<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) October 5, 1995
- --------------------------------------------------------------------------------
THE PROVIDENCE JOURNAL COMPANY
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE
- --------------------------------------------------------------------------------
(State or other jurisdiction of incorporation)
0-26928 05-0481966
- --------------------------------------------------------------------------------
(Commission File Number) (IRS Employer Identification No.)
75 Fountain Street, Providence, Rhode Island 02902
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 401-277-7000
----------------------------
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report)
<PAGE> 2
Item 5. Other Events.
On October 5, 1995, Registrant consummated the transactions contemplated by
(a) the Contribution and Assumption Agreement dated as of October 5, 1995 by and
between Providence Journal Company ("Providence Journal") and Registrant (the
"Contribution and Assumption Agreement"), (b) the Agreement and Plan of Merger,
dated as of November 18, 1994, as amended and restated as of August 1, 1995 (the
"Merger Agreement"), by and among Continental Cablevision, Inc. ("Continental"),
Providence Journal, the Registrant, King Holding Corp., a Delaware corporation
and a subsidiary of Providence Journal ("KHC"), and King Broadcasting Company, a
Washington corporation and a wholly owned subsidiary of KHC ("KBC"), and (c)
certain other related transactions. The Contribution and Assumption Agreement
and the Merger Agreement are each incorporated by reference herein.
Pursuant to the terms of the Merger Agreement, prior to the "Contribution"
(defined below), a subsidiary of Continental (a) loaned Providence Journal
approximately $408 million (the "New Cable Indebtedness") for the purposes
described below and (b) acquired all of the stock of King Videocable Company, a
Washington corporation and wholly-owned subsidiary of KBC ("KVC"), for a
purchase price of $405 million (the "King Cable Purchase"). KVC held all of the
cable television assets and businesses of KHC and KBC (the "King Cable
Business"). In addition, immediately following the King Cable Purchase,
Providence Journal completed the "Kelso Buyout" as defined below.
Pursuant to the terms of the Contribution and Assumption Agreement,
Providence Journal then contributed all of its non-cable business (including,
without limitation, all of the outstanding capital stock of KHC) to Registrant,
its wholly-owned subsidiary, and Registrant assumed all of the liabilities
related thereto (the "Contribution"). In exchange for the Contribution,
Registrant issued to Providence Journal a number of shares of Registrant's Class
A Common Stock and Registrant's Class B Common Stock equal to the number of
outstanding shares of Providence Journal Class A Common Stock and Providence
Journal Class B Common Stock, respectively. Following the Contribution,
Providence Journal distributed one share of Registrant's Class A Common Stock to
the holder of each share of Providence Journal Class A Common Stock and one
share of Registrant's Class B Common Stock to the holder of each share of
Providence Journal Class B Common Stock, each as outstanding immediately prior
to such distribution (the "Distribution"). The Contribution (and the assumption
of liabilities by Registrant in connection with the Contribution) and the
Distribution are hereinafter collectively referred to as the "PJC Spin-Off".
<PAGE> 3
After completion of the PJC Spin-Off, Providence Journal, which following
the PJC Spin-Off, held only Providence Journal's cable television businesses and
assets (the "Providence Journal Cable Business"), merged with and into
Continental, with Continental as the surviving corporation (the "Merger").
Each of such transactions are described in more detail below.
New Indebtedness. Prior to the PJC Spin-Off, Providence Journal incurred
indebtedness to a subsidiary of Continental (the "Continental Subsidiary") in a
principal amount of approximately $408 million (the "New Cable Indebtedness").
Prior to the PJC Spin-Off, Providence Journal used the proceeds of the New Cable
Indebtedness, the $405 million provided by the Continental Subsidiary for the
King Cable Purchase and the "NPJ Indebtedness" (as defined below) as follows:
(i) to consummate the Kelso Buyout (as defined below) for a purchase price of
$265 million, including $5 million in transaction fees, (ii) to repay
substantially all existing indebtedness of Providence Journal and KBC in an
aggregate amount of approximately $623 million, (iii) to make a current payment
due in the approximate amount of $7.3 million in connection with the purchase in
1987 by Providence Journal of shares of Providence Journal Common Stock from a
former stockholder, and (iv) to pay other costs associated with the Merger and
the NPJ Indebtedness in the amount of approximately $22.5 million. Additional
indebtedness required to meet the foregoing obligations, among others, was
incurred by Providence Journal and Registrant in a principal amount of
approximately $105 million (the "NPJ Indebtedness"). Following the PJC Spin-Off,
Registrant had no obligations or liabilities with respect to the New Cable
Indebtedness, and Continental had no obligations or liabilities with respect to
the NPJ Indebtedness. The working capital and capital expenditure adjustments
required by the Merger Agreement of approximately $250,000 were deducted from
the total amount of New Cable Indebtedness which could have been borrowed by
Providence Journal from the Continental Subsidiary as were a variety of fees and
expenses which Continental and Providence Journal had agreed to share.
Approximately $35 million of deferred compensation and severance payments to
Providence Journal executives (including cable executives) were paid on
September 29, 1995 and funded from the existing Providence Journal credit
facility as well as a bridge loan from Fleet National Bank in the amount of
approximately $10 million which bridge loan was paid in full on October 5, 1995.
KBC is expected to have to pay approximately $120 million in taxes as a result
of the King Cable Purchase. In order to assure Continental that such taxes will
be paid, as
-3-
<PAGE> 4
part of the NPJ Indebtedness, a $120 million letter of credit was issued to
Continental.
King Cable Purchase. Prior to the Kelso Buyout, pursuant to the terms of
the Merger Agreement, Continental purchased from KBC the King Cable Business,
for a cash purchase price of $405 million. In connection with, and as part of,
the King Cable Purchase, Registrant assumed and agreed to hold Continental
harmless from all liabilities of KBC (including, without limitation, federal and
state income taxes payable as a result of the King Cable Purchase).
Kelso Buyout. Prior to the Kelso Buyout, Kelso Investment Associates IV,
L.P., Kelso Partners IV, L.P. and Kelso Equity Partners II, L.P., each a
Delaware limited partnership (the "Kelso Partnerships"), owned, or held a
warrant providing the Kelso Partnerships with a right to acquire, 50% of the
capital stock of KHC (the "Kelso Securities"), which in turn owned and
controlled 100% of the capital stock of KBC. Providence Journal used a portion
of the proceeds of the New Cable Indebtedness, together with a portion of the
proceeds from the NPJ Indebtedness, to acquire the Kelso Securities for a
purchase price of $265 million, including $5 million in transaction fees (the
"Kelso Buyout"). Following the Kelso Buyout, KHC was a wholly-owned subsidiary
of Providence Journal.
PJC Spin-Off. Prior to the Merger, Providence Journal consummated the PJC
Spin-Off. In connection with, and as part of the PJC Spin-Off, Registrant
assumed and agreed to hold Providence Journal (and Continental following the
Merger) harmless from all liabilities of Providence Journal (including, without
limitation, the NPJ Indebtedness and substantially all tax liabilities which
arise in connection with the King Cable Purchase) other than the New Cable
Indebtedness and liabilities associated with the PJC Cable Business and
Providence Journal's obligations under the Contribution and Assumption
Agreement. Providence Journal, in turn, agreed to hold Registrant harmless from
such unassumed liabilities, which will become liabilities of Continental
pursuant to the Merger.
Pursuant to the Contribution and Assumption Agreement, Registrant agreed
that for a period of four years from the effective time of the Merger (the
"Effective Time"), it would not (i) sell, transfer, assign or otherwise dispose
of any material assets or (ii) declare, set aside or pay any dividend or other
distribution (with certain exceptions) in respect of its capital stock, or
redeem or otherwise acquire any of its capital stock, if, as a result of any
such transaction, Registrant would have a fair market value (determined on the
basis of a sale on a private market, going concern basis, free and clear of all
liabilities) of less than: (x) for the period to and including the first
anniversary of the Effective Time, $200 million,
-4-
<PAGE> 5
(y) for the period from such first anniversary to and including the second
anniversary of the Effective Time, $150 million and (z) for the period from the
second anniversary of the Effective Time to and including the fourth anniversary
of the Effective Time, $50 million. Registrant may proceed with any transaction
which would otherwise be prohibited by the foregoing if it provides security to
Continental in form and amount reasonably acceptable to Continental.
NPJ Indebtedness. Prior to the Effective Time of the Merger, Registrant and
Providence Journal entered into a Credit Agreement dated as of October 5, 1995
(the "Credit Agreement") with Fleet National Bank, as Administrative Agent, and
The First National Bank of Boston, The Chase Manhattan Bank, N.A., Chemical Bank
and The Toronto Dominion Bank, as Managing Agents, and the other lenders named
therein.
The Credit Agreement provided Providence Journal and Registrant with
maximum credit availability of $375 million. At the time of the Contribution,
the NPJ Indebtedness became an obligation of Registrant, and Providence Journal
was released from any further obligations or liabilities with respect thereto.
Prior to the Contribution, Providence Journal and Registrant used $225 million
of the maximum credit availability on the NPJ Indebtedness, including the draw
down of $105 million in cash and the issuance to Continental of a $120 million
letter of credit assuring payment of the estimated taxes resulting from the King
Cable Purchase. In addition, as part of the Contribution, Registrant agreed to
assume or discharge the obligations of Providence Journal pursuant to various
guaranty agreements entered into by Providence Journal in connection with
approximately $10 million of tax-exempt revenue bonds issued for the benefit of
a wholly-owned subsidiary of Providence Journal to finance the acquisition and
renovation of a parking garage in Providence, Rhode Island.
The Credit Agreement consists of a term loan and revolving credit
facilities. Credit availability under the Credit Agreement decreases quarterly
on a schedule commencing December 31, 1996, with a final maturity on June 30,
2004. The indebtedness evidenced by the Credit Agreement is secured by
guarantees from all of the material subsidiaries of Registrant and a first
priority pledge of all such material subsidiaries' capital stock.
The Credit Agreement permits Registrant to elect interest rates from time
to time, as to all or a portion of the borrowings made under the revolving
credit facilities based on the Eurodollar rate, the certificate of deposit rate
or the "base" rate of the agent, as from time to time in effect, plus the
"spread" over such rates. The actual amount of the
-5-
<PAGE> 6
"spread" over such rates will be determined by the ratio of the total debt of
Registrant to the operating cash flow of Registrant (earnings before
depreciation, interest expense and taxes with certain additional adjustments).
At the time of the initial advance under the Credit Agreement, the "spread" was
0.00 percent over the "base" rate, 1.125 percent over the Eurodollar rate and
1.250 percent over the certificate of deposit rate for the revolving credit
facilities.
The Registrant borrowed $75 million under the term loan facility which is
the full amount of such facility. The term loan facility bears interest at a
rate per annum equal to the Eurodollar rate plus a "spread" over the Eurodollar
rate which is .125 percent higher than the applicable "spread" for the revolving
credit facilities.
In connection with the Credit Agreement, Registrant will maintain
Providence Journal's interest rate hedging arrangements in the notional amounts
of $200 million in 1996, $175 million in 1997 and $150 million in 1998 and 1999.
The Credit Agreement contains customary events of default, financial
covenants, covenants restricting the incurrence of debt (other than the
indebtedness evidenced by the Credit Agreement), investments and encumbrances on
assets and covenants limiting mergers and acquisitions. The Credit Agreement
provides for the mandatory prepayment of amounts outstanding and a reduction in
the commitment under certain circumstances.
The Merger. Pursuant to the terms of the Merger Agreement, Providence
Journal (which, at the time of the Merger, owned only the Providence Journal
Cable Business) merged with and into Continental. After the Merger, the separate
existence of Providence Journal ceased, and Continental acquired the PJC Cable
Business and assumed the New Cable Indebtedness and substantially all of the
liabilities of Providence Journal relating to the PJC Cable Business.
In the Merger, each share of Providence Journal Common Stock outstanding
immediately prior to the Merger was converted into 353.302765 shares of
Continental Class A Common Stock.
-6-
<PAGE> 7
Restrictions on Transfer of Continental Merger Stock and Registrant Common
Stock. In order to protect the tax-free nature of the PJC Spin-Off and the
Merger, for a period of one year following the Effective Time, the Continental
Merger Stock will be subject to restrictions on transfer (the "Transfer
Restrictions") set forth in the Continental Amended and Restated By-Laws (the
"Continental By-Laws"), which will prohibit all transfers, sales, assignments or
other dispositions of Continental Merger Stock by the former Providence Journal
stockholders except for transfers not for value, including but not limited to,
gifts, bequests, transfers pursuant to the terms of a trust or the laws of
descent and distribution, or transfers by operation of law upon bankruptcy,
liquidation, or dissolution of a stockholder, to certain "permitted transferees"
(defined in the Continental By-Laws). The shares of Registrant's Common Stock
received in the PJC Spin-Off are subject to transfer restrictions that are
identical to the Transfer Restrictions.
Item 7. Financial Statements and Exhibits.
(a) Financial Statements
Not applicable.
(b) Pro Forma Financial Statements
Not applicable.
-7-
<PAGE> 8
(c) Exhibits
The following exhibits are filed as part of this report:
2.1 Agreement and Plan of Merger dated as of November 18, 1994, by and
among Continental Cablevision, Inc., Providence Journal Company,
Registrant, King Holding Corp. and King Broadcasting Company, as
amended and restated as of August 1, 1995 (incorporated by reference to
Annex 1 to the Joint Proxy Statement-Prospectus dated August 31, 1995
included in Registrant's Form S-4 (No. 33-57479)).
2.2 Contribution and Assumption Agreement dated as of October 5, 1995 by
and between Providence Journal Company and Registrant (incorporated by
reference to Exhibit C to Annex 1 to the Joint Proxy
Statement-Prospectus dated August 31, 1995 included in Registrant's
Form S-4 (No. 33-57479)).
4 Credit Agreement dated as of October 5, 1995 among Providence Journal,
Registrant, Fleet National Bank, as Administrative Agent, The First
National Bank of Boston, The Chase Manhattan Bank, N.A., Chemical Bank
and The Toronto Dominion Bank, as Managing Agents and the other lenders
named therein.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed in its behalf
by the undersigned hereunto duly authorized.
THE PROVIDENCE JOURNAL COMPANY
Registrant
By /s/ John L. Hammond
-----------------------------
John L. Hammond
Vice President-Legal
Date: October 5, 1995
-8-
<PAGE> 1
EXHIBIT 4
CREDIT AGREEMENT
Dated as of October 5, 1995
Among
PROVIDENCE JOURNAL COMPANY
and
THE PROVIDENCE JOURNAL COMPANY
as Borrower
and
THE LENDERS NAMED HEREIN
as Banks
and
FLEET NATIONAL BANK
as Administrative Agent
and
THE FIRST NATIONAL BANK OF BOSTON,
THE CHASE MANHATTAN BANK, N.A.,
CHEMICAL BANK, and
THE TORONTO DOMINION BANK
as Managing Agents
<PAGE> 2
INDEX TO
CREDIT AGREEMENT
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS ................ 3
SECTION 1.01. Certain Defined Terms .................... 3
SECTION 1.02. Computation of Time Periods .............. 25
SECTION 1.03. Accounting Terms ......................... 25
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES AND THE
LETTERS OF CREDIT ........................ 26
SECTION 2.01. The Advances ............................. 26
SECTION 2.02. Making the Advances ...................... 27
SECTION 2.03. Repayment ................................ 30
SECTION 2.04. Optional Prepayment, and Optional and
Scheduled Reduction of the Commitments. .. 31
SECTION 2.05. Mandatory Prepayments and Reductions of
the Commitments. ......................... 31
SECTION 2.06. Interest ................................. 34
SECTION 2.07. Fees ..................................... 35
SECTION 2.08. Conversion of Advances ................... 35
SECTION 2.09. Increased Costs, Etc ..................... 36
SECTION 2.10. Payments and Computations ................ 37
SECTION 2.11. Taxes .................................... 39
SECTION 2.12. Sharing of Payments, Etc ................. 41
SECTION 2.13. Letter of Credit ......................... 42
SECTION 2.14. Use of Proceeds .......................... 44
ARTICLE III CONDITIONS OF LENDING .................... 45
SECTION 3.01. Conditions Precedent to Initial Borrowing 45
SECTION 3.02. Conditions Precedent to Each Borrowing. .. 49
ARTICLE IV REPRESENTATIONS AND WARRANTIES ........... 50
SECTION 4.01. Representations and Warranties of the
Borrower ................................. 50
ARTICLE V COVENANTS OF THE BORROWER ................ 55
SECTION 5.01. Affirmative Covenants .................... 55
SECTION 5.02. Negative Covenants ....................... 58
SECTION 5.03. Reporting Requirements ................... 62
SECTION 5.04. Financial Covenants ...................... 65
ARTICLE VI EVENTS OF DEFAULT ........................ 66
SECTION 6.01. Events of Default ........................ 66
SECTION 6.02. Actions in Respect of the Letter of Credit
Upon Default ............................. 69
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE VII THE AGENT ................................ 69
SECTION 7.01. Authorization and Action ................. 69
SECTION 7.02. Agent's Reliance, Etc .................... 70
SECTION 7.03. Fleet and Affiliates ..................... 70
SECTION 7.04. Lender Credit Decision ................... 70
SECTION 7.05. Indemnification .......................... 71
SECTION 7.06. Successor Agents ......................... 71
ARTICLE VIII MISCELLANEOUS ............................ 72
SECTION 8.01. Amendments, Etc........................... 72
SECTION 8.02. Notices, Etc ............................. 73
SECTION 8.03. No Waiver; Remedies ...................... 74
SECTION 8.04. Costs, Expenses and Taxes ................ 74
SECTION 8.05. Right of Set-off ......................... 76
SECTION 8.06. Binding Effect ........................... 76
SECTION 8.07. Assignments and Participations ........... 76
SECTION 8.08. Governing Law ............................ 79
SECTION 8.09. Execution in Counterparts ................ 79
SECTION 8.10. No Liability of the Issuing Bank ......... 79
SECTION 8.11. Confidentiality .......................... 80
SECTION 8.12. Waiver of Jury Trial ..................... 80
SECTION 8.13. Consent to Jurisdiction .................. 80
SECTION 8.14. Rights and Remedies Cumulative ........... 81
</TABLE>
ii
<PAGE> 4
SCHEDULES AND EXHIBITS:
Schedule I - Commitments and Applicable Lending Offices
Exhibit A-1 - Form of Term Note
Exhibit A-2 - Form of Revolving A Note
Exhibit A-3 - Form of Revolving B Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Compliance Certificate
Schedule 2.14 - Use of Proceeds
Schedule 3.01(j) - Existing Debt Remaining Outstanding
Schedule 4.01(a) - Loan Party Jurisdictions of Incorporation, Foreign
Qualification
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations and Approvals
Schedule 4.01(k) - Liens
Schedule 4.01(bb) - Network Affiliation Agreements
Schedule 5.02(a) - Existing Liens
iii
<PAGE> 5
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of October 5, 1995 among Providence
Journal Company, a Rhode Island corporation ("Old PJC"), The Providence Journal
Company, a Delaware corporation ("New PJC"), the banks listed on the signature
pages hereof (the "Banks"), and Fleet National Bank ("Fleet"), as administrative
agent (together with any successor appointed pursuant to Article VII, the
"Agent") for the Lenders hereunder, The First National Bank of Boston, The Chase
Manhattan Bank, N.A., Chemical Bank and The Toronto Dominion Bank, as managing
agents (the "Managing Agents") and the other Lenders which hereafter become
parties hereto.
PRELIMINARY STATEMENTS:
(1) Old PJC is currently engaged in various media-related businesses,
including newspaper publishing, television broadcasting and cable television.
Old PJC proposes to effect an internal reorganization which will result in all
of its assets not related to the cable television business being transferred to
New PJC, which will also assume all liabilities and obligations related to the
assets transferred (the "Spinoff"). Old PJC will retain all assets relating to
the cable television business, and will subsequently merge with and into
Continental Cablevision, Inc., a Delaware corporation ("Continental"), which
will be the surviving corporation (the "Merger").
(2) Old PJC and New PJC have requested that the Lenders lend to them up to
$375,000,000 in term and revolving loans, in order to effect, among other
things, the Spinoff, the Merger and the transactions contemplated thereby. Upon
the consummation of the Spinoff, New PJC proposes to use the credit facilities
hereunder for working capital and general corporate purposes, and Old PJC and
its successors and assigns shall be released from all obligations and
liabilities hereunder, all as more fully set forth herein. The Lenders have
indicated their willingness to lend such amounts on the terms and conditions of
this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
<PAGE> 6
-2-
"Adjusted CD Rate" means, for any Interest Period for each CD Rate Advance
comprising part of the same Borrowing, an interest rate per annum equal to the
sum of:
(a) the rate per annum obtained by dividing (i) the rate of interest
determined by the Agent to be the average (rounded upward, if necessary, to
the nearest 1/100 of 1% per annum) of the rates per annum determined by the
Reference Lenders at 9:00 A.M. (New York City time) (or as soon thereafter
as practicable) on the first day of such Interest Period, as the average of
the bid rates of New York certificate of deposit dealers of recognized
standing selected by each Reference Lender for the purchase at face value
of certificates of deposit of such Reference Lender in an amount
substantially equal to such Reference Lender's CD Rate Advance comprising
part of such Borrowing and with a maturity equal to such Interest Period,
by (ii) a percentage equal to 100% minus the Adjusted CD Rate Reserve
Percentage (as defined below) for such Interest Period, plus
(b) the Assessment Rate (as defined below) for such Interest Period.
"Adjusted CD Rate Reserve Percentage" for the Interest Period for each CD Rate
Advance comprising part of the same Borrowing means the reserve percentage
applicable on the first day of such Interest Period under regulations issued
from time to time by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve requirement (including, but
not limited to, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System with deposits
exceeding one billion Dollars with respect to liabilities consisting of
non-personal Dollar time deposits in the United States with a maturity equal to
such Interest Period. The "Assessment Rate" for the Interest Period for each CD
Rate Advance comprising part of the same Borrowing means the annual assessment
rate estimated by the Agent on the first day of such Interest Period for
determining the then current annual assessment payable by the Agent to the
Federal Deposit Insurance Corporation (or any successor) for insuring Dollar
deposits of the Agent in the United States. The Adjusted CD Rate for each
Interest Period for each CD Rate Advance comprising part of the same Borrowing
shall be determined by the Agent on the basis of applicable rates furnished to
and received by the Agent from the Reference Lenders on the first day of such
Interest Period. If any Reference Lender fails to provide its bid rate to the
Agent, the Adjusted CD Rate shall be determined on the basis of the offered
quotation(s) of the other Reference Lender(s).
