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Exhibit 4.3.8
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SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
AMONG
PAXSON COMMUNICATIONS CORPORATION
The Several Lenders
from Time to Time Parties Hereto
and
UNION BANK OF CALIFORNIA, N.A.,
AS THE AGENT
DATED AS OF APRIL 28, 1998
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS............................................................................................1
1.1 DEFINED TERMS...................................................................................1
1.2 OTHER DEFINITIONAL PROVISIONS................................................................. 22
SECTION 2. AMOUNT AND TERMS OF LOANS AND COMMITMENTS............................................................ 23
2.1 LOANS AND COMMITMENTS......................................................................... 23
2.2 PROCEDURE FOR BORROWING....................................................................... 23
2.3 INSTALLMENTS.................................................................................. 23
2.4 REPAYMENT OF LOANS; EVIDENCE OF DEBT.......................................................... 24
2.5 OPTIONAL PREPAYMENTS.......................................................................... 24
2.6 MANDATORY PREPAYMENTS......................................................................... 25
2.7 CONVERSION AND CONTINUATION OPTIONS........................................................... 25
2.8 MINIMUM AMOUNTS AND MAXIMUM NUMBER OF TRANCHES................................................ 26
2.9 INTEREST RATES AND PAYMENT DATES.............................................................. 26
2.10 COMPUTATION OF INTEREST AND FEES.............................................................. 27
2.11 INABILITY TO DETERMINE INTEREST RATE.......................................................... 27
2.12 PRO RATA TREATMENT AND PAYMENTS............................................................... 28
2.13 ILLEGALITY.................................................................................... 28
2.14 REQUIREMENTS OF LAW........................................................................... 28
2.15 TAXES......................................................................................... 30
2.16 INDEMNITY..................................................................................... 31
2.17 CHANGE OF LENDING OFFICE...................................................................... 32
2.18 FURTHER ASSURANCES REGARDING SECURITY; ADDITIONAL SECURITY.................................... 32
SECTION 3. REPRESENTATIONS AND WARRANTIES....................................................................... 34
3.1 ORGANIZATION, POWERS, GOOD STANDING AND BUSINESS.............................................. 34
3.2 AUTHORIZATION OF BORROWING, ETC............................................................... 36
3.3 FINANCIAL CONDITION........................................................................... 37
3.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED PAYMENTS............................................ 37
3.5 TITLE TO PROPERTIES; LIENS.................................................................... 38
3.6 LITIGATION; ADVERSE FACTS..................................................................... 38
3.7 PAYMENT OF TAXES.............................................................................. 38
3.8 PERFORMANCE OF AGREEMENTS..................................................................... 38
3.9 GOVERNMENTAL REGULATION....................................................................... 39
3.10 SECURITIES ACTIVITIES......................................................................... 39
3.11 EMPLOYEE BENEFIT PLANS........................................................................ 39
3.12 CERTAIN FEES.................................................................................. 39
3.13 ENVIRONMENTAL................................................................................. 40
3.14 SOLVENCY...................................................................................... 41
3.15 RELATED DOCUMENTS............................................................................. 41
3.16 INSURANCE..................................................................................... 41
3.17 INTELLECTUAL PROPERTY......................................................................... 42
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3.18 DISCLOSURE.................................................................................... 42
3.19 SECURITY DOCUMENTS............................................................................ 42
3.20 PURPOSES OF LOANS............................................................................. 43
SECTION 4. CONDITIONS PRECEDENT................................................................................. 43
SECTION 5. AFFIRMATIVE COVENANTS................................................................................ 46
5.1 FINANCIAL STATEMENTS AND SYSTEMS.............................................................. 47
5.2 MAINTENANCE OF EXISTENCE, ETC................................................................. 50
5.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION................................................ 50
5.4 MAINTENANCE OF PROPERTIES; INSURANCE.......................................................... 51
5.5 INSPECTION; LENDER MEETING.................................................................... 51
5.6 COMPLIANCE WITH LAWS, ETC..................................................................... 51
5.7 COMPLIANCE WITH RELATED DOCUMENTS............................................................. 52
5.8 ENVIRONMENTAL DISCLOSURE AND INSPECTION....................................................... 52
5.9 HAZARDOUS MATERIALS; THE BORROWER'S REMEDIAL ACTION........................................... 53
5.10 FCC LICENSES.................................................................................. 53
5.11 ADDITIONAL LOAN PARTIES....................................................................... 54
5.12 CORPORATE SEPARATENESS; TAX SHARING AGREEMENT................................................. 54
SECTION 6. NEGATIVE COVENANTS................................................................................... 54
6.1 FINANCIAL CONDITION COVENANTS................................................................. 54
6.2 LIMITATION ON INDEBTEDNESS.................................................................... 55
6.3 LIENS AND RELATED MATTERS..................................................................... 57
6.4 INVESTMENTS; JOINT VENTURES................................................................... 58
6.5 CONTINGENT OBLIGATIONS........................................................................ 59
6.6 RESTRICTED PAYMENTS........................................................................... 60
6.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES............................................... 61
6.8 FISCAL YEAR................................................................................... 62
6.9 SALES AND LEASE-BACKS......................................................................... 62
6.10 SALE OR DISCOUNT OF RECEIVABLES............................................................... 62
6.11 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES................................................. 62
6.12 DISPOSAL OF SUBSIDIARY STOCK.................................................................. 62
6.13 CONDUCT OF BUSINESS........................................................................... 63
6.14 AMENDMENTS OR WAIVERS OF RELATED DOCUMENTS AND CHARTER DOCUMENTS; LIMITATION ON OPTIONAL
PAYMENTS...................................................................................... 63
SECTION 7. EVENTS OF DEFAULT.................................................................................... 64
SECTION 8. THE AGENT............................................................................................ 68
8.1 APPOINTMENT................................................................................... 68
8.2 DELEGATION OF DUTIES.......................................................................... 68
8.3 EXCULPATORY PROVISIONS........................................................................ 68
8.4 RELIANCE BY THE AGENT......................................................................... 68
8.5 NOTICE OF DEFAULT............................................................................. 69
8.6 NON-RELIANCE ON THE AGENT AND OTHER LENDERS................................................... 69
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8.7 INDEMNIFICATION............................................................................... 70
8.8 THE AGENT IN ITS INDIVIDUAL CAPACITY.......................................................... 70
8.9 SUCCESSOR THE AGENT........................................................................... 70
SECTION 9. MISCELLANEOUS........................................................................................ 71
9.1 AMENDMENTS AND WAIVERS........................................................................ 71
9.2 NOTICES....................................................................................... 71
9.3 NO WAIVER; CUMULATIVE REMEDIES................................................................ 72
9.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.................................................... 72
9.5 PAYMENT OF EXPENSES AND TAXES................................................................. 72
9.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS........................................ 73
9.7 ADJUSTMENTS; SET-OFF.......................................................................... 75
9.8 COUNTERPARTS; EFFECTIVENESS................................................................... 76
9.9 SEVERABILITY.................................................................................. 76
9.10 INTEGRATION................................................................................... 76
9.11 GOVERNING LAW................................................................................. 76
9.12 SUBMISSION TO JURISDICTION; WAIVERS........................................................... 76
9.13 ACKNOWLEDGEMENTS.............................................................................. 77
9.14 WAIVERS OF JURY TRIAL......................................................................... 77
9.15 CONFIDENTIALITY............................................................................... 77
9.16 EFFECT OF AMENDMENT AND RESTATEMENT OF THE EXISTING CREDIT AGREEMENT.......................... 78
9.17 REDEMPTION OF SENIOR SUBORDINATED NOTES....................................................... 78
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SCHEDULES
1.1A LENDERS, CONTINUED LOANS, COMMITMENTS AND ADDRESSES
1.1B PREAPPROVED ACQUISITIONS
1.1C LICENSE COMPANIES AND PARTNERS
2.6(B) CERTAIN MANDATORY PREPAYMENT MATTERS
3.1(D) OWNERSHIP OF SUBSIDIARIES
3.1(E) FCC LICENSES, TELEVISION STATIONS
3.1(F) REAL PROPERTY
3.16 INSURANCE
3.17(B) INTELLECTUAL PROPERTY
3.19(B) UCC FILING OFFICES
5.10 CERTAIN FCC LICENSES
6.2(D) EXISTING INDEBTEDNESS AND LIENS
6.4(D) EXISTING INVESTMENTS
7(R) CERTAIN MINORITY INTERESTS
EXHIBITS
A FORM OF NOTE
B FORM OF SECOND AMENDED AND RESTATED BORROWER PLEDGE AGREEMENT
C FORM OF SECOND AMENDED AND RESTATED BORROWER SECURITY AGREEMENT
D FORM OF SECOND AMENDED AND RESTATED SUBSIDIARIES GUARANTEE
E FORM OF SECOND AMENDED AND RESTATED SUBSIDIARIES PLEDGE AGREEMENT
F FORM OF SECOND AMENDED AND RESTATED SUBSIDIARIES SECURITY AGREEMENT
G FORM OF BORROWING CERTIFICATE
H FORM OF ASSIGNMENT AND ACCEPTANCE
I FORM OF CASH COLLATERAL AGREEMENT
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
April 28, 1998, among PAXSON COMMUNICATIONS CORPORATION, a Delaware corporation
(the "Borrower"), the several banks and other financial institutions from time
to time parties to this Agreement (the "Lenders") and UNION BANK OF CALIFORNIA,
N.A., as Agent for the Lenders hereunder.
W I T N E S S E T H:
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WHEREAS, the Borrower has requested the Lenders to amend and
restate its Amended and Restated Credit Agreement (the "Existing Credit
Agreement") dated as of November 19, 1996 to make available a $122,000,000 term
loan facility to be used by the Borrower to refinance the indebtedness
outstanding on the date hereof under the Existing Credit Agreement and to pay
costs and expenses in connection with such refinancing.
NOW THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings:
"ACQUISITION CAPITAL EXPENDITURES": capital expenditures (i)
made with respect to a Person or assets acquired pursuant to a
Permitted Purchase within two years of the consummation of such
Permitted Purchase or otherwise made with respect to a Broadcast
Station within two years of the acquisition of such Broadcast Station
or (ii) made in connection with the conversion of a Broadcast Station
from an analog broadcast format to a digital broadcast format.
"AFFILIATE": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors
of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.
"AGENT": Union Bank of California, N.A., together with its
affiliates, as the arranger of the Commitments and as the agent for the
Lenders under this Agreement and the other Loan Documents.
"AGREEMENT": this Amended and Restated Credit Agreement, as
amended, supplemented or otherwise modified from time to time.
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"APPLICABLE MARGIN": for Base Rate Loans, 1.75% per annum; and
for Eurodollar Loans, 2.75% per annum.
"ASSET SALE": any sale, transfer or other disposition by the
Borrower or any of its Subsidiaries of their respective assets
(including any sale and leaseback of assets and any mortgage of real
property), other than the sale or other disposition of property or
assets in the ordinary course of business or an Asset Swap permitted by
subsection 6.7(g) (PROVIDED that any Asset Swap permitted by subsection
6.7(g) shall be deemed to be an Asset Sale to the extent provided for
in said subsection).
"ASSET SWAP": any exchange, with any other Person, of (a)
assets owned by the Borrower or any of its Subsidiaries other than any
Top 25 TV Station for (b) Equivalent Assets of such other Person.
"ASSIGNEE": as defined in subsection 9.6(c).
"BASE RATE": with respect to each day, the greater on such day
of (a) the per annum rate most recently determined by the Agent at its
U.S. lending office from time to time as its base rate and (b) 1/2% per
annum plus the Federal Funds Rate. Each change in the Base Rate shall
take effect simultaneously with the corresponding change or changes in
such base rate or the Federal Funds Rate, as the case may be. The Base
Rate is not intended to be necessarily the lowest rate of interest
charged by the Agent in connection with extensions of credit to
debtors.
"BASE RATE LOANS": Loans the rate of interest applicable to
which is based upon the Base Rate.
"BOARD": the Board of Governors of the Federal Reserve System.
"BORROWER PLEDGE AGREEMENT": the Second Amended and Restated
Pledge Agreement to be executed and delivered by the Borrower,
substantially in the form of Exhibit B, as the same may be amended,
supplemented or otherwise modified from time to time.
"BORROWER SECURITY AGREEMENT": the Second Amended and Restated
Security Agreement to be executed and delivered by the Borrower,
substantially in the form of Exhibit C, as the same may be amended,
supplemented or otherwise modified from time to time.
"BORROWING DATE": any Business Day specified in a notice
pursuant to subsection 2.2 as a date on which the Borrower requests the
Lenders to make Loans hereunder.
"BROADCAST STATION": any of the Owned Television Stations and
LMA Television Stations, and "Broadcast Stations" means all such
entities collectively.
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"BUSINESS DAY": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close.
"CAPITAL LEASE": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"CAPITAL STOCK": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"CASH": money, currency or a credit balance in a Deposit
Account.
"CASH COLLATERAL AGREEMENT": the Cash Collateral Agreement to
be executed and delivered by the Borrower, substantially in the form of
Exhibit I, as the same may be amended, supplemented or otherwise
modified from time to time.
"CASH EQUIVALENTS": (i) direct obligations of the United
States or any agency thereof, or obligations guaranteed or insured by
the United States, PROVIDED that in each case such obligations mature
within one year from the date of acquisition thereof, (ii) certificates
of deposit maturing within one year from the date of creation thereof
issued by any United States national or state banking institution
having capital, surplus and undivided profits aggregating at least
$250,000,000 and rated at least A-1 by Standard & Poor's Corporation
and P-1 by Moody's Investors Service, Inc., (iii) commercial paper with
a maturity of 180 days or less issued by a corporation (except an
Affiliate of the Borrower) organized under the laws of any state of the
United States or the District of Columbia and rated at least A-1 by
Standard & Poor's Corporation or at least P-1 by Moody's Investors
Service, Inc. and (iv) repurchase agreements and reverse repurchase
agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the United States or issued by an agency
thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition;
PROVIDED that the terms of such agreements comply with the guidelines
set forth in the Federal Financial Agreements of Depository
Institutions with Securities Dealers and Others, as adopted by the
Comptroller of the Currency and (v) tax-exempt auction rate securities
and municipal preferred stock, in each case, subject to reset no more
than 35 days after the date of acquisition and having a rating of at
least AA by Standard & Poor's Ratings Services or AA by Moody's
Investors Service, Inc.
"CERTIFICATE OF DESIGNATIONS": (i) the Certificate of
Designations of Junior Cumulative Compounding Redeemable Preferred
Stock of Paxson Communications Corporation dated as of December 22,
1994, as amended as of the date hereof in accordance with the terms
hereof and thereof, and (ii) the Certificate of Designations of
Exchangeable Preferred Stock of Paxson Communications Corporation dated
as of September 30, 1996.
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"CLOSING DATE": the date on which the conditions precedent set
forth in Section 4 shall be satisfied.
"CODE": the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL": all assets of the Loan Parties, now owned or
hereinafter acquired, upon which a Lien is purported to be created by
any Security Document.
"COMMITMENT": as to any Lender, the obligation of such Lender
to make a Loan to the Borrower hereunder in a principal amount equal to
the amount set forth opposite such Lender's name on Schedule 1.1A.
"COMMITMENT PERCENTAGE": as to any Lender at any time, the
percentage which the aggregate principal amount of such Lender's Loans
then outstanding constitutes of the aggregate principal amount of the
Loans then outstanding.
"COMMONLY CONTROLLED ENTITY": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"COMMUNICATIONS ACT": the Communications Act of 1934, as
amended (including, without limitation, the Cable Communications Policy
Act of 1984 and the Cable Television Consumer Protection and
Competition Act of 1992) and all rules and regulations of the Federal
Communications Commission, in each case as from time to time in effect.
"COMPLIANCE CERTIFICATE": as defined in subsection 5.1(b)(iv).
"CONSOLIDATED CAPITAL EXPENDITURES": for any period, the
aggregate of all expenditures (whether paid in cash or accrued as a
liability and including that portion of Capital Leases which is
capitalized on the consolidated balance sheet of the Borrower) by the
Borrower and its Subsidiaries during such period that, in conformity
with GAAP, are included in "additions to property, plant or equipment"
or comparable items reflected in the consolidated statement of changes
in financial position of the Borrower and its Subsidiaries but, in any
event, excluding expenditures (a) in respect of Acquisition Capital
Expenditures, Permitted Purchases or Studio Construction Expenditures
or (b) made in connection with a Recovery Event.
"CONSOLIDATED CASH INTEREST EXPENSE": for any period,
Consolidated Interest Expense of the Borrower and its Subsidiaries, but
excluding, however, amortization of discount, deferred financing costs
and other items included in interest expense not payable or not
actually paid in cash during such period (including, but not limited
to, any interest on Indebtedness subordinated to the Obligations which
is paid in kind).
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"CONSOLIDATED DEBT SERVICE": for any period, the aggregate
amount of all regularly scheduled payments of principal of and interest
or dividends and fees on any Indebtedness required by the terms of such
Indebtedness to be paid in cash by the Borrower or its Subsidiaries
during such period, including, without limitation, any such payments
with respect to the Loans and the Senior Subordinated Notes and any
obligations paid with respect to Capital Leases.
"CONSOLIDATED FIXED CHARGES": for any period, without
duplication, the sum of (i) Consolidated Debt Service, (ii)
Consolidated Capital Expenditures to the extent actually made, (iii) to
the extent actually paid in cash during such period, income tax expense
(other than, to the extent otherwise included therein, current income
tax expenses attributable to gains on Asset Sales) and (iv) the
aggregate amount paid in cash during such period in connection with any
dividend or other distribution or redemption, retirement, sinking fund
or similar payment, purchase or other acquisition for value, direct or
indirect, on account of any preferred capital stock (including, but not
limited to, in respect of Cumulative Preferred Stock or Exchangeable
Preferred Stock) of the Borrower or its Subsidiaries now or hereafter
outstanding, except, in each case pursuant to refinancings permitted
hereunder and entered into in the discretion of the Borrower.
"CONSOLIDATED INTEREST EXPENSE": for any period, the total
interest expense (including that portion attributable to Capital Leases
in accordance with GAAP and capitalized interest and the net cash costs
associated with Interest Rate Agreements) of the Borrower and its
Subsidiaries on a consolidated basis with respect to all outstanding
Indebtedness of the Borrower and its Subsidiaries, including, without
limitation, (i) all amounts payable to the Agent and the Lenders
pursuant to subsection 2.9 and all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers'
acceptance financing and (ii) time brokerage and affiliate fees under
an LMA Agreement relating to the financing of radio or television
stations as to which the Borrower or any of its Subsidiaries has an
agreement or option to acquire if such Station is not owned by the
Borrower at the end of such period. In determining Consolidated
Interest Expense for any period, there shall be (i) included all
interest expense attributable to Indebtedness incurred or assumed by
the Borrower or any of their Subsidiaries during the period in
connection with any Permitted Purchase as if such Indebtedness was
incurred or assumed on the day before the first day of such period and
bore interest from the first day of such period until the date of such
incurrence or assumption at a rate per annum equal to the weighted
average rate of interest on the other Indebtedness outstanding during
such period and (ii) excluded Consolidated Interest Expense
attributable to that portion of the principal amount of Indebtedness
repaid in connection with an Asset Sale as if such portion of the
principal amount of Indebtedness was prepaid on the day before the
first day of such period.
"CONSOLIDATED NET INCOME": for any period, the consolidated
net income (or loss) of the Borrower and its Subsidiaries, determined
on a consolidated basis in accordance with GAAP; PROVIDED that there
shall be excluded (a) the income (or deficit) of any Person
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accrued prior to the date it becomes a Subsidiary of the Borrower or is
merged into or consolidated with the Borrower or any of its
Subsidiaries, (b) the income (or deficit) of any Person (other than a
Subsidiary of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any
such income is actually received by the Borrower or such Subsidiary in
the form of dividends or similar distributions, (c) the undistributed
earnings of any Subsidiary of the Borrower to the extent that the
declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of any Contractual
Obligation (other than under any Loan Document) or Requirement of Law
applicable to such Subsidiary, (d) any after-tax gains or losses
attributable to Asset Sales or returned surplus assets of any Pension
Plan, and (e) (to the extent not included in clauses (a) through (d)
above) any net extraordinary, unusual or non-recurring gains or losses.
"CONSOLIDATED OPERATING CASH FLOW": for any period, the sum
(without duplication) of the amounts for such period of (a)
Consolidated Net Income, (b) Consolidated Interest Expense, (c) taxes
payable by the Borrower and its Subsidiaries on a consolidated basis
which reduced Consolidated Net Income, (d) total depreciation expense,
(e) total amortization expense including, without limitation,
Programming Amortization Expense, (f) other non-cash items reducing
Consolidated Net Income, and (g) whether or not includable as a
separate item in the statement of such Consolidated Net Income for such
period, losses on sales of assets LESS the sum (without duplication) of
the amounts for such period of (i) Programming Rights Payments, (ii)
Program Development Expenses, (iii) non-cash items increasing
Consolidated Net Income, (iv) whether or not includable as a separate
item in the statement of such Consolidated Net Income for such period,
gains on the sales of assets, and (v) consolidated interest income, all
of the foregoing as determined on a consolidated basis for the Borrower
and its Subsidiaries in conformity with GAAP. For the purposes of
calculating Consolidated Operating Cash Flow for any period, any
acquisition by the Borrower or any Subsidiary permitted pursuant to the
terms hereof shall be deemed to have occurred on the first day of such
period, any Asset Sale by the Borrower or any Subsidiary shall be
deemed to have occurred as of the day before the first day of such
period, and Consolidated Operating Cash Flow shall be adjusted to give
effect to such acquisition or Asset Sale in accordance with the
foregoing.
"CONSOLIDATED TOTAL ASSETS": at any date of determination, all
assets of the Borrower and its Subsidiaries at such date, determined on
a consolidated basis in accordance with GAAP.
"CONSOLIDATED TOTAL DEBT": as at any date of determination,
without duplication, the aggregate amount of (a) all Indebtedness
(including, without limitation, the Loans) other than preferred capital
stock PLUS (b) the aggregate amount of all Contingent Obligations
(other than any guaranty of the Obligations by any Subsidiary of the
Borrower), in each case, of the Borrower and its Subsidiaries
determined on a consolidated basis in accordance with GAAP.
