the Senior Agent
and each holder of the Company's Senior Indebtedness of the
acceleration.
Section 10.5 When Distributions Must be Paid Over.
(a) If the Company or any Trustee or Paying Agent
shall make any payment or distribution on account of Subordinated
Obligations at a time when such payment is prohibited by this
Article 10, then and in such event the Trustee, Paying Agent or
Holders, as the case may be, receiving such payment or
distribution shall hold such payment or distribution in trust for
the benefit of, and shall pay over and deliver to, the holders of
the Senior Indebtedness (pro rata as to each of such holders on
the basis of the respective amounts of such Senior Indebtedness
held by them) or their Representative, as their respective
interests may appear, for application to the payment of all
outstanding Senior Indebtedness until all such Senior
Indebtedness has been paid in full in cash or Cash Equivalents,
after giving effect to all other payments or distributions to, or
provisions made for, the holders of Senior Indebtedness.
(b) Nothing contained in this Article 10 or elsewhere
in this Indenture or in the Notes shall prevent (i) the Company,
at any time except during the pendency of any Insolvency or
Liquidation Proceeding or under the conditions described in
Section 10.3, from making payments or distributions on account of
Subordinated Obligations or (ii) the application by any Trustee
or Paying Agent of any money deposited with it hereunder to such
payments or distributions or the retention of such payments or
distributions by the Holders, if, at the time of such application
by such Trustee or Paying Agent, it did not have knowledge that
such payment or distribution would have been prohibited by the
provisions of this Article 10.
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(c) With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform only such
obligations on its part as are specifically set forth in this
Article 10, and no implied covenants or obligations with respect
to any holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior Indebtedness,
and shall not be liable to any holders of Senior Indebtedness if
the Trustee shall pay over or distribute to, or on behalf of,
Holders or the Company or any other Person money or assets to
which any holders of Senior Indebtedness are entitled pursuant to
this Article 10, except if such payment is made at a time when a
Trust Officer has knowledge that the terms of this Article 10
prohibit such payment.
Section 10.6 Notice.
(a) Neither the Trustee nor any Paying Agent shall at
any time be charged with the knowledge of the existence of any
facts that would prohibit the making of any payment to or by the
Trustee or Paying Agent under this Article 10, unless and until
the Trustee or Paying Agent shall have received written notice
thereof from the Company, the Senior Agent, one or more holders
of Senior Indebtedness or a Representative of any holders of
Senior Indebtedness; and, prior to the receipt of any such
written notice, the Trustee or Paying Agent shall be entitled to
assume conclusively that no such facts exist. The Trustee shall
be entitled to rely on the delivery to it of written notice by a
Person representing itself to be a holder of Senior Indebtedness
(or a Representative thereof) to establish that such notice has
been given. In the event that the Trustee or Paying Agent
determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution
pursuant to this Article 10, the Trustee or Paying Agent may
request such Person to furnish evidence to the reasonable
satisfaction of the Trustee or Paying Agent as to the amount of
Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under
this Article 10, and if such evidence is not furnished, the
Trustee or Paying Agent may defer any payment to such Person
pending judicial determination as to the right of such Person to
receive such payment.
(b) The Company shall promptly notify the Trustee and
the Paying Agent in writing of any facts it knows that would
cause a payment of principal of, or premium, if any, or interest
on, the Notes or any other Obligation in respect of the Notes to
violate this Article 10, but failure to give such notice shall
not affect the subordination of the Subordinated Obligations to
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the Senior Indebtedness provided in this Article 10 or the rights
of holders of such Senior Indebtedness under this Article 10.
Section 10.7 Subrogation.
After all Senior Indebtedness has been paid in full in cash
or Cash Equivalents and until the Notes are paid in full, the
Holders shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Notes) to the rights of holders
of such Senior Indebtedness to receive distributions applicable
to such Senior Indebtedness to the extent that distributions
otherwise payable to the Holders have been applied to the payment
of such Senior Indebtedness. A distribution made under this
Article 10 to holders of Senior Indebtedness that otherwise would
have been made to the Holders is not, as among the Company, its
creditors other than holders of Senior Indebtedness and the
Holders, a payment or distribution by the Company to or on
account of its Senior Indebtedness.
Section 10.8 Relative Rights.
(a) The provisions of this Article 10 are and are
intended solely for the purpose of defining the relative rights
of the Holders on the one hand and the holders of Senior
Indebtedness on the other hand. Nothing contained in this
Article 10 or elsewhere in this Indenture or in the Notes is
intended to or shall (i) impair, as among the Company, its
creditors other then holders of Senior Indebtedness and the
Holders of the Notes, the obligation of the Company, which is
absolute and unconditional, to pay principal of, and premium, if
any, and interest on, the Notes in accordance with their terms;
(ii) affect the relative rights of the Holders and the Company's
creditors other than their rights in relation to holders of
Senior Indebtedness; or (iii) prevent the Trustee or any Holder
from exercising its available remedies upon a Default or Event of
Default, subject to the rights of holders of Senior Indebtedness
to receive payment and distributions otherwise payable or
distributable to the Holders.
(b) The failure to make a payment on account of
principal of, or premium, if any, or interest on the Notes by
reason of any provision of this Article 10 shall not be construed
as preventing the occurrence of an Event of Default under Section
6.1.
Section 10.9 The Company and Holders May Not Impair
Subordination.
(a) No right of any holder of Senior Indebtedness to
enforce the subordination as provided in this Article 10 shall at
any time or in any way be prejudiced or impaired by any act or
failure to act by the Company or by any noncompliance by the
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Company with the terms, provisions and covenants of this
Indenture, the Notes, any other Applicable Document or any other
agreement regardless of any knowledge thereof which any such
holder may have or be otherwise charged with.
(b) Without in any way limiting Section 10.9(a), the
holders of any Senior Indebtedness may, at any time and from time
to time, without the consent of or notice to any Holders, without
incurring any liabilities to any Holder and without impairing or
releasing the subordination and other benefits provided in this
Indenture or the Holders' obligations to the holders of such
Senior Indebtedness, even if any Holder's right of reimbursement
or subrogation or other right or remedy is affected, impaired or
extinguished thereby, do any one or more of the following: (i)
amend, renew, exchange, extend, modify, increase or supplement in
any manner such Senior Indebtedness or any instrument evidencing
or guaranteeing or securing such Senior Indebtedness or any
agreement under which such Senior Indebtedness is outstanding
(including, but not limited to, changing the manner, place or
terms of payment or changing or extending the time of payment of,
or renewing, exchanging, amending, increasing, releasing,
terminating or altering, (1) the terms of such Senior
Indebtedness, (2) any security for, or any guarantee of, such
Senior Indebtedness, (3) any liability of any obligor on such
Senior Indebtedness (including any guarantor) or any liability
Incurred in respect of such Senior Indebtedness); (ii) sell,
exchange, release, surrender, realize upon, enforce or otherwise
deal with in any manner and in any order any property pledged,
mortgaged or otherwise securing such Senior Indebtedness or any
liability of any obligor thereon, to such holder, or any
liability Incurred in respect thereof; (iii) settle or compromise
any such Senior Indebtedness or any other liability of any
obligor of such Senior Indebtedness to such holder or any
security therefor or any liability Incurred in respect thereof
and apply any sums by whomsoever paid and however realized to any
liability (including, without limitation, payment of any of
Senior Indebtedness) in any manner or order; and (iv) release,
terminate or otherwise cancel, or fail to take or to record or
otherwise perfect, for any reason or for no reason, any Lien or
security interest securing such Senior Indebtedness by whomsoever
granted, exercise or delay in or refrain from exercising any
right or remedy against any obligor or any guarantor or any other
Person, elect any remedy and otherwise deal freely with any
obligor and any security for such Senior Indebtedness or any
liability of any obligor to the holders of such Senior
Indebtedness or any liability Incurred in respect of such Senior
Indebtedness.