<PAGE> 7
-3-
"Adjusted Operating Cash Flow" means, for any period, Operating Cash Flow for
such period, plus the lesser of (i) the sum of cash held by the Borrower plus an
amount equal to the Unused Revolving Commitment (to the extent the Borrower is
permitted to borrow the same), both as of the end of such period and (ii)
$10,000,000; minus (from the sum of Operating Cash Flow and the lesser of (i)
and (ii)) the sum of the aggregate amount of Capital Expenditures made by the
Borrower and its Subsidiaries during such period plus the aggregate amount paid
by the Borrower to purchase shares of its capital stock during such period.
"Advance" means a Term Advance, a Revolving A Advance, a Revolving B Advance, a
Swing Line Advance or a Letter of Credit Advance.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling," "controlled
by" and "under common control with") of a Person means the possession, direct or
indirect, of the power to vote 5% or more of the Voting Stock of such Person or
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"Agent" has the meaning specified in the recital of parties to this Agreement.
"Agent's Account" means the account of the Agent maintained by the Agent with
Fleet at its office at 111 Westminster Street, Providence, Rhode Island 02903,
Account No. 151035103101, Attention: Treasurer.
"Applicable Lending Office" means, with respect to each Lender, such Lender's
Domestic Lending Office in the case of a Base Rate Advance, such Lender's CD
Lending Office in the case of a CD Rate Advance, and such Lender's Eurodollar
Lending Office in the case of a Eurodollar Rate Advance.
"Applicable Revolving Margin" means a percentage per annum determined by
reference to the ratio of total Debt for Borrowed Money to Operating Cash Flow,
as set forth below:
<TABLE>
<CAPTION>
Base Rate Eurodollar CD Rate
Ratio Advances Advances Advances
- ----- --------- ---------- --------
<S> <C> <C> <C>
greater than 5.0:1.0 0.75% 1.875% 2.000%
greater than 4.5:1.0
but less than or equal
to 5.0:1.0 0.50% 1.625% 1.750%
</TABLE>
<PAGE> 8
-4-
<TABLE>
<S> <C> <C> <C>
greater than 4.0:1.0
but less than or equal
to 4.5:1.0 0.25% 1.375% 1.500%
greater than or equal to
3.0:1.0,
but less
than or equal to 4.0:1.0 0.00% 1.125% 1.250%
less than 3.0:1.0 0.00% 0.875% 1.000%
</TABLE>
Any change in the Applicable Revolving Margin required pursuant to the
foregoing shall become effective on the fifth day after receipt by the
Agent of the Borrower's most recent financial statement and Compliance
Certificate of the Borrower delivered pursuant to Section 3.01(l)(xvi),
5.03(b) or 5.03(c); provided however, that in the event that the Borrower
fails to provide any financial statement on a timely basis in accordance
with Section 5.03(b) or 5.03(c), any interest rate increase payable as a
result thereof shall be retroactively effective to the date on which the
financial statement in question should have been received by the Agent in
accordance with Section 5.03, and the Borrower shall pay any amount due as
a result thereof upon written demand from the Agent.
"Applicable Term Margin" means a percentage per annum determined by
reference to the ratio of total Debt for Borrowed Money to Operating Cash
Flow, as set forth below:
<TABLE>
<CAPTION>
Margin Over
Ratio Eurodollar Advances
- ----- -------------------
<S> <C>
greater than 5.0:1.0 2.000%
greater than 4.5:1.0
but less than or equal
to 5.0:1.0 1.750%
greater than 4.0:1.0
but less than or equal
to 4.5:1.0 1.500%
greater than or equal to
3.0:1.0,
but less than
or equal to 4.0:1.0 1.250%
less than 3.0:1.0 1.000%
</TABLE>
Any change in the Applicable Term Margin required pursuant to the foregoing
shall become effective on the fifth day after receipt by the Agent of the
Borrower's most recent financial statement and Compliance Certificate for a
fiscal quarter of the Borrower delivered pursuant to Section 3.01(l)(xvi),
<PAGE> 9
-5-
5.03(b) or 5.03(c); provided however, that in the event that the Borrower
fails to provide any financial statement on a timely basis in accordance
with Section 5.03(b) or 5.03(c), any interest rate increase payable as a
result thereof shall be retroactively effective to the date on which the
financial statement in question should have been received by the Agent in
accordance with Section 5.03, and the Borrower shall pay any amount due as
a result thereof upon written demand from the Agent.
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an Eligible Assignee, and accepted by the Agent, in
accordance with Section 8.07 and in substantially the form of Exhibit C
hereto.
"Available Amount of the Letter of Credit" means, at any time, the maximum
amount available to be drawn under the Letter of Credit at such time.
"Bank" has the meaning specified in the recital of parties hereto.
"Base Rate" means a fluctuating interest rate per annum in effect from time
to time, which rate per annum shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by the Agent from time to
time as the Agent's "prime rate" or "base rate" (it being understood
that such rate of interest may not be the lowest rate of interest from
time to time charged by the Agent), such interest rate to be adjusted
on the effective date of any change thereof by the Agent; and
(b) one half of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest determined with
reference to the Base Rate, as provided in Section 2.06(a)(i).
"Borrowed Money" means any obligation to repay funded Debt, any Debt
evidenced by notes, bonds, debentures, guaranties or similar obligations,
including, without limitation, the obligations hereunder and any obligation
under a conditional sale or other title retention agreement, the net
aggregate rentals under any Capitalized Lease or any lease which is the
substantial equivalent of the financing of the property so leased, any
reimbursement obligation for any letter of credit, and any obligations in
respect of banker's and other acceptances or similar obligations.
"Borrower" means during the period from the Closing Date through the
consummation of the Spinoff, Old PJC and New PJC and, upon the consummation
of the Spinoff, New PJC only.
<PAGE> 10
-6-
"Borrower's Account" means the account of the Borrower maintained by the
Borrower with Fleet at its office at 111 Westminster Street, Providence,
Rhode Island 02903, Account No. 9392098430.
"Borrowing" means the Term Loan, a Revolving A Borrowing, a Revolving B
Borrowing or a Swing Line Borrowing.
"Borrowing Group" means the Borrower, the Subsidiaries of the Borrower
listed on Schedule 4.01(b) and designated as Material Subsidiaries, and any
other Subsidiary of the Borrower Consolidated with the operations of the
Borrower for purposes of the Borrower's financial statements.
"Broadcast License" means (a) all main broadcast television licenses
granted by the FCC in connection with the television stations currently
owned or hereafter acquired by the Borrower, (b) all other licenses,
authorizations, or permits granted by the FCC, the Federal Aviation
Administration, or any other federal, state, or local governmental
authority in connection with the construction, ownership, operation, or
promotion of the television stations currently owned or hereafter acquired
by the Borrower, the absence of which individually or collectively could
have a Material Adverse Effect, and (c) all extensions and renewals of the
licenses, authorizations and permits referred to in the foregoing clauses
(a) and (b).
"Business Day" means (i) for all purposes other than as covered by clause
(ii) below, any day on which banks in Providence, Rhode Island or New York,
New York are not authorized or required to close; and (ii) with respect to
all notices and determinations in connection with, and payments of
principal and interest on, Eurodollar Rate Advances, any day which is a
Business Day described in clause (i) and which is also a day for trading by
and between banks in Dollar deposits in the London interbank market.
"Capital Expenditures" means all expenditures paid or incurred by the
Borrower or any of its Subsidiaries in respect of (i) the acquisition,
construction, improvement or replacement of land, buildings, machinery,
equipment or any other fixed assets or leaseholds, and (ii) to the extent
related to and not included in (i) above, materials, contract labor and
direct labor, which expenditures have been or should be, in accordance with
GAAP, capitalized on the books of the Borrower or such Subsidiary. Where a
fixed asset is acquired by a lease which is required to be capitalized
pursuant to statement of Financial Accounting Standards Number 13 or any
successor thereto, the amount required to be capitalized in accordance
therewith shall be considered to be an expenditure in the year such asset
is first leased.
"Capitalized Leases" has the meaning specified in clause (e) of the
definition of Debt.
<PAGE> 11
-7-
"Cash Equivalents" means any of the following, to the extent owned by the
Borrower free and clear of all Liens: (a) readily marketable direct
obligations of the government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the
full faith and credit of the government of the United States, having a
maturity of not greater than two years from the date of acquisition
thereof, (b) insured certificates of deposit or eurodollar time deposits
having a maturity of not greater than 180 days from the date of acquisition
thereof with a Lender or with any commercial bank having combined capital,
surplus and undivided profits of $100,000,000 or more and having a
long-term debt rating of not less than "A" from Standard & Poor's Ratings
Group or the equivalent rating from another nationally recognized rating
agency, or (c) commercial paper having a maturity of not greater than 180
days from the date of acquisition thereof, issued by any corporation
organized under the laws of any State of the United States and rated the
highest rating available for commercial paper from a nationally recognized
rating agency.
"CD Lending Office" means, with respect to any Lender, the office of such
Lender specified as its "CD Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which it became a
Lender, or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Agent.
"CD Rate Advance" means an Advance that bears interest determined with
reference to the Adjusted CD Rate, as provided in Section 2.06(a)(iii).
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980.
"Claim" has the meaning specified in Section 8.15 hereof.
"Closing Date" means the date on which all of the conditions precedent set
forth in Section 3.01 of this Agreement have been satisfied.
"Collateral" means all "Collateral" referred to in the Collateral Documents
and all other property that is subject to any Lien in favor of the Agent,
the Lenders or the Issuing Bank.
"Collateral Documents" means the Pledge Agreement and all documents,
instruments and agreements executed in connection therewith.
"Commitment" means, as to each Lender, a Term Commitment, a Revolving A
Commitment, a Revolving B Commitment, or its Letter of Credit Commitment.
<PAGE> 12
-8-
"Compliance Certificate" shall mean each certificate to be delivered by the
Borrower pursuant to the terms hereof in the form of Exhibit D.
"Confidential Information" means information that the Borrower furnished to
the Agent or any Lender in a writing designated as confidential, but does
not include any such information that is or becomes generally available to
the public or that is or becomes available to the Agent or such Lender from
a source other than the Borrower.
"Consolidated" refers to the consolidation of accounts in accordance with
GAAP.
"Continental" has the meaning specified in the Preliminary Statements
hereto.
"Contribution Agreement" means the Contribution and Assumption Agreement
dated as of the Closing Date by and between Old PJC and New PJC.
"Conversion", "Convert" and "Converted" each refer to a conversion of
Advances of one Type into Advances of another Type pursuant to Section 2.08
or 2.09.
"Debt" of any Person means, without duplication, (a) all indebtedness of
such Person for borrowed money, (b) all Obligations of such Person for the
deferred purchase price of property or services; (c) all Obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments; (d) all Obligations of such Person created or arising under
any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property); (e) all Obligations of
such Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases ("Capitalized Leases");
(f) all Obligations, contingent or otherwise, of such Person under
acceptance, letter of credit or similar facilities; (g) all Obligations of
such Person in respect of Hedge Agreements; (h) all Debt of others referred
to in clauses (a) through (g) above guaranteed directly or indirectly in
any manner by such Person, or in effect guaranteed directly or indirectly
by such Person through an agreement (i) to pay or purchase such Debt or to
advance or supply funds for the payment or purchase of such Debt, (ii) to
purchase, sell or lease (as lessee or lessor) property, or to purchase or
sell services, primarily for the purpose of enabling the debtor to make
payment of such Debt or to assure the holder of such Debt against loss,
(iii) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered) or (iv)
otherwise to
<PAGE> 13
-9-
assure a creditor against loss; and (i) all Debt referred to in clauses (a)
through (g) above secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and contract rights) owned
by such Person, even though such Person has not assumed or become liable for
the payment of such Debt.
"Debt Service" means, for any period of the Borrower, the sum of the
Borrower's and its Subsidiaries' Interest Expense for such period, plus the
amount necessary to meet the regularly scheduled principal amortization on
the Term Loan and the scheduled reductions of the Revolving Commitments,
plus regularly scheduled payments on other Debt and Capitalized Leases of
the Borrower and its Subsidiaries for such period.
"Default" means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse
or both.
"Disclosed Litigation" has the meaning specified in Section
3.01(d).
"Dollars" and the sign "$" mean lawful money of the United
States of America.
"Domestic Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender, or such other office of such Lender as such Lender may from
time to time specify in writing to the Borrower and the Agent.
"EBITDA" means, for any period, Net Income of the Borrower and its
Consolidated Subsidiaries minus an amount equal to the aggregate of each of
the following to the extent the same were included in the calculation of Net
Income: (i) Trade Revenues, (ii) extraordinary gains, (iii) interest income,
and (iv) the Borrower's equity in the Net Income of any Affiliate which is
not a Consolidated Subsidiary; and plus an amount equal to the aggregate of
the following to the extent the same were deducted in the calculation of Net
Income: (v) Interest Expense, (vi) income taxes of the Borrower, (vii)
depreciation, amortization and extraordinary non-cash charges, (viii) Trade
Expenses and (ix) the Borrower's equity in the net losses of any Affiliate
which is not a Consolidated Subsidiary; in each case determined in
accordance with GAAP for such period.
"Eligible Assignee" means any Person approved by the Agent and the Borrower,
such approval not to be unreasonably withheld or delayed; provided, however,
that an Affiliate of the Borrower shall not qualify as an Eligible Assignee.
<PAGE> 14
-10-
"Environmental Action" means any administrative, regulatory or judicial
action, suit, demand, demand letter, claim, notice of non-compliance or
violation, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law or any Environmental Permit
including, without limitation, (a) any claim by any governmental or
regulatory authority for enforcement, cleanup, removal, response, remedial
or other actions or damages pursuant to any Environmental Law and (b) any
claim by any third party seeking damages, contribution, indemnification,
cost recovery, compensation or injunctive relief resulting from Hazardous
Materials or arising from alleged injury or threat of injury to health,
safety or the environment.
"Environmental Law" means any federal, state or local law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award relating
to the environment, health, safety or Hazardous Materials, including,
without limitation, CERCLA, the Resource Conservation and Recovery Act, the
Hazardous Materials Transportation Act, the Clean Water Act, the Toxic
Substances Control Act, the Clean Air Act, the Safe Drinking Water Act, the
Atomic Energy Act, the Federal Insecticide, Fungicide and Rodenticide Act
and the Occupational Safety and Health Act.
"Environmental Permit" means any permit, approval, identification number,
license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" of any Person means any other Person that for purposes of
Title IV of ERISA is a member of such Person's controlled group, or under
common control with such Person, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" with respect to any Person means (a) the occurrence of a
reportable event, within the meaning of Section 4043 of ERISA, with respect
to any Plan of such Person or any of its ERISA Affiliates unless the 30-day
notice requirement with respect to such event has been waived by the PBGC;
(b) the provision by the administrator of any Plan of such Person or any of
its ERISA Affiliates of a notice of intent to terminate such Plan, pursuant
to Section 4041(a)(2) of ERISA (including any such notice with respect to a
plan amendment referred to in Section 4041(e) of ERISA); (c) the cessation
of operations at a facility of such Person or any of its ERISA Affiliates in
the circumstances described in Section 4062(e) of ERISA; (d) the withdrawal
by such Person or any of its ERISA Affiliates from a Multiple Employer Plan
during a plan year for which it was a
<PAGE> 15
-11-
substantial employer, as defined in Section 4001(a)(2) of ERISA; (e) the
failure by such Person or any of its ERISA Affiliates to make a payment to a
Plan required under Section 302(f)(1) of ERISA; (f) the adoption of an
amendment to a Plan of such Person or any of its ERISA Affiliates requiring
the provision of security to such Plan, pursuant to Section 307 of ERISA; or
(g) the institution by the PBGC of proceedings to terminate a Plan of such
Person or any of its ERISA Affiliates, pursuant to Section 4042 of ERISA, or
the occurrence of any event or condition described in Section 4042 of ERISA
that could constitute grounds for the termination of, or the appointment of
a trustee to administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in Regulation D of the
Board of Governors of the Federal Reserve System, as in effect from time to
time.
"Eurodollar Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "Eurodollar Lending Office" opposite its name
on Schedule I hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify in writing to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for all Eurodollar Rate
Advances comprising part of the same Borrowing, an interest rate per annum
determined by the Agent (fixed throughout such Interest Period (subject to
adjustments for the Eurodollar Rate Reserve Percentage) and rounded upwards,
if necessary, to the next 1/16 of 1%) obtained by dividing (a) the rate of
interest determined by the Agent to be the average of the interest rates per
annum at which Dollar deposits in immediately available funds are offered to
each Reference Lender by first-class banks in the London interbank market at
approximately 11:00 A.M., London time, two Business Days prior to the
Business Day on which such Interest Period begins, in an amount
approximately equal to the principal amount of such Eurodollar Rate Advance,
for a period of time equal to such Interest Period by (b) a percentage equal
to 100% minus the Eurodollar Rate Reserve Percentage. If any Reference
Lender fails to provide its offered quotation to the Agent, the Eurodollar
Rate shall be determined on the basis of the offered quotation(s) of the
other Reference Lender(s). The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the
Eurodollar Rate Reserve Percentage.
"Eurodollar Rate Advance" means an Advance that bears interest determined
with reference to the Eurodollar Rate, as provided in Section 2.06(a)(ii).
<PAGE> 16
-12-
"Eurodollar Rate Reserve Percentage" means, with respect to any Interest
Period for all Eurodollar Rate Advances comprising part of the same
Borrowing, the average of the maximum effective rates (expressed as a
decimal) of the statutory reserve requirements under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, basic, emergency, supplemental or marginal reserve
requirements) applicable to each Reference Lender during such Interest
Period with respect to its Eurocurrency Liabilities, or which in any other
respect relate directly to the funding of loans bearing interest at rates
based on the interest rates at which Dollar deposits in immediately
available funds are offered to banks by first-class banks in the London
interbank market.
"Events of Default" has the meaning specified in Section
6.01.
"Excess Cash Flow" means, for any period, Operating Cash Flow for such
period, plus cash distributions received from Persons in which the Borrower
has an equity interest but which are not Consolidated for purposes of the
Borrower's financial statements, plus fees received by the Borrower for the
management of the assets of other Persons during such period, minus Debt
Service for such period, minus Capital Expenditures for such period, minus
income taxes actually paid in cash during such period, minus (to the extent
permitted to be paid by this Agreement) cash dividends actually paid in cash
during such period, minus (to the extent permitted to be paid by this
Agreement) the aggregate purchase price paid in cash by the Borrower to
acquire shares of its capital stock during such period, minus deferred
compensation payments made in cash during such period, and minus Investments
permitted by Section 5.02(e)(iv) made in cash.
"Existing Debt" means Debt of Old PJC and its Subsidiaries outstanding
immediately before giving effect to the Spinoff.
"Existing or Identified Investments" means the Borrower's Investments or
ownership interests in America's Health Network, Inc., a Delaware
corporation, Television Food Network, G.P., a Delaware general partnership,
Peapod, L.P., an Illinois limited partnership, StarSight Telecast, Inc., a
California corporation, and Partners Station Network, L.P., a California
limited partnership.
"Facility" means the Term Facility, the Revolving A Facility,
the Revolving B Facility or the Swing Line Facility.
"FCC" means the Federal Communications Commission, or any successor agency
or entity performing substantially the same functions.
<PAGE> 17
-13-
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the quotations
for such day for such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by it.
"Fixed Charges" means, for any period, Debt Service, distributions paid in
cash by the Borrower to the holders of the shares of its capital stock
during such period (other than with respect to repurchases of such capital
stock by the Borrower), and income taxes actually paid in cash during such
period; provided, however, that, for any period, income taxes attributable
to the Net Income of Persons in which the Borrower has an equity interest
but which are not Consolidated for the purposes of the Borrower's financial
statements shall be excluded from the calculation of Fixed Charges to the
extent that the Borrower receives a distribution in cash from such Person
during such period.
"Fleet" has the meaning specified in the recital of parties
to this Agreement.
"GAAP" has the meaning specified in Section 1.03.
"Guarantor" means each Material Subsidiary of the Borrower.
"Guaranty" means, collectively, each of the separate Guaranties executed by
each Guarantor on the Closing Date, and each Guaranty executed by a Material
Subsidiary at any time after the Closing Date.
"Hazardous Materials" means (a) petroleum or petroleum products, natural or
synthetic gas, asbestos in any form that is or reasonably could be
anticipated to become friable, urea formaldehyde foam insulation and radon
gas, (b) any substances defined as or included in the definition of
"hazardous substances," "hazardous wastes," "hazardous materials,"
"extremely hazardous wastes," "restricted hazardous wastes," "toxic
substances," "toxic pollutants," "contaminants" or "pollutants," or words of
similar import, under any Environmental Law and (c) any other substance
exposure to which is regulated under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
"Indemnified Party" has the meaning specified in Section
8.04(b).
<PAGE> 18
-14-
"Information Memorandum" means the information memorandum dated August, 1995
used by the Agent in connection with the syndication of the Commitments.
"Insufficiency" means, with respect to any Plan, the amount, if any, of its
unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Interest Expense" means, with respect to any period, the aggregate amount
required to be paid by the Borrower and its Subsidiaries for interest, fees,
charges and expenses, however characterized, on its Debt, including, without
limitation, all such interest, fees, charges and expenses accrued and
required to be paid with respect to Debt under the Loan Documents.