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"CONTINGENT OBLIGATION": as applied to any Person, any direct
or indirect liability, contingent or otherwise, of that Person (a) with
respect to any indebtedness, lease, dividend or other obligation of
another if the primary purpose or intent thereof by the Person
incurring the Contingent Obligation is to provide assurance to the
obligee of such obligation of another that such obligation of another
will be paid or discharged, or that any agreements relating thereto
will be complied with, or that the holders of such obligation will be
protected (in whole or in part) against loss in respect thereof, (b)
with respect to any letter of credit issued for the account of that
Person or as to which that Person is otherwise liable for reimbursement
of drawings, or (c) under Interest Rate Agreements. Contingent
Obligations shall include, without limitation, (i) the direct or
indirect guaranty, endorsement (otherwise than for collection or
deposit in the ordinary course of business), co-making, discounting
with recourse or sale with recourse by such Person of the obligation of
another, (ii) the obligation to make take-or-pay or similar payments if
required regardless of non-performance by any other party or parties to
an agreement, and (iii) any liability of such Person for the
obligations of another through any agreement (contingent or otherwise)
(x) to purchase, repurchase or otherwise acquire such obligation or any
security therefor, or to provide funds for the payment or discharge of
such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise), or (y) to maintain the
solvency or any balance sheet item, level of income or financial
condition of another, if in the case of any agreement described under
subclauses (x) or (y) of this sentence, the primary purpose or intent
thereof is as described in the preceding sentence. The amount of any
Contingent Obligation (other than Interest Rate Agreements) as of any
date shall be equal to the amount of the obligation as of any date so
guaranteed or otherwise supported. The amount of any Interest Rate
Agreement as of any date shall be equal to the aggregate amount that
would be payable by such Person if such Interest Rate Agreement were
terminated on such date as a result of a default thereunder by such
Person.
"CONTINUED LOANS": as defined in subsection 2.1.
"CONTRACTUAL OBLIGATION": as to any Person, any provision of
any security issued by such Person or of any agreement (credit or
otherwise), instrument or other undertaking to which such Person is a
party or by which it or any of its property is bound.
"CORE BUSINESS": the ownership and operation of radio stations
(in a number not exceeding two), network television stations and cable
television channels; the production or purchase of television
programming; the ownership of up to a 30% ownership interest in The
Travel Channel; the production of travel transaction television
programming and consulting in connection therewith; the exhibition of
television programming via one or more satellite television networks
owned by one or more Persons other than the Borrower or any of its
Subsidiaries; and long form advertising production, in each case
located in the United States, Puerto Rico or the Virgin Islands.
"CUMULATIVE PREFERRED STOCK": the preferred stock of the
Borrower designated the Junior Cumulative Compounding Redeemable
Preferred Stock, issued by the Borrower
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pursuant to, and with such rights, restrictions, privileges and
preferences as set forth in, its Certificate of Designation.
"DEFAULT": any of the events specified in Section 7, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"DEPOSIT ACCOUNT": a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable
certificate of deposit.
"DOLLARS" and "$": dollars in lawful currency of the United
States of America.
"EMPLOYEE BENEFIT PLAN": any employee benefit plan within the
meaning of Section 3(3) of ERISA which is maintained for employees of
the Borrower or any ERISA Affiliates.
"ENVIRONMENTAL CLAIM": any accusation, allegation, notice of
violation, claim, demand, abatement order or other order or direction
(conditional or otherwise) by any governmental authority or any Person
for any damage, including, without limitation, personal injury
(including sickness, disease or death), tangible or intangible property
damage, contribution, indemnity, indirect or consequential damages,
damage to the environment, nuisance, pollution, contamination or other
adverse effects on the environment, or for fines, penalties or
restrictions, resulting from or based upon (i) the existence of a
Release (whether sudden or non-sudden or accidental or non-accidental),
of, or exposure to, any Hazardous Material, in, into or onto the
environment, (ii) the use, handling, transportation, storage, treatment
or disposal of Hazardous Materials, or (iii) the violation, or alleged
violation, of any Environmental Laws.
"ENVIRONMENTAL LAWS": any and all foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority
or other Requirements of Law (including common law) regulating,
relating to or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any
time hereafter be in effect.
"EQUITY PREPAYMENT PERCENTAGE": 75%; PROVIDED, that, with
respect to Net Cash Proceeds from the issuance of equity Securities
(including preferred Capital Stock) received at any time when no
Default or Event of Default shall have occurred and be continuing, the
Equity Prepayment Percentage shall be reduced to 25% (i) if the
Leverage Ratio as at the last day of the then most recently completed
fiscal period of the Borrower for which financial statements shall have
been delivered pursuant to subsection 5.1 is less than 4.5 to 1.0. or
(ii) at the point at which the application of Net Cash Proceeds
pursuant to subsection 2.6(a) shall have reduced the Leverage Ratio to
less than 4.5 to 1.0 (by reducing the Loans then outstanding).
<PAGE> 14
9
"EQUIVALENT ASSETS": of (i) any television station (other than
a Top 25 TV Station): any other television station or television
stations; or (ii) any Non-Core Business: any Core Business.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA AFFILIATE": the Borrower and (a) any corporation which
is a member of a controlled group of corporations within the meaning of
Section 414(b) of the Code of which the Borrower is a member; (b) any
trade or business (whether or not incorporated) which is a member of a
group of trades or businesses under common control within the meaning
of Section 414(c) of the Code of which the Borrower is a member; and
(c) any member of an affiliated service group within the meaning of
Section 414(m) or (o) of the Code of which the Borrower, any
corporation described in clause (i) above or any trade or business
described in clause (ii) above is a member.
"ERISA EVENT": (a) the occurrence of a reportable event within
the meaning of Section 4043 of ERISA with respect to any Pension Plan,
(b) a failure to meet the minimum funding standard of Section 412 of
the Code or of Section 302 of ERISA, including, without limitation, the
failure to make on or before its due date a required installment under
Section 412(m) of the Code or Section 302(e) of ERISA, (regardless of
the issuance of any waivers in accordance with Section 412(d) of the
Code) and any request for a waiver under Section 412(d) of the Code in
connection with any Pension Plan; (c) the provision of the
administrator of any Pension Plan of a notice pursuant to Section
4041(a)(2) of ERISA to terminate such plan pursuant to Section 4041(c)
of ERISA; (d) the withdrawal by the Borrower or any ERISA Affiliate
from a Pension Plan during a plan year for which it was a "substantial
employer" within the meaning of Section 4001(a)(2) of ERISA; (e) the
institution by the PBGC of proceedings to terminate a Pension Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition which the Borrower or any ERISA Affiliate reasonably
anticipates would constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, a
Pension Plan; (f) the withdrawal by the Borrower or any ERISA Affiliate
in a complete or partial withdrawal (within the meaning of Section 4203
or 4205 of ERISA) from a Multiemployer Plan, or the receipt by the
Borrower or any ERISA Affiliate of notice from a Multiemployer Plan
that it is in reorganization or insolvency pursuant to Section 4241 or
4245 of ERISA or that it intends to terminate or has terminated under
Section 4041A of ERISA; (g) the imposition on the Borrower or any ERISA
Affiliate of fines, penalties, taxes or related charges under Chapter
43 of the Code or under Sections 502(c), (i) or (l) or 4071 of ERISA;
(h) the assertion of a material claim (other than routine claims for
benefits) against any Employee Benefit Plan or the assets thereof, or
against the Borrower or any ERISA Affiliate in connection with any such
plan; or (i) receipt from the Service of notice of the failure of any
Pension Plan to qualify under Section 401(a) of the Code, or the
failure of any trust forming part of a Pension Plan to fail to qualify
for exemption from taxation under Section 501(a) of the Code.
<PAGE> 15
10
"EUROCURRENCY RESERVE REQUIREMENTS": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board) maintained by a member bank of the Federal Reserve System.
"EURODOLLAR BASE RATE": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined by the Agent to be equal to the arithmetic mean of the rates
per annum offered by leading banks in the London interbank market at
approximately 11:00 a.m. (London time) two Working Days prior to the
beginning of such Interest Period, as quoted on Page 3750 of the Dow
Jones Market Service (or otherwise on such service) or, in the event
that such Page 3750 shall at such time quote such rates for fewer than
two leading banks, the rate at which the Agent is offered Dollar
deposits at or about 11:00 A.M. (London time), two Working Days prior
to the beginning of such Interest Period in the London interbank market
for delivery on the first day of such Interest Period for the number of
days comprised therein and in an amount comparable to the amount of the
Agent's Eurodollar Loan to be outstanding during such Interest Period.
"EURODOLLAR LOANS": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"EURODOLLAR RATE": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/16th of 1%):
EURODOLLAR BASE RATE
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"EVENT OF DEFAULT": any of the events specified in Section 7,
PROVIDED that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"EXCHANGEABLE PREFERRED STOCK": the preferred stock of the
Borrower designated the 12 1/2% Cumulative Exchangeable Preferred
Stock, issued by the Borrower pursuant to, and with such rights,
restrictions, privileges and preferences as set forth in its
Certificate of Designations.
"EXCHANGE DEBENTURES": 12 1/2% Exchange Debentures due 2006,
which may be issued by the Borrower pursuant to, and with such rights,
restrictions, privileges and preferences as set forth in the Exchange
Debenture Indenture.
<PAGE> 16
11
"EXCHANGE DEBENTURE INDENTURE": the Indenture dated as of
September 30, 1996 pursuant to which the Borrower may issue the
Exchange Debentures, as the same may be amended, supplemented or
otherwise modified from time to time.
"EXCLUDED ASSET SALES": Asset Sales in respect of (i) FCC
Licenses and the towers and broadcast equipment used in the operation
of the Broadcast Stations to which such FCC Licenses relate, the
aggregate Net Cash Proceeds of which during the term of this Agreement
do not exceed $10,000,000 and (ii) the assets or property (other than
assets of a type described in clause (i) above) of Broadcast Stations
the aggregate Net Cash Proceeds of which during the term of this
Agreement do not exceed $10,000,000.
"EXISTING CREDIT AGREEMENT": as defined in the recitals to
this Agreement.
"FACILITIES": any and all real property (including, without
limitation, all buildings, fixtures or other improvements located
thereon) now, or hereafter, owned, leased, operated or used by the
Borrower or any of its Subsidiaries or any of their respective
predecessors.
"FCC": the Federal Communications Commission and any successor
governmental agency performing functions similar to those performed by
the Federal Communications Commission on the date hereof.
"FCC LICENSE": any of the licenses, permits or other
authorizations issued by the FCC relating to or necessary for the
operation of the Broadcast Stations, the loss of which could reasonably
be expected to have a Material Adverse Effect, including, without
limitation, those listed on Schedule 3.1(e) hereto.
"FEDERAL FUNDS RATE": with respect to each day, the rate per
annum (rounded upward, if necessary, to the nearest 1/16 of 1%) offered
in the interbank market to the Agent as the overnight "federal funds
rate" at or about 10:00 A.M., Los Angeles time, on such day (or, if
such day is not a Business Day, for the next preceding Business Day).
"FINANCIAL STATEMENTS": the audited consolidated balance
sheet, statement of operations, cash flows and shareholders' equity for
the Borrower and its consolidated Subsidiaries for the fiscal years
ended December 31, 1996 and 1997.
"GAAP": generally accepted accounting principles in the United
States of America consistent with those utilized in preparing the
audited financial statements referred to in subsection 3.3.
"GOVERNMENTAL AUTHORITY": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
<PAGE> 17
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"HAZARDOUS MATERIALS": (a) any chemical, material or substance
defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous waste",
"restricted hazardous waste", or "toxic substances" or words of similar
import under any applicable Environmental Laws, (b) any oil, petroleum
or petroleum derived substance, any drilling fluids, produced waters
and other wastes associated with the exploration, development or
production of crude oil, any flammable substances or explosives, any
radioactive materials, any hazardous wastes or substances, any toxic
wastes or substances or any other materials or pollutants which (i)
pose a material hazard to any property of the Borrower or any of its
Subsidiaries or to Persons on or about such property or (ii) cause such
property to be in violation of any Environmental Laws, (c) asbestos in
any form which is or could become friable, urea formaldehyde foam
insulation, polychlorinated biphenyls, and (d) any other chemical,
material or substance, exposure to which is prohibited, limited or
regulated by any governmental authority or may or could pose a hazard
to the health and safety of the owners, occupants or any Persons
surrounding the Facilities.
"INDEBTEDNESS": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), (b) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person under Capital Leases,
(d) all obligations of such Person in respect of acceptances issued or
created for the account of such Person, (e) all liabilities secured by
any Lien on any property owned by such Person even though such Person
has not assumed or otherwise become liable for the payment thereof and
(f) the liquidation value of any preferred capital stock of such Person
its Subsidiaries held by any Person other than such Person and its
wholly owned Subsidiaries.
"INTELLECTUAL PROPERTY": all patents, trademarks, trade names,
copyrights, technology, know-how and processes used in or necessary for
the conduct of business of the Borrower and its Subsidiaries as
currently conducted that are material to the condition (financial or
other), business, or operations of the Borrower and its Subsidiaries
taken as a whole.
"INTEREST PAYMENT DATE": (a) as to any Base Rate Loan, the
last day of each March, June, September and December and the date on
which such Loan is paid or converted into a Loan of another Type, (b)
as to any Eurodollar Loan having an Interest Period of three months or
less, the last day of such Interest Period, and (c) as to any
Eurodollar Loan having an Interest Period longer than three months,
each day which is three months or a whole multiple thereof, after the
first day of such Interest Period and the last day of such Interest
Period.
<PAGE> 18
13
"INTEREST PERIOD": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing
or conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three, six, nine or
twelve months thereafter, as selected by the Borrower in its
notice of borrowing or notice of conversion, as the case may
be, given with respect thereto; and
(b) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three, six, nine or
twelve months thereafter, as selected by the Borrower by
irrevocable notice to the Agent not less than three Working
Days prior to the last day of the then current Interest Period
with respect thereto;
PROVIDED that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period would otherwise end on a
day that is not a Working Day, such Interest Period shall be
extended to the next succeeding Working Day unless the result
of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period
shall end on the immediately preceding Working Day;
(2) any Interest Period that begins on the last
Working Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last Working
Day of a calendar month; and
(3) the Borrower shall select Interest Periods with
respect to any Eurodollar Loan so as not to require a payment
or prepayment of any such Eurodollar Loan during an Interest
Period for such Loan.
"INTEREST RATE AGREEMENT": any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other
similar agreement or arrangement designed to protect the Borrower or
any of its Subsidiaries against fluctuations in interest rates.
"INVESTMENT": (a) any direct or indirect purchase or other
acquisition by the Borrower or any of its Subsidiaries of, or a
beneficial interest in, stock or other Securities of any other Person,
or (b) any direct or indirect loan, advance (other than advances to
employees for moving, entertainment and travel expenses, drawing
accounts and similar expenditures in the ordinary course of business)
or capital contribution by the Borrower or any of its Subsidiaries to
any other Person, including all indebtedness and accounts receivable
from that other Person that are not current assets or did not arise
from sales to that other Person in the ordinary course of business. The
amount of any Investment shall
<PAGE> 19
14
be the original cost of such Investment plus the cost of all additions
thereto, without any adjustments for increases or decreases in value,
or write-ups, write-downs or write-offs with respect to such
investment. Investments shall not include any purchase of Program
Rights in the ordinary course of business.
"JOINT VENTURE": a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form.
"LEVERAGE RATIO": at any date of determination, the ratio of
(a) Consolidated Total Debt of the Borrower and its Subsidiaries on
such date to (b) Consolidated Operating Cash Flow for the 12 month
period ended on the last day of the month for which the Borrower shall
have then most recently delivered financial statements pursuant to
subsection 5.1(b)(i).
"LICENSE SUBSIDIARY": each Subsidiary of the Borrower which
holds any FCC License relating to a Broadcast Station as specified on
Schedule 1.1C; and "License Subsidiaries" means all such Persons
collectively.
"LIEN": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Capital Lease having substantially the same
economic effect as any of the foregoing).
"LMA AGREEMENTS": (i) each of the agreements pursuant to which
certain of the Loan Parties operate an LMA Television Station, together
with any amendments, supplements or modifications thereto, as the same
may be amended, restated, supplemented or otherwise modified from time
to time in accordance with the terms hereof and thereof, and (ii) any
other local marketing agreements, local management agreements, local
sales agreements, time brokerage agreements or similar arrangements
entered into by the Borrower or any of its Subsidiaries to the extent
permitted hereby.
"LMA TELEVISION STATION": each of the television stations
(including, without limitation, those identified on Schedule 1.1C)
operated by the Borrower or its Subsidiaries pursuant to LMA
Agreements.
"LOAN DOCUMENTS": this Agreement, any Notes and the Security
Documents.
"LOAN PARTIES": the Borrower and each Subsidiary of the
Borrower which is a party to a Loan Document.
"LOANS": as defined in subsection 2.1.
<PAGE> 20
15
"MARGIN STOCK": has the meaning assigned to that term in
Regulation U of the Board as in effect from time to time.
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a)
the business, operations, property, condition (financial or otherwise)
or prospects of the Borrower and its Subsidiaries taken as a whole or
(b) the validity or enforceability of this or any of the other Loan
Documents or the rights or remedies of the Agent or the Lenders
hereunder or thereunder.
"MULTIEMPLOYER PLAN": a "multiemployer plan" within the
meaning of Section 4001(a)(3) of ERISA to which the Borrower or any
ERISA Affiliate has an obligation to contribute or in respect of which
the Borrower or any ERISA Affiliate has any outstanding liability,
contingent or otherwise.
"NET CASH PROCEEDS": in connection with:
(a) any Asset Sale or Recovery Event, the proceeds thereof in
the form of Cash and Cash Equivalents (including any such proceeds
received by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or
otherwise, but only as and when received), net of customary "hold
backs," reserves and escrows for indemnification (in each case, until
such time as such cash is released to the Borrower or any Subsidiary),
attorneys' fees, accountants' fees, investment banking fees, amounts
required to be applied to the repayment of Indebtedness secured by a
Lien expressly permitted hereunder on any asset which is the subject of
such Asset Sale or Recovery Event (other than any Lien in favor of the
Agent for the benefit of the Lenders) and other customary fees and
expenses actually incurred in connection therewith and net of taxes
paid or reasonably estimated to be payable as a result thereof (after
taking into account any available tax credits or deductions and any tax
sharing arrangements); and
(b) any issuance or sale of equity securities or debt
securities or instruments or the incurrence of loans, the Cash proceeds
received from such issuance or incurrence, net of attorneys' fees,
investment banking fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in
connection therewith.
"NETWORK START-UP": shall exist when and so long as the
Borrower and its Subsidiaries shall operate a television network that
(a) is available in television markets containing at least 68% of
television households located in the United States, Puerto Rico or the
Virgin Islands through, without duplication, a Broadcast Station, a
standard affiliation agreement, cable carriage arrangement or
television stations as to which the Borrower or any of its Subsidiaries
are under contract to purchase and reasonably expects to purchase
within one year of the date of determination (excluding in each case
low power television systems); (b) exhibits traditional prime time
programming 100% of the time during the hours of 6:00 p.m. to 11:00
p.m., Monday through Sunday and (c)
<PAGE> 21
16
exhibits traditional programming 75% of the time during the hours of 6
a.m. to midnight, Monday through Friday.
"NON-EXCLUDED TAXES": as defined in subsection 2.15.
"NOTE": as defined in subsection 2.4(e).
"OBLIGATIONS": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding)
the Notes and all other obligations and liabilities of the Borrower to
the Agent or to any Lender, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, this
Agreement, any other Loan Document, any Interest Rate Agreement entered
into with any Lender, whether on account of principal, interest, fees,
indemnities, costs, expenses (including, without limitation, all fees,
charges and disbursements of counsel to the Agent or to any Lender that
are required to be paid by the Borrower pursuant hereto) or otherwise.
"OPERATING LEASE": as applied to any Person, any lease
(including, without limitation, any leases that may be terminated by
the lessee at any time) of any property (whether real, personal or
mixed) of such Person that is not a Capital Lease other than any such
lease under which such Person is the lessor.
"OWNED TELEVISION STATION": each of the television stations
(including, without limitation, those identified on Schedule 3.1(f))
owned by the Borrower or its Subsidiaries and such other television
stations acquired pursuant to a Permitted Purchase.
"OWNERSHIP REPORT": the Ownership Report of each Loan Party
most recently filed with the FCC.
"PARTICIPANT": as defined in subsection 9.6(b).
"PAXSON": Lowell W. Paxson, residing on the date hereof at 780
South Ocean Boulevard, Palm Beach, Florida 33480.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"PENSION PLAN": any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of
ERISA.
"PERMITTED ACQUISITION": has the meaning assigned to that term
in subsection 6.4(f).
<PAGE> 22
17
"PERMITTED ENCUMBRANCES": the following types of Liens
(PROVIDED that enforcement of the same will not have a Material Adverse
Effect except with respect to clauses (i) and (v) hereof):
(i) Liens for taxes, assessments or governmental
charges or claims the payment of which is not, at the time, required by
subsection 5.3;
(ii) Liens of carriers, warehousemen and other liens
imposed by law incurred in the ordinary course of business for sums not
yet delinquent or being contested in good faith, if such reserve or
other appropriate provision, if any, as shall be required by GAAP shall
have been made therefor;
(iii) Liens of mechanics and materialmen for sums not
yet due or the validity of which is being contested in good faith;
(iv) Liens (other than any Lien imposed pursuant to
Section 401(a)(29) or Section 412(n) of the Code or under ERISA or any
Environmental Law) incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, trade contracts, performance and
return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money) and deposits made
pursuant to the terms of Purchase Agreements permitted hereunder;
(v) any attachment or judgment Lien not constituting
an Event of Default under subsection 7(j);
(vi) leases or subleases granted to others not
interfering in any material respect with the business of the Borrower
or any of its Subsidiaries;
(vii) easements, rights-of-way, restrictions, minor
defects, encroachments or irregularities in title and other similar
charges or encumbrances not interfering in any material respect with
the ordinary conduct of the business of the Borrower or any of its
Subsidiaries; and
(viii) Liens arising from filing UCC financing
statements relating solely to leases permitted by this Agreement.
"PERMITTED PURCHASE": any of (i) a Permitted Acquisition, (ii)
a Preapproved Acquisition or (iii) any other acquisition of a Core
Business permitted hereunder or otherwise consented to by the Required
Lenders from time to time in accordance with the terms hereof.
<PAGE> 23
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"PERSON": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"PLAN": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"PLEDGE AGREEMENTS": the collective reference to the Borrower
Pledge Agreement and the Subsidiaries Pledge Agreement.
"PREAPPROVED ACQUISITION": each of the acquisitions listed on
Schedule 1.1B, PROVIDED that such acquisition is effected pursuant to
the Purchase Agreement relating to such acquisition.
"PROGRAM": any television series or other program produced or
distributed for television release (including any syndicated series or
other program regardless of its medium of initial exploitation), in
each case whether recorded on film, videotape, audiotape, cassette,
cartridge, disc or by any other means, method, process or device,
whether now known or hereafter developed.