Section 10.10 Distribution or Notice to Representative.
Whenever a distribution is to be made, or a notice given, to
holders of Senior Indebtedness, the distribution may be made and
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the notice given to their Representative, if any. If any payment
or distribution of the Company's assets is required to be made to
holders of any Senior Indebtedness pursuant to this Article 10,
the Trustee and the Holders shall be entitled to rely upon any
order or decree of any court of competent jurisdiction, or upon
any certificate of a Representative of such Senior Indebtedness
or a Custodian, in ascertaining the holders of such Senior
Indebtedness entitled to participate in any such payment or
distribution, the amount to be paid or distributed to holders of
such Senior Indebtedness and all other facts pertinent to such
payment or distribution or to this Article 10.
Section 10.11 Rights of Trustee and Paying Agent.
The Trustee or Paying Agent may continue to make payments on
the Notes unless prior to any payment date it has received
written notice of facts that would cause a payment or
distribution on account of Subordinated Obligations to violate
this Article 10. Only the Company, a Representative of Senior
Indebtedness, or a holder of Senior Indebtedness that has no
Representative may give such notice.
To the extent permitted by the TIA, the Trustee in its
individual or any other capacity may hold Indebtedness of the
Company (including Senior Indebtedness) with the same rights it
would have if it were not Trustee. Any Agent may do the same
with like rights.
Section 10.12 Authorization to Effect Subordination.
Each Holder of a Note by its acceptance thereof authorizes
and directs the Trustee on its behalf to take such action as may
be necessary or appropriate to effectuate the subordination as
provided in this Article 10, and appoints the Trustee as such
Holder's attorney-in-fact for any and all such purposes,
(including, without limitation, the timely filing of a claim for
the unpaid balance of the Note that such Holder holds in the form
required in any Insolvency or Liquidation Proceeding and causing
such claim to be approved).
If a proper claim or proof of debt in the form required in
such proceeding is not filed by or on behalf of all Holders prior
to 30 days before the expiration of the time to file such claims
or proofs, then the holders or a Representative of any Senior
Indebtedness of the Company are hereby authorized, and shall have
the right (without any duty), to file an appropriate claim for
and on behalf of the Holders.
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Section 10.13 Payment.
For all purposes of this Article 10, a "payment or
distribution on account of Subordinated Obligations" shall
include, without limitation, any direct or indirect payment or
distribution on account of the purchase, prepayment, redemption,
retirement, defeasance or acquisition of any Note or with respect
to any other Applicable Document, any recovery by the exercise of
any right of set-off, any direct or indirect payment of
principal, premium or interest with respect to or in connection
with any mandatory or optional redemption or purchase provisions,
any direct or indirect payment or distribution payable or
distributable by reason of any other Indebtedness or Obligation
being subordinated to any Subordinated Obligations, and any
direct or indirect payment or recovery on any claim (including
claims for indemnification or liquidated damages) relating to or
arising out of this Indenture, any Note, the Issuance of any
Note, any of the Applicable Documents or any of the transactions
contemplated by or referred to therein.
Section 10.14 Defeasance of this Article 10.
The subordination of the Notes provided by this Article 10
is expressly made subject to the provisions for defeasance in
Article 8 hereof and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance
(provided that any deposit pursuant to Section 8.2 was not
prohibited by this Section 10 or any other instrument or
agreement governing any Senior Indebtedness and did not
constitute a default under any such instrument or agreement), the
Notes then outstanding shall thereupon cease to be subordinated
pursuant to this Article 10; provided, however, that if the
Company's obligations under this Indenture and the Notes are
revived and reinstated in accordance with the terms of
Section 8.6 hereof, the subordination provisions of this
Article 10 shall be revived and reinstated with respect to all
Subordinated Obligations.
Section 10.15 No Claims Against Subsidiaries.
The Company and the Holders acknowledge and agree as
follows: (a) the Notes and other Applicable Documents are an
obligation of the Company only, and the Holders have and will
have no claim, right or demand against any Subsidiary of the
Company or any assets or properties of any Subsidiary of the
Company on or in respect of the Notes or other Applicable
Documents; (b) the Company is, and is capitalized as, a separate
legal entity such that any claim, right or demand by the Holders
with respect to the assets and properties of any Subsidiary of
the Company would be solely as a creditor of a direct or indirect
shareholder of such Subsidiary and that such arrangement has been
relied upon by and is for the benefit of holders of Senior
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Indebtedness; (c) the Company's direct and indirect Subsidiaries
have no obligation to pay dividends to or to make Investments in
the Company, for the purpose of funding payment obligations of
the Company to the Holders or otherwise, (d) the Subsidiary Debt
Documents permit Subsidiaries of the Company to pay dividends to
or to make Investments in the Company only in limited amounts and
under specified circumstances (provided that any and all such
limitations shall at all times be subject to Section 4.11
hereof); and (e) the Subsidiary Debt Documents restrict the
amendment of this Indenture, the Notes and the other Applicable
Documents without the consent of certain of the Bank Lenders.
ARTICLE 11
MISCELLANEOUS
Section 11.1 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed by operation of Section 318(c)
of the TIA, the imposed duties shall control.
Section 11.2 Notices.
Any notice or communication by the Company or the Trustee to
the other is duly given if in writing and delivered in person,
mailed by registered or certified mail, postage prepaid, return
receipt requested or delivered by telecopier or overnight air
courier guaranteeing next day delivery to the other's address:
If to the Company:
One East Fourth Street
Cincinnati, Ohio 45202
Attention: Gregory C. Thomas, Senior Vice
President
If to the Trustee:
Shawmut Bank Connecticut, National Association
777 Main Street
Hartford, Connecticut 06113
Attention: William Munroe
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent
notices or communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time
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delivered by hand, if personally delivered; the date receipt is
acknowledged, if mailed by registered or certified mail; when
answered back, if telecopied; and the next Business Day after
timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first-class mail to his or her address shown on the register
maintained by the Registrar. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above within the
time prescribed, it is duly given, whether or not the addressee
receives it. If the Company mails a notice or communication to
Holders, it shall mail a copy to the Trustee and each Agent at
the same time.