"Interest Period" means, for each Eurodollar Rate Advance or CD Rate Advance
comprising part of the same Borrowing, the period commencing on the date of
such Advance or the date of the Conversion of any Advance into a Eurodollar
Rate Advance or CD Rate Advance, and ending on the last day of the period
selected by the Borrower pursuant to the provisions below and, thereafter,
each subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period selected
by the Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months in the case of a
Eurodollar Rate Advance and 30, 60, 90 or 180 days in the case of a CD Rate
Advance, as the Borrower may, upon notice received by the Agent not later
than 11:00 A.M. (Providence, Rhode Island time) on the third Business Day
prior to the first day of such Interest Period, select; provided, however,
that:
(a) the Borrower may not select any Interest Period with respect to the
Term Loan that ends after the Term Maturity Date, and may not select any
Interest Period with respect to any Revolving Advance that ends after the
Revolving Termination Date;
(b) Interest Periods commencing on the same date for
Advances comprising part of the same Borrowing shall be of
the same duration;
(c) whenever the last day of any Interest Period would otherwise occur on
a day other than a Business Day, the last day of such Interest Period shall
be extended to occur on the next succeeding Business Day, provided, however,
that, if such extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of such Interest
Period shall occur on the next preceding Business Day;
<PAGE> 19
-15-
(d) whenever the first day of any Interest Period occurs on a day of an
initial calendar month for which there is no numerically corresponding day
in the calendar month that succeeds such initial calendar month by the
number of months equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such succeeding
calendar month;
(e) no more than 7 Interest Periods may exist at any one
time; and
(f) no Interest Period may be selected such that a mandatory scheduled
reduction of the Revolving A Commitment or Revolving B Commitment pursuant
to Section 2.04((b) would require a prepayment of the Advances to which such
Interest Period applies.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder.
"Investment" in any Person means any loan or advance to such Person, any
purchase or other acquisition of any capital stock, warrants, rights,
options, obligations or other securities of such Person, any capital
contribution to such Person or any other investment in such Person,
including, without limitation, any arrangement pursuant to which the
investor incurs Debt of the types referred to in clauses (h) and (i) of the
definition of "Debt" in respect of such Person.
"Issuing Bank" means Fleet, as issuer of the Letter of Credit.
"Lenders" means the lenders listed on the signature pages hereof and each
Eligible Assignee that shall become a party hereto pursuant to Section 8.07.
"L/C Related Documents" has the meaning specified in Section 2.13(d)(i).
"Letter of Credit" has the meaning specified in Section 2.13(a).
"Letter of Credit Advance" means an advance made by the Lenders pursuant to
Section 2.13(c).
"Letter of Credit Agreement" has the meaning specified in Section 2.13(b).
"Letter of Credit Commitment" means, with respect to the Issuing Bank, its
commitment to issue the Letter of Credit in the original face amount of
$120,000,000, and with respect to each other Lender, its pro rata
participation pursuant to Section 2.13(c).
<PAGE> 20
-16-
"Lien" means any lien, security interest or other charge or encumbrance of
any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor and
any easement, right of way or other encumbrance on title to real property.
"Loan Documents" means this Agreement, the Notes, the Guaranties, the
Collateral Documents and the Letter of Credit Agreement.
"Loan Parties" means the Borrower and the Guarantors.
"Lowell Sun Note" means, collectively, the $26,000,000 Note and the
$6,500,000 Revolving Note from Lowell Sun Publishing Company and Lowell Sun
Realty Company payable to Old PJC.
"Managing Agents" has the meaning specified in the recital of parties to
this Agreement.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in the business,
condition (financial or otherwise), operations, performance or properties of
the Borrower and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance or
properties of the Borrower and its Subsidiaries taken as a whole, (b) the
rights and remedies of the Agent or any Lender under any Loan Document or
Related Document or (c) the ability of the Borrower or any Material
Subsidiary to perform its Obligations under any Loan Document or Related
Document to which it is or is to be a party.
"Material Subsidiary" means (i) each of the Subsidiaries of the Borrower
designated on Schedule 4.01(b) as being a Material Subsidiary, (ii) any
Subsidiary acquired or formed by the Borrower after the Closing Date in
which the Borrower has invested more than $20,000,000 in the aggregate, and
(iii) any Subsidiary of the Borrower reasonably deemed by the Agent to be
material to the business of the Borrower. Each Material Subsidiary, whether
so designated on the Closing Date, acquired or created by the Borrower after
the Closing Date, or so deemed by the Agent, shall be a party to the
Guaranty, and the stock of each Material Subsidiary shall be pledged to the
Agent for the benefit of the Lenders pursuant to the Pledge Agreement.
"Merger" has the meaning specified in the Preliminary Statements.
"Merger Agreement" means the Agreement and Plan of Merger dated November 18,
1994, as amended and restated as of August
<PAGE> 21
-17-
1, 1995, by and among Old PJC, New PJC, King Broadcasting Company, King
Holding Corp. and Continental.
"Multiemployer Plan" of any Person means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which such Person or any of its ERISA
Affiliates is making or accruing an obligation to make contributions, or has
within any of the preceding five plan years made or accrued an obligation to
make contributions.
"Multiple Employer Plan" of any Person means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of such Person or any of its ERISA Affiliates and at least one
Person other than such Person and its ERISA Affiliates or (b) was so
maintained and in respect of which such Person or any of its ERISA
Affiliates could have liability under Section 4064 or 4069 of ERISA in the
event such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer or
other disposition of any asset or the sale or issuance of any Debt or
capital stock, any securities convertible into or exchangeable for capital
stock or any warrants, rights or options to acquire capital stock by any
Person, the aggregate amount of cash received from time to time by or on
behalf of such Person in connection with such transaction after deducting
therefrom only (a) reasonable and customary brokerage commissions,
underwriting fees and discounts, legal fees, finder's fees and other similar
fees and commissions actually paid to a Person that is not an Affiliate and
(b) the amount of taxes payable to a taxing authority in connection with or
as a result of such transaction, in each case to the extent but only to the
extent, that the amounts so deducted are properly attributable to such
transaction or to the asset that is the subject thereof.
"Net Income" means, for any period, the net after tax income (loss) of the
Borrower and its Subsidiaries for such period determined on a Consolidated
basis in accordance with GAAP.
"Network Affiliation Agreement" means each agreement set forth on Schedule
4.01(bb) hereto, and each other agreement entered by the Borrower or any of
its Subsidiaries with the television networks known as ABC, CBS, NBC or Fox
pursuant to which the Borrower or such Subsidiary and such television
network agree to be affiliated, and such television network agrees that the
Borrower or any such Subsidiary shall serve as that television network's
primary outlet within a designated marketing area for television programming
provided by such television network for broadcast by its broadcast station
affiliates.
"Note" means a Term Note or a Revolving Note.
<PAGE> 22
-18-
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Obligation" means, with respect to any Person, any obligation of such
Person of any kind, including, without limitation, any liability of such
Person on any claim, whether or not the right of any creditor to payment in
respect of such claim is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, disputed, undisputed, legal, equitable, secured
or unsecured, and whether or not such claim is discharged, stayed or
otherwise affected by any proceeding referred to in Section 6.01(f). Without
limiting the generality of the foregoing, the Obligations of the Loan
Parties under the Loan Documents include (a) the obligation to pay
principal, interest, reimbursement obligations under the Letter of Credit
Agreement, Letter of Credit commissions, charges, expenses, fees, attorneys'
fees and disbursements, indemnities and other amounts payable by any Loan
Party under any Loan Document and (b) the obligation to reimburse any amount
in respect of any of the foregoing that any Lender, in its sole discretion,
may elect to pay or advance on behalf of such Loan Party.
"Operating Cash Flow" means, for any period, EBITDA for such period, plus an
amount equal to the aggregate of the following to the extent the same were
deducted in the calculation of Net Income for such period; (i) charges for
deferred compensation, (ii) accruals for Restricted Payments, (iii)
amortization of Programming Expense for such period, (iv) (through December
31, 1996) accruals for payments due with respect to employee separations;
minus an amount equal to the aggregate of the following: (v) payments made
in cash with respect to Programming Expenses, (vii) deferred compensation
payments actually made in cash, and (viii) pension income. In the event that
the Borrower owns an equity interest in a Person of less than 80% and to the
extent that Operating Cash Flow, as calculated pursuant to the foregoing,
includes Operating Cash Flow attributable to such Person, the Operating Cash
Flow of such Person shall be deducted from the Operating Cash Flow of the
Borrower. For the purposes of Section 5.02(e), the Operating Cash Flow
attributable to the operations of a Person of which an equity interest of
80% or more is being acquired shall be included in the Operating Cash Flow
of the Borrower. The Operating Cash Flow for a twelve month period
attributable to the operations being acquired shall be determined by the
Agent from the most recent audited financial statements of the Person from
whom the operations are being acquired (provided that such audited financial
statements relate to periods not more than one year prior to the date as of
which Operating Cash Flow is being determined). Notwithstanding the
foregoing sentence, if the method of calculating Operating Cash Flow for the
operations being acquired described in the preceding sentence is not
satisfactory to the Agent, the
<PAGE> 23
-19-
Borrower shall, following consultation with the Agent, calculate Operating
Cash Flow for the operations being acquired on a reasonable alternative
basis and shall notify the Agent of such calculation in writing. Within 5
Business Days following receipt of such notice, the Agent shall notify the
other Lenders thereof and, unless Lenders constituting Required Lenders
notify the Agent within 5 Business Days thereafter that they reasonably
object to such calculation, such calculation shall be deemed to be
satisfactory to the Lenders. If Lenders constituting Required Lenders do so
notify the Agent, then the Borrower shall be free to notify the Agent of
other reasonable alternative calculations of such Operating Cash Flow until
such time as Lenders constituting Required Lenders do not so notify the
Agent with respect to any such calculation. Following the acquisition by the
Borrower or one of its Subsidiaries of an operation, the historical
Operating Cash Flow of such operation, calculated on the method deemed
satisfactory pursuant to the foregoing, shall be included in the Borrower's
Operating Cash Flow for the immediately succeeding fiscal periods, but for
each fiscal period for which the Borrower is able to include in the
Borrower's Operating Cash Flow the actual results of such acquired operation
following the effective date of the acquisition thereof, the comparable
prior fiscal period of such historical Operating Cash Flow shall be
excluded.
"Other Taxes" has the meaning specified in Section 2.11(b).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Peat Marwick" means KPMG Peat Marwick, a limited liability partnership.
"Permitted Liens" means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been
commenced: (a) Liens for taxes, assessments and governmental charges or
levies, to the extent not required to be paid under Section 5.01(b) hereof;
(b) Liens imposed by law, such as materialmen's, mechanics', carriers',
workmen's and repairmen's Liens and other similar Liens arising in the
ordinary course of business securing obligations that are not overdue for a
period of more than 60 days (unless such obligations overdue for more than
60 days are not material in amount to the Borrower and its Subsidiaries
taken as a whole and the Borrower or the applicable Subsidiary is contesting
the same in good faith); (c) pledges or deposits to secure obligations under
workers' compensation laws or similar legislation or to secure public or
statutory obligations; (d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations,
surety bonds, performance bonds, and other obligations of a like nature
incurred in the ordinary course of the Borrower's and its Subsidiaries'
business; and (e) easements, rights of way and other encumbrances on title
to real property incurred in the
<PAGE> 24
-20-
ordinary course of the Borrower's and its Subsidiaries' business that do not
render title to the property encumbered thereby unmarketable or materially
adversely affect the use of such property for its present purposes.
"Permitted Reinvestments" means (i) with respect to the proceeds of the sale
or other disposition of a member of the Borrowing Group or its assets, any
use of such proceeds by a member of the Borrowing Group to acquire another
Qualifying Business (whether by way of acquisition of assets or stock,
merger or asset swap); provided that such use of such proceeds shall not be
a Permitted Reinvestment unless such Qualifying Business will be included in
the Borrowing Group; and provided further that such use of such proceeds
shall not be a Permitted Reinvestment unless the purchase price of such
Qualifying Business does not exceed $50,000,000, and (ii) with respect to
the proceeds of the sale or other disposition by a member of the Borrowing
Group of Investments not included in the Borrowing Group, any reinvestment
of such proceeds.
"Person" means an individual, partnership, corporation (including a business
trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pledge Agreement" has the meaning specified in Section 3.01(l)(viii).
"Preferred Stock" means, with respect to any corporation, capital stock
issued by such corporation that is entitled to a preference or priority over
any other capital stock issued by such corporation upon any distribution of
such corporation's assets, whether by dividend or upon liquidation.
"Programming Expense" means expenses related to the acquisition by the
Borrower or its Subsidiaries of the content of its television programs.
"Proxy Statement" means the Joint Proxy Statement-Prospectus of New PJC and
Continental dated August 31, 1995.
"Pro Rata Share" of any amount means, with respect to any Lender at any
time, the product of (a) a fraction the numerator of which is the aggregate
amount of such Lender's Commitments at such time and the denominator of
which is the Total Commitments at such time times (b) such amount.
"Qualifying Business" means any business primarily involved in newspaper
publishing, television stations and programming content ventures.
<PAGE> 25
-21-
"Redeemable" means, with respect to any capital stock, Debt or other right
or Obligation, any such right or Obligation that (a) the issuer has
undertaken to redeem at a fixed or determinable date or dates, whether by
operation of a sinking fund or otherwise, or upon the occurrence of a
condition not solely within the control of the issuer or (b) is redeemable
at the option of the holder.
"Reference Lenders" means three Lenders (one of which may be the Agent),
each selected by the Agent in its discretion from time to time as a
reference lender for purposes of determining the Eurodollar Rate or the
Adjusted CD Rate.
"Register" has the meaning specified in Section 8.07(e).
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Related Documents" means the Merger Agreement, the Contribution Agreement,
and the material documents, instruments and agreements executed in
connection therewith and in connection with the Spinoff.
"Released Person" has the meaning specified in Section 8.15 hereof.
"Required Lenders" means, if the Commitments are in effect, Lenders owed or
holding at least 51% of the aggregate Commitments under the Facilities, or,
if the Commitments have been terminated, Lenders owed or holding at least
51% of the sum of (a) the aggregate principal amount of the Advances
outstanding at such time plus (b) the Available Amount of the Letter of
Credit.
"Restricted Payment" means, with respect to any Person, dividends paid by
such Person, purchase of treasury stock of such Person, or other
distribution of cash or property of such Person to any holder of its equity
interests, other than dividends payable solely in shares of such Person's
capital stock.
"Revolving A Advance" has the meaning specified in Section 2.01(b).
"Revolving A Borrowing" means the aggregate of the simultaneous Revolving A
Advances of the same Type made by the Lenders in response to a single Notice
of Borrowing.
"Revolving A Commitment" means, with respect to any Lender at any time, the
amount set forth opposite such Lender's name on Schedule I hereto under the
caption "Revolving A Commitment" or, if such Lender has entered into one or
more Assignments and Acceptances, set forth for such Lender in the Register
<PAGE> 26
-22-
maintained by the Agent pursuant to Section 8.07(c) as such Lender's
"Revolving A Commitment", as such amount may be reduced at or prior to such
time pursuant to Section 2.04 or 2.05. Each Lender's Revolving A Commitment
includes its Pro Rata Share of the Letter of Credit Commitment.
"Revolving A Facility" means, at any time, the aggregate amount of the
Lenders' Revolving A Commitments at such time, and includes, in any event,
the Letter of Credit Commitment.
"Revolving A Note" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A-2 hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Revolving A Advances made by such Lender.
"Revolving Advance" means a Revolving A Advance or a Revolving B Advance.
"Revolving B Advance" has the meaning specified in Section 2.01(c).
"Revolving B Borrowing" means the aggregate of the simultaneous Revolving B
Advances of the same Type made by the Lenders in response to a single Notice
of Borrowing.
"Revolving B Commitment" means, with respect to any Lender at any time, the
amount set forth opposite such Lender's name on Schedule I hereto under the
caption "Revolving B Commitment" or, if such Lender has entered into one or
more Assignments and Acceptances, set forth for such Lender in the Register
maintained by the Agent pursuant to Section 8.07(c) as such Lender's
"Revolving B Commitment", as such amount may be reduced at or prior to such
time pursuant to Section 2.04 or 2.05. An amount equal to each Lender's Pro
Rata Share of the Swing Line Facility shall be reserved from such Lender's
Revolving B Commitment for the purpose of repaying outstanding Swing Line
Advances in accordance with Section 2.02(i) in an amount equal to such
Lender's Pro Rata Share of the lesser of (i) $10,000,000 or (ii) the then
current amount of the Revolving B Commitment (the "Revolving B Reserve").
"Revolving B Facility" means, at any time, the aggregate amount of the
Lenders' Revolving B Commitments at such time.
"Revolving B Note" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A-3 hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Revolving B Advances made by such Lender.
"Revolving B Reserve" has the meaning specified in the definition of
"Revolving B Commitment."
<PAGE> 27
-23-
"Revolving Borrowing" means a borrowing consisting of simultaneous Revolving
Advances of the same Type made by the Lenders.
"Revolving Commitment" means, with respect to each Lender at any time, the
aggregate of such Lender's Revolving A Commitment and Revolving B Commitment
at such time.
"Revolving Facility" means, at any time, the aggregate amount of the
Lenders' Revolving A Commitments and Revolving B Commitments at such time.
"Revolving Note" means a Revolving A Note or a Revolving B Note.
"Revolving Termination Date" means the earlier of December 31, 2003 and the
date of termination in whole of the Total Commitments pursuant to Section
2.04, 2.05, or 6.01.
"Single Employer Plan" of any Person means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of such Person or any of its ERISA Affiliates and no Person other
than such Person and its ERISA Affiliates or (b) was so maintained and in
respect of which such Person or any of its ERISA Affiliates could have
liability under Section 4069 of ERISA in the event such plan has been or
were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a particular
date, that on such date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (b) the present fair salable value
of the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as they
become absolute and matured, and (c) such Person is not engaged in business
or a transaction, and is not about to engage in business or a transaction,
for which such Person's property would constitute an unreasonably small
capital. The amount of contingent liabilities at any time shall be computed
as the amount that, in the light of all the facts and circumstances existing
at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
"Spinoff" has the meaning specified in the Preliminary Statements.
"Subordinated Debt" means any Debt of the Borrower that is subordinated to
the Obligations of the Borrower under the Loan Documents on, and that
otherwise contains, terms and conditions reasonably satisfactory to the
Required Lenders.
<PAGE> 28
-24-
"Subsidiary" of any Person means any corporation, partnership, joint
venture, trust or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting power to elect a
majority of the Board of Directors of such corporation (irrespective of
whether at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such partnership
or joint venture or (c) the beneficial interest in such trust or estate is
at the time directly or indirectly owned or controlled by such Person, by
such Person and one or more of its other Subsidiaries or by one or more of
such Person's other Subsidiaries.
"Swing Line Advance" means an advance made by the Swing Line Bank pursuant
to Section 2.01(d).
"Swing Line Bank" means The First National Bank of Boston or any of its
Affiliates, or such other Lender as the Borrower may from time to time
designate in writing.
"Swing Line Borrowing" means a borrowing consisting of a Swing Line Advance
made by the Swing Line Bank.
"Swing Line Facility" has the meaning specified in Section 2.01(d).
"Taxes" has the meaning specified in Section 2.11(a).
"Term Advance" has the meaning specified in Section 2.01(a).
"Term Commitment" means, with respect to any Lender at any time, the amount
set forth opposite such Lender's name on Schedule I hereto under the caption
"Term Commitment" or, if such Lender has entered into one or more
Assignments and Acceptances, set forth for such Lender in the Register
maintained by the Agent pursuant to Section 8.07(e) as such Lender's "Term
Commitment".
"Term Facility" means, at any time, the aggregate amount of the Lenders'
Term Commitments at such time.
"Term Loan" means the loan consisting of simultaneous Term Advances made by
the Lenders on the Closing Date.
"Term Maturity Date" means the earlier of June 30, 2004 and the date of
termination in whole of the Total Commitments pursuant to Sections 2.04,
2.05 or 6.01.
"Term Note" means a promissory note of the Borrower payable to the order of
any Lender, in substantially the form of Exhibit A-1 hereto, evidencing the
indebtedness of the Borrower to such Lender resulting from the Term Advance
made by such Lender.
<PAGE> 29
-25-
"Total Commitment" means, with respect to each Lender at any time, the
aggregate of such Lender's Term Commitment and Revolving Commitment at such
time.
"Trade Expenses" means expenses reported by the Borrower on its financial
statements attributable to barter transactions.
"Trade Revenues" means revenues reported by the Borrower on its financial
statements attributable to barter transactions.
"Type" refers to the distinction between Advances bearing interest at the
Base Rate, Advances bearing interest at the Eurodollar Rate, and Advances
bearing interest at the Adjusted CD Rate.
"Unused Revolving A Commitment" means, with respect to any Lender at any
time, (a) such Lender's Revolving A Commitment at such time minus (b) the
sum of (i) the aggregate principal amount of all Revolving A Advances made
by such Lender and outstanding at such time and (ii) such Lender's Pro Rata
Share of the Available Amount of the Letter of Credit.
"Unused Revolving B Commitment" means, with respect to any Lender at any
time, (a) such Lender's Revolving B Commitment at such time minus (b) the
aggregate principal amount of all Revolving B Advances.
"Unused Revolving Commitment" means, with respect to any Lender at any time,
the aggregate of such Lender's Unused Revolving A Commitments and Unused
Revolving B Commitment at such time.
"Voting Stock" means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even though the right
so to vote has been suspended by the happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of ERISA.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle E of
Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in the computation
of periods of time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles consistent with those applied in the preparation of the financial
statements referred to in Section 4.01(f) ("GAAP").
<PAGE> 30
-26-
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances. (a) The Term Advance. Each Lender severally agrees,
on the terms and conditions hereinafter set forth, to make a single advance (a
"Term Advance") to the Borrower on the Closing Date in an amount not to exceed
such Lender's Term Commitment. Amounts borrowed under this Section 2.01(a) and
repaid or prepaid may not be reborrowed.
(b) The Revolving A Advances. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make advances (each a "Revolving A
Advance") to the Borrower from time to time on any Business Day during the
period from the date hereof until the Revolving Termination Date in an amount
for each such Advance not to exceed such Lender's Unused Revolving A Commitment
on such Business Day. Each Revolving A Borrowing shall be in an aggregate amount
of $2,000,000 or an integral multiple of $500,000 in excess thereof and shall
consist of Revolving A Advances made by the Lenders ratably according to their
Revolving A Commitments. Within the limits of each Lender's Unused Revolving A
Commitment in effect from time to time, the Borrower may borrow under this
Section 2.01(b), prepay pursuant to Section 2.04(c) and reborrow under this
Section 2.01(b).