"PROGRAM CONTRACTS": all contracts for television broadcast
rights of Programs, including, but not limited to, film, music and
related audio rights and syndicated series exhibition rights acquired
under license agreements.
"PROGRAM DEVELOPMENT EXPENSES": for any period, the aggregate
cash payments made by the Borrower and/or any of its Subsidiaries
during such period in connection with the development or production of
television programming.
"PROGRAM RIGHTS": any right, whether arising under Program
Contracts or otherwise, to broadcast, sell, distribute, subdistribute,
exhibit, lease, sublease, license, sublicense or otherwise exploit
Programs.
"PROGRAM RIGHTS COSTS": the maximum amount which the Borrower
and/or any of its Subsidiaries or its or their co-venturers have
furnished or have contractually committed to furnish (to the extent
such commitments shall be reflected as an asset or liability on the
consolidated balance sheet and the notes thereto of the Borrower)
toward the production or acquisition by the Borrower and/or any of its
Subsidiaries or its or their co-venturers of any Program Rights with
respect to any Program.
"PROGRAMMING AMORTIZATION EXPENSE": for any period, total
amortization expense of the Borrower and/or any of its Subsidiaries for
such period which is directly attributable to Programs, Program Rights
or Program Contracts, determined on a consolidated basis in conformity
with GAAP.
<PAGE> 24
19
"PROGRAMMING OBLIGATIONS": at any date of determination, all
direct or indirect liabilities, contingent or otherwise, with respect
to Program Contracts, Programs or Program Rights (including, without
limitation, all Program Rights Costs) of the Borrower and its
Subsidiaries, to the extent reflected on the consolidated balance sheet
and the notes thereto of the Borrower and its Subsidiaries prepared in
conformity with GAAP.
"PROGRAMMING RIGHTS PAYMENTS": for any period, the aggregate
cash payments scheduled to be made by the Borrower and/or any of its
Subsidiaries for such period in respect of Programming Obligations,
determined on a consolidated basis in conformity with GAAP.
"PURCHASE AGREEMENTS": the agreements, contracts and other
documents pursuant to which the Borrower or its Subsidiaries will
consummate a Permitted Purchase.
"RECOVERY EVENT": any settlement of or payment in respect of
any property or casualty insurance claim or any condemnation proceeding
relating to any asset (other than inventory) of the Borrower or any of
its Subsidiaries (excluding to the extent, and only to the extent, that
within 180 days of the casualty or condemnation proceeding upon which
such settlement or payment is based, such Person commences and
thereafter diligently pursues the repair or replacement of the property
affected by such event).
"REGISTER": as defined in subsection 9.6(d).
"RELATED DOCUMENTS": (a) the Purchase Agreements and (b) the
LMA Agreements.
"RELEASE": any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal,
leaching, or migration into the indoor or outdoor environment
(including, without limitation, the abandonment or disposal of any
barrels, containers or other closed receptacles containing any
Hazardous Materials), or into or out of any Facility, including the
movement of any Hazardous Material through the air, soil, surface
water, groundwater or property.
"REQUIRED LENDERS": at a particular time, the holders of at
least 51% of the aggregate unpaid principal amount of the Loans, or, if
no Loans are outstanding, Lenders the Commitment Percentages of which
aggregate at least 51%.
"REQUIREMENT OF LAW": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
<PAGE> 25
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"RESTRICTED PAYMENT": means (i) any dividend or other
distribution, direct or indirect, on account of any equity interests
(including preferred capital stock) of the Borrower or any of its
Subsidiaries now or hereafter outstanding, (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any equity interests
(including preferred capital stock) of the Borrower or any of its
Subsidiaries now or hereafter outstanding, (iii) any payment made to
retire, or to obtain the surrender of, any outstanding warrants,
options or other rights to acquire any equity interests (including
preferred capital stock) of the Borrower or any of its Subsidiaries now
or hereafter outstanding and (iv) any direct or indirect payment, loan,
contribution or other transfer of funds or other property to any equity
holder of the Borrower or any of its Subsidiaries.
"SECURITIES": any stock, shares, voting trust certificates,
bonds, debentures, options, warrants, notes, or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or
otherwise, or in general any instruments commonly known as "securities"
or any certificates of interest, shares or participations in temporary
or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"SECURITY AGREEMENTS": the collective reference to the
Borrower Security Agreement and the Subsidiaries Security Agreement.
"SECURITY DOCUMENTS": the collective reference to the Pledge
Agreements, the Subsidiaries Guarantee, the Security Agreements, the
Cash Collateral Agreement and all other security documents hereafter
delivered to the Agent granting a Lien on any asset or assets of any
Person to secure the obligations and liabilities of the Borrower
hereunder and under any of the other Loan Documents or to secure any
guarantee of any such obligations and liabilities.
"SENIOR SUBORDINATED NOTE INDENTURE": the Indenture dated as
of September 28, 1995 pursuant to which the Borrower issued the Senior
Subordinated Notes, as the same may be amended, supplemented or
otherwise modified from time to time.
"SENIOR SUBORDINATED NOTES": the Senior Subordinated Notes due
October 1, 2002 of the Borrower in the aggregate principal amount of
$230,000,000.
"SOLVENT": with respect to any Person, that as of the date of
determination, both (A) (i) the then fair saleable value of the
property of such Person is (y) greater than the total amount of
liabilities (including Contingent Obligations net of the estimated
value of any subrogation or contribution rights relating thereto) of
such Person and (z) greater than the amount that will be required to
pay the probable liabilities of such Person's then existing debts as
they become absolute and matured considering all financing
alternatives, sharing and allocation arrangements and potential asset
sales reasonably available to such Person; (ii) such Person's capital
is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (iii) such Person does not
intend to incur, or
<PAGE> 26
21
believe or reasonably should believe that it will incur, debts beyond
its ability to pay such debts as they become due and (B) such Person is
solvent within the meaning given that term and similar terms under
applicable laws relating to fraudulent transfers.
"STOCKHOLDERS' AGREEMENT": the Amended and Restated
Stockholders' Agreement of the Borrower dated as of December 22, 1994,
as the same may be amended, supplemented or otherwise modified from
time to time.
"STUDIO CONSTRUCTION EXPENDITURES": expenditures by the
Borrower or its Subsidiaries for the construction of a corporate
headquarters and studio facilities to be located at Old Okeechobee
Road, West Palm Beach, Florida 33407 and related equipment (including
software) in an aggregate amount not to exceed $20,000,000.
"SUBSIDIARIES GUARANTEE": the Second Amended and Restated
Guarantee to be executed and delivered by each Subsidiary in favor of
the Agent, substantially in the form of Exhibit D, as the same may be
amended, supplemented or otherwise modified from time to time.
"SUBSIDIARIES PLEDGE AGREEMENT": the Second Amended and
Restated Subsidiaries Pledge Agreement to be executed and delivered by
each Subsidiary in favor of the Agent, substantially in the form of
Exhibit E, as the same may be amended, supplemented or otherwise
modified from time to time.
"SUBSIDIARIES SECURITY AGREEMENT": the Second Amended and
Restated Subsidiaries Security Agreement to be executed and delivered
by each Subsidiary in favor of the Agent, substantially in the form of
Exhibit F, as the same may be amended, supplemented or otherwise
modified from time to time.
"SUBSIDIARIES SECURITY DOCUMENTS": the collective reference to
the Subsidiaries Pledge Agreement and the Subsidiaries Security
Agreement.
"SUBSIDIARY": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower. All references in this
Agreement to a "Subsidiary" or "Subsidiaries" of the Borrower shall not
include any Unrestricted Subsidiary of the Borrower.
"SUBSIDIARY GUARANTOR": any Subsidiary of the Borrower that is
a party to the Subsidiaries Guarantee.
<PAGE> 27
22
"TERMINATION DATE": June 30, 2002.
"TOP 25 TV STATION": a Broadcast Station located in an
"Designated Market Area" ranked from number 1 to number 25; PROVIDED
that, to the extent the Borrower or any of its Subsidiaries at any time
owns or has an interest in more than one Broadcast Station located in
the same "Designated Market Area", as to such Broadcast Stations, only
the Broadcast Station with the greater or greatest fair market value
shall be deemed to be a "Top 25 TV Station."
"TRANCHE": the collective reference to Eurodollar Loans the
then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Loans
shall originally have been made on the same day).
"TRANSFEREE": as defined in subsection 9.6(f).
"TYPE": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar Loan.
"UNRESTRICTED SUBSIDIARY": any corporation, partnership or
other entity which, but for the operation of this definition, would be
a Subsidiary of the Borrower (i) created, invested in or acquired by
the Borrower or any Subsidiary of the Borrower after April 28, 1998,
other than pursuant to a Preapproved Acquisition, (ii) designated by a
resolution of the Board of Directors of the Borrower as an Unrestricted
Subsidiary and such designation and the basis for such designation are
provided in writing to the Agent, and (iii) into which the Borrower or
any Subsidiary has made any Investment with the proceeds of any
issuance or sale of any class of equity Securities of the Borrower as
permitted by subsection 6.4(i); PROVIDED that if such Subsidiary is a
partnership, such Subsidiary may be an Unrestricted Subsidiary only if
neither the Borrower nor a Subsidiary of the Borrower is a general
partner of such Subsidiary.
"WORKING DAY": shall mean any Business Day on which dealings
in foreign currencies and exchange between banks may be carried on in
London, England.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any Notes or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate or
other document made or delivered pursuant hereto, accounting terms relating to
the Borrower and its Subsidiaries not defined in subsection 1.1 and accounting
terms partly defined in subsection 1.1, to the extent not defined, shall have
the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
<PAGE> 28
23
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF LOANS AND COMMITMENTS
2.1 LOANS AND COMMITMENTS. (a) Subject to the terms and
conditions hereof, each Lender severally agrees (i) to continue a term loan to
the Borrower in an aggregate principal amount set forth in Schedule 1.1A (the
"CONTINUED LOANS") and (ii) to make a term loan to the Borrower (together with
the Continued Loans, the "LOANS") on the Closing Date in a principal amount
equal to the amount of such Lender's Commitment.
2.2 PROCEDURE FOR BORROWING. (a) The Loans may from time to
time be (i) Eurodollar Loans or (ii) Base Rate Loans or (iii) a combination
thereof, as determined by the Borrower and notified to the Agent in accordance
with subsections 2.2(b) and 2.7, PROVIDED that no Loan shall be made as a
Eurodollar Loan after the day that is one month prior to the Termination Date.
(b) The Borrower may borrow on any Working Day, if all or any
part of such Loans are to be initially Eurodollar Loans, or on a Business Day,
if all of such Loans are to be initially Base Rate Loans, PROVIDED that the
Borrower shall give the Agent irrevocable notice (which notice must be received
by the Agent prior to 10:00 A.M., Los Angeles time, (a) three Business Days
prior to the Closing Date, if all or any part of the requested Loans are to be
initially Eurodollar Loans or (b) one Business Day prior to the requested
Borrowing Date, otherwise), specifying (i) whether the borrowing is to be
Eurodollar Loans, Base Rate Loans, or a combination thereof and (ii) if the
borrowing is to be entirely or partly of Eurodollar Loans, the respective
amounts of each such Type of Loan and the respective lengths of the initial
Interest Periods therefor. Upon receipt of any such notice from the Borrower,
the Agent shall promptly notify each Lender thereof. Each Lender will make the
amount of its pro rata share of the borrowing available to the Agent for the
account of the Borrower at the office of the Agent specified in subsection 9.2
prior to 11:00 A.M., New York City time, on the Closing Date in funds
immediately available to the Agent. Such borrowing will then be made available
to the Borrower by the Agent crediting the account of the Borrower on the books
of such office with the aggregate of the amounts made available to the Agent by
the Lenders and in like funds as received by the Agent.
2.3 INSTALLMENTS. The Loan of each Lender shall be paid in
seven consecutive quarterly installments, commencing on December 31, 2000, each
of which shall be in an amount equal to such Lender's Commitment Percentage
multiplied by the amount set forth below opposite such installment:
<PAGE> 29
24
Installment Date Principal Amount
---------------- ----------------
December 31, 2000 $18,300,000
March 31, 2001 12,962,500
June 30, 2001 12,962,500
September 30, 2001 12,962,500
December 31, 2001 12,962,500
March 31, 2002 25,925,000
June 30, 2002 25,925,000
2.4 REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrower
hereby unconditionally promises to pay to the Agent for the account of each
Lender the then unpaid principal amount of each Loan of such Lender in
accordance with subsection 2.3 (or such earlier date on which the Loans become
due and payable pursuant to Section 7). The Borrower hereby agrees to pay
interest on the unpaid principal amount of the Loans from time to time
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in subsection 2.9.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Agent shall maintain the Register pursuant to
subsection 9.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, the Type thereof and each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) both the amount of any sum received by the Agent hereunder
from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 2.4(b) shall, to the extent permitted
by applicable law, be PRIMA FACIE evidence of the existence and amounts of the
obligations of the Borrower therein recorded; PROVIDED, HOWEVER, that the
failure of any Lender or the Agent to maintain the Register or any such account,
or any error therein, shall not in any manner affect the obligation of the
Borrower to repay (with applicable interest) the Loans made to the Borrower by
such Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the Agent by
any Lender, the Borrower will execute and deliver to such Lender a promissory
note of the Borrower evidencing the Loans of such Lender, substantially in the
form of Exhibit A with appropriate insertions as to date and principal amount (a
"NOTE").
2.5 OPTIONAL PREPAYMENTS. The Borrower may, at any time and
from time to time, prepay the Loans, in whole or in part, without premium or
penalty, upon at least three Business Days' irrevocable notice to the Agent in
the case of Eurodollar Loans, and upon at least one
<PAGE> 30
25
Business Days' irrevocable notice to the Agent in the case of Base Rate Loans,
specifying the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans, Base Rate Loans or a combination thereof, and, if of a
combination thereof, the amount allocable to each. Upon receipt of any such
notice the Agent shall promptly notify each Lender thereof. If any such notice
is given, the amount specified in such notice shall be due and payable on the
date specified therein, together with any amounts payable pursuant to subsection
2.16. Partial prepayments shall be in an aggregate principal amount of $250,000
or a whole multiple of $50,000 in excess thereof. Prepayments of the Loans may
not be reborrowed.
2.6 MANDATORY PREPAYMENTS. (a) If the aggregate Net Cash
Proceeds received by the Borrower and/or any of its Subsidiaries subsequent to
the date hereof from the issuance of shares of any class of its equity
Securities (including preferred Capital Stock) shall exceed $300,000,000
(exclusive of any shares of any class of its equity Securities (including
preferred Capital Stock) issued to refinance or prepay Indebtedness permitted
hereunder outstanding on the date thereof in accordance with the terms hereof),
on the date of each such issuance which results in any such receipt of such
excess Net Cash Proceeds, an amount equal to the Equity Prepayment Percentage of
such excess Net Cash Proceeds from such issuance shall be applied on the date of
such issuance toward the prepayment of the Loans in accordance with the
provisions of paragraph (d) of this subsection 2.6.
(b) The Loans shall be prepaid in accordance with the
provisions of paragraph (d) of this subsection 2.6 by an amount equal to the
aggregate amount of Net Cash Proceeds received by the Borrower and its
Subsidiaries subsequent to the Closing Date from any Asset Sale (other than (1)
any Excluded Asset Sale, (2) any sale of WNGM-TV (Atlanta), WPXE-TV (Milwaukee),
WIPX-TV (Bridgeport), WYCL-FM (Pensacola), WHNZ - AM (Tampa), KVUT - TV (Little
Rock) or KAJW - TV (Phoenix) or of the promissory note currently owing to the
Borrower by the owner of WTWS-TV (Hartford) or WHRC - TV (Boston) if the
consideration received by the Borrower and its Subsidiaries of such sale is in
an amount not less than the applicable amount with respect thereto set forth on
Part A of Schedule 2.6(b), (3) any sale of a Broadcast Station set forth on Part
B of Schedule 2.6(b) under "Construction Permit Stations" if the consideration
received by the Borrower and its Subsidiaries of such sale is in an amount not
less than the applicable amount with respect thereto set forth on Part B of
Schedule 2.6(b); PROVIDED that the Net Cash Proceeds thereof are invested by the
Borrower or a Subsidiary on or prior to the 181st day following the date of such
Asset Sale in a Core Business, (4) any sale of any Broadcast Station listed on
Part C of Schedule 2.6(b) under "Other Stations" if the consideration received
by the Borrower and its Subsidiaries of such sale is in an amount not less than
the applicable amount with respect thereto set forth on Part C of Schedule
2.6(b); PROVIDED that the Net Cash Proceeds thereof are invested by the Borrower
or a Subsidiary on or prior to the 181st day following the date of such Asset
Sale in a Core Business, (5) any sale of any Broadcast Station set forth in Part
D of Schedule 2.6(b) under "Duplicative Top 25 Stations", (6) the sale of its
interest in the American Hockey League Franchise to operate a hockey team in
West Palm Beach, Florida.
(c) The Loans shall be prepaid in accordance with the
provisions of paragraph (d) of this subsection 2.6 by an amount equal to the Net
Cash Proceeds received by the Borrower and its Subsidiaries from any Recovery
Event.
<PAGE> 31
26
(d) Prepayments of the Loans pursuant to this subsection 2.6
shall be applied to Loans pro rata to the remaining installments thereof. Each
prepayment of the Loans under this subsection 2.6 shall be accompanied by
accrued interest to the date of such prepayment on the amount prepaid and any
amounts due pursuant to subsection 2.16. Amounts prepaid may not be reborrowed.
2.7 CONVERSION AND CONTINUATION OPTIONS. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to Base Rate Loans, by
giving the Agent at least two Business Days' prior irrevocable notice of such
election. The Borrower may elect from time to time to convert Base Rate Loans to
Eurodollar Loans by giving the Agent at least three Working Days' prior
irrevocable notice of such election. Any such notice of conversion to Eurodollar
Loans shall specify the length of the initial Interest Period or Interest
Periods therefor. Upon receipt of any such notice the Agent shall promptly
notify each Lender thereof. All or any part of outstanding Eurodollar Loans and
Base Rate Loans may be converted as provided herein, PROVIDED that (i) no Loan
may be converted into a Eurodollar Loan when any Event of Default has occurred
and is continuing and the Agent has or the Required Lenders have determined that
such a conversion is not appropriate and (ii) no Loan may be converted into a
Eurodollar Loan after the date that is one month prior to the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Agent, in accordance with the applicable
provisions of the term "Interest Period" set forth in subsection 1.1, of the
length of the next Interest Period to be applicable to such Loans, PROVIDED that
no Eurodollar Loan may be continued as such (i) when any Event of Default has
occurred and is continuing and the Agent has or the Required Lenders have
determined that such a continuation is not appropriate or (ii) after the date
that is one month prior to the Termination Date and PROVIDED, FURTHER, that if
the Borrower shall fail to give such notice or if such continuation is not
permitted such Loans shall be automatically converted to Base Rate Loans on the
last day of such then expiring Interest Period.
2.8 MINIMUM AMOUNTS AND MAXIMUM NUMBER OF TRANCHES. All
conversions and continuations of Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Loans comprising each Eurodollar Tranche shall be equal to $3,000,000 or
a whole multiple of $1,000,000 in excess thereof. In no event shall there be
more than 8 Eurodollar Tranches outstanding at any time.
2.9 INTEREST RATES AND PAYMENT DATES. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined with respect
to such Loan for such day plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin.
<PAGE> 32
27
(c) If all or a portion of (i) any principal of any Loan, (ii)
any interest payable thereon, or (iii) any other amount payable hereunder shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), the principal of such overdue Loans and any such overdue interest,
commitment fee or other amount shall bear interest at a rate per annum which is
(x) in the case of principal, the rate that would otherwise be applicable
thereto pursuant to the foregoing provisions of this subsection plus 2% or (y)
in the case of any such overdue interest, commitment fee or other amount, the
rate described in paragraph (b) of this subsection plus 2%, in each case from
the date of such non-payment until such overdue principal, interest, commitment
fee or other amount is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, PROVIDED that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
2.10 COMPUTATION OF INTEREST AND FEES. (a) Interest on Base
Rate Loans and commitment fees shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed. Interest on
Eurodollar Loans shall be calculated on the basis of a 360-day year for the
actual days elapsed. The Agent shall as soon as practicable notify the Borrower
and the Lenders of each determination of a Eurodollar Rate. Any change in the
interest rate on a Loan resulting from a change in the Base Rate or the
Eurocurrency Reserve Requirements shall become effective as of the opening of
business on the day on which such change becomes effective. The Agent shall as
soon as practicable notify the Borrower and the Lenders of the effective date
and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error. The Agent shall,
at the request of the Borrower, deliver to the Borrower a statement showing the
quotations used by the Agent in determining any interest rate pursuant to
subsection 2.9(a) or (b).
2.11 INABILITY TO DETERMINE INTEREST RATE. If prior to the
first day of any Interest Period:
(a) the Agent shall have determined (which determination shall
be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or
(b) the Agent shall have received notice from the Required
Lenders that the Eurodollar Rate determined or to be determined for
such Interest Period will not adequately and fairly reflect the cost to
such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
<PAGE> 33
28
the Agent shall give telecopy or telephonic notice thereof to the Borrower and
the Lenders as soon as practicable thereafter. If such notice is given (x) any
Eurodollar Loans requested to be made on the first day of such Interest Period
shall be made as Base Rate Loans, (y) any Loans that were to have been converted
on the first day of such Interest Period to Eurodollar Loans shall be continued
as Base Rate Loans and (z) any affected outstanding Eurodollar Loans shall be
converted, on the first day of such Interest Period, to Base Rate Loans. Until
such notice has been withdrawn by the Agent (which notice shall be withdrawn
upon the cessation of such circumstances), no further Eurodollar Loans shall be
made or continued as such, nor shall the Borrower have the right to convert
Loans to Eurodollar Loans.
2.12 PRO RATA TREATMENT AND PAYMENTS. (a) The borrowing by the
Borrower from the Lenders hereunder shall be made pro rata according to the
respective Commitment Percentages of the Lenders. Each payment (including each
prepayment) by the Borrower on account of principal of and interest on the Loans
shall be made pro rata according to the respective outstanding principal amounts
of the Loans then held by the Lenders. All payments (including prepayments) to
be made by the Borrower hereunder, whether on account of principal, interest,
fees or otherwise, shall be made without set off or counterclaim and shall be
made prior to 11:00 A.M. Los Angeles time, on the due date thereof to the Agent,
for the account of the Lenders, at the Agent's office specified in subsection
9.2, in Dollars and in immediately available funds. The Agent shall distribute
such payments to the Lenders promptly upon receipt in like funds as received. If
any payment hereunder becomes due and payable on a day other than a Business
Day, such payment shall be extended to the next succeeding Business Day, and,
with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension.