Section 11.3 Communication by Holders with Other Holders.
Holders may communicate pursuant to Section 312(b) of the
TIA with other Holders with respect to their rights under this
Indenture or the Notes. The Company, the Trustee, the Registrar
and any other Person shall have the protection of Section 312(c)
of the TIA.
Section 11.4 Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee: (a) an Officers' Certificate
(which shall include the statements set forth in Section 11.5)
stating that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been complied with; and (b)
an Opinion of Counsel (which shall include the statements set
forth in Section 11.5) stating that, in the opinion of such
counsel, all such conditions precedent provided for in this
Indenture relating to the proposed action have been complied
with.
Section 11.5 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (other
than a certificate provided pursuant to Section 314(a)(4) of the
TIA) shall include: (a) a statement that the Person making such
certificate or opinion has read such covenant or condition; (b) a
brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based; (c) a statement that, in
the opinion of such Person, he has made such examination or
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investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition
has been compiled with; and (d) a statement as to whether, in
such Person's opinion, such condition or covenant has been
complied with.
Section 11.6 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its
functions.
Section 11.7 Legal Holidays.
A "Legal Holiday" used with respect to a particular place of
payment is a Saturday, Sunday or a day on which banking
institutions in New York City, New York, or Hartford,
Connecticut, or at such place of payment, are not required to be
open. If a payment date is a Legal Holiday, payment may be made
at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
Section 11.8 No Recourse Against Others.
No director, officer, employee, incorporator or shareholder
of the Company or the Trustee shall have any liability for any
obligation of the Company under this Indenture or the Notes or
for any claim based on, in respect of, or by reason of, any such
obligation or the creation of any such obligation. Each Holder
by accepting a Note waives and releases such Persons from all
such liability and such waiver and release is part of the
consideration for the Issuance of the Notes.
Section 11.9 Counterparts.
This Indenture may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
Section 11.10 Initial Appointments, Compliance Certificates.
The Company initially appoints the Trustee as authenticating
agent. The first compliance certificate to be delivered by the
Company to the Trustee pursuant to Section 4.3 shall be for the
fiscal year ending on December 31, 1994.
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Section 11.11 Governing Law.
The internal laws of the State of New York shall govern this
Indenture and the Notes, without regard to the conflict of laws
provisions thereof.
Section 11.12 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or any of its
Subsidiaries, and no other indenture, loan or debt agreement may
be used to interpret this Indenture.
Section 11.13 Successors.
All agreements of the Company in this Indenture and the
Notes shall bind any successor of the Company. All agreements of
the Trustee in this Indenture shall bind its successor.
Section 11.14 Severability.
If any provision in this Indenture or in the Notes shall be
held to be invalid, illegal or unenforceable in any respect for
any reason, the validity, legality and enforceability in every
other respect of the remaining provisions shall not in any way be
affected or impaired thereby, it being understood that all of the
provisions hereof shall be enforceable to the full extent
permitted by law.
Section 11.15 Third Party Beneficiaries.
Holders of Senior Indebtedness are third party beneficiaries
of, and any of them (or their Representative) shall have the
right to enforce the provisions of this Indenture that benefit
such holders.
Section 11.16 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table, and headings
of the Articles and Sections of this Indenture have been inserted
for convenience of reference only, are not to be considered a
part of this Indenture, and shall in no way modify or restrict
any of the terms or provisions of this Indenture.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as at the date
first written above.
GREAT AMERICAN COMMUNICATIONS
COMPANY
BY:
Name:
Title:
Attest:
(SEAL)
SHAWMUT BANK CONNECTICUT,
NATIONAL ASSOCIATION
BY:
Name:
Title:
Attest:
(SEAL)
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EXHIBIT A
[FORM OF SERIES A NOTE]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR
PURSUANT TO THE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE. SUCH
SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE ASSIGNED, EXCEPT PURSUANT TO (i) A
REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS
EFFECTIVE UNDER SUCH ACT, (ii) RULE 144 OR RULE 144A UNDER SUCH
ACT, OR (iii) ANY OTHER EXEMPTION FROM REGISTRATION UNDER SUCH
ACT RELATING TO SUCH ACT, PROVIDED THAT, IF REQUESTED BY THE
COMPANY, AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM
AND SUBSTANCE IS FURNISHED TO THE COMPANY THAT AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF SUCH ACT IS AVAILABLE.
IN ADDITION, ANY SALE, ASSIGNMENT, TRANSFER, PLEDGE OR OTHER
DISPOSITION OF THIS SECURITY IS RESTRICTED BY, AND THE RIGHTS OF
THE HOLDER OF SUCH SECURITY ARE SUBJECT TO THE TERMS AND
CONDITIONS CONTAINED IN, A NOTE PURCHASE AGREEMENT DATED AS OF
FEBRUARY 3, 1994, A COMPLETE AND CORRECT COPY OF THE FORM OF
WHICH WILL BE FURNISHED BY THE ISSUER TO THE HOLDER HEREOF UPON
WRITTEN REQUEST AND WITHOUT CHARGE.
PURSUANT TO PROVISIONS OF THE INTERNAL REVENUE CODE OF 1986
RELATING TO ORIGINAL ISSUE DISCOUNT AND PROPOSED TREASURY
REGULATIONS PUBLISHED THEREUNDER ON DECEMBER 22, 1992, THE
FOLLOWING INFORMATION IS PROVIDED: (1) THIS SECURITY IS BEING
ISSUED WITH ORIGINAL ISSUE DISCOUNT IN THE AMOUNT OF $23.25 PER
$1,000 OF FACE AMOUNT; (2) THE ISSUE PRICE OF THIS SECURITY IS
$976.75 PER $1,000 FACE AMOUNT; (3) THE ISSUE DATE OF THIS
SECURITY IS FEBRUARY 18, 1994; AND (4) THE YIELD TO MATURITY OF
THIS SECURITY IS 10 %.
A-1
<PAGE>
(Face of Series A Note)
GREAT AMERICAN COMMUNICATIONS COMPANY
9 % Series A Senior Subordinated Note due February 15, 2004
No. $
Great American Communications Company, a Florida corporation
(hereinafter called the "Company", which term includes any
successor entity under the Indenture hereinafter referred to),
for value received, hereby promises to pay to
____________________________ ____________ or registered assigns,
the principal sum of _____________________________ Dollars on
February 15, 2004.
Interest Payment Dates: February 15 and August 15,
commencing August 15, 1994
Record Dates: February 1 and August 1.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers
and a facsimile of its seal to be affixed hereto or imprinted
hereto.