(c) The Revolving B Advances. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make advances (each a "Revolving B
Advance") to the Borrower from time to time on any Business Day during the
period from the date hereof until the Revolving Termination Date in an amount
for each such Advance not to exceed such Lender's Unused Revolving B Commitment
on such Business Day. Each Revolving B Borrowing shall be in an aggregate amount
of $2,000,000 or an integral multiple of $500,000 in excess thereof and shall
consist of Revolving B Advances made by the Lenders ratably according to their
Revolving B Commitments. Within the limits of each Lender's Unused Revolving B
Commitment in effect from time to time, the Borrower may borrow under this
Section 2.01(c), prepay pursuant to Section 2.04(c) and reborrow under this
Section 2.01(c). No Revolving B Advances shall be made so long as any Unused
Revolving A Commitment exists. Notwithstanding the foregoing, the Lenders shall
only be required to make Revolving B Advances out of the Revolving B Reserve for
the purpose of refunding Swing Line Advances; provided that at the time of
making such Revolving B Advances the Unused Revolving A Commitment is $0 and the
Unused Revolving B Commitment is less than or equal to the amount of the
Revolving B Reserve. For so long as any part of the Revolving B Reserve has been
utilized for the purpose of refunding Swing Line Advances with Revolving B
Advances,, the Swing Line Facility shall be reduced to the amount of the
remaining Revolving B Reserve.
<PAGE> 31
-27-
(d) The Swing Line Advances. The Borrower may request the Swing Line Bank to
make, and the Swing Line Bank may, if in its sole discretion it elects to do so,
make, on the terms and conditions hereinafter set forth, Swing Line Advances to
the Borrower from time to time on any Business Day during the period from the
date hereof until the Revolving Termination Date in an aggregate amount not to
exceed at any time outstanding $10,000,000 (the "Swing Line Facility"). No Swing
Line Advance shall be used for the purpose of funding the payment of principal
of any other Swing Line Advance. Within the limits of the Swing Line Facility,
so long as the Swing Line Bank, in its sole discretion, elects to make Swing
Line Advances, the Borrower may borrow under this Section 2.01(d), repay
pursuant to Section 2.03 or prepay pursuant to Section 2.04(c) and reborrow
under this Section 2.01(d). Upon the occurrence and during the continuance of a
Default or an Event of Default, and following receipt by the Swing Line Bank of
written notice from the Agent not to make further Swing Line Advances (which the
Agent may send in its discretion and shall send upon the request of the Required
Lenders), the Borrower may not request and the Swing Line Bank shall not make,
Swing Line Advances. The Swing Line Bank shall not knowingly waive any
conditions set forth in Article III in connection with any Swing Line Advance
without the prior written consent of the Required Lenders.
SECTION 2.02. Making the Advances. (a) Except as otherwise provided in Section
2.02(b) or 2.13, each Borrowing shall be made on notice, given not later than
11:00 A.M. (Providence, Rhode Island time) on the third Business Day in the case
of a Eurodollar Rate Advance, the second Business Day in the case of a CD Rate
Advance or the first Business Day in the case of a Base Rate Advance, in each
case prior to the date of the proposed Borrowing, by the Borrower to the Agent,
which shall give to each Lender prompt notice thereof by telex, telecopier or
cable. Each such notice of a Borrowing (a "Notice of Borrowing") shall be by
telex, telecopier or cable, confirmed immediately in writing, in substantially
the form of Exhibit B hereto, specifying therein the requested (i) date of such
Borrowing, (ii) Facility under which such Borrowing is to be made, (iii) Type of
Advances comprising such Borrowing, (iv) aggregate amount of such Borrowing, and
(v) in the case of an Advance consisting of Eurodollar Rate Advances or CD Rate
Advances, the initial Interest Period for each such Advance. In the case of a
proposed Borrowing comprised of Eurodollar Rate Advances or CD Rate Advances,
the Agent shall promptly notify each Lender of the applicable interest rate
under Section 2.06(a)(ii) or (iii). Each Lender shall, before 11:00 A.M.
(Providence, Rhode Island time) on the date of such Borrowing, make available
for the account of its Applicable Lending Office to the Agent at the Agent's
Account, in same day funds, such Lender's ratable portion of such Borrowing in
accordance with the respective Commitments of such Lender and the other Lenders.
After the Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Agent will make such funds
<PAGE> 32
-28-
available to the Borrower by crediting the Borrower's Account. No Advance may be
used for the purpose of repaying or prepaying any other Advance, except that
Revolving Advances may be used to repay outstanding Swing Line Advances.
(b) Each Swing Line Borrowing shall be made on such administrative terms as
the Borrower and the Swing Line Bank shall agree. Each Swing Line Advance shall
be a Base Rate Advance (provided, however, that the Borrower shall not be
permitted to Convert any Swing Line Advance into a Eurodollar Rate Advance or a
CD Rate Advance), and shall be otherwise subject to the terms of this Agreement,
unless specifically otherwise stated herein.
(c) Anything in subsection (a) above to the contrary notwithstanding, the
Borrower may not select Eurodollar Rate Advances or CD Rate Advances for the
initial Borrowing hereunder or for any Borrowing if the obligation of the
Lenders to make Eurodollar Rate Advances or CD Rate Advances shall then be
suspended pursuant to Section 2.09.
(d) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of the Term Loan or any Borrowing that the related Notice
of Borrowing specifies is to be comprised of Eurodollar Rate Advances or CD Rate
Advances, the Borrower shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III, including, without limitation,
any loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such
date.
(e) Unless the Agent shall have received notice from a Lender prior to the
date of any Borrowing that such Lender will not make available to the Agent such
Lender's ratable portion of such Borrowing, the Agent may assume that such
Lender has made such portion available to the Agent on the date of such
Borrowing in accordance with subsection (a) or (b) of this Section 2.02 and the
Agent may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such Lender shall
not have so made such ratable portion available to the Agent, such Lender and
the Borrower severally agree to repay or pay to the Agent forthwith on demand
such corresponding amount and to pay interest thereon, for each day from the
date such amount is made available to the Borrower until the date such amount is
repaid or paid to the Agent, at (i) in the case of the Borrower, the interest
rate applicable at such time under Section 2.06 to Advances comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall pay to the Agent such corresponding amount, such amount so paid
shall constitute such Lender's Advance as part of such Borrowing for purposes of
this Agreement.
<PAGE> 33
-29-
(f) The failure of any Lender to make the Advance to be made by it as part
of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender shall
be responsible for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
(g) At the time of (i) each Advance made by a Lender, (ii) each Conversion
of an Advance from one Type to another Type, and (iii) each payment or
prepayment of any of the Advances, each Lender may enter upon its records an
appropriate notation evidencing (a) such Lender's Advance, (b) the interest rate
and Interest Period, if applicable, for such Advance, (c) such payment or
prepayment of principal, and (d) in the case of payments or prepayments of
principal, the applicable Advance which was paid or prepaid. No failure to make,
or error in making, any such notation shall affect the Borrower's unconditional
obligations to repay the Advances and all interest, fees and other sums due in
connection with this Agreement and/or any of the Notes in full, nor shall any
such failure or error, standing alone, constitute grounds for disproving a
payment of principal by the Borrower. However, in the absence of manifest error,
such notations and each Lender's records containing such notation shall
constitute presumptive evidence of the facts stated therein, including, without
limitation, the amount of such Lender's Advances outstanding and all amounts due
and owing to such Lender at any time. Any such notation and such Lender's
records containing such notations may be introduced in evidence in any judicial
or administrative proceeding relating to this Agreement, any Advances made
hereunder or any of the Notes.
(h) Each Lender's Term Advance shall be evidenced by a Term Note
substantially in the form of Exhibit A-1 hereto; each Lender's Revolving A
Advances shall be evidenced by a Revolving A Note substantially in the form of
Exhibit A-2 hereto; each Lender's Revolving B Advances shall be evidenced by a
Revolving B Note substantially in the form of Exhibit A-3 hereto; and each Swing
Line Advance made by the Swing Line Bank shall be evidenced by a Swing Line Note
substantially in the form of Exhibit A-4 hereto. Each Lender may enter upon its
records an appropriate notation evidencing, among other things, each Advance,
the interest rate applicable thereto, and any payments or prepayments thereof.
Failure by any Lender to make, or any error in making, any such notation shall
not affect the Borrower's unconditional obligations to repay the Advances and
all interest, fees and other sums due in connection with this Agreement and/or
any of the Notes in full, nor shall any such failure or error, standing alone,
constitute grounds for disproving a payment by the Borrower. In the absence of
manifest error, such notations and each Lender's records containing such
notations shall constitute presumptive evidence of the facts stated therein.
(i) So long as the Borrower may, pursuant to the terms hereof, request
Advances from the Lenders, the Swing Line Bank shall have the right to require
the Lenders to make Revolving
<PAGE> 34
-30-
Advances to repay outstanding Swing Line Advances. The Swing Line Bank shall
exercise such right by submitting a Notice of Borrowing to the Agent on behalf
of the Borrower in accordance with Section 2.02 hereof. If the Borrower may not
request Revolving Advances pursuant to the terms hereof, upon written demand by
the Swing Line Bank to each other Lender, with a copy of such demand to the
Agent, each other Lender shall purchase from the Swing Line Bank, and the Swing
Line Bank shall sell and assign to each such other Lender, such other Lender's
Pro Rata Share of the outstanding Swing Line Advances as of the date of such
demand, by making available to the Agent for the account of the Swing Line Bank
by deposit in the Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of Swing Line Advances to be
purchased by such Lender. The Borrower hereby agrees to each such sale and
assignment. Each other Lender agrees to purchase its Pro Rata Share of the
outstanding Swing Line Advances on (i) the Business Day on which demand therefor
is made by the Swing Line Bank; provided that notice of such demand is given not
later than 11:00 A.M. (Providence, Rhode Island time) on such Business Day or
(ii) the first Business Day next succeeding such demand if notice of such demand
is given after such time. Upon any such assignment by the Swing Line Bank to any
other Lender, the Swing Line Bank represents and warrants to such other Lender
that the Swing Line Bank is the legal and beneficial owner of such interest
being assigned by it, but makes no other representation or warranty and assumes
no responsibility with respect to such Swing Line Advances. If and to the extent
that any Lender shall not have so made the amount of such Swing Line Advances
available to the Agent, such Lender agrees to pay to the Agent forthwith on
demand such amount together with interest thereon, for each day from the date of
demand by the Swing Line Bank until the date such amount is paid to the Agent,
at the Federal Funds Rate. If such Lender shall pay to the Agent such amount for
the account of the Swing Line Bank on any Business Day, such amount so paid in
respect of principal shall constitute a Swing Line Advance made by such Lender
on such Business Day for purposes of this Agreement, and the outstanding
principal amount of the Swing Line Advance made by the Swing Line Bank shall be
reduced by such amount on such Business Day.
SECTION 2.03. Repayment. (a) Term Advances. The Borrower shall repay to the
Agent for the ratable account of the Lenders the aggregate outstanding principal
amount of the Term Loan on the Term Maturity Date.
(b) Revolving Advances. The Borrower shall repay to the Agent for the
ratable account of the Lenders the aggregate outstanding principal amount of the
Revolving Advances on the Revolving Termination Date.
(c) Swing Line Advances. The Borrower shall repay to the Agent for the
account of the Swing Line Bank the outstanding principal amount of each Swing
Line Advance on the Revolving Termination Date.
<PAGE> 35
-31-
SECTION 2.04. Optional Prepayment, and Optional and Scheduled Reduction of the
Commitments.
(a) Optional Reduction of the Commitments. The Borrower may, upon at least 3
Business Days' notice to the Agent, terminate in whole or reduce in part the
Unused Revolving Commitments which notice shall specify the Facility or
Facilities to be reduced or terminated and the amount of any partial reduction;
provided, however, that each partial reduction of a Facility (i) shall be in an
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and (ii) shall be made ratably among the Lenders in accordance with
their Commitments with respect to such Facility (except with respect to the
Swing Line Facility).
(b) Mandatory Scheduled Reduction of the Commitment. The Revolving A
Facility shall be permanently reduced by $4,000,000 as of December 31, 1996, and
the Revolving A Facility and the Revolving B Facility shall be permanently
reduced as of the end of each fiscal quarter by the amount specified in the
schedule set forth below, for each fiscal quarter ending in the calendar years
specified below:
<TABLE>
<CAPTION>
Year Revolving A Revolving B
---- ----------- -----------
<S> <C> <C>
1997 $2,625,000 -
1998 $3,625,000 -
1999 $5,375,000 -
2000 $5,500,000 $7,812,500
2001 $8,625,000 $7,812,500
2002 $9,125,000 $7,812,500
2003 $7,875,000 $7,812,500
</TABLE>
(c) Optional Prepayment. The Borrower may, upon at least 2 Business Days' notice
to the Agent stating the proposed date and aggregate principal amount of the
prepayment and the Borrowing to which such prepayment is to be applied, and if
such notice is given the Borrower shall, prepay the outstanding aggregate
principal amount of the Term Loan or the Revolving A Advances or Revolving B
Advances comprising part of the same Borrowing, in whole or ratably in part,
together with accrued interest to the date of such prepayment on the aggregate
principal amount prepaid; provided, however, that (i) each partial prepayment
shall be in an aggregate principal amount of $2000,000 or an integral multiple
of $500,000 in excess thereof and (ii) no such prepayment of a Eurodollar Rate
Advance or CD Rate Advance shall be made other than on the last day of an
Interest Period therefor.
SECTION 2.05. Mandatory Prepayments and Reductions of the Commitments.
(a) Commencing with the fiscal year ending December 31, 1997, and continuing
until the financial statements delivered by the Borrower pursuant to Section
5.03(c) for such fiscal year,
<PAGE> 36
-32-
reflect a ratio of total Debt for Borrowed Money to Operating Cash Flow for such
fiscal year of less than 4.0:1.0, on the 120th day following the end of each
fiscal year, the Borrower in its sole discretion shall either make a prepayment
of the Term Loan in an amount equal to, and/or the Revolving A Commitment shall
be reduced by an amount equal to, the lesser of (i) the excess of 50% of Excess
Cash Flow for such fiscal year over the aggregate of any optional prepayments of
the Term Loan or optional reductions of the Revolving Commitment made during
such fiscal year or (ii) the amount which would have been sufficient to reduce
total Debt for Borrowed Money as of the last day of such fiscal year so that
such ratio would have been less than 4.00:1.00.
(b) On the date twelve months after the receipt of the Net Cash Proceeds
from the sale or other disposition of any assets of the Borrower or any of its
Subsidiaries (other than the Lowell Sun Note, and any sale or other disposition
of assets contemplated by the Related Documents and the asset transfers
associated therewith) in excess of $50,000,000 in the aggregate (from the
Closing Date) not reinvested in Qualifying Businesses within twelve months of
receipt of such Net Cash Proceeds (other than sales of assets in the ordinary
course of business), the Borrower shall either make a prepayment of the Term
Loan in an amount equal to, or the Revolving A Commitment and/or the Revolving B
Commitment (at the option of the Borrower exercised in its sole discretion by
written notice to the Agent) shall be reduced by an amount equal to, such Net
Cash Proceeds.
(c) On the date twelve months after the receipt of the Net Cash Proceeds
from the sale or other disposition of the Lowell Sun Note, unless the financial
statements delivered by the Borrower pursuant to Section 5.03(c) for the most
recently completed fiscal year, reflect a ratio of total Debt for Borrowed Money
to Operating Cash Flow for such fiscal year as being less than 4.00:1.00, the
Borrower shall either make a prepayment of the Term Loan in an amount equal to,
or the Revolving A Commitment and/or the Revolving B Commitment (at the option
of the Borrower exercised in its sole discretion by written notice to the Agent)
shall be reduced by an amount equal to, the lesser of (i) the amount of such Net
Cash Proceeds of the disposition of the Lowell Sun Note minus (A) the amount
reinvested in Qualifying Businesses within twelve months of receipt of such Net
Cash Proceeds and minus (B) the amount applied to fund The Providence Journal
Charitable Foundation in an amount not to exceed $16,000,000 or (ii) the amount
which would have been sufficient to reduce total Debt for Borrowed Money as of
the last day of such fiscal year so that such ratio would have been less than
4.00:1.00.
(d) On the date of receipt of the Net Cash Proceeds from the issuance of any
Debt permitted by Section 5.02(b)(xi), the Borrower shall either make a
prepayment of the Term Loan in an amount equal to, or the Revolving A Commitment
(at the option of the Borrower exercised in its sole discretion by written
notice
<PAGE> 37
-33-
to the Agent) shall be reduced by an amount equal to, the amount of such Net
Cash Proceeds.
(e) On the date of receipt of the Net Cash Proceeds from the issuance of any
Subordinated Debt permitted by Section 5.02(b)(x), unless the Borrower shall
have delivered a Compliance Certificate reflecting a ratio of total Debt for
Borrowed Money to Operating Cash Flow for the twelve months then ended, taking
the issuance of such Debt into account, as being less than 4.00:1.00, the
Borrower shall either make a prepayment of the Term Loan in an amount equal to,
or the Revolving A Commitment (at the option of the Borrower exercised in its
sole discretion by written notice to the Agent) shall be reduced by an amount
equal to, the lesser of (i) the amount of such Net Cash Proceeds or (ii) the
amount which would have been sufficient to reduce total Debt for Borrowed Money
as of the last day of such twelve month period so that such ratio would have
been less than 4.00:1.00.
(f) On the date of receipt of the Net Cash Proceeds from the issuance of any
common or preferred stock by the Borrower, unless the Borrower shall have
delivered a Compliance Certificate reflecting a ratio of total Debt for Borrowed
Money to Operating Cash Flow for the twelve months then ended as being less than
4.0:1.0, the Borrower shall either make a prepayment of the Term Loan in an
amount equal to, or (at the option of the Borrower exercised in its sole
discretion by written notice to the Agent) the Revolving A Commitment shall be
reduced by an amount equal to, the lesser of (i) such Net Cash Proceeds or (ii)
the amount which would have been sufficient to reduce total Debt for Borrowed
Money as of the last day of such twelve month period so that such ratio would
have been less than 4.00:1.00.
(g) The Borrower shall, on each Business Day, (i) prepay an aggregate
principal amount of the Revolving A Advances comprising part of the same
Borrowings equal to the amount by which (A) the aggregate principal amount of
the Revolving A Advances then outstanding plus the Available Amount of the
Letter of Credit then outstanding exceeds (B) the Revolving A Facility on such
Business Day, (ii) prepay an aggregate principal amount of the Revolving B
Advances comprising part of the same Borrowings equal to the amount by which the
aggregate principal amount of the Revolving B Advances exceeds the Revolving B
Facility on such Business Day and (iii) prepay an aggregate principal amount of
the Swing Line Advances comprising part of the same Borrowings equal to the
amount by which the aggregate principal amount of the Swing Line Advances
exceeds the Swing Line Facility on such Business Day.
(h) All prepayments under this Section 2.05 shall be made together with
accrued interest to the date of such prepayment on the principal amount prepaid
and shall be applied to installments of principal in inverse order of maturity,
and all reductions of
<PAGE> 38
-34-
Commitments shall be made in inverse order of scheduled reduction. Any
prepayment of the Term Loan pursuant to this Section 2.05 shall be deemed to be
a mandatory prepayment.
SECTION 2.06. Interest. (a) Ordinary Interest. The Borrower shall pay interest
on the unpaid principal amount of each Advance owing to each Lender from the
date of such Advance until such principal amount shall be paid in full, at the
following rates per annum:
(i) Base Rate Advances. For any Swing Line Advance during the time it
is outstanding, and during such periods as any Revolving A Advance or,
Revolving B Advance is a Base Rate Advance, a rate per annum equal at all
times to the sum of (i) the Base Rate in effect from time to time plus (ii)
the Applicable Revolving Margin in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September, and
December during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as any Revolving A
Advance or Revolving B Advance is a Eurodollar Rate Advance, a rate per
annum equal at all times during each Interest Period for such Advance to the
sum of (i) the Eurodollar Rate for such Interest Period for such Advance
plus (ii) the Applicable Revolving Margin in effect on the first day of such
Interest Period, payable in arrears on the last day of such Interest Period
and, if such Interest Period has a duration of more than three months, on
the day that occurs during such Interest Period three months from the first
day of such Interest Period and on the final day of such Interest Period.
(iii) CD Rate Advances. During such periods as any Revolving A Advance
or Revolving B Advance is a CD Rate Advance, a rate per annum equal to the
sum of (i) the CD Rate for such Interest Period for such Advance plus (ii)
the Applicable Revolving Margin in effect on the first day of such Interest
Period, payable in arrears on the last day of such Interest Period and, if
such Interest Period has a duration of more than 90 days, on the day that
occurs during such Interest Period 90 days from the first day of such
Interest Period and on the final day of such Interest Period.
(iv) Term Loan. At a rate per annum equal to the sum of (i) the
Eurodollar Rate for the Interest Period then in effect with respect to the
Term Loan, plus (ii) the Applicable Term Margin in effect on the first day
of such Interest Period, payable in arrears on the last day of such Interest
Period and, if such Interest Period has a duration of more than three
months, on each day that occurs during such Interest Period every three
months from the first day of such Interest Period.
<PAGE> 39
-35-
(b) Default Interest. The Borrower shall pay interest on (i) the unpaid
principal amount of each Advance owing to each Lender that is not paid when due
(whether at maturity, by acceleration, or otherwise), payable in arrears on the
dates referred to in clause (a)(i), (a)(ii), (a)(iii) or (a)(iv) above, at a
rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Advance pursuant to clause (a)(i), (a)(ii), (a)(iii)
or (a)(iv) above and (ii) to the extent permitted by law, the amount of any
interest, fee or other amount payable hereunder which is not paid when due, from
the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on Base Rate Advances pursuant to clause (a)(i) above.
SECTION 2.07. Fees. (a) Commitment Fee. The Borrower shall pay to the Agent for
the account of the Lenders a commitment fee on the average daily unused portion
of each Lender's Unused Revolving Commitment from the date hereof in the case of
each Bank and from the effective date specified in the Assignment and Acceptance
pursuant to which it became a Lender in the case of each other Lender until the
Revolving Termination Date at the rate of three-eighths of one percent (3/8%)
per annum, payable quarterly in arrears on the last Business Day of each March,
June, September and December, commencing on December 31, 1995 and ending on the
Revolving Termination Date.
(b) Agent's and Managing Agent's Fees. The Borrower shall pay to the
Agent and the Managing Agents for their own accounts such fees as may from time
to time be agreed between the Borrower and the Agent or the Borrower and the
Managing Agents.
SECTION 2.08. Conversion of Advances. (a) Optional. The Borrower may on any
Business Day, upon notice given to the Agent not later than 11:00 A.M.