(b Unless the Agent shall have been notified in writing by any
Lender prior to the Closing Date that such Lender will not make the amount that
would constitute its Commitment Percentage of such borrowing available to the
Agent, the Agent may assume that such Lender is making such amount available to
the Agent, and the Agent may, in reliance upon such assumption, make available
to the Borrower a corresponding amount. If such amount is not made available to
the Agent by the required time on the Closing Date, such Lender shall pay to the
Agent, on demand, such amount with interest thereon at a rate equal to the daily
average Federal Funds Rate for the period until such Lender makes such amount
immediately available to the Agent. A certificate of the Agent submitted to any
Lender with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error. If such Lender's Commitment
Percentage of such borrowing is not made available to the Agent by such Lender
within three Business Days of the Closing Date, the Agent shall also be entitled
to recover such amount with interest thereon, without duplication of any amounts
received by the Agent from such Lender, at the rate per annum applicable to Base
Rate Loans hereunder, on demand, from the Borrower.
2.13 ILLEGALITY. Notwithstanding any other provision herein,
if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
<PAGE> 34
29
Eurodollar Loans as such and convert Base Rate Loans to Eurodollar Loans shall
forthwith be cancelled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans on
the respective last days of the then current Interest Periods with respect to
such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, other than as a result of the
gross negligence or willful act of such Lender, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to subsection 2.16.
2.14 REQUIREMENTS OF LAW. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note or any Eurodollar
Loan made by it, or change the basis of taxation of payments to such
Lender in respect thereof (except for Non-Excluded Taxes covered by
subsection 2.15 and changes in the rate of tax on the overall net
income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
thereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, such Lender shall notify
the Borrower of such increased cost or reduced amount receivable and describe in
reasonable detail the basis for such notification, and the Borrower shall
promptly pay such Lender such additional amount or amounts as will compensate
such Lender for such increased cost or reduced amount receivable.
(b If any Lender shall have determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
<PAGE> 35
30
be material, then from time to time, the Borrower shall promptly pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction.
(c If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the Borrower (with
a copy to the Agent) of the event by reason of which it has become so entitled.
A certificate showing in reasonable detail the calculation of any additional
amounts payable pursuant to this subsection submitted by such Lender to the
Borrower (with a copy to the Agent) shall be conclusive in the absence of
manifest error. The agreements in this subsection shall survive the termination
of this Agreement and the payment of the Loans and all other amounts payable
hereunder.
(d In the event any Lender delivers a certificate requesting
compensation pursuant to this subsection 2.14, the Borrower may, at its sole
expense and effort, upon notice to such Lender and the Agent, require such
Lender to transfer and assign, without recourse (in accordance with and subject
to the restrictions contained in subsection 9.6), all of its interests, rights
and obligations under this Agreement to an assignee which shall assume such
assigned obligations (which assignee may be another Lender, if a Lender accepts
such assignment); PROVIDED, however, that (x) such assignment shall not conflict
with any law, rule or regulation or order of any court or other Governmental
Authority having jurisdiction, (y) the Borrower shall have received the prior
written consent to such assignment of the Agent, which consent shall not
unreasonably be withheld, and (z) the Borrower or such assignee shall have paid
to the affected Lender in immediately available funds an amount equal to the sum
of the principal of the outstanding Loans of such Lender plus all interest, fees
and other amounts accrued and unpaid for the account of such Lender hereunder
(including any amounts under this subsection 2.14); PROVIDED, FURTHER, that if
prior to any such transfer and assignment the circumstances or event that
resulted in such Lender's claim for compensation under this subsection 2.14
cease to cause such Lender to suffer increased costs or reductions in amounts
received or receivable or reduction in return on capital (including as a result
of any action taken by such Lender pursuant to subsection 2.17), or if, within
twenty days after the Borrower shall have notified such Lender of its election
to exercise its rights pursuant to this subsection, such Lender shall waive its
right to claim further compensation under this subsection 2.14 in respect of
such circumstances or event, then such Lender shall not thereafter be required
to make any such transfer and assignment hereunder.
2.15 TAXES. (a) All payments made by the Borrower under this
Agreement and any Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Agent or any Lender as a result of a
present or former connection between the Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or enforced,
this Agreement or any Note). If any such non-excluded taxes, levies, imposts,
duties, charges, fees deductions or withholdings ("NON-EXCLUDED TAXES") are
required to be withheld from any amounts payable to the Agent or
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any Lender hereunder or under any Note, the amounts so payable to the Agent or
such Lender shall be increased to the extent necessary to yield to the Agent or
such Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, PROVIDED, HOWEVER, that the Borrower shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this subsection. Whenever any
Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Agent for its own account or for the
account of such Lender, as the case may be, a certified copy of an original
official receipt received by the Borrower showing payment thereof. If the
Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Agent and the Lenders for
any incremental taxes, interest or penalties that may become payable by the
Agent or any Lender as a result of any such failure. The agreements in this
subsection shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
(b Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) deliver to the Borrower and the Agent (A) two duly
completed copies of United States Internal Revenue Service Form 1001 or
4224, or successor applicable form, as the case may be, and (B) an
Internal Revenue Service Form W-8 or W-9, or successor applicable form,
as the case may be;
(ii) deliver to the Borrower and the Agent two further
copies of any such form or certification on or before the date that any
such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be requested
by the Borrower or the Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the Agent.
Such Lender shall certify (i) in the case of a Form 1001 or 4224, that it is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes and (ii) in the case of a
Form W-8 or W-9, that it is entitled to an exemption from United States backup
withholding tax. Each Person that shall become a Lender or a Participant
pursuant to subsection 9.6 shall, upon the effectiveness of the related
transfer, be required to provide all of the forms and statements required
pursuant to this subsection, PROVIDED that in the case of a Participant such
Participant shall furnish all such
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required forms and statements to the Lender from which the related participation
shall have been purchased.
2.16 INDEMNITY. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the excess, if any,
of (i) the amount of interest which would have accrued on the amount so prepaid,
or not so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans PROVIDED
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. This covenant shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
2.17 CHANGE OF LENDING OFFICE. Each Lender agrees that if it
makes any demand for payment under subsection 2.14 or 2.15(a), or if any
adoption or change of the type described in subsection 2.13 shall occur with
respect to it, it will use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions and so long as such efforts would
not be disadvantageous to it, as determined in its sole discretion) to designate
a different lending office if the making of such a designation would reduce or
obviate the need for the Borrower to make payments under subsection 2.14 or
2.15(a), or would eliminate or reduce the effect of any adoption or change
described in subsection 2.13.
2.18 FURTHER ASSURANCES REGARDING SECURITY; ADDITIONAL
SECURITY. (a) The Borrower shall, and shall cause each of its Subsidiaries to,
from time to time, execute and deliver to the Agent on behalf of the Lenders,
such additional Security Documents, statements, documents, agreements and
reports as it may from time to time reasonably request to evidence, perfect or
otherwise implement or assure the security for repayment of the Obligations
provided for under the Security Documents. With respect to the Lenders'
insurance policies, upon the Agent's reasonable request, the Borrower shall
arrange for co-insurance and/or reinsurance, with companies and in amounts
satisfactory to the Agent. All reinsurance policies shall include direct access
agreements acceptable to the Agent.
(b Notwithstanding anything herein to the contrary, to the
extent this Agreement or any other Loan Document purports to require any Loan
Party to grant to the Agent, on behalf of Lenders, a security interest in the
FCC Licenses of any Loan Party now owned or hereafter
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acquired, as the case may be, the Agent, on behalf of Lenders, shall only have a
security interest in such FCC Licenses at such times and to the extent that a
security interest in such licenses is permitted under applicable law.
Notwithstanding anything to the contrary set forth herein, the Agent, on behalf
of Lenders, agrees that to the extent prior FCC approval is required pursuant to
the Communications Act for (a) the operation and effectiveness of any grant,
right or remedy hereunder or under the Security Documents or (b) taking any
action that may be taken by the Agent hereunder or under the Security Documents,
such grant, right, remedy or actions will be subject to such prior FCC approval
having been obtained by or in favor of the Agent, on behalf of Lenders. The
Borrower agrees that, upon an Event of Default and at the Agent's request, the
Borrower will, and will cause its Subsidiaries to, immediately file, or cause to
be filed, such applications for approval and shall take all other and further
actions reasonably required by the Agent, on behalf of Lenders, to obtain such
FCC approvals or consents as are necessary to transfer ownership and control to
the Agent, on behalf of Lenders, or their successors, assigns or designees of
the FCC Licenses held by the Borrower, its License Subsidiaries or any of its
other Subsidiaries. To enforce the provisions of this subsection, the Agent is
empowered to request the appointment of a receiver from any court of competent
jurisdiction. Such receiver shall be instructed to seek from the FCC an
involuntary transfer of control of any such FCC License for the purpose of
seeking a bona fide purchaser to whom control will ultimately be transferred.
The Borrower hereby agrees to authorize, and to cause each of its Subsidiaries
to authorize, such an involuntary transfer of control upon the request of the
receiver so appointed, and, if the Borrower shall refuse to authorize or cause
any of its Subsidiaries to so authorize the transfer, its approval may be
required by the court. Upon the occurrence and continuance of an Event of
Default, and the request of the Agent, the Borrower shall further use its best
efforts to assist in obtaining approval of the FCC, if required, for any action
or transactions contemplated by this Agreement or the other Loan Documents,
including, without limitation, the preparation, execution and filing with the
FCC of the assignor's or transferor's portion of any application or applications
for consent to the assignment of any FCC License or transfer of control
necessary or appropriate under the FCC's rules and regulations for approval of
the transfer or assignment of any portion of the Collateral, together with any
FCC License or other authorization.
(c The Borrower acknowledges that the assignment or transfer
of such FCC Licenses is integral to the Lenders' realization of the value of the
Collateral, that there is no adequate remedy at law for failure by the Borrower
to comply with the provisions of this subsection and that such failure would not
be adequately compensable in damages, and therefore agrees that the agreements
contained in this subsection may be specifically enforced.
(d Notwithstanding anything to the contrary contained in this
Agreement or any other Loan Document, neither the Agent nor any Lender shall,
without first obtaining the approval of the FCC, take any action pursuant to
this Agreement or any other Loan Document which would constitute or result in
any assignment of an FCC License or any change of control of the Borrower or any
of its Subsidiaries if such assignment or change in control would require, under
then existing law (including the written rules and regulations promulgated by
the FCC), the prior approval of the FCC.
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(e At any time or from time to time upon the reasonable
request of the Agent, the Borrower shall, and shall cause each of its
Subsidiaries to, execute and deliver such further documents (including without
limitation such financing statements, continuation statements or amendments
thereto and such other documents and certificates as the Agent may reasonably
request to perfect and preserve the security interests granted or purported to
be granted under any of the Security Documents) and do such other acts and
things as the Agent may reasonably request to effect fully the purposes of this
Agreement and the other Loan Documents and to provide for payment of the
Obligations in accordance with the terms of this Agreement and the other Loan
Documents. Without limiting any of the foregoing, in the event a Person becomes
a Subsidiary of the Borrower after the Closing Date, the Borrower shall cause
such Subsidiary to execute and deliver such guarantees, Security Documents and
such other agreements, pledges, assignments, documents and certificates
(including, without limitation, any amendments to the Loan Documents) as the
Agent may reasonably request and do such other acts and things as the Agent may
reasonably request to have such Subsidiary guaranty the Obligations, grant,
subject to the limitation set forth in subsection 2.18(b), to the Agent on
behalf of Lenders, a duly perfected first priority Lien (subject to Liens
permitted hereunder) on all real, personal and mixed property (in each case, if
so requested by the Agent) of such Subsidiary, and effect fully the purposes of
this Agreement and the other Loan Documents and to provide for payment of the
Obligations in accordance with the terms of this Agreement and the other Loan
Documents. Without limiting the generality of the foregoing, in the event the
Borrower forms or otherwise acquires a Subsidiary after the Closing Date, the
Borrower shall (i) execute and deliver to the Agent a pledge agreement
substantially in the form attached hereto as Exhibit B and (ii) cause such
Subsidiary to execute and deliver a guarantee substantially in the form attached
hereto as Exhibit E, a pledge agreement substantially in the form attached
hereto as Exhibit E and a security agreement in the form of Exhibit F.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this
Agreement and to make the Loans, the Borrower hereby represents and warrants to
the Agent and each Lender that:
3.1 ORGANIZATION, POWERS, GOOD STANDING AND BUSINESS
(a ORGANIZATION AND POWERS. Each Loan Party is a corporation,
limited liability company or limited partnership, as the case may be, duly
formed and validly existing under the laws of the jurisdiction of its
organization. Each Loan Party has all requisite corporate or partnership, as the
case may be, power and authority to own and operate its properties, to carry on
its business as now conducted and proposed to be conducted, and each Loan Party
has all requisite corporate or partnership, as the case may be, power and
authority to enter into the Related Documents and the Loan Documents, to carry
out the transactions contemplated thereby and to issue the Notes, in each case
to the extent it is a party thereto.
(b GOOD STANDING. Each Loan Party is in good standing in every
jurisdiction where its assets are located and wherever necessary to carry out
its present business and
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35
operations, except where the failure to be so qualified has not had and could
not reasonably be expected to have a Material Adverse Effect.
(c CONDUCT OF BUSINESS. The Loan Parties are engaged only in
the businesses permitted to be engaged in under subsection 6.13 and are
conducting their businesses in accordance with the provisions of subsection
6.13. Each Loan Party holds all licenses, permits, franchises, leases,
certificates of authority, or any waivers of the foregoing that are necessary to
permit each of them to conduct their respective businesses as now conducted and
to hold and operate their respective properties, except where the failure to
have such licenses, permits, franchises, leases and certificates of authority,
or waivers of any of the foregoing, could not reasonably be expected to have a
Material Adverse Effect. All such licenses, permits, franchises, leases,
certificates of authority and waivers are valid and in full force and effect,
except where the failure to be in full force and effect of such licenses,
permits, franchises, leases, certificates of authority and waivers could not
reasonably be expected to have a Material Adverse Effect.
(d OWNERSHIP AND SUBSIDIARIES. Except as set forth in Schedule
3.1(d), all of the issued and outstanding Capital Stock of each of the other
Loan Parties is held directly or indirectly by the Borrower. The ownership of
each of the Loan Parties and each of the Subsidiaries of each of the Loan
Parties is specified correctly and completely on Schedule 3.1(d) annexed hereto.
None of the Capital Stock of the Persons identified on Schedule 3.1(d) annexed
hereto is Margin Stock, except as specified on such Schedule. Each of the
Subsidiaries of the Loan Parties identified on Schedule 3.1(d) annexed hereto is
validly existing and in good standing under the laws of its respective
jurisdiction of incorporation or organization, as the case may be, and has full
corporate or partnership, as the case may be, power and authority to own its
assets and properties and to operate its business as presently owned and
conducted except where failure to be in good standing or a lack of corporate or
partnership, as the case may be, power and authority, has not had and could not
reasonably be expected to have a Material Adverse Effect.
(e FCC MATTERS.
(i) Schedule 3.1(e) correctly sets forth all of the FCC
Licenses (other than auxiliary service licenses and receive only earth
stations) owned or held by any Subsidiary of the Borrower or their
respective Affiliates as of the Closing Date or, upon consummation of
any Permitted Purchase, to be held by each Loan Party and correctly
sets forth the expiration date, if any, of each such FCC License. Each
FCC License was duly and validly issued by the FCC pursuant to
procedures which comply with all requirements of applicable law, and
neither the Borrower nor any other Loan Party has any knowledge of the
occurrence of any event or the existence of any circumstance which, in
the reasonable judgment of the Borrower or any other Loan Party, is
likely to lead to the revocation or suspension of any FCC License. The
Loan Parties have the right to use all FCC Licenses required in the
ordinary course of business for the operation of the Broadcast
Stations. Each such FCC License is in full force and effect, and each
holder thereof is in substantial compliance therewith with no known
conflict with the valid rights of others which could reasonably be
expected to have a Material Adverse Effect. No event has occurred which
permits, or after notice or lapse of time or both would permit,
<PAGE> 41
36
the revocation, termination, modification or restriction of any such
FCC License or other right which could reasonably be expected to have a
Material Adverse Effect. Except as permitted by subsection 5.10, the
Borrower does not directly own or hold any FCC License.
(ii) The Loan Parties have duly filed in a timely manner
all material filings which are required to be filed by the Loan Parties
under the Communications Act and are in all material respects in
substantial compliance with the Communications Act, including, without
limitation, the rules and regulations of the FCC relating to the
broadcast of television signals or the operation of the Broadcast
Stations.
(iii) None of the Facilities (including without
limitation, the transmitter and tower sites owned or used by the
Borrower or any of its Subsidiaries) violate in any material respect
the provisions of any applicable building codes, fire regulations,
building restrictions or other governmental ordinances, orders or
regulations, and (except as set forth in Schedule 3.1(f)) each such
Facility is zoned so as to permit the commercial uses intended by the
owner or occupier thereof and there are no outstanding variances or
special use permits materially affecting any of the Facilities or the
uses thereof.
(iv) The Ownership Report filed by the Borrower is true,
correct and complete in all material respects, and there has been no
change in control of the ownership of the Loan Parties or the FCC
Licenses of the Loan Parties since the most recently filed Ownership
Report for any of the Loan Parties other than as disclosed in writing
to the Agent and the Lenders.
(f REAL PROPERTY. Schedule 3.1(f) accurately states all
material real property interests held by the Loan Parties.
3.2 AUTHORIZATION OF BORROWING, ETC.
(a AUTHORIZATION OF BORROWING. The execution, delivery and
performance of the Loan Documents and the Related Documents and the issuance,
delivery and payment of the Notes have been duly authorized by all necessary
corporate or partnership, as the case may be, action by each Loan Party a party
thereto except, in the case of any Related Document, the failure of which could
not reasonably be expected to result in a Material Adverse Effect.
(b NO CONFLICT. The execution, delivery and performance by
each Loan Party of the Loan Documents and the Related Documents, the issuance,
delivery and performance of the Notes and any other transaction contemplated by
the Loan Documents or the Related Documents do not and will not (i) violate any
provision of law applicable to any Loan Party, the Certificate of Incorporation,
Bylaws, Management Agreement (with respect to any limited liability company),
Partnership Agreement or other organizational documents of any Loan Party or any
order, judgment or decree of any court or other agency of government binding on
any Loan Party, (ii) conflict with, result in a breach of or constitute (with
due notice or lapse of time or both) a default under any material Contractual
Obligation of any Loan Party, (iii) result in or require the
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creation or imposition of any material Lien upon any of the properties or assets
of any Loan Party (other than Liens hereunder in favor of the Agent on behalf of
the Lenders) or (iv) require any approval of stockholders or other equity
holders or any approval or consent of any Person under any Contractual
Obligation of any Loan Party, EXCEPT for such approvals or consents which (x)
have been obtained by the Borrower or its Subsidiaries or which relate to any
Permitted Purchase and will be obtained prior to the consummation thereof or (y)
are immaterial to the business, operations or financial position of the Borrower
and its Subsidiaries.
(c GOVERNMENTAL CONSENTS. The execution, delivery and
performance by each Loan Party of the Loan Documents and the Related Documents
to which it is a party, the issuance, delivery and performance of the Notes and
any other transactions contemplated by the Loan Documents or the Related
Documents, do not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any federal, state or
other governmental authority or regulatory body including, without limitation,
the FCC and any issuer of any permit or grant of authority relating to the
Broadcast Stations, EXCEPT for filings required in connection with the
perfection of the security interests granted pursuant to the Loan Documents, the
consent, if any, required from the FCC in connection with the consummation or
enforcement of the Loan Documents and the Related Documents in each case to the
extent such consummation or enforcement involves the assignment of any FCC
License or may be deemed a "change of control" under the Communications Act,
filings required with the FCC in connection with any License Subsidiary transfer
and the filing with the FCC, for notice purposes only, of this Agreement and any
of the other Loan Documents and the Related Documents required to be filed,
filings pursuant to the Hart-Scott-Rodino Act in connection with any Permitted
Purchase and, with respect to Related Documents, any registration with, consent
or approval of, or notice to, or other action to, the failure of which to make
or obtain could not reasonably be expected to have a Material Adverse effect.
(d BINDING OBLIGATION. Each of the Loan Documents and the
Related Documents has been duly executed and delivered by each Loan Party which
is a party thereto, and is the legally valid and binding obligation of such Loan
Party, enforceable against such Loan Party in accordance with their respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
and subject to the availability of equitable remedies.
3.3 FINANCIAL CONDITION. The Borrower has heretofore delivered
to the Lenders, at the Lenders' request, the Financial Statements. All such
statements were prepared in conformity with GAAP and, together with the
accompanying notes thereto, if any, fairly present in accordance with GAAP the
financial position (where applicable on a consolidated basis) of the entities
described in such financial statements as at the respective dates thereof and
the results of operations and changes in financial position (where applicable on
a consolidated basis) of the entities described therein for each of the periods
then ended (subject to, in the case of unaudited financial statements, normal
year-end adjustments). The Borrower has no (and will not following the funding
of the Loans have) material Contingent Obligation, contingent liability or
liability for taxes, long-term lease or unusual forward or long-term commitment
that is not (or will not be,
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upon the delivery thereof) reflected in the foregoing financial statements or
the notes thereto or in the annual financial statements required to be delivered
pursuant to subsection 5.1(b)(iii).
3.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED PAYMENTS. Since
December 31, 1997, no event or change has occurred that has caused or evidences,
either individually or in the aggregate, a Material Adverse Effect. Since
December 31, 1997, the Borrower has not directly or indirectly declared,
ordered, paid or made or set apart any sum or property for any Restricted
Payment or agreed so to do, except as permitted by subsection 6.6.
3.5 TITLE TO PROPERTIES; LIENS. Each Loan Party holds (i)
good, marketable and insurable fee simple title, subject to Liens permitted by
subsection 6.3, to all its owned real property, (ii) good, sufficient, insurable
(in the case of all material leased real property) and valid leasehold title,
subject to Liens permitted by subsection 6.3, to its respective leased real
property and (iii) good, sufficient and legal title, subject to Liens permitted
by subsection 6.3, to all of its material properties and assets (other than as
described in clauses (i) and (ii) of this sentence) reflected in the balance
sheet included with the Financial Statements or in the most recent financial
statements delivered pursuant to subsection 5.1(b) of this Agreement, except for
assets acquired or disposed of since the date of such financial statements.
Except as permitted by subsection 6.3, all such properties and assets are free
and clear of Liens.