GREAT AMERICAN COMMUNICATIONS
COMPANY
By:
By:
[SEAL]
CERTIFICATE OF AUTHENTICATION
This is one of the Series A Notes referred to in the within
mentioned Indenture.
Shawmut Bank Connecticut, National Association, as Trustee, OR
, as Authenticating Agent,
By: By:
A-2
<PAGE>
Authorized Officer Authorized Signature
A-3
<PAGE>
(Reverse Side of Series A Note)
9 % Series A Senior Subordinated Note due February 15, 2004
1. Interest. Great American Communications Company (the
"Company") promises to pay interest on the principal amount of
this Note at the rate and in the manner specified below.
Interest on this Note will accrue at 9 % per annum from the date
this Note is issued until maturity and will be payable
semiannually in cash on February 15 and August 15 of each year,
or if any such day is not a Business Day on the next succeeding
Business Day (each an "Interest Payment Date"). Interest on this
Note will accrue from the most recent date on which interest has
been paid or, if no interest has been paid, from February 18,
1994, provided that the first Interest Payment Date shall be
August 15, 1994. The Company shall pay interest on overdue
principal and premium, if any, from time to time on demand at the
rate of 1.5% per annum in excess of the interest rate then in
effect and shall pay interest on overdue installments of interest
(without regard to any applicable grace periods) from time to
time on demand at the same rate to the extent lawful. Interest
will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment. The Company will pay interest on
this Note (except defaulted interest) to the Person who is the
registered Holder of this Note at the close of business on the
record date for the next Interest Payment Date even if such Note
is cancelled after such record date and on or before such
Interest Payment Date. Holders must surrender Notes to a Paying
Agent to collect principal payments on such Notes. The Company
will pay principal, premium, if any, and interest in money of the
United States that at the time of payment is legal tender for
payment of public and private debts. However, the Company may
pay principal, premium, if any, and interest by wire transfer of
Federal funds, or interest by check payable in such money, and
any such check may be mailed to a Holder's registered address.
3. Paying Agent and Registrar. Securities Transfer
Company of Cincinnati, Ohio will initially act as the Paying
Agent and Registrar. The Company may appoint additional paying
agents or co-registrars, and change the Paying Agent, any
additional paying agent, the Registrar or any co-registrar
without prior notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an
Indenture, dated as of February 18, 1994 (the "Indenture"), by
and among the Company, as issuer of the Notes, and the Shawmut
Bank Connecticut, National Association (the "Trustee"). The
terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Section 77aaa-77bbbb) as in
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effect on the date of the original issuance of the Notes (the "Trust
Indenture Act"). The Notes are subject to, and qualified by, all
such terms, certain of which are summarized herein, and Holders
are referred to the Indenture and the Trust Indenture Act for a
statement of such terms (all capitalized terms not defined herein
shall have the meanings assigned them in the Indenture). The
Notes are unsecured general obligations of the Company limited to
$250,000,000 in aggregate principal amount.
5. Registration Rights. Pursuant to the Registration
Rights Agreement between the Company and the Holders of the
Series A Notes, and subject to certain terms and conditions
stated therein, the Company has agreed to make an exchange offer
pursuant to which the Holder of this Note shall have the right to
exchange this Note for Senior Subordinated Notes due 2004,
Series B, of the Company (the "Series B Notes"), which have been
registered under the Securities Act, in like principal amount and
in the form attached to the Indenture as Exhibit B. The Series A
Notes and the Series B Notes are together referred to herein as
the "Notes."
6. Redemption Provisions. The Notes may not be redeemed
at the option of the Company prior to February 15, 1999.
Thereafter, the Notes will be subject to redemption at the option
of the Company, in whole or in part, at the redemption prices
(expressed as percentages of the principal amount of the Notes)
set forth below, plus any accrued and unpaid interest to the
Redemption Date, if redeemed during the twelve-month period
beginning on February 15 of the years indicated below:
Year Percentage
1999 . . . . . . . . . . . . . . . . . . . . 104.875%
2000 . . . . . . . . . . . . . . . . . . . . 103.250%
2001 . . . . . . . . . . . . . . . . . . . . 101.625%
2002 and thereafter . . . . . . . . . . . . 100%
Notwithstanding the foregoing, up to 25% in aggregate
principal amount of Notes originally issued under this Indenture
will be redeemable from time to time prior to December 31, 1996,
at the option of the Company, from the net proceeds of one or
more public offerings of Capital Stock of the Company, at a
redemption price equal 108.75% of the principal amount thereof,
together with accrued and unpaid interest to the date of
redemption, subject to certain conditions set forth in the
Indenture.
In addition, the Notes will be subject to redemption (a
"Change of Control Redemption") at the option of the Company, in
whole or in part, at any time within 180 days after the later of
(a) a Change of Control Trigger Date and (b) the completion of an
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Offer made as a result of a Change of Control, at a redemption
price equal to the sum of (i) the principal amount thereof, plus
(ii) accrued and unpaid interest to the redemption date, plus
(iii) the Applicable Premium, subject to certain conditions set
forth in the Indenture.
Prior to December 31, 1996 the Notes will be subject to
redemption (an "Asset Sale Redemption") at the option of the
Company in whole or in part, following an Asset Sale in
connection with an Asset Sale Payment, from the Excess Proceeds
of an Asset Sale; provided that an Asset Sale Redemption may be
made by the Company only if, and to the extent that, each of the
following conditions is satisfied; (i) only two Asset Sale
Redemptions will be permitted under the Indenture; (ii) the
maximum aggregate principal amount of Notes that is redeemable
pursuant to an Asset Sale Redemption will be limited to that
amount which is necessary to make the ratio set forth in Section
4.13(c) of the Indenture, given the amount of the proposed Asset
Sale Payment, equal to (but not more or less than) 4.5:1, and
(iii) after giving effect to the proposed Asset Sale Redemption,
at least $100 million in principal amount of Initial Notes will
remain outstanding. In the event of an Asset Redemption the
Notes will be redeemable at the redemption prices (expressed as
percentages of the principal amount of the Notes) set forth
below, plus any accrued and unpaid interest to the date of
redemption, if redeemed during the periods indicated below.
Period Percentage
February 15, 1994 to July 31, 1994102.00%
August 1, 1994 to February 14, 1995103.00%
February 15, 1995 to December 31, 1996108.75%
7. Mandatory Offers. (a) Within 60 days after any Change
of Control Trigger Date or within 10 Business Days after any
Asset Sale Trigger Date, the Company shall mail a notice to each
Holder stating a number of items as set forth in Section 3.8 of
the Indenture.
(b) Holders may tender all or, subject to Section 9
below, any portion of their Notes in an Offer by completing the
form below entitled "OPTION OF HOLDER TO ELECT PURCHASE."