(Providence, Rhode Island time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Section 2.09, Convert
all or any portion of the Advances of one Type comprising the same Borrowing
into Advances of another Type; provided, however, that any Conversion of
Eurodollar Rate Advances or CD Rate Advances into Base Rate Advances shall be
made only on the last day of an Interest Period for such Eurodollar Rate
Advances or CD Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances or CD Advances shall be in an amount not less than
$2,000,000. Each such notice of Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Advances to
be Converted and (iii) if such Conversion is into Eurodollar Rate Advances or CD
Rate Advances, the duration of the initial Interest Period for such Advances.
Each notice of Conversion shall be irrevocable and binding on the Borrower.
(b) Mandatory. If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances
<PAGE> 40
-36-
or CD Rate Advances in accordance with the provisions contained in the
definition of "Interest Period" in Section 1.01, the Agent will forthwith so
notify the Borrower and the Lenders, whereupon each such Eurodollar Rate Advance
or CD Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance.
SECTION 2.09. Increased Costs, Etc. (a) If, due to either (i) the introduction
of or any change (other than any change by way of imposition or increase of
reserve requirements included in the Eurodollar Rate Reserve Percentage or the
Adjusted CD Rate Reserve Percentage) in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or of
making, funding or maintaining Eurodollar Rate Advances or CD Rate Advances or
of agreeing to issue or of issuing or maintaining Letters of Credit or of
agreeing to make or of making or maintaining Letter of Credit Advances, then the
Borrower shall from time to time, upon demand by such Lender (with a copy of
such demand to the Agent), pay to the Agent for the account of such Lender
additional amounts sufficient to compensate such Lender for such increased cost.
A certificate as to the amount of such increased cost, submitted to the Borrower
by such Lender, shall be conclusive and binding for all purposes, absent
manifest error.
(b) If any Lender determines that compliance with any law or regulation or
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is increased by or
based upon the existence of such Lender's commitment to lend or to issue or
participate in the Letter of Credit hereunder and other commitments of such type
or the issuance or maintenance of, or participation in, letters of credit (or
similar contingent obligations), then, upon demand by such Lender (with a copy
of such demand to the Agent), the Borrower shall pay to the Agent for the
account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's commitment
to lend or to issue, or participate in, the Letter of Credit hereunder or to the
issuance or maintenance of, or participation in, any letters of credit. A
certificate as to such amounts submitted to the Borrower by such Lender, shall
be conclusive and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances or CD Rate Advances,
any Lender notifies the Agent that the Eurodollar Rate or CD Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Lender of making, funding
<PAGE> 41
-37-
or maintaining their Eurodollar Rate Advances or CD Rate Advances for such
Interest Period, the Agent shall forthwith so notify the Borrower and the other
Lenders, whereupon (i) each such Eurodollar Rate Advance or CD Rate Advance of
such Lender will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (ii) the obligation of
such Lender to make, or to Convert Advances into, Eurodollar Rate Advances or CD
Rate Advances shall be suspended until the Agent shall notify the Borrower that
such Lender has determined that the circumstances causing such suspension no
longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Agent, (i) each Eurodollar Rate Advance will automatically, upon
such demand, Convert into a Base Rate Advance and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrower that such Lender has
determined that the circumstances causing such suspension no longer exist.
(e) Upon the occurrence and during the continuance of any Default, (i) each
Eurodollar Rate Advance and each CD Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert into a Base Rate
Advance and (ii) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances or CD Rate Advances shall be suspended.
SECTION 2.10. Payments and Computations. (a) The Borrower shall make each
payment hereunder and under the Notes not later than 11:00 A.M. (Providence,
Rhode Island time) on the day when due in Dollars to the Agent at the Agent's
Account in same day funds. The Agent will promptly thereafter cause like funds
to be distributed (i) if such payment by the Borrower is in respect of
principal, interest, commitment fees or any other Obligation then payable
hereunder and/or under the Notes or the Letter of Credit Agreement to more than
one Lender, to such Lenders for the account of their respective Applicable
Lending Offices ratably in accordance with the amounts of such respective
Obligations then payable to such Lenders and (ii) if such payment by the
Borrower is in respect of any Obligation then payable hereunder to one Lender,
to such Lender for the account of its Applicable Lending Office, in each case to
be applied in accordance with the terms of this Agreement. Upon its acceptance
of an Assignment and Acceptance and recording of the information contained
therein in the Register pursuant to Section 8.07(f), from and after the
effective date of such Assignment and Acceptance, the Agent shall
<PAGE> 42
-38-
make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) If the Agent receives funds for application to the Obligations under the
Loan Documents under circumstances for which the Loan Documents do not specify
the Advances or the Facility to which, or the manner in which, such funds are to
be applied, the Agent may, but shall not be obligated to, elect to distribute
such funds to each Lender ratably in accordance with such Lender's proportionate
share of the principal amount of all outstanding Advances and the Available
Amount of all Letters of Credit then outstanding, in repayment or prepayment of
such of the outstanding Advances or other Obligations owed to such Lender, and
for application to such principal installments, as the Agent shall direct.
(c) The Borrower hereby authorizes each Lender, if and to the extent any
payment owed to such Lender is not made when due hereunder, under any of the
Notes, or under the Letter of Credit Agreement held by such Lender, to charge
from time to time against any or all of the Borrower's accounts with such Lender
any amount so due.
(d) All computations of interest, fees and Letter of Credit commissions
shall be made by the Agent on the basis of a year of 360 days (or 365/366 days
in the case of Base Rate Advances bearing interest calculated in accordance with
clause (a) of the definition of "Base Rate"), in each case for the actual number
of days (including the first day but excluding the last day) occurring in the
period for which such interest, fees or commissions are payable. Each
determination by the Agent of an interest rate, fee or commission hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(e) Whenever any payment hereunder, under any of the Notes, or under the
Letter of Credit Agreement shall be stated to be due on a day other than a
Business Day, such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the computation of
payment of interest or commitment fee, as the case may be; provided, however,
that if such extension would cause payment of interest on or principal of
Eurodollar Rate Advances to be made in the next following calendar month, such
payment shall be made on the preceding Business Day.
(f) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to any Lender hereunder that the Borrower
will not make such payment in full, the Agent may assume that the Borrower has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender on
such due date an amount equal to the amount then
<PAGE> 43
-39-
due such Lender. If and to the extent the Borrower shall not have so made such
payment in full to the Agent, each such Lender shall repay to the Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Agent, at the
Federal Funds Rate.
SECTION 2.11. Taxes. (a) Any and all payments by the Borrower hereunder, under
any of the Notes or under the Letter of Credit Agreement shall be made, in
accordance with Section 2.10, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender and the Agent, net income taxes that are imposed by the United
States and franchise taxes and net income taxes that are imposed on such Lender
or the Agent by the state or foreign jurisdiction under the laws of which such
Lender or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, franchise taxes and net
income taxes that are imposed on such Lender by the state or foreign
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If the Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder, under any Note, or under the Letter of Credit
Agreement to any Lender or the Agent, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.11) such
Lender or the Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Borrower shall pay any present or future stamp,
documentary, excise, property or similar taxes, charges or levies that arise
from any payment made hereunder, under any of the Notes or under the Letter of
Credit Agreement or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or any of the Notes (hereinafter
referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender and the Agent for the full
amount of Taxes and Other Taxes, and for the full amount of taxes imposed by any
jurisdiction on amounts payable under this Section 2.11, paid by such Lender or
the Agent (as the case may be) and any liability (including penalties, additions
to tax, interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender or the
Agent (as the case may be) makes written demand therefor.
<PAGE> 44
-40-
(d) Upon the request of the Agent or a Lender, within 30 days after the date
of any payment of Taxes, the Borrower shall furnish to the Agent, at its address
referred to in Section 8.02, the original receipt of payment thereof or a
certified copy of such receipt. In the case of any payment hereunder, under any
of the Notes or under the Letter of Credit Agreement by the Borrower through an
account or branch outside the United States or on behalf of the Borrower by a
payor that is not a United States person, if the Borrower determines that no
Taxes are payable in respect thereof, the Borrower shall furnish, or shall cause
such payor to furnish, to the Agent, at such address, an opinion of counsel
acceptable to the Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in Section 7701 of
the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States shall, on or prior to the date of its execution and delivery of
this Agreement in the case of each Bank, and on the date of the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
or the Agent (but only so long thereafter as such Lender remains lawfully able
to do so), provide the Agent and the Borrower with Internal Revenue Service form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party that reduces the rate of
withholding tax on payments under this Agreement or the Notes or certifying that
the income receivable pursuant to this Agreement or the Notes is effectively
connected with the conduct of a trade or business in the United States. If the
form provided by a Lender at the time such Lender first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender provides the appropriate form certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided,
however, that, if at the date of the Assignment and Acceptance pursuant to which
a Lender assignee becomes a party to this Agreement, the Lender assignor was
entitled to payments under subsection (a) in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includible in Taxes) United
States withholding tax, if any, applicable with respect to the Lender assignee
on such date. If any form or document referred to in this subsection (e)
requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service form 1001 or 4224, that the Lender reasonably considers to be
confidential, the Lender shall give notice thereof to the
<PAGE> 45
-41-
Borrower and shall not be obligated to include in such form or document such
confidential information.
(f) For any period with respect to which a Lender has failed to provide the
Borrower with the appropriate form described in subsection (e) (other than if
such failure is due to a change in law occurring after the date on which a form
originally was required to be provided or if such form otherwise is not required
under subsection (e)), such Lender shall not be entitled to indemnification
under subsection (a) or (c) with respect to Taxes imposed by the United States;
provided, however, that should a Lender become subject to Taxes because of its
failure to deliver a form required hereunder, the Borrower shall take such steps
as such Lender shall reasonably request to assist such Lender to recover such
Taxes.
(g) Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in this
Section 2.11 shall survive the payment in full of principal and interest
hereunder and under the Notes.
SECTION 2.12. Sharing of Payments, Etc. If any Lender shall obtain at any time
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) (a) on account of Obligations due and payable to such
Lender hereunder and/or under any of the Notes or the Letter of Credit Agreement
at such time in excess of its ratable share (according to the proportion of (i)
the amount of such Obligations due and payable to such Lender at such time to
(ii) the aggregate amount of the Obligations due and payable to all Lenders
hereunder and under the Notes at such time) of payments on account of the
Obligations due and payable to all Lenders hereunder, under the Notes or under
the Letter of Credit Agreement at such time obtained by all the Lenders at such
time or (b) on account of Obligations owing (but not due and payable) to such
Lender hereunder, under the Notes or under the Letter of Credit Agreement at
such time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations owing to such Lender at such time to (ii) the
aggregate amount of the Obligations owing (but not due and payable) to all
Lenders hereunder, under the Notes or under the Letter of Credit Agreement at
such time of payments on account of the Obligations owing (but not due and
payable) to all Lenders hereunder,under the Notes or under the Letter of Credit
Agreement at such time obtained by all the Lenders at such time, such Lender
shall forthwith purchase from the other Lenders such participations in the
Obligations due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each other Lender shall be rescinded and such other Lender shall repay to the
purchasing Lender the purchase price to the extent of such other Lender's
ratable share (according to the proportion of (i) the purchase price paid to
such Lender to (ii)
<PAGE> 46
-42-
the aggregate purchase price paid to all Lenders) of such recovery together with
an amount equal to such Lender's ratable share (according to the proportion of
(i) the amount of such other Lender's required repayment to (ii) the total
amount so recovered from the purchasing Lender) of any interest or other amount
paid or payable by the purchasing Lender in respect of the total amount so
recovered. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section 2.12 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such participation.
SECTION 2.13. Letter of Credit. (a) The Letter of Credit. The Issuing Bank
agrees, on the terms and conditions hereinafter set forth, to issue a letter of
credit (the "Letter of Credit") for the account of the Borrower on the Closing
Date in an original face amount of $120,000,000. The Letter of Credit shall have
an expiration date (including all rights of the Borrower or the beneficiary to
require renewal) no later than 364 days after the Closing Date.
(b) Letter of Credit Agreement. The Letter of Credit shall be in a form
agreed upon by the Borrower, the Issuing Bank and Continental which shall be the
beneficiary. On the Closing Date, the Borrower shall execute such form of
application and agreement for letter of credit (the "Letter of Credit
Agreement") as the Issuing Bank may specify to the Borrower for use in
connection with the Letter of Credit. The Issuing Bank will, upon fulfillment of
the applicable conditions set forth in Article III, make the Letter of Credit
available to the Borrower at its office referred to in Section 8.02 or as
otherwise agreed with the Borrower in connection with such issuance. In the
event and to the extent that the provisions of the Letter of Credit Agreement
shall conflict with this Agreement, the provisions of this Agreement shall
govern.
(c) Participation; Drawing and Reimbursement.
(i) Immediately upon the issuance of the Letter of Credit by the
Issuing Bank, each Lender shall be deemed to have irrevocably and
unconditionally purchased and received, without recourse or warranty,
an undivided interest and participation in the Letter of Credit equal
to such Lender's Pro Rata Share of the Available Amount of the Letter
of Credit. The payment by the Issuing Bank of a draft drawn under the
Letter of Credit shall constitute for all purposes of this Agreement
the making by each Lender of a Revolving A Advance (whether or not the
Borrower would actually be permitted to request and receive a Revolving
A Advance at such time), in the amount of its Pro Rata Share such draft
(each a "Letter of Credit Advance"). Each Lender other than the Issuing
Bank irrevocably and unconditionally agrees to make
<PAGE> 47
-43-
such Letter of Credit Advance (on the same Business Day if notification
is received by such Lender prior to 2:00 P.M. (Providence, Rhode Island
time) on such Business Day, or otherwise on the next Business Day) by
making available for the account of its Applicable Lending Office to
the Agent for the account of the Issuing Bank, by deposit to the
Agent's Account, in same day funds, an amount equal to such Lender's
Pro Rata Share of such Letter of Credit Advance. If and to the extent
that any Lender shall not have so made the amount of such Letter of
Credit Advance available to the Agent, such Lender agrees to pay to the
Agent forthwith on demand such amount together with interest thereon,
for each day from the date of demand by the Issuing Bank until the date
such amount is paid to the Agent, at the Federal Funds Rate.
(ii) Upon receipt by the Issuing Bank of any payment from or on behalf of
the Borrower with respect to any reimbursement obligation under the
Letter of Credit, the Issuing Bank shall pay to the Agent for the pro
rata account of the other Lenders an amount equal to the aggregate Pro
Rata Share of the other Lenders of such payment, on the Business Day on
which immediately available funds are received by the Issuing Bank if
such funds are received prior to 11:00 A.M. (Providence, Rhode Island
time), and on the next succeeding Business Day if such funds are
received after 11:00 A.M. (Providence, Rhode Island time).
(d) Obligations Absolute. The Obligations of the Borrower under this
Agreement, the Letter of Credit Agreement and any other agreement or instrument
relating to the Letter of Credit shall be unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement, the
Letter of Credit Agreement and such other agreement or instrument under all
circumstances, including, without limitation, the following circumstances (it
being understood that any such payment by the Borrower is without prejudice to,
and does not constitute a waiver of, any rights the Borrower might have or might
acquire as a result of the payment by the Issuing Bank of any draft or the
reimbursement by the Borrower thereof):
(i) any lack of validity or enforceability of this Agreement, the
Letter of Credit Agreement, the Letter of Credit or any other agreement or
instrument relating thereto (this Agreement and all of the other foregoing
being, collectively, the "L/C Related Documents");
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the Borrower in respect of
any L/C Related Document or any other amendment or waiver of or any consent
to departure from all or any of the L/C Related Documents;
<PAGE> 48
-44-
(iii) the existence of any claim, set-off, defense or other right that
the Borrower may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any Persons for whom any such beneficiary or any
such transferee may be acting), the Issuing Bank or any other Person,
whether in connection with the transactions contemplated by the L/C Related
Documents or any unrelated transaction;
(iv) any statement or any other document presented under the Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect;
(v) payment by the Issuing Bank under the Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of the Letter of Credit;
(vi) any exchange, release or non-perfection of any Collateral or
other collateral, or any release or amendment or waiver of or consent to
departure from the Guaranties or any other guarantee, for all or any of the
Obligations of the Borrower in respect of the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower or a guarantor.
(e) Compensation.
(i) The Borrower shall pay to the Agent for the account of each
Lender a commission in an amount equal to the product of (A) such Lender's
Pro Rata Share of the Available Amount of the Letter of Credit during any
fiscal quarter times (B) the average daily Applicable Revolving Margin for
Eurodollar Rate Advances during such quarter, payable in arrears quarterly
on the last Business Day of such quarter and calculated on the basis of a
360 day year.
(ii) The Borrower shall pay to the Issuing Bank, for its own account,
an issuance fee of $5,000 upon the issuance of the Letter of Credit, and an
administrative fee of $2,500 payable in arrears at the end of each fiscal
quarter during which the Letter of Credit has been outstanding.
SECTION 2.14. Use of Proceeds. The proceeds of the Advances shall be available
(and the Borrower agrees that it shall use such proceeds) solely to provide
financing for the purposes set forth on page 58 of the Proxy Statement attached
hereto as Schedule 2.14 and for general corporate purposes including Investments
and Capital Expenditures permitted hereunder.
<PAGE> 49
-45-
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Borrowing. The obligation of each
Lender to make an Advance or issue the Letter of Credit on the occasion of the
initial Borrowing and the issuance of the Letter of Credit is subject to the
following conditions precedent:
(a) The Lenders shall be reasonably satisfied that the corporate and legal
structure and capitalization of each Loan Party and each of its Subsidiaries,
including the terms and conditions of the charter, bylaws and each class of
capital stock of each Loan Party and each such Subsidiary and of each agreement
or instrument relating to such structure or capitalization will not interfere
with the enforceability of the Loan Documents and the performance of the
obligations of the Loan Parties.
(b) The Agent shall be reasonably satisfied that the structure (including,
without limitation, the treatment of such structure for federal and state tax
purposes) of the Spinoff, the Merger and the transactions contemplated by this
Agreement, and the documents relating thereto, will not interfere with the
enforceability of the Loan Documents and the performance of the obligations of
the Loan Parties.
(c) Without giving effect to the Spinoff, the Merger, and the other
transactions contemplated by this Agreement, there shall have occurred no
Material Adverse Change since June 30, 1995.
(d) There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of their Subsidiaries pending or, to
the knowledge of Borrower, threatened before any court, governmental agency or
arbitrator that (i) could have a Material Adverse Effect other than the matters
described on Schedule 4.01(j) (the "Disclosed Litigation") or (ii) purports to
affect the legality, validity or enforceability of the Spinoff, the Merger, this
Agreement, any Note, any other Loan Document, any Related Document or the
consummation of the transactions contemplated hereby.
(e) The Lenders shall have completed a due diligence investigation of Old
PJC, New PJC and their Subsidiaries in scope, and with results reasonably
satisfactory to the Lenders, and nothing shall have come to the attention of the
Lenders during the course of such due diligence investigation to lead them to
believe (i) that the Information Memorandum was or has become misleading,
incorrect or incomplete in any material respect, and (ii) that, upon the
consummation of the Spinoff, the Borrower and its Material Subsidiaries would
not have good and marketable title to all material assets of each of them as
reflected in the Information Memorandum; without limiting the generality of the
foregoing, the Lenders shall have been given such access to the management,
records, books of account,
<PAGE> 50
-46-
contracts and properties of Old PJC, New PJC and each of their Subsidiaries as
they shall have reasonably requested.
(f) The Agent shall be reasonably satisfied with the status of all network
affiliation agreements and any agreements with respect to local marketing areas
to which the Borrower or any of its Subsidiaries is a party.
(g) Intentionally omitted.
(h) The Borrower shall have obtained all necessary consents and approvals to
maintain the Hedge Agreements required by Section 5.01(n).
(i) The Borrower shall have paid all accrued fees and expenses of the Agent
and the Lenders (including the reasonable accrued fees and expenses of counsel
to the Agent).
(j) The Agent shall have received reasonable evidence that all Existing
Debt, other than the Existing Debt described on Schedule 3.01(j), has been
prepaid, redeemed, or defeased in full, or otherwise satisfied and extinguished.
(k) Intentionally omitted.
(l) The Agent shall have received on or before the day of the initial
Borrowing the following, each dated such day (unless otherwise specified), in
form and substance satisfactory to the Agent (unless otherwise specified) and
(except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board of Directors of
each Loan Party approving the Spinoff, the Merger, this Agreement, the
Notes, each other Loan Document and each Related Document to which it is or
is to be a party, and of all documents evidencing other necessary corporate
action with respect to the Spinoff, the Merger, this Agreement, the Notes,
each other Loan Document and each Related Document.
(iii) A copy of the charters of each Loan Party and each amendment
thereto, certified (as of a date reasonably near the date of the initial
Borrowing) by the Secretary of State of the jurisdiction of incorporation of
each of them as being a true and correct copy thereof.
(iv) A copy of a certificate of the Secretary of State of the State of
the jurisdiction of incorporation of each Loan Party, dated reasonably near
the date of the initial Borrowing, listing the charter of each Loan Party
and each amendment thereto on file in his office and certifying that (A)
such amendments are the only amendments to such Loan Party's charter on file
in his office, (B) each Loan Party
<PAGE> 51
-47-
has paid all franchise taxes to the date of such certificate and (C) each
Loan Party is duly incorporated and in good standing under the laws of the
jurisdiction of incorporation.
(v) A copy of a certificate of the Secretary of State of each
jurisdiction listed on Schedule 4.01(a) hereto, dated reasonably near the
date of the initial Borrowing, stating that each Loan Party is duly
qualified and in good standing as a foreign corporation in such jurisdiction
and has filed all annual reports required to be filed to the date of such
certificate.
(vi) A certificate of each Loan Party, signed on behalf of such Loan
Party by its President or a Vice President and its Secretary or any
Assistant Secretary, dated the date of the initial Borrowing (the statements
made in which certificate shall be true on and as of the date of the initial
Borrowing), certifying as to (A) the absence of any amendments to the
charter of such Loan Party since the date of the Secretary of State's
certificate referred to in Section 3.01(l)(iv), (B) a true and correct copy
of the bylaws of such Loan Party as in effect on the date of the initial
Borrowing, (C) the due incorporation and good standing of such Loan Party as
a corporation organized under the laws of the jurisdiction of incorporation,
and the absence of any proceeding for the dissolution or liquidation of such
Loan Party, and (D) the names and true signatures of the officers of such
Loan Party authorized to sign this Agreement, the Notes, each other Loan
Document and each Related Document to which they are or are to be parties
and the other documents to be delivered hereunder and thereunder.