3.6 LITIGATION; ADVERSE FACTS. There is no action, suit,
proceeding, governmental arbitration or governmental investigation (whether or
not purportedly on behalf of any Loan Party) at law or in equity or before or by
any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, including,
without limitation, the FCC, pending or, to the knowledge of the Borrower,
threatened against or affecting any Loan Party or any property of any Loan Party
(but, in any event, excluding suits or proceedings affecting the broadcasting
industry or television industry generally) that has had, or could reasonably be
expected to result in any Material Adverse Effect. Neither the Borrower nor any
of its Subsidiaries has received any notice of termination of any material
contract, lease or other agreement, or suffered any material damage, destruction
or loss (whether or not covered by insurance) or had any employee strike,
work-stoppage, slow-down or lock-out or any substantial threat directed to it of
any imminent strike, work-stoppage, slow-down or lock-out, any of which remain
pending and are material to the conduct of the Borrower or its Subsidiaries'
business as presently conducted that could reasonably be expected to result in a
Material Adverse Effect.
3.7 PAYMENT OF TAXES. Except to the extent permitted by
subsection 5.3, all tax returns and reports of the Borrower and its Subsidiaries
required to be filed by it or on its behalf have been timely filed, and all
taxes, assessments, fees and other governmental charges upon such Persons and
upon their respective properties, assets, income and franchises which are due
and payable have been paid when due and payable. The Borrower does not know of
any proposed tax assessment against any such Person which is not being actively
contested by such Person, in good faith and by appropriate proceedings; PROVIDED
that such reserves or other appropriate provisions, if any, as shall be required
in conformity with GAAP shall have been made or provided therefor.
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3.8 PERFORMANCE OF AGREEMENTS. (a) No Loan Party is in default
in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any of its Contractual Obligations, and no
condition exists that, with the giving of notice or the lapse of time or both,
would constitute such a default, except, in each case, where the consequences,
direct or indirect, of such default or defaults, if any, could not reasonably be
expected to have a Material Adverse Effect.
(b No Loan Party is a party or subject to any agreement or
instrument which has or could reasonably be expected to have, individually or
the aggregate, a Material Adverse Effect.
3.9 GOVERNMENTAL REGULATION. No Loan Party is subject to
regulation under the Public Utility Company Act of 1935, the Federal Power Act
or the Investment Company Act of 1940 or to any federal or state statute or
regulation limiting its ability to incur Indebtedness.
3.10 SECURITIES ACTIVITIES. Neither any Loan Party nor any of
their respective Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying any Margin Stock.
3.11 EMPLOYEE BENEFIT PLANS. (a) The Borrower and each ERISA
Affiliate is in substantial compliance with all provisions and requirements of
ERISA with respect to each Employee Benefit Plan, and have substantially
performed all their obligations under each Employee Benefit Plan. There are no
actions, suits or claims (other than routine claims for benefits) pending or
threatened against any Employee Benefit Plan or its assets, and, to the best
knowledge of the Borrower, no facts exist which could give rise to any such
actions, suits or claims.
(b Within the period of five years ending on the Closing Date,
no ERISA Event has occurred, and there is no unpaid liability of the Borrower or
any ERISA Affiliate that arose in connection with any ERISA Event that occurred
prior to that five-year period. As of the Closing Date, no ERISA Event is
reasonably expected to occur with respect to any Employee Benefit Plan.
(c Except to the extent required under Section 4980B of the
Code, no Employee Benefit Plan provides health or welfare benefits (through the
purchase of insurance or otherwise) for any retired or former employees of the
Borrower or any ERISA Affiliate.
(d As of the most recent valuation date for any Pension Plan,
the excess of the actuarial present value (determined on the basis of reasonable
assumptions employed by the independent actuary for such Pension Plan) of the
benefit liabilities (as defined in Section 4001(a)(16) of ERISA), whether or not
vested, over the fair market value of the assets of such Pension Plan,
individually or in the aggregate for all Pension Plans (excluding for purposes
of such computation any Pension Plans with respect to which there is no such
excess), does not exceed $500,000.
<PAGE> 45
40
3.12 CERTAIN FEES. No broker's or finder's fee or commission
will be payable by the Borrower or any of its Subsidiaries (or to the best
knowledge of the Borrower, by any other Person), other than to CEA, Inc., with
respect to the making of the Loans, or any of the other transactions
contemplated hereby (except that with respect to any Permitted Purchase the
Borrower has or will inform the Lenders of any such fees or commissions), and
the Borrower hereby indemnifies the Lenders against and agrees that it will hold
the Lenders harmless from any claim, demand or liability for broker's or
finder's fees (other than any broker's or finder's fee of any broker or finder
retained by the Agent or the Lenders) alleged to have been incurred in
connection with any such offer, issuance and sale, or any of the other
transactions contemplated hereby or by the Related Documents and any expenses,
including legal fees, arising in connection with any such claim, demand or
liability.
3.13 ENVIRONMENTAL.
(i) The operations of the Borrower and its Subsidiaries
(including, without limitation, all operations and conditions at or in
the Facilities) comply, and for the period within any applicable
statute of limitations have complied, in all material respects with all
Environmental Laws;
(ii) The Borrower and each of its Subsidiaries have
obtained all permits under Environmental Laws necessary to their
respective operations, and all such permits are in good standing, and
the Borrower and each of its Subsidiaries are in compliance with all
material terms and conditions of such permits;
(iii) Neither the Borrower nor any of its Subsidiaries has
received (a) any material notice or claim to the effect that it is or
may be liable to any Person as a result of the Release or threatened
Release of any Hazardous Materials or (b) any letter or request for
information under Section 104 of the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. ' 9604) or
comparable state laws, and to the best of the Borrower's knowledge,
none of the operations of the Borrower or any of its Subsidiaries is
the subject of any federal or state investigation evaluating whether
any further investigation or remedial action is needed to respond to a
Release or threatened Release of any Hazardous Material at any Facility
or at any other location;
(iv) None of the operations of the Borrower or any of its
Subsidiaries is subject to any judicial, administrative, or arbitral
proceeding alleging the violation of or liability under any
Environmental Laws which if adversely determined could reasonably be
expected to have a Material Adverse Effect;
(v) The Borrower and each of its Subsidiaries and all of
their Facilities or operations are not subject to any outstanding
written order or agreement with any governmental authority or private
party relating to (a) any Environmental Laws or (b) any Environmental
Claims that in each case could reasonably be expected to have a
Material Adverse Effect;
<PAGE> 46
41
(vi) To the best knowledge of each Loan Party, neither
the Borrower nor any of its Subsidiaries has any contingent liability
in connection with any Release of any Hazardous Materials by the
Borrower or any Subsidiaries of the Borrower that could reasonably be
expected to have a Material Adverse Effect;
(vii) Neither the Borrower nor any of its Subsidiaries or,
to the best of the Borrower's knowledge, any predecessor of the
Borrower or any Subsidiaries of the Borrower has filed any notice under
any Environmental Law indicating past or present treatment or disposal
of Hazardous Materials at any Facility, and none of the Borrower's or
any of its Subsidiary's operations involves the generation,
transportation, treatment, storage or disposal of hazardous waste, as
defined under 40 C.F.R. Parts 260-270 or any state equivalent in
material violation of any such law;
(viii) To the best knowledge of each Loan Party, no
Hazardous Material exists on, under or about any Facility in a manner
that could give rise to an Environmental Claim having a Material
Adverse Effect, and neither the Borrower nor any Subsidiary of the
Borrower has filed any notice or report of a Release of any Hazardous
Materials that could reasonably be expected to give rise to an
Environmental Claim having a Material Adverse Effect;
(ix) To the best knowledge of each Loan Party, neither
the Borrower nor any Subsidiary of the Borrower (or any of their
predecessors) has disposed of any Hazardous Materials in a manner that
could reasonably be expected to give rise to an Environmental Claim
having a Material Adverse Effect;
(x) No underground storage tanks or surface impoundments
are on or at the Facilities, other than those that could not reasonably
be expected to give rise to an Environmental Claim having a Material
Adverse Effect;
(xi) No Lien in favor of any Person for (a) any material
liability under Environmental Laws, or (b) damages arising from or
costs incurred by such Person in response to a Release has been filed
or has been attached to the Facilities; and
(xii) There is no radio frequency radiation,
electromagnetic field or similar condition of or about any property
owned, operated, or otherwise used by any Loan Party that could
reasonably be expected to give rise to a Material Adverse Effect.
3.14 SOLVENCY. Each Loan Party is, and on and after the
consummation of the transactions contemplated hereby will be, Solvent.
3.15 RELATED DOCUMENTS. As of the Closing Date, the Related
Documents have been duly authorized, executed and delivered by each Loan Party
and their respective Subsidiaries, to the extent each is a party thereto, and
are in full force and effect and no material term or condition thereof has been
amended or modified in any respect that could reasonably be expected to have a
Material Adverse Effect, without the consent of the Agent and the Required
<PAGE> 47
42
Lenders. The Borrower has delivered or offered to deliver to the Lenders
complete and correct copies of the Related Documents and of all exhibits and
schedules delivered to or by any Loan Party or their respective Subsidiaries in
connection with Related Documents.
3.16 INSURANCE. The Borrower and its Subsidiaries maintain,
with insurers identified in Schedule 3.16, insurance with respect to its
properties and business and the properties and business of its Subsidiaries,
against loss or damage of the kinds customarily insured against by entities of
established reputation engaged in the same or similar business of such types and
in such amounts as are customarily carried under similar circumstances by such
other entities. Schedule 3.16 is a complete and accurate description of all
policies of insurance that will be in effect as of the Closing Date for the
Borrower and its Subsidiaries.
3.17 INTELLECTUAL PROPERTY. (a) The Borrower and its
Subsidiaries own, or are licensed to use, the Intellectual Property and all such
Intellectual Property is, in all material respects, fully protected and duly and
properly registered, filed or issued in the appropriate office and jurisdictions
for such registrations, filing or issuances.
(b) Except as disclosed on Schedule 3.17(b), (i) no material
claim has been asserted by any Person with respect to the use of any such
Intellectual Property, or challenging or questioning the validity or
effectiveness of any such Intellectual Property; (ii) to the best of the
Borrower's knowledge, the use of such Intellectual Property by the Borrower or
any of its Subsidiaries does not infringe on the rights of any Person, subject
to such claims and infringements as do not, in the aggregate, give rise to any
liabilities on the part of the Borrower or any of its Subsidiaries that are
material to the Borrower and its Subsidiaries taken as a whole; and (iii) the
consummation of the transactions contemplated by this Agreement will not in any
material manner or to any material extent impair the ownership of (or the
license to use, as the case may be) any of such Intellectual Property by the
Borrower or any of its Subsidiaries.
3.18 DISCLOSURE. No representation or warranty of any Loan
Party contained in any Loan Document or Related Document or any other document,
certificate or written statement furnished to the Lenders by or on behalf of any
Loan Party for use in connection with the transactions contemplated by this
Agreement (including any Permitted Purchase) contains any untrue statement of a
material fact or omits to state a material fact (known to the Borrower in the
case of any document not furnished by it) necessary in order to make the
statements contained herein or therein not misleading in light of the
circumstances in which the same were made. The projections and pro forma
financial information contained in such materials are based upon good faith
estimates and assumptions believed by the Borrower to be reasonable at the time
made, it being recognized by the Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ from the projected
results. There is no fact known (or which should upon the reasonable exercise of
diligence be known) to the Borrower (other than matters of a general economic
nature or relating to the broadcasting industry or television industry
generally) that has had or could reasonably be expected to have a Material
Adverse Effect and that has not been disclosed herein or in such other
documents, certificates and statements furnished to the Lenders for use in
connection with the transactions contemplated hereby.
<PAGE> 48
43
3.19 SECURITY DOCUMENTS. (a) Each of the Pledge Agreements is
effective to create in favor of the Agent, for the benefit of the Lenders, a
legal, valid and enforceable security interest in the Pledged Securities
described therein and proceeds thereof and, when the Pledged Notes described
therein and stock certificates representing the Pledged Stock described therein
are delivered to the Agent, each such Pledge Agreement shall constitute a fully
perfected first priority Lien on, and security interest in, all right, title and
interest of the relevant Loan Party in such Pledged Securities and the proceeds
thereof, as security for the Obligations (as defined in the relevant Pledge
Agreement), in each case prior and superior in right to any other Person.
(b) Each of the Security Agreements is effective to create in
favor of the Agent, for the benefit of the Lenders, a legal, valid and
enforceable security interest in the Collateral described therein and proceeds
thereof, and when financing statements in appropriate form are filed in the
offices specified on Schedule 3.19(b), each such Security Agreement shall
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the Loan Parties in such Collateral and the proceeds thereof, to
the extent permitted under the Communications Act, as security for the
Obligations (as defined in the relevant Security Agreement), in each case prior
and superior in right to any other Person, other than with respect to Liens
expressly permitted by subsection 6.3.
(c) The Cash Collateral Agreement is effective to create in
favor of the Agent, for the benefit of the Lenders, a legal, valid and
enforceable security interest in the Collateral described therein and proceeds
thereof, and the Cash Collateral Agreement shall constitute a fully perfected
first priority Lien on, and security interest in, all right, title and interest
of the Borrower in such Collateral and the proceeds thereof, as security for the
Obligations, in each case prior and superior in right to any other Person.
3.20 PURPOSES OF LOANS. The proceeds of the Loans shall be
used by the Borrower to refinance the indebtedness outstanding on the date
hereof under the Existing Credit Agreement and to pay costs and expenses in
connection with such refinancing.
SECTION 4. CONDITIONS PRECEDENT
The agreement of each Lender to make the initial Loan
requested to be made by it is subject to the satisfaction on or prior to May 8,
1998 of the following conditions precedent:
(a) LOAN DOCUMENTS. The Agent shall have received (i) this
Agreement, executed and delivered by a duly authorized officer of the
Borrower, with a counterpart for each Lender, (ii) each of the Pledge
Agreements, each executed and delivered by a duly authorized officer of
the parties thereto, with a counterpart or a conformed copy for each
Lender, (iii) the Subsidiaries Guarantee, executed and delivered by a
duly authorized officer of the parties thereto, with a counterpart or a
conformed copy for each Lender, (iv) the Security Agreements, executed
and delivered by a duly authorized officer of the parties thereto, with
a counterpart or a conformed copy for each Lender, (v) the Cash
Collateral Agreement, executed and delivered by a duly authorized
officer of the
<PAGE> 49
44
Borrower, with a counterpart or conformed copy for each Lender and (vi)
for the account of each relevant Lender which has made a request
therefor to the Agent, Notes conforming to the requirements hereof and
executed and delivered by a duly authorized officer of the Borrower.
(b) RELATED AGREEMENTS. The Agent shall have received, with a
copy for each Lender, true and correct copies, certified as to
authenticity by the Borrower, of the LMA Agreements, the Purchase
Agreements, the Exchange Debenture Indenture and such other documents
or instruments as may be reasonably requested by the Lenders,
including, without limitation, a copy of any debt instrument, security
agreement or other material contract to which the Borrower or any of
its Subsidiaries may be a party.
(c) BORROWING CERTIFICATE. The Agent shall have received, with
a counterpart for each Lender, a certificate of each Loan Party, dated
the Closing Date, substantially in the form of Exhibit G, with
appropriate insertions and attachments, satisfactory in form and
substance to the Agent, executed by the President or any Vice President
and the Secretary or any Assistant Secretary of the Borrower.
(d) CORPORATE PROCEEDINGS OF THE BORROWER. The Agent shall
have received, with a counterpart for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Agent, of the
Board of Directors of the Borrower authorizing (i) the execution,
delivery and performance of this Agreement and the other Loan Documents
to which it is a party, (ii) the borrowings contemplated hereunder and
(iii) the granting by it of the Liens created pursuant to the Borrower
Security Documents, certified by the Secretary or an Assistant
Secretary of the Borrower as of the Closing Date, which certificate
shall be in form and substance satisfactory to the Agent and its
counsel and shall state that the resolutions thereby certified have not
been amended, modified, revoked or rescinded.
(e) BORROWER INCUMBENCY CERTIFICATE. The Agent shall have
received, with a counterpart for each Lender, a Certificate of the
Borrower, dated the Closing Date, as to the incumbency and signature of
the officers of the Borrower executing any Loan Document satisfactory
in form and substance to the Agent, executed by the President or any
Vice President and the Secretary or any Assistant Secretary of the
Borrower.
(f) ORGANIZATIONAL PROCEEDINGS OF SUBSIDIARIES. The Agent
shall have received, with a counterpart for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Agent, of the
Board of Directors of each Subsidiary (and its general partner, if
applicable) which is a party to a Loan Document authorizing (i) the
execution, delivery and performance of the Loan Documents to which it
is a party and (ii) the granting by it of the Liens created pursuant to
the Subsidiaries Security Documents to which it is a party, certified
by the Secretary or an Assistant Secretary of each such Subsidiary (and
its general partner, if applicable) as of the Closing Date, which
certificate shall be in form and substance satisfactory to the Agent
and shall state that the resolutions thereby certified have not been
amended, modified, revoked or rescinded.
<PAGE> 50
45
(g) SUBSIDIARY INCUMBENCY CERTIFICATES. The Agent shall have
received, with a counterpart for each Lender, a certificate of each
Subsidiary of the Borrower which is a Loan Party, dated the Closing
Date, as to the incumbency and signature of the officers of such
Subsidiaries (and its general partner, if applicable) executing any
Loan Document, satisfactory in form and substance to the Agent,
executed by the President or any Vice President and the Secretary or
any Assistant Secretary of each such Subsidiary (and its general
partner, if applicable).
(h) ORGANIZATIONAL DOCUMENTS. The Agent shall have received,
with a counterpart for each Lender, true and complete copies of the
certificate of incorporation and by-laws or other organizational
documents of each Loan Party, certified as of the Closing Date as
complete and correct copies thereof by the Secretary or an Assistant
Secretary of the such Loan Party (or, in lieu of such copies,
certification that such documents have not been amended, supplemented
or otherwise modified subsequent to the date of delivery thereof to the
Agent in connection with the closing of the Existing Credit Agreement).
(i) INTEREST RESERVE. The Borrower shall have deposited at
least $22,400,000 in the cash collateral account established pursuant
to the Cash Collateral Agreement to pay interest on the Loans and
otherwise in accordance with the Cash Collateral Agreement.
(j) FEES. All fees and expenses which the Borrower has agreed
to pay in connection with the execution and delivery of this Agreement
and all fees and expenses then accrued and unpaid under the Existing
Credit Agreement shall have been paid in full to the Agent and Lenders
on the date on which this Agreement shall become effective in
accordance with subsection 9.8.
(k) LEGAL OPINIONS. The Agent shall have received, with a
counterpart for each Lender, the following executed legal opinions:
(i) the executed legal opinion of Holland & Knight,
counsel to the Borrower and the other Loan Parties, in form
and substance satisfactory to the Agent and the Lenders;
(ii) the executed legal opinion of Dow Lohnes &
Albertson, special FCC counsel to the Borrower and the other
Loan Parties, in form and substance satisfactory to the Agent
and the Lenders; and
(iii) the executed legal opinion of Anthony L.
Morrison, General Counsel to the Borrower, in form and
substance satisfactory to the Agent and the Lenders.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Agent may reasonably
require.
<PAGE> 51
46
(l) PLEDGED STOCK; STOCK POWERS; PLEDGED NOTES. The Agent
shall have received the certificates representing the shares pledged
pursuant to each of the Pledge Agreements, together with an undated
stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof, and the notes pledged
pursuant to each of the Pledge Agreements, each endorsed in blank by a
duly authorized officer of the pledgor thereof.
(m) ACTIONS TO PERFECT LIENS. The Agent shall have received
evidence in form and substance satisfactory to it that all filings,
recordings, registrations and other actions, including, without
limitation, the filing of duly executed financing statements on form
UCC-1, necessary or, in the opinion of the Agent, desirable to perfect
the Liens created by the Security Documents shall have been completed.
(n) LIEN SEARCHES. The Agent shall have received the results
of a recent search by a Person satisfactory to the Agent, of the
Uniform Commercial Code, judgement and tax lien filings which may have
been filed with respect to personal property of the Borrower, and the
results of such search shall be satisfactory to the Agent.
(o) INSURANCE. The Agent shall have received evidence in form
and substance satisfactory to it that all of the requirements of
subsection 5.4 shall have been satisfied.
(p) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Borrower and its
Subsidiaries in or pursuant to the Loan Documents shall be true and
correct in all material respects on and as of such date as if made on
and as of such date except for any representation and warranty which is
expressly made as of an earlier date, which representation and warranty
shall have been true and correct in all material respects as of such
earlier date.
(q) NO DEFAULT. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Loans requested to be made on such date.
(r) ADDITIONAL MATTERS. All corporate and other proceedings,
and all documents, instruments and other legal matters in connection
with the transactions contemplated by this Agreement and the other Loan
Documents shall be reasonably satisfactory in form and substance to the
Agent, and the Agent shall have received such other documents and legal
opinions in respect of any aspect or consequence of the transactions
contemplated hereby or thereby as it shall reasonably request.
<PAGE> 52
47
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as any amount is
owing to any Lender or the Agent hereunder or under any other Loan Document, the
Borrower shall and (except in the case of delivery of financial information,
reports and notices) shall cause each of its Subsidiaries to:
5.1 FINANCIAL STATEMENTS AND SYSTEMS.
(a) ACCOUNTING SYSTEM: Maintain a system of accounting
established and administered in accordance with sound business practices to
permit preparation of financial statements in conformity with GAAP.