(c) Notwithstanding Section 6 above, the Company shall
not be required to commence an Offer as a result of a Change of
Control if, within 30 days of the Change of Control Trigger Date,
the Company notifies the Holders that all outstanding Notes will
be redeemed pursuant to a Change of Control Redemption.
(d) Promptly after consummation of an Offer, (i) the
Paying Agent shall mail to each Holder of Notes or portions
thereof accepted for payment an amount equal to the purchase
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price for, plus any accrued and unpaid interest on, such Notes,
(ii) with respect to any tendered Note not accepted for payment
in whole or in part, the Trustee shall return such Note to the
Holder thereof, and (iii) with respect to any Note accepted for
payment in part, the Trustee shall authenticate and mail to each
such Holder a new Note equal in principal amount to the
unpurchased portion of the tendered Note.
(e) The Company will (i) publicly announce the results
of the Offer to Holders on or as soon as practicable after the
Purchase Date, and (ii) comply with Rule 14e-1 under the
Securities Exchange Act of 1934, as amended, and any other
securities laws and regulations to the extent applicable to any
Offer.
8. Notice of Redemption or Purchase. At least 30 days but
not more than 60 days before any Redemption Date the Company
shall mail by first class mail a notice of redemption to each
Holder of Notes or portions thereof that are to be redeemed.
9. Notes to be Redeemed or Purchased. The Notes may be
redeemed or purchased in part, but only in whole multiples of
$1,000 unless all Notes held by a Holder are to be redeemed or
purchased. On or after any date on which Notes are redeemed or
purchased, interest ceases to accrue on the Notes or portions
thereof called for redemption or accepted for purchase on such
date.
10. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and
integral multiples thereof. The transfer of Notes may be
registered and Notes may be exchanged as provided in the
Indenture. Holders seeking to transfer or exchange their Notes
may be required, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar
need not exchange or register the transfer of any Note or portion
of a Note selected for redemption or tendered pursuant to an
Offer.
11. Persons Deemed Owners. The registered holder of a Note
may be treated as its owner for all purposes.
12. Amendments and Waivers. (a) Subject to certain
exceptions, the Indenture and the Notes may be amended or
supplemented with the written consent of the Holders of at least
a majority in aggregate principal amount of the then outstanding
Notes, and any existing Default or Event of Default or compliance
with any provision of the Indenture or the Notes may be waived
with the consent of the Holders of at least a majority in
principal amount of the then outstanding Notes.
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(b) Notwithstanding Section 12(a) above, the Company
and the Trustee may amend or supplement the Indenture or the
Notes without the consent of any Holder to: cure any ambiguity,
defect or inconsistency; provide for uncertificated Notes in
addition to or in place of certificated Notes; provide for the
assumption of the Company's obligations to the Holders in the
event of any Disposition involving the Company that is permitted
under Article 5 of the Indenture and in which the Company is not
the Surviving Person; make any change that would provide any
additional rights or benefits to Holders or not adversely affect
the legal rights under the Indenture of any Holder; comply with
the requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act;
or to provide for the issuance of the Series B Notes.
(c) Certain provisions of the Indenture cannot be
amended, supplemented or waived without the consent of each
Holder of Notes affected. Additionally, certain provisions of
the Indenture cannot be amended or modified without the consent
of at least a majority of the outstanding principal amount of
each class of Senior Indebtedness of the Company outstanding.
13. Defaults and Remedies. Events of Default include: (i)
default for 30 days in the payment when due of interest on the
Notes (whether or not prohibited by the subordination provisions
of the Indenture); (ii) default in the payment when due of
principal on the Notes (whether or not prohibited by the
subordination provisions of the Indenture); (iii) failure by the
Company for 30 days after receipt of notice from the Trustee or
Holders of at least 25% of the outstanding Notes to comply with
any other provisions of the Indenture or the Notes; (iv) default
under any mortgage, indenture or instrument under which there may
be Issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its
Significant Subsidiaries (or the payment of which is guaranteed
by the Company or any of its Significant Subsidiaries) whether
such Indebtedness now exists, or is created after the Issue Date,
if (A) such default results in the acceleration of such
Indebtedness prior to its express maturity or shall constitute a
default in the payment of such Indebtedness at final maturity of
such Indebtedness, and (B) the principal amount of any such
Indebtedness that has been accelerated or not paid at maturity,
when added to the aggregate principal amount of all other such
Indebtedness that has been accelerated or not paid at maturity,
exceeds $10,000,000; (v) failure by the Company or any of its
Significant Subsidiaries to pay final judgments, the uninsured
portion of which exceeds $10,000,000, which judgments are not
paid, discharged, bonded or stayed for a period of 60 days after
the date of entry thereof, (vi) if under any Bankruptcy Law, (A)
the Company or any Significant Subsidiary commences a voluntary
case, consents to the entry of an order for relief against it in
an involuntary case, consents to the appointment of a Custodian
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of it or for all or substantially all of its property, or makes a
general assignment for the benefit of its creditors, or (B) a
court of competent jurisdiction enters an order or decree, and
such order or decree remains unstayed and in effect for 60 days,
that is for relief against the Company or any Significant
Subsidiary in an involuntary case, appoints a Custodian of the
Company or any Significant Subsidiary or for all or substantially
all of the Property of the Company or any Significant Subsidiary,
or orders the liquidation of the Company or any Significant
Subsidiary; and (vii) any of the Applicable Documents shall
cease, for any reason, to be in full force and effect in any
material respect, except as a result of an amendment, waiver or
termination thereof as contemplated or permitted hereby or the
Company shall so assert in writing.
14. Subordination. All Obligations owed under and in
respect of the Notes are subordinated in right of payment, to the
extent and in the manner provided in Article 10 of the Indenture,
to the prior payment in full in cash of all Obligations owed
under and respect of all Senior Indebtedness of the Company, and
that the subordination of the Notes is for the benefit of all
holders of all Senior Indebtedness of the Company, whether
outstanding on the Issue Date or Issued thereafter. The Company
agrees, and each Holder by accepting a Note agrees, to the
subordination.
15. Trustee Dealings with Company. The Trustee in its
individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Company or any of its
Affiliates with the same rights it would have if it were not
Trustee.
16. No Recourse Against Others. No director, officer,
employee, incorporator or shareholder of the Company or the
Trustee shall have any liability for any obligation of the
Company under the Indenture or the Notes or for any claim based
on, in respect of, or by reason of, any such obligation or the
creation of any such obligation. Each Holder by accepting a Note
waives and releases such Persons from all such liability, and
such waiver and release is part of the consideration for the
Issuance of the Notes.
17. Successor Substituted. Upon the merger, consolidation
or other business combination involving the Company or upon the
sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the Company's
properties and assets, the Surviving Person (if other than the
Company) resulting from such Disposition shall succeed to, and be
substituted for, and may exercise every right and power of, the
Company under the Indenture with the same effect as if such
Surviving Person had been named as the Company in the Indenture.