(vii) A certificate of the Secretary or an Assistant Secretary of each
Loan Party certifying as to (A) the truth of the representations and
warranties contained in the Loan Documents as though made on and as of the
date of the initial Borrowing and (B) the absence of any event occurring and
continuing, or resulting from the initial Borrowing, that constitutes a
Default.
(viii) A pledge agreement in form and substance satisfactory to the
Agent (as amended from time to time in accordance with its terms, and as it
may be supplemented to include the stock of Material Subsidiaries acquired
or created by the Borrower after the Closing Date, the "Pledge Agreement"),
duly executed by Old PJC and New PJC, together with:
(A) certificates representing the Pledged Shares referred to therein
accompanied by undated stock powers executed in blank,
(B) acknowledgment copies or stamped receipt copies of proper financing
statements, duly filed on or before the
<PAGE> 52
-48-
day of the initial Borrowing under the Uniform Commercial Code of all
jurisdictions that the Agent may deem necessary or desirable in order
to perfect and protect the Liens created by the Pledge Agreement,
covering the Collateral described in the Pledge Agreement,
(C) completed requests for information dated on or before the date of
the initial Borrowing and satisfactory to the Agent in its reasonable
discretion, listing all effective financing statements filed in the
jurisdictions referred to in clause (B) above that name Old PJC or New
PJC as debtor, together with copies of such financing statements,
(D) evidence of the completion of all other recordings and filings of
or with respect to the Pledge Agreement that the Agent may deem
necessary or desirable in order to perfect and protect the Liens
created thereby, and
(E) evidence that all other action that the Agent may deem necessary or
desirable in order to perfect and protect the Liens created by the
Pledge Agreement has been taken.
(ix) A Guaranty in form and substance satisfactory to the Agent duly
executed by each of the Guarantors.
(x) Copies of the final form of each of the Related Documents, in
form and substance satisfactory to the Agent, together with all agreements,
instruments and other documents delivered in connection therewith, with
copies to follow as soon as possible, and in any event within 14 days, duly
executed by the parties thereto.
(xi) Such financial, business and other information regarding Old
PJC, New PJC and their Subsidiaries, as applicable, as the Lenders shall
have reasonably requested.
(xii) A certificate from an officer of the Borrower, in form and
substance reasonably satisfactory to the Agent, attesting to the Solvency of
each Loan Party after giving effect to the Spinoff, the Merger, and the
other transactions contemplated hereby.
(xiii) Evidence of insurance carried by the Borrower in
compliance with Section 5.01(d).
(xiv) A favorable opinion of Covington & Burling, FCC counsel to the
Borrower, in form and substance reasonably satisfactory to the Agent and the
Lenders.
(xv) A favorable opinion of Edwards & Angell, counsel for the
Borrower, in form and substance reasonably satisfactory to the Agent and the
Lenders, which opinion
<PAGE> 53
-49-
shall incorporate opinions as to New York law, and which shall permit the
Lenders to rely on the tax opinion delivered by Edwards & Angell to New PJC
in connection with the Merger.
(xvi) A Compliance Certificate as of September 30, 1995 showing pro
forma compliance by New PJC with the terms hereof, calculating Operating
Cash Flow based upon actual results for the period ended August 31, 1995 and
a reasonable good faith estimate of results for the period from September 1,
1995 through September 30, 1995, and assuming that the Borrowings made in
connection with the Spinoff and the Merger and the Letter of Credit are
outstanding.
SECTION 3.02. Conditions Precedent to Each Borrowing. The obligation of each
Lender to make an Advance (other than a Letter of Credit Advance made by a
Lender pursuant to Section 2.13(c)) on the occasion of each Borrowing (including
the initial Borrowing), and the right of the Borrower to request a Swing Line
Borrowing or the issuance of the Letter of Credit, shall be subject to the
further conditions precedent that:
(a) on the date of such Borrowing or issuance, the following statements
shall be true (and each of the giving of the applicable Notice of Borrowing
and the acceptance by the Borrower of the proceeds of such Borrowing or of
the Letter of Credit shall constitute a representation and warranty by the
Borrower that on the date of such Borrowing or issuance such statements are
true):
(i) the representations and warranties contained in each Loan Document
are true and correct in all material respects on and as of the date of such
Borrowing or issuance, before and after giving effect to such Borrowing or
issuance and to the application of the proceeds therefrom, as though made on
and as of such date; and
(ii) no event has occurred and is continuing, or would result from such
Borrowing or issuance or from the application of the proceeds therefrom,
that constitutes a Default; and
(b) the Agent shall have received such other approvals, opinions or
documents as any Lender or the Issuing Bank through the Agent may reasonably
request; and
(c) there shall have been no enactment of any law by any governmental
authority having jurisdiction over any Lender which would make it unlawful in
any respect for such Lender to make its Pro Rata Share of such Borrowing and
there has been no Material Adverse Change since the date of this Agreement to
the financial condition or business of the Borrower and its Subsidiaries taken
as a whole.
<PAGE> 54
-50-
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. Each of Old PJC
and New PJC represents and warrants, after giving effect to any Borrowing and
the application of the proceeds thereof, as follows:
(a) Each Loan Party (i) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation, as
set forth on Schedule 4.01(a), (ii) is duly qualified and in good standing as a
foreign corporation in each other jurisdiction where the failure to so qualify
or be licensed would have a Material Adverse Effect, as set forth on Schedule
4.01(a), and (iii) has all requisite corporate power and authority to own or
lease and operate its properties and to carry on its business as now conducted
and as proposed to be conducted.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of
all Subsidiaries of each Loan Party as of the date hereof, indicating those
Subsidiaries designated as Material Subsidiaries, and showing as of the date
hereof (as to each such Subsidiary) the jurisdiction of its incorporation, the
number of shares of each class of capital stock authorized and the number
outstanding on the date hereof, the percentage of the outstanding shares of each
such class owned (directly or indirectly) by such Loan Party, and the number of
shares covered by all outstanding options, warrants, rights of conversion or
purchase and similar rights at the date hereof. All of the outstanding capital
stock of all of such Subsidiaries has been validly issued, is fully paid and
non-assessable and is owned by such Loan Party or one or more of its
Subsidiaries free and clear of all Liens, except those created by the Collateral
Documents. Each such Subsidiary (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction where the failure to so qualify or be
licensed would have a Material Adverse Effect and (iii) has all requisite
corporate power and authority to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be conducted.
(c) The execution, delivery and performance by each Loan Party of this
Agreement, the Notes, each other Loan Document and each Related Document to
which it is or is to be a party, and the consummation of the Spinoff, the
Merger, and the other transactions contemplated hereby and thereby, are within
such Loan Party's corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene such Loan Party's charter or
by-laws, (ii) violate any law (including, without limitation, the Securities
Exchange Act of 1934), rule, regulation (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System), order,
writ,
<PAGE> 55
-51-
judgment, injunction, decree, determination or award, (iii) conflict with or
result in the breach of, or constitute a default under, any contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument binding
on or affecting any Loan Party, any of its Subsidiaries or any of their
properties in each case so as to have a Material Adverse Effect, or (iv) except
for the Liens created by the Collateral Documents, result in or require the
creation or imposition of any Lien upon or with respect to any of the properties
of any Loan Party or any of its Subsidiaries. No Loan Party or any of its
Subsidiaries is in violation of any such law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or other
instrument, the violation or breach of which could have a Material Adverse
Effect.
(d) Except as set forth on Schedule 4.01(d), no authorization or approval or
other action by, and no notice to or filing with any governmental authority or
regulatory body or any other third party is required for (i) the due execution,
delivery, recordation, filing or performance by any Loan Party of this
Agreement, the Notes, any other Loan Document or any Related Document to which
it is or is to be a party, or for the consummation of the Spinoff, the Merger,
or the other transactions contemplated hereby or thereby, (ii) the grant by any
Loan Party of the Liens granted by it pursuant to the Collateral Documents,
(iii) the perfection or maintenance of the Liens created by the Collateral
Documents (including the first priority nature thereof) or (iv) to the extent
permitted by applicable law, the exercise by the Agent or any Lender of its
rights under the Loan Documents or the remedies in respect of the Collateral
pursuant to the Collateral Documents, all of which have been duly obtained,
taken, given or made and are in full force and effect. Except as noted on
Schedule 4.01(d), all applicable waiting periods in connection with the Spinoff,
the Merger, the other transactions contemplated hereby have expired without any
action having been taken by any competent authority restraining, preventing, or
imposing materially adverse conditions upon the Spinoff or the Merger, or the
rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise
dispose of, or to create any Lien on, any properties now owned or hereafter
acquired by any of them.
(e) This Agreement has been, and each of the Notes, each other Loan Document
and each Related Document when delivered will have been, duly executed and
delivered by each Loan Party party thereto. This Agreement is, and each of the
Notes, each other Loan Document and each Related Document when delivered
hereunder will be, the legal, valid and binding obligation of each Loan Party
party thereto, enforceable against such Loan Party in accordance with its terms
except where the enforceability may be affected by bankruptcy or insolvency laws
or the application of equitable remedies.
<PAGE> 56
-52-
(f) The Consolidated and consolidating balance sheets of Old PJC, New PJC
and their Subsidiaries, as applicable, and the related Consolidated and
consolidating statements of income and cash flows of Old PJC, New PJC and their
Subsidiaries, as applicable, as set forth in the Proxy Statement, copies of
which have been furnished to each Lender, fairly present, the Consolidated and
consolidating financial condition of Old PJC, New PJC and their Subsidiaries, as
applicable, as at the dates set forth therein and the Consolidated and
consolidating results of the operations of the Borrower and its Subsidiaries for
the periods ended on such dates, all in accordance with GAAP, and since June 30,
1995, there has been no Material Adverse Change.
(h) The projections prepared by the Borrower delivered to the Lenders
pursuant to 5.03(d) were prepared in good faith on the basis of the assumptions
stated therein, which assumptions were fair in the light of conditions existing
at the time of delivery of such forecasts, and represented, at the time of
delivery, the Borrower's best estimate of its future financial performance.
(i) To the best of the Borrower's knowledge, neither the Information
Memorandum nor any other information, exhibit or report furnished by any Loan
Party or the Borrower to the Agent or any Lender in connection with the
negotiation of the Loan Documents or pursuant to the terms of the Loan Documents
contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements made therein not misleading.
(j) Except as set forth on Schedule 4.01(j), there is no action, suit,
investigation, litigation or proceeding affecting any Loan Party or any of their
Subsidiaries, including any Environmental Action, pending or, to the best of the
Borrower's knowledge, threatened before any court, governmental agency or
arbitrator that (i) could have a Material Adverse Effect or (ii) purports to
affect the legality, validity or enforceability of the Spinoff, the Merger, this
Agreement, any Note, any other Loan Document, or any Related Document or the
consummation of the transactions contemplated hereby.
(k) Set forth on Schedule 4.01(k) is a complete and correct list of each
Lien on any property of the Borrower or any of its Material Subsidiaries that
secures Debt in an aggregate principal or face amount equaling or exceeding (or
which could equal or exceed) $100,000.
(l) The Borrower is not engaged in the business of extending credit for the
purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance
will be used to purchase or carry any Margin Stock or to extend credit to others
for the purpose of purchasing or carrying any Margin Stock. The Borrower will
use the proceeds of the Borrowings made hereunder in compliance with all
applicable legal requirements, including, without limitation, Regulations G, T,
U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
<PAGE> 57
-53-
(m) Each Plan, and, to the best knowledge of the Borrower, each
Multiemployer Plan, is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Internal Revenue Code and any other federal or state
law, and no event or condition has occurred and is continuing as to which the
Borrower would be under an obligation to furnish a report to the Agent under
Sections 5.03(e), (f) or (g) hereof.
(n) Intentionally omitted.
(o) The operations and properties of each Loan Party and each of its
Subsidiaries comply in all material respects with all Environmental Laws, all
material Environmental Permits have been obtained and are in effect for the
operations and properties of each Loan Party and its Subsidiaries, each Loan
Party and its Subsidiaries are in compliance in all material respects with all
such Environmental Permits, and no circumstances exist that could (i) form the
basis of an Environmental Action against any Loan Party or any of its
Subsidiaries or any of their properties or (ii) cause any such property to be
subject to any restrictions on ownership, occupancy, use or transferability
under any Environmental Law, in each case where the same would have a Material
Adverse Effect.
(p) None of the properties of any Loan Party or any of its Subsidiaries is
listed or, to the best of Borrower's knowledge, proposed for listing on the
National Priorities List under CERCLA or on the Comprehensive Environmental
Response, Compensation and Liability Information System maintained by the
Environmental Protection Agency or any analogous state list of sites requiring
investigation or cleanup or is immediately adjacent to any such property, and no
underground storage tanks (that are not in compliance in all material respects
with all Environmental Laws), as such term is defined in 42 U.S.C. 6991, are
located on any property of any Loan Party or any of its Subsidiaries or, to the
best of its knowledge, on any immediately adjoining property.
(q) Neither any Loan Party nor any of its Subsidiaries has transported or
arranged for the transportation of any Hazardous Materials to any location that
is listed or proposed for listing on the National Priorities List under CERCLA
or on the Comprehensive Environmental Response, Compensation and Liability
Information System maintained by the Environmental Protection Agency or any
analogous state list, Hazardous Materials have not been generated, used,
treated, handled, stored or disposed of on, or released or transported to or
from, any property of any Loan Party or any of its Subsidiaries or, to the best
of its knowledge, any adjoining property, except in material compliance with all
Environmental Laws and Environmental Permits, and all other wastes generated at
any such properties have been disposed of in compliance with all material
Environmental Laws and Environmental Permits.
<PAGE> 58
-54-
(r) Intentionally omitted.
(s) The Borrower and each of its Subsidiaries are members of an affiliated
group of corporations filing consolidated returns for federal income tax
purposes, of which Old PJC is the "common parent" (within the meaning of Section
1504 of the Internal Revenue Code) on the date hereof, and of which New PJC
shall be the "common parent" upon the consummation of the Spinoff, of such
group. The Borrower and its Subsidiaries have filed all federal income tax
returns and all other material tax returns that are required to be filed by them
and have paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Borrower or any of its Subsidiaries. The charges,
accruals and reserves on the books of the Borrower and its Subsidiaries in
respect of taxes and other governmental charges are, in the opinion of the
Borrower, adequate. The Borrower has not given or been requested to give a
waiver of the statute of limitations relating to the payment of federal, state,
local or foreign taxes or other impositions.
(t) Except as described in the Proxy Statement, neither the Spinoff nor the
Merger will be taxable to the Borrower or any of its Subsidiaries or Affiliates.
(u) Neither any Loan Party nor any of its Subsidiaries is an "investment
company," or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended. Neither the making of any Advances, nor the
issuance of, or participation in, the Letter of Credit, nor the application of
the proceeds or repayment thereof by the Borrower, nor the consummation of the
other transactions contemplated hereby, will violate any provision of such Act
or any rule, regulation or order of the Securities and Exchange Commission
thereunder.
(v) Neither any Loan Party nor any of its Subsidiaries is a "holding
company", or an "affiliate" of a "holding company" or a "subsidiary company" of
a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
(w) Each Loan Party is, individually and together with its Subsidiaries,
Solvent.
(x) The Proxy Statement contains a complete and accurate description of all
Investments held by any Loan Party or any of their Subsidiaries, showing as of
the date hereof the amount, obligor or issuer and maturity, if any, thereof.
(y) The Proxy Statement contains a complete and accurate description of all
Existing Debt showing as of the date hereof the principal amount outstanding
thereunder.
(z) All of the material properties, equipment, and systems of each Loan
Party and its Subsidiaries are, and all material
<PAGE> 59
-55-
properties, equipment and systems to be added in connection with any
contemplated television station expansion or construction will be, in good
repair, working order and condition (ordinary wear and tear excepted) and are
and will be in material compliance with all applicable standards, rules or
requirements imposed by (a) any governmental agency or authority (including,
without limitation, the FCC), (b) any Broadcast License, and (c) any agreements
with television networks including, but not limited to, the Network Affiliation
Agreements.
(aa) With respect to the television stations, each Loan Party and each of
its Subsidiaries (a) have duly obtained all Broadcast Licenses that are required
for the ownership operation of the television stations, (b) have filed all
material required registrations, applications, reports and other documents with
the FCC, and (c) have paid all fees required to be paid by the FCC. Each
Broadcast License is valid and in full force and effect, no event has occurred
that would be reasonably likely to (i) result in the revocation, termination, or
materially adverse modification of any such Broadcast License or (ii) otherwise
have a Material Adverse Effect, and no Loan Party or any Subsidiary has reason
to believe or knowledge that any of such Broadcast Licenses will not be renewed
in the ordinary course. No Loan Party or any of its Subsidiaries is the subject
of any outstanding citation, order, petition, suspension, notice, or, to the
best knowledge of any Loan Party, investigation by the FCC that would have a
Material Adverse Effect, and no such citation, order, petition, suspension,
notice, or investigation, to the best knowledge of any Loan Party, is
contemplated by the FCC.
(bb) Set forth on Schedule 4.01(bb) hereto is a list of each Network
Affiliation Agreement and the expiration dates therefor. Each Network
Affiliation Agreement is valid and in full force and effect, has not been
amended or otherwise modified, no event has occurred that would be reasonably
likely to (i) result in the termination or materially adverse modification of
any Network Affiliation Agreement or (ii) have a Material Adverse Effect, and as
of the Closing Date, no Loan Party or any of its Subsidiaries has knowledge that
any of such Network Affiliation Agreements will not be renewed in the ordinary
course.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. From the date hereof and so long as any
Advance shall remain unpaid, the Letter of Credit shall be outstanding or any
Lender shall have any Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries to
comply, in all material respects, with all applicable laws, rules, regulations
and orders.
<PAGE> 60
-56-
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges or levies imposed upon it or
upon its property and (ii) all lawful claims that, if unpaid, might by law
become a Lien upon its property; provided, however, that neither the Borrower
nor any of its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained, unless
and until any Lien resulting therefrom attaches to its property and becomes
enforceable against its other creditors.
(c) Compliance with Environmental Laws. Comply, and cause each of its
Subsidiaries and all lessees and other Persons occupying its properties to
comply, in all material respects, with all Environmental Laws and Environmental
Permits applicable to its operations and properties; obtain and renew all
Environmental Permits necessary for its operations and properties; and conduct,
and cause each of its Subsidiaries to conduct, any investigation, study,
sampling and testing, and undertake any cleanup, removal, remedial or other
action necessary to remove and clean up all Hazardous Materials from any of its
properties, in accordance in all material respects with the requirements of all
Environmental Laws; provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to undertake any such cleanup, removal, remedial
or other action to the extent that its obligation to do so is being contested in
good faith and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries
to maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried by
companies engaged in similar businesses and owning similar properties in the
same general areas in which the Borrower or such Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and maintain, and
cause each of its Material Subsidiaries to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that Old PJC and New PJC and their Subsidiaries may consummate the transactions
contemplated by the Related Documents and King Holding Corp. may be dissolved so
long as the Borrower or a Material Subsidiary succeeds to its assets as a result
thereof.
(f) Visitation Rights. Permit representatives of any Lender (coordinated by
and through the Agent in a manner that will not unreasonably disrupt the conduct
of business by the Borrower or any of its Subsidiaries) or the Agent, during
normal business hours and upon reasonable notice, to examine, copy and make
extracts from its books and records, to inspect any of its properties, and to
discuss its business and affairs with its officers, all to the extent reasonably
requested by such Lender or the Agent (as the case may be).
<PAGE> 61
-57-
(g) Intentionally omitted.
(h) Keeping of Books. Keep, and cause each of its Subsidiaries to keep,
proper books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of the Borrower
and each such Subsidiary in accordance with generally accepted accounting
principles in effect from time to time.
(i) Maintenance of Properties, Etc. Maintain and preserve, and cause each of
its Subsidiaries to maintain and preserve, (A) all of its properties that are
used or useful in the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and keep all systems and equipment
that are then subject to compliance with any standards or rules imposed by any
governmental agency or authority (including but not limited to the FCC) in
material compliance with such standards or rules, install and maintain all
equipment and systems in compliance with any material requirement imposed under
FCC regulations, permits or licenses and (B) all of its franchises, licenses,
rights and privileges under any Broadcast License or Network Affiliation
Agreement.
(j) Intentionally omitted.
(k) Performance of Related Documents. Perform and observe, and cause each
Subsidiary to perform and observe, all of the material terms and provisions of
each Related Document to be performed or observed by it, maintain each such
Related Document in full force and effect, enforce such Related Document in
accordance with its terms, take all such action to such end as may be from time
to time reasonably requested by the Agent and, upon reasonable request of the
Agent, make to each other party to each such Related Document such demands and
requests for information and reports or for action as the Borrower or Subsidiary
is entitled to make under such Related Document.
(l) Intentionally omitted.
(m) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the Loan
Documents with any of their Affiliates on terms that are fair and reasonable and
no less favorable to the Borrower or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate, other than
transactions with Affiliates that are not shareholders of the Borrower which are
not material to the Borrower and its Subsidiaries taken as a whole.
(n) Interest Rate Hedging. Maintain at all times thereafter through December
31, 1999, interest rate Hedge Agreements with The First National Bank of
Chicago, or its successors by operation of law, or other Persons reasonably
acceptable to the Agent and on terms reasonably satisfactory to the Agent,
covering
<PAGE> 62
-58-
a notional amount of not less than the amounts set forth for the specified years
in the table below:
<TABLE>
<CAPTION>
Calendar Year Notional Amount
------------- ---------------
<S> <C>
1996 $200,000,000
1997 $175,000,000
1998 $150,000,000
1999 $150,000,000
</TABLE>
(o) Material Subsidiaries. Upon the acquisition or creation by the Borrower
of any Material Subsidiary (i) cause such Material Subsidiary to execute and
deliver to the Agent such documents as are necessary for such Material
Subsidiary to become a party to the Guaranty, and (ii) execute and deliver to
the Agent such documents as are necessary for the stock of such Material
Subsidiary to be pledged to the Agent for the benefit of the Lenders.