(b) FINANCIAL STATEMENTS AND OTHER REPORTS: Deliver to the
Lenders:
(i) MONTHLY FINANCIALS: as soon as practicable and in any
event within 30 days after the end of each calendar month of the
Borrower, copies of the monthly sales pacing reports and operating cash
flow statements for each operating property for such month, and copies
of the consolidated and consolidating income statement, operating cash
flow statement and performance to budget analysis for the Borrower and
its Subsidiaries for and as of the end of such month;
(ii) QUARTERLY FINANCIALS: as soon as practicable and in
any event within 45 days after the end of each fiscal quarter of the
Borrower, a consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such period, and the related
unaudited consolidated statements of income and of cash flows, as
contained in the Form 10-Q for such fiscal quarter provided by the
Borrower to the Securities and Exchange Commission (or any successor or
analogous Governmental Authority), and if such Form 10-Q is no longer
required to be so provided by the Borrower, then the Borrower shall
provide the Lenders with comparable financial statements, certified by
the chief financial officer of the Borrower that they fairly present
the financial condition and results of operations of the Borrower and
its Subsidiaries, as appropriate, as at the end of such periods and for
such periods, subject to changes resulting from audit and normal
year-end adjustments;
(iii) YEAR-END FINANCIALS: as soon as practicable and in any
event within 90 days after the end of each fiscal year of the Borrower,
the audited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries, as at the end of such year, and the related
consolidated statements of income, shareholders' equity and cash flows
of the Borrower and its Subsidiaries for such fiscal year, (a)
accompanied by a report thereon of independent certified public
accountants of recognized national standing selected by the Borrower
and reasonably satisfactory to Agent and the Required Lenders, which
report shall contain no qualifications with respect to the continuance
of the Borrower and its consolidated Subsidiaries as going concerns and
shall state that such financial statements present fairly the financial
position of the Borrower and its consolidated Subsidiaries as at
<PAGE> 53
48
the dates indicated and the statements of income and cash flows for the
periods indicated in conformity with GAAP applied on a basis consistent
with prior years (except as otherwise stated therein) and that the
examination by such accountants in connection with such financial
statements has been made in accordance with generally accepted auditing
standards without any limitations being imposed on the scope of such
examination and (b) certified by the chief financial officer of the
Borrower that they fairly present the financial condition and results
of operations of the Borrower and its Subsidiaries, as at the dates and
for the periods indicated, as appropriate;
(iv) OFFICERS' AND COMPLIANCE CERTIFICATES: together with
each delivery of financial statements of the Borrower and its
Subsidiaries pursuant to subdivisions (ii) and (iii) above, (a) an
Officer's Certificate of the Borrower stating that the signers have
reviewed the terms of this Agreement and the Notes and have made, or
caused to be made under their supervision, a review in reasonable
detail of the transactions and condition of the Borrower and its
Subsidiaries during the accounting period covered by such financial
statements and that such review has not disclosed the existence during
or at the end of such accounting period, and that the signers do not
have knowledge of the existence as at the date of such Officers'
Certificate, of any condition or event which constitutes an Event of
Default or Default, or, if any such condition or event existed or
exists, specifying the nature and period of existence thereof and what
action the Borrower has taken, is taking and proposes to take with
respect thereto; and (b) a certificate (a "COMPLIANCE CERTIFICATE") in
a form satisfactory to the Agent demonstrating in reasonable detail
compliance during and at the end of the applicable accounting periods
with the provisions of subsection 2.6 and Section 6;
(v) RECONCILIATION STATEMENT: if, as a result of any
change in accounting principles and policies from those used in the
preparation of the Financial Statements, the financial statements of
the Borrower and its consolidated Subsidiaries delivered pursuant to
subsections (ii), (iii) or (xii) of this subsection 5.1(b) will differ
in any material respect from the financial statements that would have
been delivered pursuant to such subsections had no such change in
accounting principles and policies been made, then, together with the
first delivery of financial statements pursuant to subsection (ii),
(iii) or (xii) following such change, financial statements of the
Borrower and its consolidated Subsidiaries prepared on a pro forma
basis, for (y) the current year to the effective date of such change
and (z) the one full fiscal year immediately preceding the fiscal year
in which such change is made, as if such change had been in effect
during such period;
(vi) ACCOUNTANTS' CERTIFICATION: together with each
delivery of consolidated financial statements of the Borrower and its
Subsidiaries pursuant to subdivision (iii) above, a written statement
by the independent public accountants giving the report thereon (a)
stating that their audit examination has included a review of the terms
of this Agreement and the Notes as they relate to accounting matters,
(b) stating whether, in connection with their audit examination, any
condition or event that constitutes an Event of Default or Default has
come to their attention and, if such a condition or event has come to
their attention, specifying the nature and period of
<PAGE> 54
49
existence thereof; PROVIDED that such accountants shall not be liable
by reason of any failure to obtain knowledge of any such Event of
Default or Default with respect to accounting matters that would not be
disclosed in the course of their audit examination and (c) stating
that, based on their audit examinations nothing has come to their
attention that causes them to believe that the information contained in
the Compliance Certificate delivered therewith pursuant to clause (b)
of subdivision (iv) above for the applicable fiscal year are not stated
in accordance with the terms of this Agreement;
(vii) ACCOUNTANTS' REPORTS: promptly upon receipt thereof
(unless restricted by applicable professional standards), copies of all
significant reports submitted to the Borrower by independent public
accountants in connection with each annual, interim or special audit of
the financial statements of the Borrower made by such accountants,
including, without limitation, the comment letter submitted by such
accountants to management in connection with their annual audit;
(viii) REPORTS AND FILINGS: within five days after the same
are sent, copies of all financial statements and reports which the
Borrower sends to its stockholders, and within five days after the same
are filed, copies of all financial statements and reports which the
Borrower may make to, or file with, the Securities and Exchange
Commission or any successor or analogous Governmental Authority;
(ix) EVENTS OF DEFAULT ETC.: promptly upon, but in any
event no later than two Business Days after, any officer of the
Borrower obtaining knowledge (a) of any condition or event that
constitutes an Event of Default or Default, or becoming aware that any
Lender or the Agent has given any notice or taken any other action with
respect to a claimed Event of Default or Default under this Agreement,
(b) that any Person has given any notice to the Borrower or any of its
Subsidiaries or taken any other action with respect to a claimed
default or event or condition of the type referred to in Section 7(b)
and (e), (c) of any condition or event that would be required to be
disclosed in a current report filed by the Borrower with the Securities
and Exchange Commission on Form 8-K (Items 1, 2, 4 and 5 of such Form
as in effect on the date hereof) or (d) of any condition or event which
has had or could reasonably be expected to have a Material Adverse
Effect (which, for such purposes, shall be determined with respect to
the Borrower individually), an Officer's Certificate specifying the
nature and period of existence of such condition or event, or
specifying the notice given or action taken by such holder or Person
and the nature of such claimed default, Event of Default, Default,
event or condition, and what action the Borrower has taken, is taking
and proposes to take with respect thereto;
(x) LITIGATION: promptly upon any officer of the
Borrower obtaining knowledge of (a) the institution of any action,
suit, proceeding, governmental investigation or arbitration against or
affecting any Loan Party or any property of any Loan Party not
previously disclosed by the Borrower or the other Loan Parties to the
Lenders or (b) any material adverse development in any such action,
suit, proceeding, governmental investigation or arbitration that, in
any case:
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50
(y) involves claims in excess of $5,000,000 in the
aggregate; or
(z) would reasonably be expected to cause a Material
Adverse Effect; the Borrower shall promptly give notice thereof to the
Lenders and provide such other information as may be reasonably
available to them to enable the Lenders and their counsel to evaluate
such matters;
(xi) ERISA EVENTS: promptly upon becoming aware of the
occurrence of or forthcoming occurrence of any ERISA Event in
connection with any Employee Benefit Plan or any trust created
thereunder, with a written notice specifying the nature thereof, what
action the Borrower or ERISA Affiliate has taken, is taking or proposes
to take with respect thereto and, when known, any action taken or
threatened by the Internal Revenue Service, the Department of Labor or
the PBGC with respect thereto;
(xii) ERISA NOTICES: with reasonable promptness, copies of (a)
all notices received by the Borrower or any of its ERISA Affiliates
from the PBGC relating to an ERISA Event, (b) each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) filed
by the Borrower or any of its ERISA Affiliates with the Internal
Revenue Service with respect to each Pension Plan, if any, and (c) all
notices received by the Borrower or any of its ERISA Affiliates from a
Multiemployer Plan sponsor concerning an ERISA Event;
(xiii) FINANCIAL PLANS: as soon as practicable and in any
event no later than the 30 days after the end of any fiscal year of the
Borrower, a budget and financial forecast for the Borrower and its
Subsidiaries including, (a) a forecasted operating cash flows statement
of the Borrower and its Subsidiaries for the next succeeding fiscal
year, (b) forecasted operating cash flows statement of the Borrower and
its Subsidiaries for each fiscal quarter of the next succeeding fiscal
year and (c) such other information and projections as any Lender may
reasonably request, in each case, in a format satisfactory to the
Agent; and
(xiv) OTHER INFORMATION: with reasonable promptness, such
other information and data with respect to the Borrower or any of its
Subsidiaries or Affiliates as from time to time may be reasonably
requested by any Lender.
5.2 MAINTENANCE OF EXISTENCE, ETC.. Except as permitted by
subsection 6.7, preserve and keep in full force and effect its corporate or
partnership existence, as the case may be, and rights and franchises material to
its business.
5.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION. Pay all
taxes, assessments and other governmental charges imposed upon it or any of its
properties or assets or in respect of any of its franchises, business, income or
property, non-payment of which would cause a Material Adverse Effect, before any
penalty accrues thereon, and all claims (including, without limitation, claims
for labor, services, materials and supplies) for sums that have become due and
payable and that by law have or may become a material Lien upon any of its
properties or assets, prior to the
<PAGE> 56
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time when any penalty or fine shall be incurred with respect thereto; PROVIDED
that no such tax, assessment, charge or claim need be paid if being contested in
good faith by appropriate proceedings promptly instituted and diligently
conducted and if such reserve or other appropriate provision, if any, as shall
be required in conformity with GAAP shall have been made therefor. Neither the
Borrower nor any of its Subsidiaries will file or consent to the filing of any
consolidated income tax return with any Person (other than the Borrower or its
Subsidiaries).
5.4 MAINTENANCE OF PROPERTIES; INSURANCE. Maintain in good
repair, working order and condition all material properties used or useful in
the business of the Borrower and its Subsidiaries (including, without
limitation, Intellectual Property) and from time to time will make or cause to
be made all appropriate (as reasonably determined by the Borrower) repairs,
renewals and replacements thereof. The Borrower will maintain or cause to be
maintained, with financially sound and reputable insurers, insurance with
respect to its properties and business and the properties and business of its
Subsidiaries (including without limitation, business interruption insurance and
insurance on plant, property and equipment) against loss or damage of the kinds
customarily carried or maintained under similar circumstances by entities of
established reputation engaged in similar businesses. On or before the end of
the second fiscal quarter of each fiscal year, the Borrower shall submit to the
Agent an Officers' Certificate updating the information contained in Schedule
3.16 as of such date. Each such policy of insurance (other than business
interruption insurance) shall name the Agent as the loss payee or as additional
insured, as the Agent may require, for the benefit of the Lenders thereunder and
provide for at least thirty (30) days prior written notice (or such other period
as is customary in the industry) to the Agent of any material modification or
any cancellation of such policies.
5.5 INSPECTION; LENDER MEETING. Subject to subsection 9.15,
permit any authorized representatives designated by the Agent to visit and
inspect any of the properties of the Borrower, any of its Subsidiaries or any
Broadcast Station, including its and their financial and accounting records, and
to make copies and take extracts therefrom, and to discuss its and their
affairs, finances and accounts with its and their officers and independent
public accountants, all upon reasonable notice and at such reasonable times
during normal business hours and as often as may be reasonably requested.
Without in any way limiting the foregoing, the Borrower will, upon the request
of the Required Lenders, participate in a meeting with the Agent and the Lenders
once during each fiscal year to be held at the Borrower's corporate offices at
such time as may be agreed to by the Borrower and the Required Lenders.
5.6 COMPLIANCE WITH LAWS, ETC. (a)(i) Comply with the
requirements of all applicable laws, rules, regulations and orders of any
Governmental Authority, including, without limitation, the Communications Act,
noncompliance with which could reasonably be expected to cause a Material
Adverse Effect and (ii) comply in all material respects at all times with all
provisions of all FCC Licenses, certifications and permits, franchises or other
permits and authorizations relating to the operation of the Broadcast Stations
and all other material agreements, licenses and leases to which it is a party or
of which it is a beneficiary and suffer no loss or forfeiture thereof or
thereunder except for any non-compliance or a loss or forfeiture which does not
have and could not reasonably be expected to have a Material Adverse Effect; and
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(b) Not engage in any transaction or permit the occurrence of
any act or omission, and shall cause each ERISA Affiliate not to engage in any
transaction or to permit the occurrence of any act or omission, which would
constitute, or would give rise to, an ERISA Event which would cause a Material
Adverse Effect.
5.7 COMPLIANCE WITH RELATED DOCUMENTS. Comply at all times
with the covenants under the Related Documents except for any failure to comply
which could not reasonably be expected to result in a Material Adverse Effect or
otherwise materially adversely affect the interests of the Lenders under this
Agreement or any of the other Loan Documents. The Borrower and its Subsidiaries
shall deliver to the Agent copies of all reports, notices and other information
received or required to be delivered by the Borrower and its Subsidiaries with
respect to the Related Documents, if so requested by any Lender or if such
information relates to any matter or matters which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
5.8 ENVIRONMENTAL DISCLOSURE AND INSPECTION. (a) Comply, and
undertake all reasonable efforts to ensure that all tenants under any lease or
occupancy agreement affecting any portion of the Facilities and all other
Persons on or occupying such property comply, in all materials respects with all
Environmental Laws, PROVIDED that upon learning of any material noncompliance
with Environmental Laws by the Borrower or any of its Subsidiaries, the Borrower
shall promptly undertake all reasonable efforts to remedy such non-compliance.
(b) Agree that the Agent is entitled (but has no obligation),
from time to time (upon the Agent's determination in its reasonable discretion
that any of the following is advisable), upon notice to the Borrower and as
often as may reasonably be requested, to retain, at the Borrower's expense, an
independent professional consultant to review any report relating to Hazardous
Materials prepared by or for the Borrower and to conduct its own investigation
of any Facility. The Borrower hereby grants to the Agent, its agents, employees,
consultants and contractors the right to enter into or on to the Facilities upon
reasonable notice and at such times during normal business hours and as often as
may reasonably be requested to perform such tests on such property as are
reasonably necessary to conduct such a review and/or investigation. The Borrower
may receive copies of any reports prepared by independent experts, but the
Lenders shall have no duty to disclose or discuss any information produced by
such reviews or investigations with the Borrower or any of its Subsidiaries.
(c) Promptly advise the Lenders in writing and in reasonable
detail of (i) any Release of any Hazardous Material (of which the Borrower is
aware) required to be reported to any federal, state or local governmental or
regulatory agency under any applicable Environmental Laws, (ii) any and all
written communications with respect to Environmental Claims or any Release of
Hazardous Material required to be reported to any federal, state or local
governmental or regulatory agency, (iii) any remedial action taken by the
Borrower or any other Person in response to (a) any Hazardous Material on, under
or about any Facility, the existence of which could reasonably be expected to
result in an Environmental Claim having a Material Adverse Effect or (b) any
Environmental Claim that could reasonably be expected to have a Material Adverse
Effect, (iv) the Borrower's discovery of any occurrence or condition on any real
property
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53
adjoining or in the vicinity of any Facility that could cause such Facility or
any part thereof to be classified as a "border-zone property" or to be otherwise
subject to any restrictions on the ownership, occupancy, transferability or use
thereof under any Environmental Laws that could reasonably be expected to have a
Material Adverse Effect, and (v) any request for information from any
governmental agency that indicates such agency is investigating whether the
Borrower or any of its Subsidiaries may be potentially responsible for a Release
of Hazardous Materials.
(d) Promptly notify the Lenders of any proposed acquisition or
disposition of stock, assets, or property by any Loan Party, that could
reasonably be expected to expose the Borrower or any of its Subsidiaries to, or
result in, Environmental Claims that could have a Material Adverse Effect and of
any proposed action to be taken by the Borrower or any of its Subsidiaries to
commence or cease manufacturing, industrial or other operations that could
reasonably be expected to subject the Borrower or any of its Subsidiaries to
additional laws, rules or regulations, including, without limitation, laws,
rules and regulations requiring additional environmental permits or licenses.
(e) At their own expense, provide copies of such documents or
information as the Agent may reasonably request in relation to any matters
disclosed pursuant to this subsection.
5.9 HAZARDOUS MATERIALS; THE BORROWER'S REMEDIAL ACTION. Take
promptly any and all necessary remedial action required by all applicable
Environmental Laws and perform such remedial action in compliance with all
applicable Environmental Laws and orders and directives of all federal, state
and local governmental authorities except when and only to the extent that the
Borrower's or such Subsidiary's liability for the presence, storage, use,
disposal, transportation or discharge of any Hazardous Material is being
contested in good faith by the Borrower or such Subsidiary by appropriate
proceedings, and the pendency of such proceedings is not reasonably likely to
give rise to a Material Adverse Effect.
5.10 FCC LICENSES. (a) Use their best efforts to keep in full
force and effect all of the FCC Licenses of the Borrower, if any, and its
Subsidiaries. The Loan Parties shall provide a copy of any (or, in the event of
any notice based on knowledge of such Loan Party, a brief description of such
default and the basis of such knowledge) notice from the FCC of any violation
with respect to any FCC License received by it or any of its respective
Subsidiaries (or with respect to which any of such Loan Parties may have any
knowledge).
(b) The Borrower shall establish and maintain wholly-owned
License Subsidiaries for the purpose of holding the FCC Licenses related to the
Broadcast Stations owned by them on and after the Closing Date and shall cause
the License Subsidiaries not to own any material assets other than the FCC
Licenses or to have any material liabilities (other than pursuant to the
Subsidiary Guarantee or the guarantees with respect to the Senior Subordinated
Notes). At all times on and after the date hereof (or (i) in the case of those
FCC Licenses described in Schedule 5.10, as soon as practicable following the
date hereof and at all times thereafter or (ii) in the case of any FCC License
acquired subsequent to the date hereof with respect to which it is not
practicable to cause such FCC License to be acquired directly by a License
Subsidiary, as soon as practicable following the date of acquisition and at all
times thereafter), the Borrower shall, and
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54
shall cause its Subsidiaries to, cause each new FCC License issued by the FCC to
be issued to, and held by, a License Subsidiary.
5.11 ADDITIONAL LOAN PARTIES. In the event that (i) any
Permitted Purchase is to be made by any Subsidiary or Affiliate of the Borrower
and such Subsidiary or Affiliate is not a Loan Party hereunder or under any of
the other Loan Documents immediately prior to the consummation of any such
transaction, or (ii) any Subsidiary of the Borrower is at any time not a Loan
Party hereunder (each such Subsidiary or Affiliate in any case referred to
herein as an "ADDITIONAL LOAN PARTY" and collectively as the "ADDITIONAL LOAN
PARTIES"), then, on or before the consummation of any such transaction or
addition as a Loan Party hereunder, such Additional Loan Party shall deliver
appropriate counterparts and assumptions of each Loan Document to which it is to
be a party and all such documents, opinions of counsel, certificate and
instruments as such Additional Loan Party would have been required to deliver
pursuant to subsection 4.1 had such Additional Loan Party been a Loan Party
hereunder on the Closing Date and such other documents, certificates,
instruments and assurances as are consistent with the provisions of subsection
2.18 and Section 4 in relation to such Additional Loan Party's proposed status
hereunder and under the other Loan Documents (including, without limitation,
taking into consideration whether the obligations of such Additional Loan Party
are to be of a limited recourse nature or otherwise), all as shall be reasonably
requested by the Agent at the time such Additional Loan Party shall become a
party under the Loan Documents. Upon satisfaction of the foregoing conditions,
such Additional Loan Party shall be a Loan Party for all purposes hereunder and
under the other Loan Documents.
5.12 CORPORATE SEPARATENESS; TAX SHARING AGREEMENT. (a) Cause
the management, business and affairs of each Unrestricted Subsidiary to be
conducted in such a manner so that such Unrestricted Subsidiary will be
perceived as a legal entity separate and distinct from the Borrower and its
Subsidiaries.
(b) Enter in a tax sharing agreement on terms and conditions
customary and reasonably satisfactory to the Agent if the Agent shall reasonably
determine that such an agreement is necessary to provide for the fair and
reasonable allocation of federal, state and local tax liabilities and benefits
between and among (i) the Borrower and its Subsidiaries and (ii) any
Unrestricted Subsidiaries.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as any amount is
owing to any Lender or the Agent hereunder or under any other Loan Document, the
Borrower shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly:
6.1 FINANCIAL CONDITION COVENANTS. (a) LEVERAGE RATIO. Permit
the Leverage Ratio as of the last day of each calendar quarter occurring during
any of the periods set forth below to be greater than the correlative ratio
indicated:
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Period Leverage Ratio
------ --------------
March 31, 2000 - June 30, 2000 5.00:1.00
July 1, 2000 - December 31, 2000 4.50:1.00
January 1, 2001 - June 30, 2001 4.25:1.00
July 1, 2001 - December 31, 2001 3.75:1.00
January 1, 2002 - thereafter 3.50:1.00
(b) CASH INTEREST COVERAGE. Permit the ratio of (y)
Consolidated Operating Cash Flow to (z) Consolidated Cash Interest Expense of
the Borrower and its Subsidiaries for the four quarter period ending on the last
day of each calendar quarter occurring during the periods specified below to be
less than the correlative ratio indicated:
Cash Interest
Period Coverage Ratio
------ --------------
March 31, 2000 - June 30, 2000 1.75:1.00
July 1, 2000 - December 31, 2000 2.25:1.00
January 1, 2001 - thereafter 2.50:1.00
(c) FIXED CHARGE COVERAGE. Permit the ratio of (y)
Consolidated Operating Cash Flow to (z) Consolidated Fixed Charges of the
Borrower and its Subsidiaries for the twelve consecutive month period ending as
of the last day of any calendar quarter ending on or after March 31, 2000 to be
less than 1.10:1.00.
(d) CASH FLOW FROM LMA AGREEMENTS. On or after March 31, 2000,
permit more than 25% of Consolidated Operating Cash Flow to be earned or
generated pursuant to LMA Agreements for any fiscal period.