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18. Governing Law. This Note shall be governed by and
construed in accordance with the internal laws of the State of
New York, without regard to the conflict of laws provisions
thereof.
19. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
20. Abbreviations. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants
in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in
common), CUST (=Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
21. CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Note Identification
Procedures, the Company will use reasonable efforts to cause
CUSIP numbers to be printed on the Notes and has directed the
Trustee to use CUSIP numbers in notices of redemption as a
convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed
only on the other identification numbers printed on the
securities.
22. Indenture. The Company will furnish to any Holder
upon written request and without charge a copy of the Indenture,
which has in it the text of this Note in larger type. Requests
may be made to: Great American Communications Company, One East
Fourth Street, Cincinnati, Ohio 45202, Attn: Gregory Thomas,
Executive Vice President.
23. Certain Information Obligations. To the extent
permitted by applicable law or regulation, whether or not the
Company is subject to the requirements of Section 13 or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") the
Company shall file with the SEC all quarterly and annual reports
and such other information, documents or other reports (or copies
of such portions of any of the foregoing as the SEC may by rules
and regulations prescribe) required to be filed pursuant to such
provisions of the Exchange Act. The Company shall file with the
Trustee copies of the quarterly and annual reports and the
information, documents, and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and
regulations prescribe) that it is required to file with the SEC
pursuant to the Indenture. At any time when the Company is not
permitted by applicable law or regulations to file the
aforementioned reports, the Company shall furnish the Trustee and
the Holders with the information that the Company would have had
to provide to the SEC if the Company had been subject to
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Section 13 or 15(d) of the Exchange Act. Also, at any time when
the Company is not permitted by applicable law or regulations to
file the aforementioned reports, upon the request of a Holder of
a Series A Note, the Company will promptly furnish or cause to be
furnished such information as is specified pursuant to
Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto) to such Holder or to a prospective purchaser
of such Series A Note, as the case may be, in order to permit
compliance by such Holder with Rule 144A under the Securities
Act.
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<PAGE>
ASSIGNMENT FORM
To assign this Note, fill in the form below:
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s)
and transfer(s) unto
Please insert social security or other
identifying number of assignee
Please print or typewrite name and address including postal
zip code of assignee
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing
________________________________________ to transfer said Note on
the books of the Company. The agent may substitute another to
act for him.
Date: Your Signature:
(Sign exactly as your
name appears on the other
side of this Note)
Signature Guarantee: _________________________
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Company
pursuant to Section 4.12 of the Indenture, check the box:
If you elect to have this Note purchased by the Company
pursuant to Section 4.13 of the Indenture, check the box:
If you elect to have only part of this Note purchased by the
Company pursuant to Section 4.12 or 4.13 of the Indenture, state
the amount (multiples of $1,000 only):
$
Date: Your Signature:
(Sign exactly as your
name appears on the other
side of this Note)
Signature Guarantee: _________________________
<PAGE>
EXHIBIT B
[FORM OF SERIES B NOTE]
PURSUANT TO PROVISIONS OF THE INTERNAL REVENUE CODE OF 1986
RELATING TO ORIGINAL ISSUE DISCOUNT AND PROPOSED TREASURY
REGULATIONS PUBLISHED THEREUNDER ON DECEMBER 22, 1992, THE
FOLLOWING INFORMATION IS PROVIDED: (1) THIS SECURITY IS BEING
ISSUED WITH ORIGINAL ISSUE DISCOUNT IN THE AMOUNT OF $23.25 PER
$1,000 OF FACE AMOUNT; (2) THE ISSUE PRICE OF THIS SECURITY IS
$976.75 PER $1,000 FACE AMOUNT; (3) THE ISSUE DATE OF THIS
SECURITY IS FEBRUARY 18, 1994; AND (4) THE YIELD TO MATURITY OF
THIS SECURITY IS 10 %.
(Face of Series B Note)
GREAT AMERICAN COMMUNICATIONS COMPANY
9 % Senior Subordinated Note due February 15, 2004
No. $
Great American Communications Company, a Florida corporation
(hereinafter called the "Company", which term includes any
successor entity under the Indenture hereinafter referred to),
for value received, hereby promises to pay to
____________________________ ____________ or registered assigns,
the principal sum of _____________________________ Dollars on
February 15, 2004.
Interest Payment Dates: February 15 and August 15,
commencing August 15, 1994.
Record Dates: February 1 and August 1.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers
and a facsimile of its seal to be affixed hereto or imprinted
hereto.
GREAT AMERICAN COMMUNICATIONS
COMPANY
By:
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By:
[SEAL]
CERTIFICATE OF AUTHENTICATION
This is one of the Series B Notes referred to in the within
mentioned Indenture.
Shawmut Bank Connecticut, National Association, as Trustee, OR
__________________, as Authenticating Agent,
By: By:
Authorized Officer Authorized Signature
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<PAGE>
(Reverse Side of Series B Note)
9 % Senior Subordinated Note due February 15, 2004
1. Interest. Great American Communications Company (the
"Company") promises to pay interest on the principal amount of
this Note at the rate and in the manner specified below.
Interest on this Note will accrue at 9 % per annum from the date
this Note is issued until maturity and will be payable
semiannually in cash on February 15 and August 15 of each year,
or if any such day is not a Business Day on the next succeeding
Business Day (each an "Interest Payment Date"). Interest on this
Note will accrue from the most recent date on which interest has
been paid or, if no interest has been paid, from February 18,
1994, provided that the first Interest Payment Date shall be
August 15, 1994. The Company shall pay interest on overdue
principal and premium, if any, from time to time on demand at the
rate of 1.5% per annum in excess of the interest rate then in
effect and shall pay interest on overdue installments of interest
(without regard to any applicable grace periods) from time to
time on demand at the same rate to the extent lawful. Interest
will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment. The Company will pay interest on
this Note (except defaulted interest) to the Person who is the
registered Holder of this Note at the close of business on the
record date for the next Interest Payment Date even if such Note
is cancelled after such record date and on or before such
Interest Payment Date. Holders must surrender Notes to a Paying
Agent to collect principal payments on such Notes. The Company
will pay principal, premium, if any, and interest in money of the
United States that at the time of payment is legal tender for
payment of public and private debts. However, the Company may
pay principal, premium, if any, and interest by wire transfer of
Federal funds, or interest by check payable in such money, and
any such check may be mailed to a Holder's registered address.
3. Paying Agent and Registrar. Securities Transfer
Company of Cincinnati, Ohio, will initially act as the Paying
Agent and Registrar. The Company may appoint additional paying
agents or co-registrars, and change the Paying Agent, any
additional paying agent, the Registrar or any co-registrar
without prior notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an
Indenture, dated as of February 18, 1994 (the "Indenture"), by
and among the Company, as issuer of the Notes, and Shawmut Bank
Connecticut, National Association (the "Trustee"). The terms of
the Notes include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S. Code Section 77aaa-77bbbb) as in effect on the date of
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the original issuance of the Notes (the "Trust Indenture Act").