SECTION 5.02. Negative Covenants. From the date hereof and so long as any
Advance shall remain unpaid, the Letter of Credit shall be outstanding or any
Lender shall have any Commitment hereunder, the Borrower will not, at any time,
without the written consent of the Required Lenders or, if required under
Section 8.01, of all of the Lenders:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit any of
its Subsidiaries to create, incur, assume or suffer to exist, any Lien on or
with respect to any of its properties of any character (including, without
limitation, accounts) whether now owned or hereafter acquired, or sign or file,
or permit any of its Subsidiaries to sign or file, under the Uniform Commercial
Code of any jurisdiction, a financing statement that names the Borrower or any
of its Subsidiaries as debtor, or sign, or permit any of its Subsidiaries to
sign, any security agreement authorizing any secured party thereunder to file
such financing statement, or assign, or permit any of its Subsidiaries to
assign, any accounts or other right to receive income, excluding, however, from
the operation of the foregoing restrictions the following:
(i) Liens created by the Loan Documents;
(ii) Permitted Liens;
(iii) the Liens existing on the date of this Agreement
and described on Schedule 5.02(a); and
(iv) other Liens securing Debt otherwise permitted to be incurred by
Section 5.02(b)(v) and outstanding at any time in an aggregate principal
amount (including, without limitation, amounts representing imputed
principal under Capitalized Leases) not to exceed $20,000,000, provided that
no such Lien shall extend to or cover any Collateral.
<PAGE> 63
-59-
(b) Debt. Create, incur, assume or suffer to exist, or permit any of its
Subsidiaries to create, incur, assume or suffer to exist, any Debt other than:
(i) Debt under the Loan Documents and, with respect to Old PJC, Debt
contemplated by the Related Documents;
(ii) Debt with respect to the Borrower's obligations under Exempt
Facility Revenue Bonds (Washington Street Garage Corporation Project 1991
Series), in a principal amount not to exceed $10,000,000 at any time
outstanding;
(iii) Debt in respect of Hedge Agreements required to be maintained
under the terms of Section 5.01(n) hereof;
(iv) unsecured Debt with respect to trade payables incurred in the
ordinary course of business which are being paid in accordance with
customary industry practices, and for payment of payrolls and other ordinary
business expenses;
(v) Debt secured by Liens permitted by Section 5.02(a)(iv) and
obligations in respect of Capitalized Leases and purchase money security
interests not to exceed in the aggregate $20,000,000 at any time
outstanding, and together with the Debt permitted by Section 5.02(b)(vi),
(vii), and (viii) not to exceed in the aggregate $45,000,000 at any time
outstanding;
(vi) Debt consisting of trade letters of credit incurred in the
ordinary course of business not to exceed $5,000,000 in the aggregate at any
time outstanding, and together with the Debt permitted by Section
5.02(b)(v), (vii), and (viii) not to exceed in the aggregate $45,000,000 at
any time outstanding;
(vii) Debt consisting of guaranties (other than the guaranty described
in 5.02(b)(ii) above) of obligations of Subsidiaries of the Borrower with
respect to investments made by such Subsidiaries not to exceed $10,000,000
in the aggregate at any time outstanding, and together with the Debt
permitted by Section 5.02(b) (v), (vi), and (viii), not to exceed in the
aggregate $45,000,000 at any time outstanding;
(viii) Other Debt not exceeding $10,000,000 in the aggregate at any
time outstanding, and together with the Debt permitted by Section
5.02(b)(v), (vi) and (vii), not to exceed in the aggregate $45,000,000 at
any time outstanding;
(ix) Debt owed by the Borrower or any of its Subsidiaries to the
Borrower or any of its Subsidiaries as the case may be;
(x) Unsecured Subordinated Debt of the Borrower not to exceed
(together with the Debt permitted by Section 5.02(b)(xi)) $150,000,000 in
the aggregate at any time
<PAGE> 64
-60-
outstanding; provided that (A) such Subordinated Debt would be permitted by
Section 5.04(a), (B) no Default or Event of Default exists or would occur
after the incurrence of such Subordinated Debt, (C) the terms of such
Subordinated Debt are are in no event more restrictive than the terms of the
Facilities hereunder and are otherwise satisfactory to the Required Lenders
in their reasonable discretion, and (D) the net proceeds of such
Subordinated Debt are used to prepay the Term Loan or reduce the Revolving A
Commitment to the extent required by Section 2.05(e).
(xi) After such time as the Borrower shall have completed an internal
reorganization which results in the Borrower's operating divisions becoming
wholly owned Material Subsidiaries, and the Borrower shall have complied in
all respects with the terms of Section 5.01(o), the Borrower may issue
unsecured Debt equal in right of payment with the Obligations hereunder in
an aggregate principal amount not to exceed (together with the Subordinated
Debt permitted by Section 5.02(b)(x)) $150,000,000 at any time outstanding;
provided that (A) such Debt would be permitted by Section 5.04(a), (B) no
Default or Event of Default exists or would occur after the incurrence of
such Debt, (C) the terms of such Debt are in no event more restrictive than
the terms of the Facilities hereunder and are otherwise satisfactory to the
Required Lenders in their reasonable discretion, and (D) the net proceeds of
such Debt are used to prepay the Term Loan or reduce the Revolving A
Commitment to the extent required by Section 2.05(d).
(c) Mergers, Etc. Merge into or consolidate with any Person or permit any \
Person to merge into it, or permit any of its Subsidiaries to do so, except:
(i) Old PJC may consummate the Merger; or
(ii) any Subsidiary of the Borrower may merge into or consolidate with
any other Subsidiary of the Borrower provided that, in the case of any such
consolidation, the Person formed by such consolidation shall be a Subsidiary
of the Borrower;
provided, however, that in each case, immediately after giving effect thereto,
no event shall occur and be continuing that constitutes a Default.
(d) Sales, Etc. of Assets. Sell, lease, exchange, transfer
or otherwise dispose of, or permit any of its Subsidiaries to
sell, lease, transfer or otherwise dispose of, any assets, or
grant any option or other right to purchase, lease or otherwise
acquire any Collateral, except:
(i) sales of assets in the ordinary course of its business;
<PAGE> 65
-61-
(ii) sales or transfers of assets contemplated by the Related
Documents; or
(iii) other dispositions of assets, so long as: (A) the purchase price
paid or value given for such asset shall be no less than the fair market
value of such asset at the time of disposition, (B) the combined assets sold
or otherwise disposed of during any 12 month period shall not have produced
more than 15% of Operating Cash Flow for the 12 months then ended, or more
than 30% of Operating Cash Flow during the 36 months then ended, and (C) net
proceeds from any such asset disposition in excess of $50,000,000 in the
aggregate (from the Closing Date) for all asset dispositions occurring after
the Closing Date and not reinvested in Qualifying Businesses within 12
months after the consummation of such asset disposition shall be applied to
prepay the Facilities or reduce the Commitments in accordance with Section
2.05(b) and (h).
(e) Investments in Other Persons. Make or hold, or permit any of its
Subsidiaries to make or hold, any Investment in any Person other than:
(i) Investments by the Borrower and its Subsidiaries in each other;
(ii) Investments by the Borrower and its Subsidiaries in Cash
Equivalents, and in Hedge Agreements; and
(iii) Permitted Reinvestments;
(iv) Investments in Existing or Identified Investments of not more
than $20,000,000 in the aggregate from the Closing Date;
(v) Investments in Qualifying Businesses (other than Permitted
Reinvestments and Existing or Identified Investments) totalling not more
than $50,000,000 in the aggregate from the Closing Date;
provided, however, that (A) any Debt incurred in connection with any Investment
would be permitted by Section 5.04(a), (B) no Default or Event of Default exists
or would occur after the incurrence of such Debt, and (C) Operating Cash Flow of
Investments not engaged in newspaper publishing or television broadcasting in
which the Borrower or one of its Subsidiaries has acquired 51% or more of the
Voting Stock shall not represent in the aggregate (1) more than 10% of Operating
Cash Flow at any time if the ratio of total Debt for Borrowed Money to Operating
Cash Flow (as evidenced by a Compliance Certificate delivered by the Borrower to
the Agent at such time for the 12 months immediately preceding) is greater than
4.0:1.0, and (2) not more than 25% of Operating Cash Flow if the ratio of total
Debt for Borrowed Money to Operating Cash Flow (as evidenced by such Compliance
Certificate) is less than 4.0:1.0.
<PAGE> 66
-62-
(f) Restricted Payments. Make any Restricted Payments or permit any of its
Subsidiaries to make any Restricted Payments, other than cash dividends and
purchases of treasury stock; provided that no Restricted Payments may be made if
a Default or Event of Default exists or would result after giving effect to such
Restricted Payment.
(g) Change in Nature of Business. Make, or permit any of its Subsidiaries to
make, any material change in the nature of its business as carried on at the
date hereof.
(h) Charter Amendments. Amend, or permit any of its Subsidiaries to amend,
its certificate of incorporation or bylaws if such amendment would have a
Material Adverse Effect.
(i) Accounting Changes. Make or permit, or permit any of its Subsidiaries to
make or permit, any change in accounting policies or reporting practices, except
as required by GAAP.
(j) Prepayments, Etc. of Debt. Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner, or make
any payment in violation of any subordination terms of, any Debt, other than the
prepayment of the Advances in accordance with the terms of this Agreement, or
permit any of its Subsidiaries to do so, other than prepayment of the Existing
Debt as required hereunder.
(k) Amendment, Etc. of Related Documents. Cancel or terminate any Related
Document or consent to or accept any cancellation or termination thereof, amend,
modify or change in any manner any term or condition of any Related Document or
give any consent, waiver or approval thereunder, waive any default under or any
breach of any term or condition of any Related Document, agree in any manner to
any other amendment, modification or change of any term or condition of any
Related Document or take any other action in connection with any Related
Document that would materially impair the value of the interest or rights of the
Borrower thereunder or that would materially impair the rights or interests of
the Agent or any Lender, or permit any of its Subsidiaries to do any of the
foregoing.
(l) No Negative Pledge. Enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement prohibiting or
placing conditions upon the creation or assumption of any Lien upon any of its
property or assets other than an agreement in favor of the Agent and the
Lenders.
SECTION 5.03. Reporting Requirements. So long as any Advance shall remain
unpaid, the Letter of Credit shall be outstanding or any Lender shall have any
Commitment hereunder, the Borrower will, unless the Required Lenders shall
otherwise consent in writing, furnish to the Lenders:
(a) Default Notice. The Borrower shall notify the Agent as soon as possible
after the occurrence of each Default (and the
<PAGE> 67
-63-
Agent shall promptly thereafter notify the Lenders), and shall deliver to the
Agent within a reasonable amount of time thereafter a statement of the chief
financial officer of the Borrower setting forth details of such Default and the
action that the Borrower has taken and proposes to take with respect thereto.
(b) Quarterly Financials. As soon as available and in any event 60 days
after the end of each fiscal quarter of each fiscal year of the Borrower,
Consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as of the end of such quarter, and Consolidated and consolidating
statements of income and cash flows of the Borrower and its Subsidiaries for the
period commencing at the end of the previous fiscal year and ending with the end
of such quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding period of the preceding fiscal year,
all in reasonable detail and duly certified (subject to year-end audit
adjustments) by the chief financial officer of the Borrower as having been
prepared in accordance with GAAP (it being understood that to the extent that
the Borrower's quarterly report on form 10-Q filed with the Securities and
Exchange Commission for a quarter sets forth such information, the Borrower may
satisfy the foregoing requirement by submitting such report), together with (i)
a certificate of said officer stating that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a statement as to
the nature thereof and the action that the Borrower has taken and proposes to
take with respect thereto and (ii) a Compliance Certificate substantially in the
form of Exhibit D (it being understood that the initial financial statements and
Compliance Certificate delivered hereunder for the period ending as of September
30, 1995 shall assume that the Borrowings made in connection with the Spinoff
and the Merger and the Letter of Credit were outstanding as of September 30,
1995).
(c) Annual Financials. As soon as available and in any event within 120 days
after the end of each fiscal year of the Borrower, a copy of the annual audit
report for such year for the Borrower and its Subsidiaries, including therein
Consolidated balance sheets of the Borrowers and its Subsidiaries as of the end
of such fiscal year and Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for such fiscal year, together with unaudited
consolidating balance sheets of the Borrower and its Subsidiaries as of the end
of such fiscal year, and consolidating statements of income and cash flows of
the Borrower and its Subsidiaries for such fiscal year, in each case accompanied
by an opinion acceptable to the Required Lenders of Peat Marwick or other
independent public accountants of recognized standing acceptable to the Required
Lenders (it being understood that to the extent that the Borrower's annual
report on form 10-K filed with the Securities and Exchange Commission for a
fiscal year sets forth such information, the Borrower may satisfy the foregoing
requirement by submitting such report), together with (i) a certificate of the
chief financial officer of
<PAGE> 68
-64-
the Borrower stating that no Default has occurred and is continuing, or if a
Default has occurred and is continuing, a statement as to the nature thereof and
the action that the Borrower has taken and proposes to take with respect
thereto, (ii) a Compliance Certificate substantially in the form of Exhibit D.
(d) Annual Forecasts. As soon as available after the approval thereof by the
Board of Directors of the Borrower, an annual budget prepared by management of
the Borrower, in form reasonably satisfactory to the Agent, for the coming
fiscal year.
(e) ERISA Events. Promptly and in any event within 10 days after any Loan
Party or any of its ERISA Affiliates knows or has reason to know that any ERISA
Event with respect to any Loan Party or any of its ERISA Affiliates has
occurred, a statement of the chief financial officer of the Borrower describing
such ERISA Event and the action, if any, that such Loan Party or such ERISA
Affiliate has taken and proposes to take with respect thereto.
(f) Plan Terminations. Promptly and in any event within ten Business Days
after receipt thereof by any Loan Party or any of its ERISA Affiliates, copies
of each notice from the PBGC stating its intention to terminate any Plan of any
Loan Party or any of its ERISA Affiliates or to have a trustee appointed to
administer any such Plan.
(g) Multiemployer Plan Notices. Promptly and in any event within five
Business Days after receipt thereof by any Loan Party or any of its ERISA
Affiliates from the sponsor of a Multiemployer Plan of any Loan Party or any of
its ERISA Affiliates, copies of each notice concerning (i) the imposition of
Withdrawal Liability by any such Multiemployer Plan, (ii) the reorganization or
termination, within the meaning of Title IV of ERISA, of any such Multiemployer
Plan or (iii) the amount of liability incurred, or that may be incurred, by such
Loan Party or any of its ERISA Affiliates in connection with any event described
in clause (i) or (ii).
(h) Litigation. Promptly after the commencement thereof, notice of all
actions, suits, investigations, litigation and proceedings before any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, affecting any Loan Party or any of its Subsidiaries of the
type described in Section 4.01(j), and promptly after the occurrence thereof,
notice of any material adverse change in the status or the financial effect on
the Borrower and its Subsidiaries taken as a whole of the Disclosed Litigation
from that described on Schedule 4.01(j).
(i) Securities Reports. Promptly after the sending or filing thereof, copies
of all proxy statements, financial statements and reports that any Loan Party or
any of their Subsidiaries sends to its stockholders, and copies of all regular,
periodic and special reports, and all registration statements, that any Loan
Party or
<PAGE> 69
-65-
any of their Subsidiaries files with the Securities and Exchange Commission or
any governmental authority that may be substituted therefor, or with any
national securities exchange.
(j) Creditor Reports. Promptly after the furnishing thereof, copies of any
statement or report furnished to any other holder of the securities of any Loan
Party or of any of their Subsidiaries pursuant to the terms of any indenture,
loan or credit or similar agreement and not otherwise required to be furnished
to the Lenders pursuant to any other clause of this Section 5.03.
(k) Environmental Conditions. Promptly after the knowledge of an occurrence
thereof, notice of any condition or occurrence on any property of any Loan Party
or any of its Subsidiaries that results in a material noncompliance by any Loan
Party or any of their Subsidiaries with any Environmental Law or Environmental
Permit or would (i) form the basis of an Environmental Action against any Loan
Party or any of their Subsidiaries or such property that could have a Material
Adverse Effect or (ii) cause any such property to be subject to any material
restrictions on ownership, occupancy, use or transferability under any
Environmental Law.
(l) Change of Control. Within 90 days after the end of each fiscal year of
the Borrower ending after the date hereof, a certificate of an officer of the
Borrower to the effect that no Default or Event of Default exists under Section
6.01(k) hereof; provided that nothing in this Section 5.03(l) shall be deemed to
grant a grace period for compliance with Section 6.01(k) or modify the
provisions of Section 6.01(k) in any way.
(m) Other Information. Such other information respecting the business,
condition (financial or otherwise), operations, performance or properties of any
Loan Party or any of its Subsidiaries as any Lender may from time to time
reasonably request.
SECTION 5.04. Financial Covenants. So long as any Advance shall remain unpaid,
the Letter of Credit shall be outstanding or any Lender shall have any
Commitment hereunder, the Borrower will, unless the Required Lenders otherwise
consent in writing:
(a) Debt Coverage Ratio. Maintain at all times during each period set forth
below a ratio of total Debt for Borrowed Money to Operating Cash Flow
(calculated for the 12 months immediately preceding the date of determination)
of not more than the amount set forth below for each period set forth below:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
Closing Date through December 31, 1996 5.25:1.00
January 1, 1997 through December 31, 1997 4.50:1.00
January 1, 1998 through December 31, 1998 4.00:1.00
January 1, 1999 and thereafter 3.50:1.00
</TABLE>
<PAGE> 70
-66-
(b) Interest Coverage Ratio. Maintain at all times during each period set
forth below a ratio of Operating Cash Flow to Interest Expense (each calculated
for the 12 months immediately preceding the date of determination) of not less
than the amount set forth below for each period set forth below:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
Closing Date through December 31, 1995 1.75:1.00
January 1, 1996 through December 31, 1996 2.00:1.00
January 1, 1997 and thereafter 2.25:1.00
</TABLE>
(c) Fixed Charge Ratio. Maintain at all times after the Closing Date a ratio
of Adjusted Operating Cash Flow to Fixed Charges (each calculated for the 12
months immediately preceding the date of determination) of not less than
1.05:1.00.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) the Borrower shall fail to pay any interest on any Advance or pay any
commitment fee within five Business Days after the same becomes due and payable,
or the Borrower or any other Loan Party shall fail to pay any principal of any
Advance, any reimbursement obligation under the Letter of Credit Agreement, or
any other amount due under any Loan Document when the same becomes due and
payable; or
(b) any representation or warranty made by any Loan Party (or any of its
officers) under or in connection with any Loan Document shall prove to have been
incorrect in any material respect when made; or
(c) the Borrower shall fail to perform or observe any term, covenant or
agreement contained in Section 5.01(e), 5.02, 5.03(a) or 5.04; or
(d) any Loan Party shall fail to perform any other term, covenant or
agreement contained in any Loan Document on its part to be performed or observed
if such failure shall remain unremedied for 30 days after written notice thereof
shall have been given to the Borrower by the Agent or any Lender (unless such
Loan Document specifies a different grace period for compliance with such term,
covenant or agreement, in which case the provisions of such Loan Document shall
govern); or
(e) the Borrower or any of its Material Subsidiaries shall fail to pay any
principal of, premium or interest on or any other amount payable in respect of
any Debt that is outstanding in a principal amount of $5,000,000 or more in the
aggregate (but excluding Debt outstanding hereunder) when the same becomes due
<PAGE> 71
-67-
and payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise); or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Debt, if the effect of
such event or condition upon the giving of notice or the passing of time, or
both, is to accelerate, or to permit the acceleration of, the maturity of such
Debt or otherwise to cause, or to permit the holder thereof to cause, such Debt
to mature; or any such Debt shall be declared to be due and payable or required
to be prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each case prior
to the stated maturity thereof; or
(f) any Loan Party or any of its Subsidiaries shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against any Loan Party or
any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee, or other
similar official for it or for any substantial part of its property; and, in the
case of any such proceeding instituted against it (but not instituted by it)
that is being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of 60 days or any of the
actions sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or any substantial part of its
property) shall occur; or any Loan Party or any of its Subsidiaries shall take
any corporate action to authorize any of the actions set forth above in this
subsection (f); or
(g) any judgment or order for the payment of money in excess of $5,000,000
in the aggregate shall be rendered against any Loan Party or any of its
Subsidiaries and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be any period of 20
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(h) any non-monetary judgment or order shall be rendered against any Loan
Party or any of its Subsidiaries that could have a Material Adverse Effect, and
there shall be any period of 20 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
<PAGE> 72
-68-
(i) any material provision of any Loan Document after delivery thereof
pursuant to Section 3.01 shall for any reason cease to be valid and binding on
or enforceable against any Loan Party party to it, or any such Loan Party shall
so state in writing; or
(j) any Collateral Document after delivery thereof pursuant to Section 3.01
shall for any reason (other than pursuant to the terms thereof) cease in the
reasonable judgment of the Agent to create a valid and perfected first priority
Lien on the Collateral purported to be covered thereby; or
(k) any Person or Persons (other than those holding shares of common stock
of New PJC immediately following consummation of the Spinoff or trusts naming
relatives of such individuals as beneficiaries) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), directly or indirectly
of, or shall have acquired by contract or otherwise, or entered into a contract
or arrangement that, upon consummation, will result in its or their acquisition
of, Voting Stock of the Borrower (or other securities convertible into such
securities) representing more than 50% in the aggregate of the combined voting
power of all Voting Stock of the Borrower; or
(l) An event or condition specified in Sections 5.03(e), (f), or (g) shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a result
of such event or condition, together with all other such events or conditions,
the Borrower or and ERISA Affiliate shall incur or in the opinion of the
Required Lenders shall be reasonably likely to incur a liability to a Plan, a
Multiemployer Plan or PBGC (or any combination of the foregoing) which would
constitute, in the determination of the Required Lenders, a Material Adverse
Effect; or
(m) any default or event of default shall have occurred and be continuing
under the Merger Agreement; or
(n) the Spinoff and the Merger and the transactions contemplated thereby
shall not be consummated within 30 days of the date hereof;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances and of the Issuing Bank to issue
Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Required Lenders, (A) by notice to the Borrower, declare the Notes, all interest
thereon and all other amounts payable under this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower, and (B)
<PAGE> 73
-69-
exercise any and all remedies provided under the Collateral Documents, to the
extent permitted by applicable law, as provided in the Collateral Documents;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to any Loan Party or any of its Subsidiaries under the
Federal Bankruptcy Code, (x) the obligation of each Lender to make Advances and
of the Issuing Bank to issue Letters of Credit shall automatically be terminated
and (y) the Notes, all such interest and all such amounts shall automatically
become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letter of Credit Upon Default. If any
Event of Default shall have occurred and be continuing, the Agent may,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Agent on behalf of the Lenders in same day
funds at the Agent's office designated in such demand, for deposit in a
non-interest bearing account in the name of the Borrower but under the sole
dominion and control of the Agent, an amount equal to the Available Amount of
the Letter of Credit then outstanding. If at any time the Agent determines that
any funds held in such account are subject to any right or claim of any Person
other than the Agent and the Lenders or that the total amount of such funds is
less than the aggregate Available Amount of the Letter of Credit, the Borrower
will, forthwith upon demand by the Agent, pay to the Agent, as additional funds
to be deposited and held in such account, an amount equal to the excess of (a)
such aggregate Available Amount over (b) the total amount of funds, if any, then
held in such account that the Agent determines to be free and clear of any such
right and claim.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement and the other Loan Documents as
are delegated to the Agent by the terms hereof and thereof, together with such
powers and discretion as are reasonably incidental thereto. As to any matters
not expressly provided for by the Loan Documents (including, without limitation,
enforcement or collection of the Notes and under the Letter of Credit
Agreement), the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes and the Issuing Bank; provided, however, that the Agent
shall not be required to take any action that exposes the Agent to personal
liability or that is contrary to this Agreement or applicable
<PAGE> 74
-70-
law. The Agent agrees to give to each Lender prompt notice of each notice given
to it by the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable for any action taken or omitted to
be taken by it or them under or in connection with the Loan Documents, except
for its or their own gross negligence or willful misconduct. Without limitation
of the generality of the foregoing, the Agent: (i) may treat the payee of any
Note as the holder thereof until the Agent receives and accepts an Assignment
and Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for any Loan Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations made in or in
connection with the Loan Documents; (iv) shall not have any duty to ascertain or
to inquire as to the performance or observance of any of the terms, covenants or
conditions of any Loan Document on the part of any Loan Party or to inspect the
property (including the books and records) of any Loan Party; (v) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Loan Document or any
other instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
telecopy, cable or telex) believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 7.03. Fleet and Affiliates. With respect to its Commitments, the
Advances made by it, the Letter of Credit issued by it, and the Notes issued to
it, Fleet shall have the same rights and powers under the Loan Documents as any
other Lender and may exercise the same as though it were not the Agent; and the
term "Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Fleet in its individual capacity. Fleet and its affiliates may accept deposits
from, lend money to, act as trustee under indentures of, accept investment
banking engagements from and generally engage in any kind of business with, any
Loan Party, any of its Subsidiaries and any Person who may do business with or
own securities of any Loan Party or any such Subsidiary, all as if Fleet were
not the Agent and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements referred to in Section 4.01 and such other
documents and information as it
<PAGE> 75
-71-
has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Agent or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. Each Lender severally agrees to indemnify the
Agent (to the extent not promptly reimbursed by or on behalf of the Borrower)
from and against such Lender's ratable share of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against the Agent in any way relating to or arising
out of the Loan Documents or any action taken or omitted by the Agent under the
Loan Documents; provided, however, that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Agent's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender agrees to reimburse the Agent promptly upon demand for its ratable
share of any costs and expenses payable by the Borrower under Section 8.04, to
the extent that the Agent is not promptly reimbursed for such costs and expenses
by the Borrower. For purposes of this Section 7.05, the Lenders' respective
ratable shares of any amount shall be determined, at any time, according to the
sum of (a) the aggregate principal amount of the Advances outstanding at such
time and owing to the respective Lenders, (b) their respective Pro Rata Shares
of the Available Amount of the Letter of Credit outstanding at such time, (c)
the aggregate unused portions of their respective Term Commitments and Letter of
Credit Commitments at such time; and (d) their respective Unused Revolving
Commitments at such time. The failure of any Lender to reimburse the Agent
promptly upon demand for its ratable share of any amount required to be paid by
the Lenders to the Agent as provided herein shall not relieve any other Lender
of its obligation hereunder to reimburse the Agent for its ratable share of such
amount, but no Lender shall be responsible for the failure of any other Lender
to reimburse the Agent for such other Lender's ratable share of such amount.
SECTION 7.06. Successor Agents. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower and may be removed at any
time with or without cause by the Required Lenders. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint a successor Agent.
If no successor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring Agent's
giving of notice of resignation or the Required Lenders' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be satisfactory to the Required Lenders. Upon the
acceptance of any appointment as
<PAGE> 76
-72-
Agent hereunder by a successor Agent and upon the execution and filing or
recording of such financing statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as the Required
Lenders may request, in order to continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents, such successor Agent shall
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under the Loan Documents. After any retiring
Agent's resignation or removal hereunder as Agent, the provisions of this
Article VII shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of this
Agreement, the Notes, or any other Loan Document, nor consent to any departure
by any Loan Party therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that (a) no amendment, waiver or
consent shall, unless in writing and signed by all the Lenders, do any of the
following at any time: (i) waive any of the conditions specified in Section 3.01
or, in the case of the initial Borrowing, 3.02, (ii) change the percentage of
the Commitments or of the aggregate unpaid principal amount of the Notes, or the
number of Lenders, that shall be required for the Lenders or any of them to take
any action hereunder, (iii) amend or waive Section 5.02(d) with respect to any
Collateral or any defined term to the extent used therein with respect thereto,
or release any Guarantor from its obligations under the Guaranty (except in
connection with a transaction permitted by Section 5.01(e) or 5.02(d)), (iv)
permit the creation, incurrence, assumption or existence of any Lien on any item
of Collateral to secure any Obligations other than Obligations owing to the
Lenders and the Agent under the Loan Documents or the Hedge Agreements, (v)
amend this Section 8.01, (vi) increase the Commitments of the Lenders or subject
the Lenders to any additional obligations, (vii) reduce the principal of, or
interest on, the Notes, any reimbursement obligations under the Letter of Credit
Agreement, or any fees or other amounts or indemnifications payable hereunder,
(viii) postpone any date fixed for any payment of principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, or (ix) amend or waive
any provision of Section 2.05; provided further that no amendment, waiver or
consent shall, unless in writing and signed by the Swing Line Bank or the
Issuing Bank, as the case may be, in addition to the Lenders required above to
take such action, affect the rights or obligations of the Swing Line Bank or of
the Issuing Bank, as the case may be, under this Agreement
<PAGE> 77
-73-
or the Letter of Credit Agreement; and provided further that no amendment,
waiver or consent shall, unless in writing and signed by the Agent in addition
to the Lenders required above to take such action, affect the rights or duties
of the Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other communications provided for
hereunder shall be in writing (including telegraphic, telecopy, telex or cable
communication) and mailed, telegraphed, telecopied, telexed, cabled or
delivered, to the applicable party at the addresses indicated below:
If to the Borrower:
75 Fountain Street
Providence, Rhode Island 02902
Attention: Mr. Harry Dyson
Tel: (401)277-7286
Fax: (401)277-7770
With a copy to:
The Providence Journal Company
75 Fountain Street
Providence, Rhode Island 02902
Attention: John L. Hammond, Esq.
Tel: (401)277-7031
Fax: (401)277-7857
With a copy to:
Edwards & Angell
2700 Hospital Trust Tower
Providence, Rhode Island 02903
Attention: Walter G.D. Reed, Esq.
Tel: (401)274-9200
Fax: (401)276-6611
If to the Agent:
Fleet National Bank
111 Westminster Street, 14th Floor
Providence, Rhode Island 02903
Attention: Paula Lang, Vice President
Tel: (401)278-3383
Fax: (401)278-3929
With a copy to:
Hinckley, Allen & Snyder
1500 Fleet Center
Providence, Rhode Island 02903
Attention: Jonathan Bell, Esq.
Tel: (401)274-2000
Fax: (401)277-9600
<PAGE> 78
-74-
and, if to any Bank, at its Domestic Lending Office specified opposite its name
on Schedule I hereto; if to any other Lender, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became a Lender;
or, as to the Borrower or the Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Agent. All such notices and
communications shall, when mailed, telegraphed, telecopied, telexed or cabled,
be effective when deposited in the mails, delivered to the telegraph company,
transmitted by telecopier, confirmed by telex answerback or delivered to the
cable company, respectively, except that notices and communications to the Agent
pursuant to Article II, III or VII shall not be effective until received by the
Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender or the
Agent to exercise, and no delay in exercising, any right hereunder, or under any
of the Loan Documents, shall operate as a waiver thereof; nor shall any single
or partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs, Expenses and Taxes. (a) The Borrower agrees to pay on
demand (i) all costs and expenses of the Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
the Loan Documents (including, without limitation, (A) all due diligence,
transportation, computer, duplication, appraisal, audit, insurance, consultant,
search, filing and recording fees and expenses and (B) the reasonable fees and
expenses of counsel for the Agent with respect thereto, with respect to advising
the Agent as to its rights and responsibilities, or the perfection, protection
or preservation of rights or interests, under the Loan Documents, with respect
to negotiations with any Loan Party or with other creditors of any Loan Party or
any of its Subsidiaries arising out of any Default or any events or
circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto) and (ii) all costs and expenses of the Agent and
the Lenders in connection with the enforcement of the Loan Documents, whether in
any action, suit or litigation, any bankruptcy, insolvency or other similar
proceeding affecting creditors' rights generally or otherwise (including,
without limitation, the reasonable fees and expenses of counsel for the Agent
and each Lender with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless the Agent and each
Lender and each of their Affiliates and their officers, directors, employees,
agents and advisors (each, an
<PAGE> 79
-75-
"Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, related to or in
connection with (i) the Spinoff, the Merger and any of the other transactions
contemplated hereby, (ii) the Facilities and any of the transactions
contemplated by this Agreement, or (iii) the actual or alleged presence of
Hazardous Materials on any property of any Loan Party or any of its Subsidiaries
or any Environmental Action relating in any way to any Loan Party or any of its
Subsidiaries, in each case whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, shareholders or
creditors or an Indemnified Party or any Indemnified Party is otherwise a party
thereto and whether or not the transactions contemplated hereby are consummated,
except to the extent such claim, damage, loss, liability or expense is found in
a final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
The Borrower also agrees not to assert any claim against the Agent, any Lender,
any of their affiliates, or any of their respective directors, officers,
employees, attorneys and agents, on any theory of liability, for special,
indirect, consequential or punitive damages arising out of or otherwise relating
to any of the transactions contemplated herein or in any other Loan Document or
the actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any Eurodollar Rate
Advance or CD Rate Advance is made by the Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section 2.08 or 2.09, acceleration
of the maturity of the Notes pursuant to Section 6.01 or for any other reason,
the Borrower shall, upon demand by such Lender (with a copy of such demand to
the Agent), pay to the Agent for the account of such Lender any amounts required
to compensate such Lender for any additional losses, costs or expenses that it
may reasonably incur as a result of such payment, including, without limitation,
any loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
any Lender to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or other
amounts payable by it under any Loan Document, including, without limitation,
fees and expenses of counsel and indemnities, such amount may be paid on behalf
of such Loan Party by the Agent or any Lender, in its sole discretion, and such
amounts shall be deemed to be Obligations of such Loan Party under this
Agreement.
<PAGE> 80
-76-
SECTION 8.05. Right of Set-off. Upon the occurrence and during the continuance
of any Event of Default, each Lender and each of is Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and otherwise apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender or such Affiliate to or for the credit or the
account of the Borrower against any and all of the Obligations of the Borrower
now or hereafter existing under this Agreement, the Note or Notes held by such
Lender, or under the Letter of Credit Agreement irrespective of whether such
Lender shall have made any demand under this Agreement, under such Note or Notes
or under the Letter of Credit Agreement, and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any such
set-off and application; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Lender and its Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective when it
shall have been executed by the Borrower and the Agent and when the Agent shall
have been notified by each Bank that such Bank has executed it, and thereafter
shall be binding upon and inure to the benefit of the Borrower, the Agent and
each Lender and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may, with notice
to the Borrower, assign to one of its Affiliates, or to one or more Lenders all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitments, the Advances owing to
it and the Note or Notes held by it); provided that (i) each such assignment
shall be of a uniform, and not a varying, percentage of all rights and
obligations under and in respect of all of the Facilities (other than in the
case of the Swing Line Facility), (ii) the amount of the Commitment of the
assigning Lender being assigned pursuant to such assignment shall be not less
than $5,000,000, and the amount of the Commitments of the assignee Lender
(determined as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be more than 30% of the aggregate Commitments.
(b) Each Lender may, with the consent of the Borrower and the Agent (which
consent shall not be unreasonably withheld or delayed) assign to one or more
banks or other entities all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitments, the Advances owing to it, and the Note or Notes held by it);
provided that (i) each such assignment shall be of a
<PAGE> 81
-77-
uniform, and not a varying, percentage of all rights and obligations under and
in respect of all the Facilities, (ii) the amount of Commitments of the
assigning Lender being assigned pursuant to each such assignment shall be not
less than $5,000,000, and (iii) each such assignment shall be to an Eligible
Assignee.
(c) The parties to each such assignment shall execute and deliver to the
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with any Note or Notes subject to such assignment and a
processing and recordation fee of $3,000. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in such
Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(d) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, 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
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any of the
Loan Parties or the performance or observance by any of the Loan Parties of any
of its obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 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; (iv) such assignee will, independently and
without reliance upon the Agent, 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; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated
<PAGE> 82
-78-
to the Agent by the terms hereof, together with such powers and discretion as
are reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of this Agreement are required to be performed by it as a Lender.
(e) The Agent shall maintain at its address referred to in Section 8.02 a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Commitment, and principal amount of the Advances owing to, each Lender from time
to time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the Agent and
the Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, together with the Notes subject to such
assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower. Within five
Business Days after its receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Agent in exchange for the surrendered
Notes new Notes to the order of such Eligible Assignee in an amount equal to the
Commitments assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained Commitments hereunder, new Notes to the order of
the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1, A-2 or A-3 hereto.
(g) Each Lender may sell participations in or to all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitments, the Advances owing to it and the Note or Notes
held by it); provided, however, that (i) such Lender's obligations under this
Agreement (including, without limitation, its Commitments) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Lender shall remain
the holder of any such Note or Notes for all purposes of this Agreement, (iv)
the Borrower, the Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
<PAGE> 83
-79-
provision of any Loan Document, or any consent to any departure by any Loan
Party therefrom, and no Lender may agree with a participant to take or refrain
from taking any action hereunder or under any other Loan Document, without the
prior consent of the Borrower.
(h) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 8.07, disclose to
the assignee or participant or proposed assignee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided, however, that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information received by it from such Lender.
(i) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
SECTION 8.08. Governing Law. This Agreement and the Notes shall
be governed by, and construed in accordance with, the laws of the
State of New York, without reference to its conflicts of laws
rules.
SECTION 8.09. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different 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. Delivery of an
executed counterpart of a signature page to this Agreement by telecopier shall
be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 8.10. No Liability of the Issuing Bank. The Borrower assumes all risks
of the acts or omissions of any beneficiary or transferee of the Letter of
Credit with respect to its use of the Letter of Credit. Neither the Issuing Bank
nor any of its officers or directors shall be liable or responsible for: (a) the
use that may be made of the Letter of Credit or any acts or omissions of any
beneficiary or transferee in connection therewith; (b) the validity, sufficiency
or genuineness of documents, or of any endorsement thereon, even if such
documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by the Issuing Bank against presentation of
documents that do not comply with the terms of the Letter of Credit, including
failure of any documents to bear any reference or adequate reference to the
Letter of Credit; or (d) any other circumstances whatsoever in making or failing
to make payment under the Letter of Credit, except that the Borrower shall have
a claim against the Issuing Bank, and the Issuing Bank
<PAGE> 84
-80-
shall be liable to the Borrower and the other Lenders, to the extent of any
direct, but not consequential, damages suffered by the Borrower and the other
Lenders that the Borrower proves were caused by (i) the Issuing Bank's willful
misconduct or gross negligence in determining whether documents presented under
the Letter of Credit comply with the terms of the Letter of Credit or (ii) the
Issuing Bank's willful failure to make lawful payment under the Letter of Credit
after the presentation to it of a draft and certificates strictly complying with
the terms and conditions of the Letter of Credit. In furtherance and not in
limitation of the foregoing, the Issuing Bank may accept documents that appear
on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.
SECTION 8.11. Confidentiality. Neither the Agent nor any Lender shall disclose
any Confidential Information to any Person without the consent of the Borrower,
other than (a) to the Agent's or such Lender's Affiliates and their officers,
directors, employees, agents and advisors and to actual or prospective Eligible
Assignees and participants, and then only on a confidential basis, (b) as
required by any law, rule or regulation or judicial process and (c) as requested
or required by any state, federal or foreign authority or examiner regulating
banks or banking.
SECTION 8.12. Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT, ANY OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY
AND THEREBY.
SECTION 8.13. Consent to Jurisdiction. Except to the extent prohibited by
applicable law, the Borrower hereby irrevocably:
(a) agrees that any suit, action, or other legal proceeding arising out
of this Agreement or any of the Loans may be brought in the courts of record
of the States of Rhode Island or New York or the Commonwealth of
Massachusetts or the courts of the United States located in the States of
Rhode Island or New York or the Commonwealth of Massachusetts;
(b) consents to the jurisdiction of each such court in any such suit,
action or proceeding; and
(c) waives any objection which it may have to the laying of venue of
such suit, action or proceeding in any of such courts.
For such time as any of the Obligations of the Borrower to any Lender shall
be unpaid in whole or in part and/or the Commitment is in effect, the Borrower
irrevocably designates Edwards & Angell as its agent to accept and acknowledge
on its
<PAGE> 85
-81-
behalf service of any and all process in any such suit, action or proceeding
brought in any such court, and agrees and consents that any such service of
process upon such agent and written notice of such service to the Borrower by
registered or certified mail shall be taken and held to be valid personal
service upon the Borrower regardless of where the Borrower shall then be doing
business and that any such service of process shall be of the same force and
validity as if service were made upon it according to the laws governing the
validity and requirements of such service in each such state and waives any
claim of lack of personal service or other error by reason of any such service.
Any notice, process, pleadings or other papers served upon the aforesaid
designated agent shall, within three Business Days after such service, be sent
by certified or registered mail to the Borrower at its address set forth in this
Agreement.
SECTION 8.14. Rights and Remedies Cumulative. No right or remedy conferred
upon or reserved to the Agent or the Lenders in this Agreement is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given under this Agreement or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy under
this Agreement, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 8.15 Release of Old PJC. (a) Notwithstanding anything to the
contrary in this Agreement or in any other Loan Document, (i) each Lender, for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, on behalf of themselves and their respective successors and
assigns, effective upon the consummation of the Spinoff, hereby remises,
releases and forever discharges Old PJC, together with its successors and
assigns, including, without limitation, Continental (individually, a "Released
Person" and collectively, the "Released Persons"), but excluding New PJC and its
Subsidiaries, jointly and severally, of and from all debts, demands, actions,
claims, rights, causes of action, accounts, reckonings, bonds, covenants,
contracts, agreements, promises, obligations and liabilities of any kind,
nature, character or description, direct or indirect, whether known or unknown,
foreseen or unforeseen, concealed or hidden, accrued or unaccrued, matured or
not matured, liquidated or unliquidated, fixed or contingent, primary or
secondary, in law or in equity (collectively, the "Claims"), that such Lender or
its successors and assigns, or any of them, now has or ever had against each of
the Released Persons arising under, on account of, in connection with or
relating in any way to this Agreement or any other Loan Document, including,
without limitation, all Obligations under the Loan Documents and any such Claim
for breach of a representation or warranty, and (ii) this Section 8.15 can only
be amended by an agreement in writing duly executed (a) on or prior to the
Closing Date, by Old PJC and Continental and (b) after the Closing Date, by each
Released Person.
<PAGE> 86
-82-
(b) Upon the release of Old PJC and its successors and assigns in accordance
with this Section 8.15, New PJC hereby expressly acknowledges that it assumes
all obligations of Old PJC hereunder in existence prior to such release.
<PAGE> 87
-83-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE PROVIDENCE JOURNAL COMPANY
By: /s/ Harry Dyson
--------------------------------
Name: Harry Dyson
Title: Treasurer
PROVIDENCE JOURNAL COMPANY
By: /s/ Harry Dyson
--------------------------------
Name: Harry Dyson
Title: Treasurer
FLEET NATIONAL BANK, as Agent
By: /s/ William F. Hatfield
--------------------------------
Name: William F. Hatfield
Title: Executive Vice President
By: /s/ Paula H. Lang
--------------------------------
Name: Paula H. Lang
Title: Vice President
Banks
THE CHASE MANHATTAN
BANK, N.A.
By: /s/ Thomas M. Malone
--------------------------------
Name: Thomas M. Malone
Title: MD
CIBC, INC.
By: /s/ P.G. Smith
--------------------------------
Name: P.G. Smith
Title: Managing Director
<PAGE> 88
-84-
CHEMICAL BANK
By: /s/ Mary E. Cameron
--------------------------------
Name: Mary E. Cameron
Title: Vice President
BANK OF MONTREAL
By: /s/ Yvonne Bos
--------------------------------
Name: Yvonne Bos
Title: Managing Director
THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ John S. Rudberg
--------------------------------
Name: John S. Rudberg
Title: Division Executive
FLEET NATIONAL BANK
By: /s/ William F. Hatfield
--------------------------------
Name: William F. Hatfield
Title: Executive Vice President
By: /s/ Paula H. Lang
--------------------------------
Name: Paula H. Lang
Title: Vice President
THE FIRST NATIONAL BANK
OF CHICAGO
By: /s/ Jeffrey A. Bakalar
--------------------------------
Name: Jeffrey A. Bakalar
Title: Assistant Vice President
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Eugenia Wilds
--------------------------------
Name: Eugenia Wilds
Title: Vice President
NATIONSBANK OF TEXAS, N.A.
By: /s/ Chad E. Coben
--------------------------------
Name: Chad E. Coben
Title: Vice President
<PAGE> 89
-85-
ROYAL BANK OF CANADA
By: /s/ Mark D. Thorsheim
--------------------------------
Name: Mark D. Thorsheim
Title: Manager
THE BANK OF NEW YORK
By: /s/ Geoffrey C. Brooks
--------------------------------
Name: Geoffrey C. Brooks
Title: Vice President
TORONTO DOMINION BANK (NEW
YORK, INC.
By: /s/ Debbie A. Greene
--------------------------------
Name: Debbie A. Greene
Title: Vice President