6.2 LIMITATION ON INDEBTEDNESS. Create, incur, assume,
guaranty, or otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Contingent Obligations permitted by subsection 6.5 (other
than subsection 6.5(e)) and, upon any obligations actually arising
pursuant thereto, the Indebtedness corresponding to the Contingent
Obligations so extinguished;
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(c) Indebtedness in respect of Capital Leases and/or purchase
money Indebtedness or any combination thereof in an aggregate amount at
any time outstanding not in excess of 5% of Consolidated Total Assets
as of the date incurred, so long as at the time any such Capital Lease
is entered into or such Indebtedness is incurred no Default or Event of
Default shall have occurred and be continuing or would result
therefrom;
(d) (i) the Senior Subordinated Notes, the Exchangeable
Preferred Stock, any Exchangeable Preferred Stock issued in accordance
with subsection 6.2(g)(ii), any Exchange Debentures issued in
accordance with subsections 6.2(g)(i) or (i) and (ii) Indebtedness
existing as of the Closing Date as set forth in Schedule 6.2(d), and
(iii) renewals, refinancings, extensions and modifications of any
Indebtedness described in clauses (i) and (ii) of this paragraph (d):
(A) the terms of which have been provided to the Lenders at least seven
Business Days before the date of such renewal, refinancing, extension
or modification, (B) which do not increase the rate or shorten the date
for payment of interest thereon or shorten the maturity (or weighted
average life) or increase the principal amount thereof (except to the
extent of the amount of any premium required to be paid under the terms
of the instrument governing such Indebtedness and the amount of
reasonable expenses incurred by the Borrower in connection with such
refinancing) and which, after giving effect thereto, contain terms and
conditions (including, without limitation, subordination provisions (if
any), covenants and events of default) that are no less favorable to
the Lenders in any material respect taken as a whole than the terms and
conditions thereof applicable before giving effect thereto, and (C); at
any time that a Default or Event of Default shall not have occurred and
be continuing or would result therefrom;
(e) Indebtedness of the Borrower or any Subsidiary to any
Subsidiary and of any Subsidiary to the Borrower or any Subsidiary;
(f) preferred Capital Stock issued subsequent to the date
hereof (including preferred Capital Stock issued as dividends thereon),
PROVIDED that at the time of issuance thereof (other than in the case
of preferred Capital Stock issued as dividends) no Default or Event of
Default shall have occurred and be continuing or would result
therefrom;
(g) (i) Exchange Debentures issued as interest on other
Exchange Debentures in accordance with the Exchange Debenture Indenture
and (ii) Exchangeable Preferred Stock issued as dividends on other
Exchangeable Preferred Stock in accordance with its Certificate of
Designation;
(h) additional unsecured Indebtedness of the Borrower not
exceeding $10,000,000 in aggregate principal amount at any one time
outstanding; and
(i) so long as the Borrower shall have delivered to the Lender
pursuant to subsection 5.1 the financial statements of the Borrower and
its Subsidiaries in respect of the fiscal quarter ended March 31, 2000,
Exchange Debentures issued in exchange for Exchangeable Preferred Stock
in accordance with the provisions of the applicable
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Certificate of Designations (as in effect on the date hereof) and the
Exchange Debenture Indenture (as in effect on the date hereof);
PROVIDED that at the time of issuance of such Exchange Debentures no
Default or Event of Default shall have occurred and be continuing or
would result therefrom on a pro forma basis.
6.3 LIENS AND RELATED MATTERS.
(a) PROHIBITIONS ON LIENS. Create, incur, assume or permit to
exist any Lien on or with respect to any property or asset (including any
document or instrument in respect of goods or accounts receivable) of the
Borrower or any of its Subsidiaries, whether now owned or hereafter acquired, or
any income or profits therefrom, except:
(i) Permitted Encumbrances;
(ii) (A) Liens securing purchase money Indebtedness
permitted pursuant to subsection 6.2(c); PROVIDED that such Liens shall
encumber only the assets purchased with the proceeds of such
Indebtedness and (B) Liens securing Capital Leases permitted under
subsection 6.2(c);
(iii) Liens granted pursuant to the Loan Documents;
(iv) Liens on assets listed on Schedule 6.2(d) securing
Indebtedness on Schedule 6.2(d), other than Liens in respect of the
Senior Subordinated Notes and the Preferred Stock.
(b) EQUITABLE LIEN IN FAVOR OF THE LENDERS. Create or assume
any Lien upon any of its property or assets, whether now owned or hereafter
acquired, other than Liens excepted by the provisions of this subsection, unless
the Borrower and its Subsidiaries make or cause to be made effective provision
whereby the Obligations will be secured by such Lien equally and ratably with
any and all other Indebtedness thereby secured as long as any such Indebtedness
shall be secured; PROVIDED that, notwithstanding the foregoing, this covenant
shall not be construed as a consent by the Required Lenders to any creation or
assumption of any such Lien not permitted by the provisions of this subsection.
(c) NO FURTHER NEGATIVE PLEDGES. Except with respect to
specific property encumbered to secure payment of particular Indebtedness
otherwise permitted pursuant to subsections 6.2 and 6.3 or to be sold pursuant
to an executed agreement with respect to an Asset Sale, enter into any agreement
prohibiting (i) the creation or assumption of any Lien upon its properties or
assets, whether now owned or hereafter acquired or (ii) any incurrence of any
Contingent Obligations.
(d) NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO THE
BORROWER. Except as provided herein, or as required by law, create or otherwise
cause or suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any Subsidiary to (a) pay dividends or
make any other distribution on any of such Subsidiary's capital stock,
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partnership interests or other interests, as the case may be, owned by the
Borrower or any Subsidiary of the Borrower, (b) subject to subordination
provisions any payments in respect of any Indebtedness owed to the Borrower or
any Subsidiary of the Borrower, (c) make loans or advances to the Borrower or
any Subsidiary of the Borrower or (d) transfer any of its property or assets to
the Borrower or any Subsidiary of the Borrower.
6.4 INVESTMENTS; JOINT VENTURES. Make or own any Investment,
directly or indirectly, in any Person including any Joint Venture, except:
(a) Investments in Cash and Cash Equivalents;
(b) Consolidated Capital Expenditures and Acquisition Capital
Expenditures otherwise permitted herein;
(c) Investments other than in a Core Business as to which the
aggregate consideration paid or to be paid by the Borrower or its
Subsidiaries shall not exceed $40,000,000;
(d) Investments in effect on the Closing Date as set forth on
Schedule 6.4(d);
(e) Investments by the Borrower in any Subsidiary Guarantor
and Investments by Subsidiaries in the Borrower and in any Subsidiary
Guarantor;
(f) any acquisition (it being understood that, as used in this
paragraph, the term "acquisition" shall mean any acquisition by means
of a purchase of stock or assets or a merger or other similar
transaction (including exercising any option to acquire assets or
Capital Stock) and shall also include a transaction in which a Loan
Party (i) enters into an LMA Agreement with the owner of a television
station, (ii) either makes a loan to, or guarantees a loan made by a
third party to, such owner secured by a Lien on the assets of such
television station and (iii) obtains an option to acquire the FCC
License covering such television station that satisfies the
requirements of clause (v)(B) of this paragraph) not otherwise
permitted under this subsection 6.4 (each such transaction referred to
herein as a "PERMITTED ACQUISITION" and collectively as the "PERMITTED
ACQUISITIONS"), on the following terms and conditions: (i) such
Permitted Acquisition involves the acquisition of a Core Business and
the aggregate consideration paid or to be paid by the Borrower or its
Subsidiaries for any individual Permitted Acquisition shall not exceed
$20,000,000, (ii) after giving effect to such Permitted Acquisition, no
Event of Default or Default shall exist; (iii) the Borrower shall
satisfy the requirements of subsections 5.10 and 5.11 in connection
therewith; (iv) such acquisition shall result in the assets so acquired
being owned by the Borrower or a wholly owned Subsidiary of the
Borrower and, if such Permitted Acquisition involves the acquisition of
a television station, the Borrower or a wholly owned Subsidiary shall
have acquired in connection therewith either (A) the FCC License held
by such Core Business or (B) an option to acquire such FCC License for
a period greater than five years and (v) if such Permitted Acquisition
involves the acquisition of a television station the FCC shall have
approved such acquisition;
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(g) Preapproved Acquisitions (including exercising any option
to acquire assets or stock); PROVIDED that at the time of such
acquisition no Event of Default shall have occurred and be continuing
or would result therefrom;
(h) Investments by the Borrower or any Subsidiary arising from
the acquisition of any Equivalent Assets in connection with any Asset
Swap, PROVIDED that (i) the cash portion of such Investment satisfies
the requirements for a Permitted Acquisition specified in subsection
6.4(f), (ii) after giving effect to such Investment, no Default or
Event of Default shall have occurred and be continuing or would result
therefrom and (iii) no Asset Swap shall be permitted in any calendar
year if, after giving effect thereto, all the assets transferred by the
Borrower and its Subsidiaries pursuant to Asset Swaps during such
calendar year shall have generated during the immediately preceding
calendar year an aggregate amount of Consolidated Operating Cash Flow
that exceeds 10% of Consolidated Operating Cash Flow of the Borrower
and its Subsidiaries for such immediately preceding calendar year; and
(i) Investments, made solely with Net Cash Proceeds of the
sale or issuance of equity Securities by the Borrower or any Subsidiary
which are not required to be used to make a prepayment pursuant to
subsection 2.6(a) and are not used in connection with any refinancing
of Indebtedness permitted under subsection 6.2, in Unrestricted
Subsidiaries in an aggregate amount not to exceed the sum of (i) the
aggregate amount of Net Cash Proceeds from the sale or issuance of
equity Securities by the Borrower or any Subsidiary that are not
required to be used to make a prepayment pursuant to subsection 2.6(a)
and are not used in connection with any refinancing of Indebtedness
permitted under subsection 6.2 MINUS (ii) $250,000,000, PROVIDED that
at the time of such acquisition no Default or Event of Default shall
have occurred and be continuing or would result therefrom; and
(j) Investments consisting of promissory notes or other
securities issued by a purchaser to the extent the Borrower or any
Subsidiary receives less than 100% cash consideration in an Asset Sale
as permitted by subsection 6.7(b).
6.5 CONTINGENT OBLIGATIONS. Create or become or be liable,
directly or indirectly, with respect to any Contingent Obligation except:
(a) Contingent Obligations incurred pursuant to the Loan
Documents;
(b) Contingent Obligations in respect of Interest Rate
Agreements in a notional amount not in excess of the aggregate
principal amount of the Indebtedness of the Borrower and its
Subsidiaries the interest rate on which is not fixed;
(c) Contingent Obligations resulting from the endorsement of
negotiable instruments for collection in the ordinary course of
business;
(d) Contingent Obligations in respect of Operating Leases;
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(e) Contingent Obligations in respect of Indebtedness
permitted under subsection 6.2; and
(f) Contingent Obligations in respect of loans by third
parties to owners or holders of options to acquire LMA Television
Stations otherwise permitted by subsection 6.4(j) and in respect of
obligations not exceeding $65,000,000 in aggregate principal amount at
any time outstanding.
6.6 RESTRICTED PAYMENTS. Declare, order, pay, make or set
apart any sum, directly or indirectly, for any Restricted Payment except, so
long as no Event of Default or Default has occurred and is continuing or would
result therefrom:
(a) so long as (i) the Borrower shall have delivered to the
Lender pursuant to subsection 5.1 the financial statements of the
Borrower and its Subsidiaries in respect of the fiscal quarter ended
March 31, 2000, (ii) no Default or Event of Default shall have occurred
and be continuing at such time and (iii) the Leverage Ratio of the
Borrower and its Subsidiaries as of the last day of the most recently
ended calendar quarter is less than 4.50:1.00, the Borrower may pay in
cash annual dividends owed to the holders of the Cumulative Preferred
Stock in accordance with the terms and conditions of the Certificate of
Designation applicable thereto;
(b) Restricted Payments with any proceeds from the issuance of
equity Securities permitted by subsection 6.7(d), which proceeds are
not required to be prepaid pursuant to subsection 2.6(a);
(c) payments under time brokerage agreements and LMA
Agreements; PROVIDED such payments are made in the ordinary course of
business and such agreements are no less favorable to the Borrower or
any Subsidiary, as the case may be, than those that would otherwise be
obtained in an arms-length transaction;
(d) any Subsidiary may make Restricted Payments to the
Borrower or any Subsidiary Guarantor;
(e) any additional redemption in an amount not to exceed
$100,000;
(f) (i) Exchange Debentures issued as interest on other
Exchange Debentures in accordance with the Exchange Debenture Indenture
and (ii) Exchangeable Preferred Stock issued as a dividend on other
Exchangeable Preferred Stock in accordance with its Certificate of
Designation; and
(g) so long as no Default or Event of Default shall have
occurred and be continuing, cash dividends to the holders of the
Cumulative Preferred Stock due on December 31, 1999 and thereafter in
accordance with the terms and conditions of its Certificate of
Designations.
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6.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES. Alter the
corporate, partnership, capital or legal structure of the Borrower or any of its
Subsidiaries or enter into any transaction of merger, or consolidate, or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease, sub-lease, transfer or otherwise dispose
of, in one transaction or a series of transactions, all or any part of its
business, property or assets (including, without limitation, any of the capital
stock or partnership interests held by such Person in any of its Subsidiaries),
whether now owned or hereafter acquired (other than in the ordinary course of
business), or acquire by purchase, lease or otherwise (in one transaction or a
series of related transactions) all or any part of the business, property or
fixed assets of, or stock or other evidence of beneficial ownership of, any
Person (other than purchases or other acquisitions of inventory, leases,
materials, property and equipment in the ordinary course of business) or agree
to do any of the foregoing at any future time, except:
(a) Consolidated Capital Expenditures and Acquisition Capital
Expenditures;
(b) (i) prior to such time as the Borrower shall have
delivered to the Lender pursuant to subsection 5.1 the financial
statements of the Borrower and its Subsidiaries in respect of the
fiscal quarter ended March 31, 2000, Excluded Asset Sales and the other
Asset Sales specified in the parenthetical phrase included in
subsection 2.6(b) and (ii) thereafter, any Asset Sale so long as the
Net Cash Proceeds of such Asset Sale are applied as required by
subsection 2.6(b); PROVIDED that, in the case of clauses (i) and (ii),
(x) the consideration received shall be an amount at least equal to the
fair market value thereof; (y) at least 85% (or 75% in the case of
Asset Sales excluded from the prepayment obligations of subsection
2.6(b)) of the consideration received shall be cash or Cash
Equivalents; and (z) no Default or Event of Default shall have occurred
and be continuing or would result therefrom;
(c) Investments permitted by subsection 6.4; and
(d) the issuance of equity or debt Securities of the Borrower
and its Subsidiaries as otherwise permitted by this Agreement;
(e) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (PROVIDED that the Borrower
shall be the continuing or surviving corporation) or with or into any
wholly owned Subsidiary (PROVIDED that a wholly owned Subsidiary
Guarantor shall be the continuing or surviving corporation);
(f) any Subsidiary of the Borrower may Dispose of any or all
of its assets (upon voluntary liquidation or otherwise) to the Borrower
or any wholly owned Subsidiary Guarantor and, in the event such
Subsidiary shall so Dispose of all of its assets, such Subsidiary may
liquidate, wind up or dissolve; and
(g) any Asset Swap, so long as (i) after giving effect thereto
no Default or Event of Default shall have occurred and be continuing,
(ii) the Borrower shall have given the
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Administrative Agent prior notice thereof, (iii) the consideration
received therefor shall be at least equal to the fair market value
thereof, (iv) if and to the extent that the Borrower or any Subsidiary
receives consideration for the assets transferred by it in connection
with such Asset Swap that is in addition to the Equivalent Assets
received in exchange therefor, such Asset Swap shall be deemed to be an
Asset Sale and shall be permitted only if the provisions of subsections
2.6(a) and 6.7(b)(y) shall be complied with in connection therewith and
(v) no Asset Swap shall be permitted in any calendar year if, after
giving effect thereto, all the assets transferred by the Borrower and
its Subsidiaries pursuant to Asset Swaps during such calendar year
shall have generated during the immediately preceding calendar year an
aggregate amount of Consolidated Operating Cash Flow that exceeds 10%
of Consolidated Operating Cash Flow of the Borrower and its
Subsidiaries for such immediately preceding calendar year.
6.8 FISCAL YEAR. Change its fiscal year-end from December 31
without the consent of the Required Lenders.
6.9 SALES AND LEASE-BACKS. Become or remain liable, directly
or indirectly, as lessee or as guarantor or other surety with respect to any
lease, whether an Operating Lease or a Capital Lease, of any property (whether
real or personal or mixed) whether now owned or hereafter acquired, (i) which
the Borrower or any of its Subsidiaries has sold or transferred or is to sell or
transfer to any other Person (other than the Borrower or any of its
Subsidiaries), or (ii) which the Borrower or any such Subsidiary of the Borrower
intends to use for substantially the same purpose as any other property which
has been or is to be sold or transferred by the Borrower or any such Subsidiary
of the Borrower to any Person (other than the Borrower or one of its
Subsidiaries) in connection with such lease.
6.10 SALE OR DISCOUNT OF RECEIVABLES. Sell, directly or
indirectly, any of their notes or accounts receivable other than in the ordinary
course of business.
6.11 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES. Enter into
or permit to exist any transaction (including, without limitation, the purchase,
sale, lease or exchange of any property or the rendering of any service),
directly or indirectly, with any holder (other than any Subsidiary directly or
indirectly wholly owned by the Borrower) of 5% or more of any class of equity
Securities or other interests of the Borrower or any of its Subsidiaries or with
any Affiliate of the Borrower or of any such holder, as the case may be, on
terms that, taken as a whole, are less favorable to the Borrower or any
Subsidiary, as the case may be, than those that might be obtained at the time
from Persons who are not such a holder or Affiliate.
6.12 DISPOSAL OF SUBSIDIARY STOCK. Except as permitted by
subsection 6.7:
(i) directly or indirectly sell, assign, pledge or
otherwise encumber or dispose of any shares of capital stock,
partnership interests, or other equity securities of (or warrants,
rights or options to acquire shares or other equity securities of) any
of its Subsidiaries, except to qualify directors if required by
applicable law; or
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(ii) permit any of its Subsidiaries directly or
indirectly to sell, assign, pledge or otherwise encumber or dispose of
any shares of capital stock, partnership interests, or other securities
of (or warrants, rights or options to acquire shares or other
securities of) any of its Subsidiaries, except to the Borrower, a
Subsidiary of the Borrower, or to qualify directors if required by
applicable law.
6.13 CONDUCT OF BUSINESS. Engage in any business other than
(i) a Core Business, (ii) a non Core business (but only as a result of an
Investment permitted by subsection 6.4(c)), (iii) the ownership of Unrestricted
Subsidiaries acquired in connection with Investments permitted by subsection
6.4(i) and (iv) such other lines of business as may be consented to by the Agent
and the Required Lenders; PROVIDED that in accordance with Section 5.10 neither
the Borrower nor any of its Subsidiaries (other than a License Subsidiary) shall
directly own or hold any FCC License applicable to its business, it being
understood that all such interests, if owned, shall be owned and maintained by
the License Subsidiaries. Notwithstanding anything to the contrary in this
Agreement, including, without limitation, any references to "Subsidiaries", (A)
neither the Borrower nor any of its Subsidiaries shall except as permitted by
subsection 6.4 and in accordance with Section 5.11, create or acquire any
interest in a Subsidiary after the Closing Date other than maintenance of their
interests in their respective Subsidiaries as of the Closing Date, and (B) no
License Subsidiary of the Borrower shall engage in any business or incur any
liabilities other than the ownership of its FCC Licenses and the execution,
delivery and performance of the Loan Documents and Related Documents to which it
is a party and activities necessary to the foregoing.
6.14 AMENDMENTS OR WAIVERS OF RELATED DOCUMENTS AND CHARTER
DOCUMENTS; LIMITATION ON OPTIONAL PAYMENTS.
(a) Agree to any amendment to, or waive any of its rights
under, any of the Related Documents (other than non-material amendments or
waivers which individually, or together with all other amendments, waivers or
changes made, would not be materially adverse to the Borrower or any of its
Subsidiaries or the Agent or any Lender), without obtaining the written consent,
not to be unreasonably withheld, of the Agent and the Required Lenders to such
amendment or waiver.
(b) Agree to any amendment to, or waive any of its rights
under, its articles of incorporation (including but not limited to the
Certificate of Designations), by-laws, partnership agreement or other documents
relating to its capital stock or other equity interests of the Borrower or its
Subsidiaries (other than amendments or waivers which individually, or together
with all other amendments, waivers or changes made, would not be materially
adverse to the Borrower or any of its Subsidiaries or the Agent or any Lender)
without, in each case, obtaining the written consent of the Agent and the
Required Lenders to such amendment or waiver.