The Notes are subject to, and qualified by, all such terms,
certain of which are summarized herein, and Holders are referred
to the Indenture and the Trust Indenture Act for a statement of
such terms (all capitalized terms not defined herein shall have
the meanings assigned them in the Indenture). The Notes are
unsecured general obligations of the Company limited to
$250,000,000 in aggregate principal amount.
5. Redemption Provisions. The Notes may not be redeemed
at the option of the Company prior to February 15, 1999.
Thereafter, the Notes will be subject to redemption at the option
of the Company, in whole or in part, at the redemption prices
(expressed as percentages of the principal amount of the Notes)
set forth below, plus any accrued and unpaid interest to the
Redemption Date, if redeemed during the twelve-month period
beginning on February 15 of the years indicated below:
Year Percentage
1999 . . . . . . . . . . . . . . . . . . . . 104.875%
2000 . . . . . . . . . . . . . . . . . . . . 103.250%
2001 . . . . . . . . . . . . . . . . . . . . 101.625%
2002 and thereafter . . . . . . . . . . . . 100%
Notwithstanding the foregoing, up to 25% in aggregate
principal amount of Notes originally Issued under this Indenture
will be redeemable from time to time prior to December 31, 1996,
at the option of the Company, from the net proceeds of one or
more public offerings of Capital Stock of the Company, at a
redemption price equal 108.75% of the principal amount thereof,
together with accrued and unpaid interest to the date of
redemption, subject to certain conditions set forth in this
Indenture.
In addition, the Notes will be subject to redemption (a
"Change of Control Redemption") at the option of the Company, in
whole or in part, at any time within 180 days after the later of
(a) a Change of Control Trigger Date and (b) the completion of an
Offer made as a result of a Change of Control, at a redemption
price equal to the sum of (i) the principal amount thereof, plus
(ii) accrued and unpaid interest to the redemption date, plus
(iii) the Applicable Premium, subject to certain conditions set
forth in this Indenture.
Prior to December 31, 1996 the Notes will be subject to
redemption (an "Asset Sale Redemption") at the option of the
Company, in whole or in part following an Asset Sale, in
connection with an Asset Sale Payment, from the Excess Proceeds
of an Asset Sale; provided that an Asset Sale Redemption may be
made by the Company only if, and to the extent that, each of the
following conditions is satisfied; (i) only two Asset Sale
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Redemptions will be permitted under the Indenture; (ii) the
maximum aggregate principal amount of Initial Notes that is
redeemable pursuant to an Asset Sale Redemption will be limited
to that amount which is necessary to make the ratio set forth in
Section 4.13(c) of the Indenture, given the amount of the
proposed Asset Sale Payment, equal to (but not more or less than)
4.5:1, and (iii) after giving effect to the proposed Asset Sale
Redemption, at least $100 million in principal amount of Notes
will remain outstanding. In the event of an Asset Redemption the
Notes will be redeemable at the redemption prices (expressed as
percentages of the principal amount of the Notes) set forth
below, plus any accrued and unpaid interest to the date of
redemption, if redeemed during the periods indicated below.
Period Percentage
February 15, 1994 to July 31, 1994102.00%
August 1, 1994 to February 14, 1995103.00%
February 15, 1995 to December 31, 1996108.75%
6. Mandatory Offers. (a) Within 60 days after any Change
of Control Trigger Date or within 10 Business Days after any
Asset Sale Trigger Date, the Company shall mail a notice to each
Holder stating a number of items as set forth in Section 3.8 of
the Indenture.
(b) Holders may tender all or, subject to Section 8
below, any portion of their Notes in an Offer by completing the
form below entitled "OPTION OF HOLDER TO ELECT PURCHASE."
(c) Notwithstanding Section 5 above, the Company shall
not be required to commence an Offer as a result of a Change of
Control if, within 30 days of the Change of Control Trigger Date,
the Company notifies the Holders that all outstanding Notes will
be redeemed pursuant to a Change of Control Redemption.
(d) Promptly after consummation of an Offer, (i) the
Paying Agent shall mail to each Holder of Notes or portions
thereof accepted for payment an amount equal to the purchase
price for, plus any accrued and unpaid interest on, such Notes,
(ii) with respect to any tendered Note not accepted for payment
in whole or in part, the Trustee shall return such Note to the
Holder thereof, and (iii) with respect to any Note accepted for
payment in part, the Trustee shall authenticate and mail to each
such Holder a new Note equal in principal amount to the
unpurchased portion of the tendered Note.
(e) The Company will (i) publicly announce the results
of the Offer to Holders on or as soon as practicable after the
Purchase Date, and (ii) comply with Rule 14e-1 under the
Securities Exchange Act of 1934, as amended, and any other
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securities laws and regulations to the extent applicable to any
Offer.
7. Notice of Redemption or Purchase. At least 30 days but
not more than 60 days before any Redemption ate the Company shall
mail by first class mail a notice of redemption to each Holder of
Notes or portions thereof that are to be redeemed.
8. Notes to be Redeemed or Purchased. The Notes may be
redeemed or purchased in part, but only in whole multiples of
$1,000 unless all Notes held by a Holder are to be redeemed or
purchased. On or after any date on which Notes are redeemed or
purchased, interest ceases to accrue on the Notes or portions
thereof called for redemption or accepted for purchase on such
date.
9. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and
integral multiples thereof. The transfer of Notes may be
registered and Notes may be exchanged as provided in the
Indenture. Holders seeking to transfer or exchange their Notes
may be required, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar
need not exchange or register the transfer of any Note or portion
of a Note selected for redemption or tendered pursuant to an
Offer.
10. Persons Deemed Owners. The registered holder of a Note
may be treated as its owner for all purposes.
11. Amendments and Waivers. (a) Subject to certain
exceptions, the Indenture and the Notes may be amended or
supplemented with the written consent of the Holders of at least
a majority in aggregate principal amount of the then outstanding
Notes, and any existing Default or Event of Default or compliance
with any provision of the Indenture or the Notes may be waived
with the consent of the Holders of at least a majority in
principal amount of the then outstanding Notes.
(b) Notwithstanding Section 11(a) above, the Company
and the Trustee may amend or supplement the Indenture or the
Notes without the consent of any Holder to: cure any ambiguity,
defect or inconsistency; provide for uncertificated Notes in
addition to or in place of certificated Notes; provide for the
assumption of the Company's obligations to the Holders in the
event of any Disposition involving the Company that is permitted
under Article 5 of the Indenture and in which the Company is not
the Surviving Person; make any change that would provide any
additional rights or benefits to Holders or not adversely affect
the legal rights under the Indenture of any Holder; or comply
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<PAGE>
with the requirements of the Commission in order to effect or
maintain the qualification of the Indenture under the Trust
Indenture Act.
(c) Certain provisions of the Indenture cannot be
amended, supplemented or waived without the consent of each
Holder of Notes affected. Additionally, certain provisions of
the Indenture cannot be amended or modified without the consent
of at least a majority of the outstanding principal amount of
each class of Senior Indebtedness of the Company outstanding.
12. Defaults and Remedies. Events of Default include: (i)
default for 30 days in the payment when due of interest on the
Notes (whether or not prohibited by the subordination provisions
of the Indenture); (ii) default in the payment when due of
principal on the Notes (whether or not prohibited by the
subordination provisions of the Indenture); (iii) failure by the
Company for 30 days after receipt of notice from the Trustee or
Holders of at least 25% of the outstanding Notes to comply with
any other provisions of the Indenture or the Notes; (iv) default
under any mortgage, indenture or instrument under which there may
be Issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its
Significant Subsidiaries (or the payment of which is guaranteed
by the Company or any of its Significant Subsidiaries) whether
such Indebtedness now exists, or is created after the Issue Date,
if (A) such default results in the acceleration of such
Indebtedness prior to its express maturity or shall constitute a
default in the payment of such Indebtedness at final maturity of
such Indebtedness, and (B) the principal amount of any such
Indebtedness that has been accelerated or not paid at maturity,
when added to the aggregate principal amount of all other such
Indebtedness that has been accelerated or not paid at maturity,
exceeds $10,000,000; (v) failure by the Company or any of its
Significant Subsidiaries to pay final judgments, the uninsured
portion of which exceeds $10,000,000, which judgments are not
paid, discharged, bonded or stayed for a period of 60 days after
the date of entry thereof, (vi) if under any Bankruptcy Law, (A)
the Company or any Significant Subsidiary commences a voluntary
case, consents to the entry of an order for relief against it in
an involuntary case, consents to the appointment of a Custodian
of it or for all or substantially all of its property, or makes a
general assignment for the benefit of its creditors, or (B) a
court of competent jurisdiction enters an order or decree, and
such order or decree remains unstayed and in effect for 60 days,
that is for relief against the Company or any Significant
Subsidiary in an involuntary case, appoints a Custodian of the
Company or any Significant Subsidiary or for all or substantially
all of the Property of the Company or any Significant Subsidiary,
or orders the liquidation of the Company or any Significant
Subsidiary; and (vii) any of the Applicable Documents shall
cease, for any reason, to be in full force and effect in any
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<PAGE>
material respect, except as a result of an amendment, waiver or
termination thereof as contemplated or permitted hereby or the
Company shall so assert in writing.
13. Subordination. All Obligations owed under and in
respect of the Notes are subordinated in right of payment, to the
extent and in the manner provided in Article 10 of the Indenture,
to the prior payment in full in cash of all Obligations owed
under and respect of all Senior Indebtedness of the Company, and
that the subordination of the Notes is for the benefit of all
holders of all Senior Indebtedness of the Company, whether
outstanding on the Issue Date or Issued thereafter. The Company
agrees, and each Holder by accepting a Note agrees, to the
subordination.
14. Trustee Dealings with Company. The Trustee in its
individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Company or any of its
Affiliates with the same rights it would have if it were not
Trustee.
15. No Recourse Against Others. No director, officer,
employee, incorporator or shareholder of the Company or the
Trustee shall have any liability for any obligation of the
Company under the Indenture or the Notes or for any claim based
on, in respect of, or by reason of, any such obligation or the
creation of any such obligation. Each Holder by accepting a Note
waives and releases such Persons from all such liability, and
such waiver and release is part of the consideration for the
Issuance of the Notes.
16. Successor Substituted. Upon the merger, consolidation
or other business combination involving the Company or upon the
sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the Company's
properties and assets, the Surviving Person (if other than the
Company) resulting from such Disposition shall succeed to, and be
substituted for, and may exercise every right and power of, the
Company under the Indenture with the same effect as if such
Surviving Person had been named as the Company in this Indenture.
17. Governing Law. This Note shall be governed by and
construed in accordance with the internal laws of the State of
New York, without regard to the conflict of laws provisions
thereof.
18. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
19. Abbreviations. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants
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<PAGE>
in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in
common), CUST (=Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
20. CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Note Identification
Procedures, the Company has caused CUSIP numbers to be printed on
the Notes and have directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either
as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other
identification numbers printed on the securities.
21. Indenture. The Company will furnish to any Holder
upon written request and without charge a copy of the Indenture,
which has in it the text of this Note in larger type. Requests
may be made to: Great American Communications Company, One East
Fourth Street, Cincinnati, Ohio 45202, Attn: Gregory Thomas,
Executive Vice President.
22. Certain Information Obligations. To the extent
permitted by applicable law or regulation, whether or not the
Company is subject to the requirements of Section 13 or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") the
Company shall file with the SEC all quarterly and annual reports
and such other information, documents or other reports (or copies
of such portions of any of the foregoing as the SEC may by rules
and regulations prescribe) required to be filed pursuant to such
provisions of the Exchange Act. The Company shall file with the
Trustee copies of the quarterly and annual reports and the
information, documents, and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and
regulations prescribe) that it is required to file with the SEC
pursuant to the Indenture. At any time when the Company is not
permitted by applicable law or regulations to file the
aforementioned reports, the Company shall furnish the Trustee and
the Holders with the information that the Company would have had
to provide to the SEC if the Company had been subject to
Section 13 or 15(d) of the Exchange Act. Also, at any time when
the Company is not permitted by applicable law or regulations to
file the aforementioned reports, upon the request of a Holder of
a Series A Note, the Company will promptly furnish or cause to be
furnished such information as is specified pursuant to
Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto) to such Holder or to a prospective purchaser
of such Series A Note, as the case may be, in order to permit
compliance by such Holder with Rule 144A under the Securities
Act.
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<PAGE>
ASSIGNMENT FORM
To assign this Note, fill in the form below:
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s)
and transfer(s) unto
Please insert social security or other
identifying number of assignee
Please print or typewrite name and address including postal
zip code of assignee
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing
________________________________________ to transfer said Note on
the books of the Company. The agent may substitute another to
act for him.
Date: Your Signature:
(Sign exactly as your
name appears on the other
side of this Note)
Signature Guarantee: _________________________
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Company
pursuant to Section 4.12 of the Indenture, check the box:
If you elect to have this Note purchased by the Company
pursuant to Section 4.13 of the Indenture, check the box:
If you elect to have only part of this Note purchased by the
Company pursuant to Section 4.12 or 4.13 of the Indenture, state
the amount (multiples of $1,000 only):
$
Date: Your Signature:
(Sign exactly as your
name appears on the other
side of this Note)
Signature Guarantee: _________________________