(c) Other than with the Net Cash Proceeds of the sale or
issuance of equity Securities not required to be used to make a prepayment
pursuant to subsection 2.6(a) or in connection with any refinancing of
Indebtedness permitted under subsection 6.2, make any optional payment or
prepayment on or redemption, defeasance or purchase of any Indebtedness
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(excluding the Obligations, but including but not limited to the Exchangeable
Preferred Stock, Exchange Debentures, Senior Subordinated Notes or Subordinated
Debt), or amend, modify or change, or consent or agree to any amendment,
modification or change to, any of the terms relating to (i) any Indebtedness
other than the Obligations and the preferred stock (other than any such
amendment, modification or change (including, without limitation, pursuant to a
waiver) which would extend the maturity or reduce the amount of any payment of
principal thereof or which would reduce the rate or extend the date for payment
of interest thereon or pursuant to Section 8.01 of the Senior Subordinated Note
Indenture or Section 8.01 of the Exchange Debenture Indenture), or (ii) the
subordination of the Senior Subordinated Notes, the Exchange Debentures or
Subordinated Debt.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Failure of any Loan Party to pay any installment of
principal of any Loan when due in accordance with the terms hereof; or
any Loan Party shall fail to pay any interest on any Loan when due or
any other amount due pursuant to the Loan Documents within two Business
Days after the date due in accordance with the terms thereof or hereof;
or
(b) Failure of any Loan Party or any of their respective
Subsidiaries or any Unrestricted Subsidiary to pay when due (x) any
principal or interest on any Indebtedness (other than Indebtedness
referred to in paragraph (a) of this Section and intercompany debt) in
an individual principal amount of $5,000,000 or more or items of
Indebtedness with an aggregate principal amount of $5,000,000 or more
or (y) any Contingent Obligation in an individual principal amount of
$5,000,000 or more or Contingent Obligations with an aggregate
principal amount of $5,000,000 or more, in each case beyond the end of
any grace period PROVIDED therefor; or
(c) Breach or default of any Loan Party or any of their
respective Subsidiaries or any Unrestricted Subsidiary with respect to
any other material term of (i) (x) any evidence of any Indebtedness
(other than intercompany debt) in an individual principal amount of
$5,000,000 or more or items of Indebtedness (other than intercompany
debt) with an aggregate principal amount of $5,000,000 or more or any
Contingent Obligation in an individual principal amount of $5,000,000
or more or Contingent Obligations with an aggregate principal amount of
$5,000,000 or more or (y) any loan agreement, mortgage, indenture or
other agreement relating thereto, if the effect of such failure,
default or breach is to cause, or to permit the holder or holders of
that Indebtedness or Contingent Obligation (or a trustee on behalf of
such holder or holders) then to cause, that Indebtedness or Contingent
Obligation to become or be declared due prior to its stated maturity
(or the stated maturity of any underlying obligation, as the case may
be) or (ii) the Related Documents which could reasonably be expected to
have a Material Adverse Effect; or
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(d) Failure of the Borrower to perform or comply with any term
or condition contained in subsection 5.2 or Section 6; or
(e) Any representation, warranty, certification or other
statement made by any Loan Party in any Loan Document or in any
statement or certificate at any time given by any Loan Party in writing
pursuant hereto or in connection herewith or therewith, shall be false
in any material respect on the date as of which made; or
(f) Any Loan Party shall default in the performance of or
compliance with any term contained in this Agreement or the other Loan
Documents, applicable to that Loan Party, other than those referred to
elsewhere in this Section 7 and such default shall not have been
remedied or waived within 30 days after the earlier of (i) receipt by
the Borrower of notice from any Lender or the Agent of such default or
(ii) the Borrower's knowledge of such default; or
(g) (i) A court having jurisdiction in the premises shall
enter a decree or order for relief in respect of any Loan Party or any
of their respective Subsidiaries or any Unrestricted Subsidiary in an
involuntary case under the Bankruptcy Code or any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
which decree or order is not stayed; or any other similar relief shall
be granted under any applicable federal or state law; or (ii) an
involuntary case is commenced against any Loan Party or any of their
respective Subsidiaries or any Unrestricted Subsidiary under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over any Loan
Party or any of their respective Subsidiaries or any Unrestricted
Subsidiary, or over all or a substantial part of its property, shall
have been entered; or the involuntary appointment of an interim
receiver, trustee or other custodian of any Loan Party or any of their
respective Subsidiaries or any Unrestricted Subsidiary for all or a
substantial part of its property; or the issuance of a warrant of
attachment, execution or similar process against any substantial part
of the property of any Loan Party or any of their respective
Subsidiaries or any Unrestricted Subsidiary, and the continuance of any
such event in clause (ii) for 60 days unless dismissed, bonded or
discharged; or
(h) Any Loan Party or any of their respective Subsidiaries or
any Unrestricted Subsidiary shall have an order for relief entered with
respect to it or commence a voluntary case under the Bankruptcy Code or
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any such law, or shall consent to the
appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; the making by
any Loan Party or any of their respective Subsidiaries or any
Unrestricted Subsidiary of any assignment for the benefit of creditors;
or
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(i) The inability or failure of any Loan Party or any of their
respective Subsidiaries or any Unrestricted Subsidiary, or the
admission by any Loan Party or any of their respective Subsidiaries or
any Unrestricted Subsidiary in writing of its inability, to pay its
debts as such debts become due; or the Board of Directors (or any
committee thereof) of any Loan Party or any of their respective
Subsidiaries or any Unrestricted Subsidiary adopts any resolution or
otherwise authorizes action to approve any of the actions referred to
in this clause (i); or
(j) Any money judgment, writ or warrant of attachment, or
similar process involving (i) in any individual case an amount in
excess of $5,000,000, or (ii) in the aggregate at any time an amount in
excess of $5,000,000, and in either case not adequately covered by
insurance as to which the insurance company has acknowledged coverage
shall be entered or filed against any Loan Party or any of their
respective Subsidiaries or any Unrestricted Subsidiary or any of their
respective assets and shall remain undischarged, unvacated, unbonded or
unstayed for a period of 30 days or in any event later than five days
prior to the date of any proposed sale thereunder; or
(k) Any order, judgment or decree shall be entered against any
Loan Party or any of their respective Subsidiaries decreeing a
dissolution or split-up of any Loan Party or any of their respective
Subsidiaries, and such order shall remain undischarged or unstayed for
a period in excess of 30 days; or
(l) There occurs one or more ERISA Events which singly or in
the aggregate results in liability to the Borrower or any ERISA
Affiliate in excess of $1,000,000; or there exists, as of any valuation
date for a Pension Plan, an excess of the actuarial present value
(determined on the basis of reasonable assumptions employed by the
independent actuary for such Pension Plan) of the benefit liabilities
(as defined in Section 4001(a)(16) of ERISA), whether or not vested
over the fair market value of the assets of such Pension Plan,
individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which
there is no such excess) which exceeds $1,000,000; or
(m) Any Guaranty for any reason, other than the satisfaction
in full of all Obligations, ceases to be in full force and effect
(other than in accordance with its terms) or is declared to be null and
void, or any Loan Party denies that it has any further liability,
including without limitation with respect to future advances by the
Lenders, under any Loan Document to which it is a party, or gives
notice to such effect; or
(n) Any Security Document shall, at any time, cease to be in
full force and effect (other than by reason of a release of Collateral
in accordance with the terms thereof) or shall be declared null and
void, or the validity or enforceability thereof shall be contested by
any Loan Party or the Agent shall not have or cease to have a valid and
perfected first priority security interest in the Collateral other than
the failure of the Agent or any Lender to take any action within its
control; or
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(o) Any FCC License shall be (i) canceled, terminated or
finally denied renewal for any reason; or (ii) renewed on terms which
materially adversely affect the economic or commercial value or
usefulness thereof; or
(p) Any event having a Material Adverse Effect shall occur and
such default shall not have been remedied or waived within 30 days
after receipt by the Borrower of notice from any Lender or the Agent of
such default; or
(q) The Borrower or any of its Subsidiaries shall fail to
comply in all material respects with the requirements of any FCC
consent obtained to consummate any acquisition; or
(r) Any of the following shall occur: (i) any Subsidiary of
the Borrower shall issue or have outstanding any Capital Stock (or any
security convertible into any of its Capital Stock) which is not
pledged to the Agent for the benefit of the Lenders in a manner
reasonably satisfactory to the Required Lenders, except to the extent
listed on Schedule 7(r) or waived by the Agent or the Lenders hereunder
in accordance with the terms hereof; (ii) the Borrower or a Subsidiary
of the Borrower shall fail to own and control, of record and
beneficially, 100% of the issued and outstanding Capital Stock of each
License Subsidiary free and clear of all Liens (except Liens created
pursuant to the Borrower Pledge Agreement or the Subsidiaries Pledge
Agreement), except to the extent listed on Schedule 7(r) or waived by
the Agent or the Lenders hereunder in accordance with the terms hereof;
(iii) Paxson (or, after his death, collectively, his heirs or estate or
both) shall cease to own and control, of record and beneficially,
Capital Stock of the Borrower possessing the voting power under normal
circumstances to cast 51% or more of the total votes entitled to be
cast for the election of directors of the Borrower and (iv) Paxson (or,
after his death, collectively, his heirs or estate or both) shall no
longer have the voting power or the contractual right to elect a
majority of the Borrower's directors; or
(s) if Network Start-Up shall not have occurred and be
continuing on September 1, 1998 or shall cease to exist at any time
thereafter;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraphs (g), (h) or (i) of this Section with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement shall immediately become due and payable, and (B) if such event is any
other Event of Default, either or both of the following actions may be taken:
(i) with the consent of the Required Lenders, the Agent may, or upon the request
of the Required Lenders, the Agent shall, by notice to the Borrower declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Required Lenders, the
Agent may, or upon the request of the Required Lenders, the Agent shall, by
notice to the Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement to be due and payable
forthwith, whereupon the same shall immediately become due and payable. Except
as expressly provided above in this
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Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived.
SECTION 8. THE AGENT
8.1 APPOINTMENT. Each Lender hereby irrevocably designates and
appoints the Agent as the agent of such Lender under this Agreement and the
other Loan Documents, and each such Lender irrevocably authorizes the Agent, in
such capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agent.
8.2 DELEGATION OF DUTIES. The Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
8.3 EXCULPATORY PROVISIONS. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other Loan Document
(except for its or such Person's own gross negligence or willful misconduct) or
(ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by the Borrower or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agent under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of the Borrower to perform its obligations hereunder or
thereunder. The Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
8.4 RELIANCE BY THE AGENT. The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any Note, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Borrower), independent accountants and other
experts selected by the Agent. The
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Agent may deem and treat the payee of any Note as the owner thereof for all
purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Agent. The Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Loan Documents in accordance with a
request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
8.5 NOTICE OF DEFAULT. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the Agent
receives such a notice, the Agent shall give notice thereof to the Lenders. The
Agent shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders; PROVIDED that unless and
until the Agent shall have received such directions, the Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
8.6 NON-RELIANCE ON THE AGENT AND OTHER LENDERS. Each Lender
expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Agent hereinafter
taken, including any review of the affairs of the Borrower, shall be deemed to
constitute any representation or warranty by the Agent to any Lender. Each
Lender represents to the Agent that it has, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, operations, property, financial and other condition and
creditworthiness of the Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Borrower which may come into the possession of the Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
8.7 INDEMNIFICATION. The Lenders agree to indemnify the Agent
in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the
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Borrower to do so), ratably according to their respective Commitment Percentages
in effect on the date on which indemnification is sought (or, if indemnification
is sought after the date upon which the Commitments shall have terminated and
the Loans shall have been paid in full, ratably in accordance with their
Commitment Percentages immediately prior to such date), from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment of the
Loans) be imposed on, incurred by or asserted against the Agent in any way
relating to or arising out of, the Commitments, this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by the Agent under or in connection with any of the foregoing; PROVIDED
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the Agent's gross
negligence or willful misconduct. The agreements in this subsection shall
survive the payment of the Loans and all other amounts payable hereunder.
8.8 THE AGENT IN ITS INDIVIDUAL CAPACITY. The Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Borrower as though the Agent were not the Agent
hereunder and under the other Loan Documents. With respect to the Loans made by
it, the Agent shall have the same rights and powers under this Agreement and the
other Loan Documents as any Lender and may exercise the same as though it were
not the Agent, and the terms "Lender" and "Lenders" shall include the Agent in
its individual capacity.
8.9 SUCCESSOR THE AGENT. The Agent may resign as the Agent
upon 10 days' notice to the Lenders and the Borrower and the Agent may be
removed at any time with or without cause by an instrument or concurrent
instruments in writing delivered to the Borrower and Agent and signed by
Required Lenders. If the Agent shall resign or be removed as the Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall be approved by the Borrower, whereupon such successor
agent shall succeed to the rights, powers and duties of the Agent, and the term
"the Agent" shall mean such successor agent effective upon such appointment and
approval, and the former Agent's rights, powers and duties as the Agent shall be
terminated, without any other or further act or deed on the part of such former
Agent or any of the parties to this Agreement or any holders of the Loans. After
any retiring the Agent's resignation as the Agent, the provisions of this
Section 8 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Agent under this Agreement and the other Loan
Documents.
<PAGE> 76
71
SECTION 9. MISCELLANEOUS
9.1 AMENDMENTS AND WAIVERS. Neither this Agreement nor any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Agent may, from time to time, (a) enter into with the Borrower written
amendments, supplements or modifications hereto and to the other Loan Documents
for the purpose of adding any provisions to this Agreement or the other Loan
Documents or changing in any manner the rights of the Lenders or of the Borrower
hereunder or thereunder or (b) waive, on such terms and conditions as the
Required Lenders or the Agent, as the case may be, may specify in such
instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; PROVIDED,
HOWEVER, that no such waiver and no such amendment, supplement or modification
shall (i) reduce the amount or extend the scheduled date of maturity of any
scheduled payment of any Loan or of any scheduled installment thereof, or reduce
the stated rate of any interest or fee payable hereunder or extend the scheduled
date of any payment thereof or increase the aggregate amount or extend the
expiration date of any Lender's Commitments, in each case without the consent of
each Lender affected thereby, or (ii) amend, modify or waive any provision of
this subsection or reduce the percentage specified in the definition of Required
Lenders, or consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement and the other Loan Documents or
release all or substantially all of the Collateral, in each case except in
connection with any disposition of assets permitted by subsection 6.7, and in
each case without the written consent of all the Lenders, or (iii) amend, modify
or waive any provision of Section 8 without the written consent of the then
Agent. Any such waiver and any such amendment, supplement, modification or
release shall apply equally to each of the Lenders and shall be binding upon the
Borrower, the Lenders, the Agent and all future holders of the Loans. In the
case of any waiver, the Borrower, the Lenders and the Agent shall be restored to
their former positions and rights hereunder and under the other Loan Documents,
and any Default or Event of Default waived shall be deemed to be cured and not
continuing; no such waiver shall extend to any subsequent or other Default or
Event of Default or impair any right consequent thereon.
9.2 NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three days after being
deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows in the case of the Borrower and the Agent, and as set forth in Schedule
1.1A in the case of the other parties hereto, or to such other address as may be
hereafter notified by the respective parties hereto:
<PAGE> 77
72
The Borrower: Paxson Communications Corporation
601 Clearwater Park Road
West Palm Beach, Florida 33401
Attention: Arthur Tek
Fax: 561-659-4252
with a copy to Anthony Morrison at the
foregoing address and to fax no: 561-659-4754
The Agent: Union Bank of California, N.A.
445 South Figueroa Street
Los Angeles, California 90071-1602
Attention: Christine P. Ball
Fax: 213-236-5747
with a copy to Bryan Petermann at the
foregoing address
PROVIDED that any notice, request or demand to or upon the Agent or the Lenders
pursuant to subsection 2.2, 2.5, 2.6, 2.7, 2.12 or 9.6 shall not be effective
until received.
9.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and
no delay in exercising, on the part of the Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
9.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
9.5 PAYMENT OF EXPENSES AND TAXES. The Borrower agrees (a) to
pay or reimburse the Agent for all its reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement and the
other Loan Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and disbursements of counsel to the Agent, (b) to pay or reimburse each
Lender and the Agent for all its costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement, the other
Loan Documents and any such other documents, including, without limitation, the
fees and disbursements of counsel (including the allocated fees and expenses of
in-house counsel) to each Lender and of counsel to the Agent, (c) to pay,
indemnify, and hold each Lender and the Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other
<PAGE> 78
73
taxes (which are Non-Excluded Taxes), if any, which may be payable or determined
to be payable in connection with the execution and delivery of, or consummation
or administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify, and hold each Lender and the Agent harmless from and against
any and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other
documents, including, without limitation, any of the foregoing relating to the
violation of, noncompliance with or liability under, any Environmental Law
applicable to the operations of the Borrower, any of its Subsidiaries or any of
its properties or assets (all the foregoing in this clause (d), collectively,
the "indemnified liabilities"), PROVIDED, that the Borrower shall have no
obligation under this subsection 9.5 to the Agent or any Lender with respect to
indemnified liabilities arising from the gross negligence or willful misconduct
of the Agent or any such Lender. The agreements in this subsection shall survive
repayment of the Loans and all other amounts payable hereunder.
9.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Agent and their respective successors and assigns,
except that the Borrower may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("PARTICIPANTS") participating interests in any
Loan owing to such Lender, any Commitment of such Lender or any other interest
of such Lender hereunder and under the other Loan Documents. In the event of any
such sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and the Borrower
and the Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents. The Borrower agrees that if amounts outstanding under
this Agreement are due or unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of Default, each
Participant shall, to the maximum extent permitted by applicable law, be deemed
to have the right of setoff in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement, PROVIDED that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in subsection 9.7(a) as fully as if it were a
Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of subsections 2.14, 2.15, 2.16 with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if it was a Lender; PROVIDED that, in the case of subsection 2.15, such
Participant shall have complied with the requirements of said subsection and
PROVIDED, FURTHER, that no Participant shall be entitled to receive any greater
amount pursuant to any such
<PAGE> 79
74
subsection than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign to any Lender or any affiliate thereof or, with the consent
of the Borrower and the Agent (which in each case shall not be unreasonably
withheld), to an additional bank or financial institution ("an ASSIGNEE") all or
any part of its rights and obligations under this Agreement and the other Loan
Documents pursuant to an Assignment and Acceptance, substantially in the form of
Exhibit H, executed by such Assignee, such assigning Lender (and, in the case of
an Assignee that is not then a Lender or an affiliate thereof, by the Borrower
and the Agent) and delivered to the Agent for its acceptance and recording in
the Register PROVIDED that (i) no such assignment to an Assignee (other than any
Lender or any affiliate thereof) shall be in an aggregate principal amount of
less than $5,000,000 (other than in the case of an assignment of all of a
Lender's interests under this Agreement) and (ii) after giving effect to any
such assignment (other than an assignment of all of a Lender's interests under
this Agreement), the assigning Lender (together with any Lender which is an
affiliate of such assigning Lender) shall retain Loans and/or Commitments
aggregating not less than $5,000,000. Upon such execution, delivery, acceptance
and recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder with a Commitment as set forth therein,
and (y) the assigning Lender thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this Agreement
(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 assigning Lender shall cease to be a party hereto). Notwithstanding any
provision of this paragraph (c) and paragraph (e) of this subsection, the
consent of the Borrower shall not be required, and, unless requested by the
Assignee and/or the assigning Lender, new Notes shall not be required to be
executed and delivered by the Borrower, for any assignment which occurs at any
time when any of the events described in paragraphs (g), (h) or (i) of Section 7
shall have occurred and be continuing.
(d) The Agent, on behalf of the Borrower, shall maintain at
the address of the Agent referred to in subsection 9.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "REGISTER") for the
recordation of the names and addresses of the Lenders and the Commitments of,
and principal amounts of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Agent and the Lenders may (and, in the case of any Loan or
other obligation hereunder not evidenced by a Note, shall) treat each Person
whose name is recorded in the Register as the owner of a Loan or other
obligation hereunder as the owner thereof for all purposes of this Agreement and
the other Loan Documents, notwithstanding any notice to the contrary. Any
assignment of any Loan or other obligation hereunder not evidenced by a Note
shall be effective only upon appropriate entries with respect thereto being made
in the Register. The Register shall be available for inspection by the Borrower
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
<PAGE> 80
75
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an affiliate thereof, by the Borrower and the Agent)
together with payment by such Lender or Assignee to the Agent of a registration
and processing fee of $2,500 the Agent shall (i) promptly accept such Assignment
and Acceptance and (ii) on the effective date determined pursuant thereto record
the information contained therein in the Register and give notice of such
acceptance and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee that agrees to be bound by the terms and conditions of
subsection 9.15 (each, a "TRANSFEREE") and any prospective Transferee any and
all financial information in such Lender's possession concerning the Borrower
and its Affiliates which has been delivered to such Lender by or on behalf of
the Borrower pursuant to this Agreement or which has been delivered to such
Lender by or on behalf of the Borrower in connection with such Lender's credit
evaluation of the Borrower and its Affiliates prior to becoming a party to this
Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
9.7 ADJUSTMENTS; SET-OFF. (a) If any Lender (a "BENEFITTED
LENDER") shall at any time receive any payment of all or part of its Loans, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in paragraphs (g), (h) or (i) of Section 7, or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's Loans,
or interest thereon, such benefitted Lender shall purchase for cash from the
other Lenders a participating interest in such portion of each such other
Lender's Loan, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; PROVIDED, HOWEVER, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
PROVIDED by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or
<PAGE> 81
76
agency thereof to or for the credit or the account of the Borrower. Each Lender
agrees promptly to notify the Borrower and the Agent after any such set-off and
application made by such Lender, PROVIDED that the failure to give such notice
shall not affect the validity of such set-off and application.
9.8 COUNTERPARTS; EFFECTIVENESS. This Agreement may be
executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by facsimile transmission), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. This Agreement shall become effective when counterparts hereof shall
have been executed by each of the parties hereto. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Agent.
9.9 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.10 INTEGRATION. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Agent and the Lenders with respect
to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Agent or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or in the other Loan
Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.12 SUBMISSION TO JURISDICTION; WAIVERS. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any
judgement in respect thereof, to the non-exclusive general jurisdiction
of the Courts of the State of New York, the courts of the United States
of America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form
<PAGE> 82
77
of mail), postage prepaid, to the Borrower at its address set forth in
subsection 9.2 or at such other address of which the Agent shall have
been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or
consequential damages.
9.13 ACKNOWLEDGEMENTS. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
<PAGE> 83
78
(b) neither the Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and
the relationship between the Agent and the Lenders, on one hand, and
the Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
9.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENT AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND
FOR ANY COUNTERCLAIM THEREIN.
9.15 CONFIDENTIALITY. Each Lender agrees to keep confidential
all non-public information provided to it by the Borrower pursuant to this
Agreement that is designated by the Borrower in writing as confidential;
provided that nothing herein shall prevent any Lender from disclosing any such
information (i) to the Agent or any other Lender, (ii) to any Transferee, (iii)
to its employees, directors, agents, attorneys, accountants and other
professional advisors, (iv) upon the request or demand of any Governmental
Authority having jurisdiction over such Lender, (v) in response to any order of
any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law, (vi) which has been publicly disclosed other
than in breach of this Agreement, (vii) in connection with the exercise of any
remedy hereunder or (viii) to any direct or indirect contractual counterparty in
swap agreements or such contractual counterparty's professional advisor (so long
as such contractual counterparty or professional advisor to such contractual
counterparty agrees to be bound by the provisions of this Section 9.15).
9.16 EFFECT OF AMENDMENT AND RESTATEMENT OF THE EXISTING
CREDIT AGREEMENT. On the Closing Date, the Existing Credit Agreement shall be
amended, restated and superseded in its entirety. The parties hereto acknowledge
and agree that (a) this Agreement and the other Loan Documents executed and
delivered in connection herewith do not constitute a novation, payment and
reborrowing, or termination of the "Obligations" (as defined in the Existing
Credit Agreement) under the Existing Credit Agreement as in effect prior to the
Closing Date; (b) such "Obligations" are in all respects continuing (as amended
and restated hereby) with only the terms thereof being modified as provided in
this Agreement; and (c) the Liens and security interests as granted under the
Security Documents securing payment of such "Obligations" are in all respects
continuing and in full force and effect and secure the payment of the
Obligations (as defined in this Agreement).
9.17 REDEMPTION OF SENIOR SUBORDINATED NOTES. Union Bank of
California, N.A. ("UBOC") shall communicate to the Borrower prior to April 1,
1999 the terms and conditions, if any, on which UBOC would assist the Borrower
in the refinancing of the Senior Subordinated Notes (which may occur on or about
October 1, 1999). The Borrower shall provide UBOC with
<PAGE> 84
79
any information regarding the Borrower and its Subsidiaries reasonably requested
by UBOC with regard to such communication. Neither UBOC nor any other party
shall have any obligations or liabilities under this subsection 9.17 (nor shall
the Borrower, its Subsidiaries or any other party have any rights or remedies
under this subsection 9.17) and no provision of this subsection 9.17 nor any
other provision of this Agreement shall be deemed to constitute a commitment by
any party to provide or assist in the refinancing of the Senior Subordinated
Notes or any other financing (except for the Commitments on the terms and
conditions set forth herein).
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
PAXSON COMMUNICATIONS
CORPORATION
By:
-------------------------------------------
Title:
UNION BANK OF CALIFORNIA, N.A.,
as the Agent and as a Lender
By:
-------------------------------------------
Title:
THE ING CAPITAL SENIOR SECURED HIGH
INCOME FUND, L.P.
By: ING Capital Advisors Inc.,
as Investment Advisor
By:
-------------------------------------------
Title:
ARCHIMEDES FUNDING LLC
By: ING Capital Advisors Inc.,
as Collateral Manager
By:
-------------------------------------------
Title:
<PAGE> 85
80
KZH-ING 2 CORPORATION
By:
-------------------------------------------
Title:
PROTECTIVE ASSET MANAGEMENT, L.L.C.
By: , its manager
---------------------------
By:
-------------------------------------------
Title:
CITY NATIONAL BANK
By:
-------------------------------------------
Title:
