Exhibit 10.4




 





 


CREDIT AGREEMENT



$2,450,000



Dated as of August 11, 2006



among


 


SAGAMOREHILL OF CAROLINA, LLC,


as Borrower,


 


BANK OF AMERICA, N.A.,

as Administrative Agent and Collateral Agent,


 


 


WACHOVIA BANK, NATIONAL ASSOCIATION,

as Syndication Agent,


 



 CIT LENDING SERVICES CORPORATION,

as Documentation Agent


 




The Lenders Party Hereto


 


and


 


BANC OF AMERICA SECURITIES LLC
 and

WACHOVIA CAPITAL MARKETS, LLC,

as Joint Lead Arrangers and Joint Bookrunning Managers


 CAHILL GORDON & REINDEL LLP

80 Pine Street

New York, New York 10005




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  
	
   

  
	
  DEFINITIONS AND ACCOUNTING TERMS

  
	
   

  	
   

  	
   

  
	
  1.01

  	
  Defined
  Terms

  	
  1

  
	
  1.02

  	
  Other
  Interpretive Provisions

  	
  21

  
	
  1.03

  	
  Accounting
  Terms

  	
  22

  
	
  1.04

  	
  Rounding

  	
  22

  
	
  1.05

  	
  Times of Day

  	
  22

  
	
  1.06

  	
  Resolution of
  Drafting Ambiguities

  	
  22

  
	
  1.07

  	
  Effectuation
  of Transactions

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  	
   

  
	
  THE COMMITMENTS AND BORROWINGS

  
	
   

  	
   

  	
   

  
	
  2.01

  	
  Loans

  	
  22

  
	
  2.02

  	
  Borrowings,
  Conversions and Continuations of Loans

  	
  23

  
	
  2.03

  	
  Prepayments

  	
  24

  
	
  2.04

  	
  Termination
  or Reduction of Commitments

  	
  25

  
	
  2.05

  	
  Repayment of
  Loans

  	
  25

  
	
  2.06

  	
  Interest

  	
  26

  
	
  2.07

  	
  Computation
  of Interest and Fees

  	
  27

  
	
  2.08

  	
  Evidence of
  Debt

  	
  27

  
	
  2.09

  	
  Payments
  Generally; Administrative Agent’s Clawback

  	
  28

  
	
  2.10

  	
  Sharing of
  Payments by Lenders

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  	
   

  
	
  TAXES, YIELD PROTECTION AND ILLEGALITY

  
	
   

  	
   

  	
   

  
	
  3.01

  	
  Taxes

  	
  30

  
	
  3.02

  	
  Illegality

  	
  32

  
	
  3.03

  	
  Inability To
  Determine Rates

  	
  33

  
	
  3.04

  	
  Increased
  Costs; Reserves on Eurodollar Rate Loans

  	
  33

  
	
  3.05

  	
  Compensation
  for Losses

  	
  34

  
	
  3.06

  	
  Mitigation
  Obligations; Replacement of Lenders

  	
  35

  
	
  3.07

  	
  Matters
  Applicable to Requests for Compensation

  	
  35

  
	
  3.08

  	
  Survival

  	
  36

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  	
   

  
	
  CONDITIONS PRECEDENT TO BORROWING

  
	
   

  	
   

  	
   

  
	
  4.01

  	
  Conditions
  of the Borrowing

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  	
   

  
	
  REPRESENTATIONS AND WARRANTIES

  
	
   

  	
   

  	
   

  
	
  5.01

  	
  Existence,
  Qualification and Power; Compliance with Laws

  	
  40

  
	
  5.02

  	
  Authorization;
  No Contravention

  	
  41

  
	
  5.03

  	
  Governmental
  Authorization; Other Consents

  	
  41

  
	
  5.04

  	
  Binding
  Effect

  	
  41

  
	
  5.05

  	
  No Material
  Adverse Effect

  	
  42

  
	
  5.06

  	
  Litigation

  	
  42

  
	
  5.07

  	
  No Default

  	
  42

  
	
  5.08

  	
  Properties

  	
  42

  
	
  5.09

  	
  Environmental
  Matters

  	
  43

  
	
  5.10

  	
  Insurance

  	
  44

  
	
  5.11

  	
  Taxes

  	
  44

  
	
  5.12

  	
  ERISA
  Compliance

  	
  44

  
	
  5.13

  	
  Subsidiaries;
  Equity Interests

  	
  44

  
	
  5.14

  	
  Margin
  Regulations; Investment Company Act; Public Utility Holding Company Act

  	
  45

  
	
  5.15

  	
  Disclosure

  	
  45

  
	
  5.16

  	
  Compliance
  with Laws

  	
  45

  
	
  5.17

  	
  Solvency

  	
  45

  
	
  5.18

  	
  Intellectual
  Property Matters

  	
  45

  
	
  5.19

  	
  Security
  Documents

  	
  46

  
	
  5.20

  	
  Use of
  Proceeds

  	
  46

  
	
  5.21

  	
  Anti-Terrorism
  Law

  	
  47

  
	
  5.22

  	
  FCC
  Licenses, Etc.

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  	
   

  
	
  AFFIRMATIVE COVENANTS

  
	
   

  	
   

  	
   

  
	
  6.01

  	
  Existence;
  Businesses and Properties

  	
  48

  
	
  6.02

  	
  Insurance

  	
  49

  
	
  6.03

  	
  Taxes

  	
  49

  
	
  6.04

  	
  Reports, Etc.

  	
  50

  
	
  6.05

  	
  Litigation
  and Other Notices

  	
  50

  
	
  6.06

  	
  Compliance
  with Laws

  	
  50

  
	
  6.07

  	
  Maintaining
  Records; Access to Properties and Inspections

  	
  50

  
	
  6.08

  	
  Use of
  Proceeds

  	
  51

  
	
  6.09

  	
  Further
  Assurances; Additional Mortgages

  	
  51

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  6.10

  	
  [Reserved]

  	
  52

  
	
  6.11

  	
  [Reserved]

  	
  52

  
	
  6.12

  	
  Compliance
  with Environmental Laws; Environmental Reports

  	
  52

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  	
   

  
	
  NEGATIVE COVENANTS

  
	
   

  	
   

  	
   

  
	
  7.01

  	
  Indebtedness

  	
  53

  
	
  7.02

  	
  Liens

  	
  55

  
	
  7.03

  	
  Sale and
  Lease-Back Transactions

  	
  58

  
	
  7.04

  	
  Investments,
  Loans and Advances

  	
  58

  
	
  7.05

  	
  Mergers,
  Consolidations, Sales of Assets and Acquisitions

  	
  59

  
	
  7.06

  	
  Dividends
  and Distributions

  	
  60

  
	
  7.07

  	
  Business of
  Borrower and the Subsidiaries

  	
  62

  
	
  7.08

  	
  Limitation
  on Modifications, Prepayments and Certain Interest Payments

  	
  62

  
	
  7.09

  	
  Swap
  Agreements

  	
  63

  
	
  7.10

  	
  Anti-Terrorism
  Law; Anti-Money Laundering

  	
  63

  
	
  7.11

  	
  Embargoed
  Person

  	
  64

  
	
  7.12

  	
  No Further
  Negative Pledge

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
   

  	
   

  
	
  EVENTS OF DEFAULT AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  8.01

  	
  Events of
  Default

  	
  65

  
	
  8.02

  	
  Application
  of Funds

  	
  68

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
   

  	
   

  
	
  ADMINISTRATIVE AGENT AND COLLATERAL AGENT

  
	
   

  	
   

  	
   

  
	
  9.01

  	
  Appointment
  and Authority

  	
  69

  
	
  9.02

  	
  Rights as a
  Lender

  	
  69

  
	
  9.03

  	
  Exculpatory
  Provisions

  	
  69

  
	
  9.04

  	
  Reliance by
  Agents

  	
  70

  
	
  9.05

  	
  Delegation
  of Duties

  	
  71

  
	
  9.06

  	
  Resignation
  of Agent

  	
  71

  
	
  9.07

  	
  Non-Reliance
  on Agent and Other Lenders

  	
  71

  
	
  9.08

  	
  No Other
  Duties, Etc.

  	
  72

  
	
  9.09

  	
  Agent May
  File Proofs of Claim

  	
  72

  
	
  9.10

  	
  Collateral
  and Guaranty Matters

  	
  72

  



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  
	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  10.01

  	
  Amendments,
  Etc.

  	
  73

  
	
  10.02

  	
  Notices;
  Effectiveness; Electronic Communication

  	
  76

  
	
  10.03

  	
  No Waiver;
  Cumulative Remedies

  	
  77

  
	
  10.04

  	
  Expenses;
  Indemnity; Damage Waiver

  	
  77

  
	
  10.05

  	
  Payments Set
  Aside

  	
  79

  
	
  10.06

  	
  Successors
  and Assigns

  	
  79

  
	
  10.07

  	
  Treatment of
  Certain Information; Confidentiality

  	
  82

  
	
  10.08

  	
  Right of
  Setoff

  	
  83

  
	
  10.09

  	
  Interest
  Rate Limitation

  	
  83

  
	
  10.10

  	
  Counterparts;
  Integration; Effectiveness

  	
  84

  
	
  10.11

  	
  Survival of
  Representations and Warranties

  	
  84

  
	
  10.12

  	
  Severability

  	
  84

  
	
  10.13

  	
  Replacement
  of Lenders

  	
  84

  
	
  10.14

  	
  Governing
  Law, Jurisdiction, Etc.

  	
  85

  
	
  10.15

  	
  Waiver of
  Jury Trial

  	
  86

  
	
  10.16

  	
  USA PATRIOT
  Act Notice

  	
  86

  
	
  10.17

  	
  FCC

  	
  86

  
	
   

  	
   

  	
   

  
	
  SIGNATURES

  	
  S-1

  
	
   

  	
   

  	
   

  
	
  SCHEDULES

  	
   

  
	
   

  	
   

  	
   

  
	
  2.01

  	
  Commitments

  	
   

  
	
  4.01(j)

  	
  Real
  Property

  	
   

  
	
  5.06

  	
  Certain
  Litigation

  	
   

  
	
  5.09

  	
  Environmental
  Matters

  	
   

  
	
  5.13(a)

  	
  Subsidiaries

  	
   

  
	
  5.13(b)

  	
  Equity
  Interests

  	
   

  
	
  5.13(c)

  	
  Equity
  Interest Agreements

  	
   

  
	
  5.22

  	
  FCC Licenses

  	
   

  
	
  7.01(a)

  	
  Existing Indebtedness

  	
   

  
	
  7.01(b)

  	
  Existing
  Letters of Credit

  	
   

  
	
  7.02

  	
  Existing
  Liens

  	
   

  
	
  7.04

  	
  Existing
  Investments

  	
   

  
	
  10.02

  	
  Administrative
  Agent’s Office; Certain Addresses for Notices

  	
   

  
	
  10.06

  	
  Processing
  and Recordation Fees

  	
   

  
	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A-1

  	
  Form of
  Borrowing or Conversion Notice

  	
   

  
	
  Exhibit A-2

  	
  Form of
  Prepayment Notice

  	
   

  
	
  Exhibit B

  	
  Form of Note

  	
   

  
	
  Exhibit C

  	
  Form of
  Assignment and Assumption

  	
   

  
				



 


iv

















 


	
  Exhibit D-1

  	
  Form of
  Subsidiary Guaranty

  	
   

  
	
  Exhibit D-2

  	
  Form of
  Barrington Guaranty

  	
   

  
	
  Exhibit E

  	
  Form of
  Security Agreement

  	
   

  
	
  Exhibit F

  	
  Form of
  Perfection Certificate

  	
   

  
	
  Exhibit G-1

  	
  Form of
  Opinion of Wiley Rein & Fielding LLP, counsel to Borrower

  	
   

  
	
  Exhibit G-2

  	
  Form of
  Opinion of Paul, Hastings, Janofsky & Walker LLP, counsel to the
  Barrington Guarantors

  	
   

  
	
  Exhibit H

  	
  Form of
  Assumption Agreement

  	
   

  
	
  Exhibit I

  	
  Form of
  Subordinated Intercompany Debt

  	
   

  
	
  Exhibit J

  	
  Form of
  Mortgage

  	
   

  
	
  Exhibit K

  	
  Foreign
  Lender Certificate

  	
   

  



 


v

















 


CREDIT AGREEMENT


 


This CREDIT AGREEMENT (this “Agreement”)
is entered into as of August 11, 2006, among SAGAMOREHILL OF CAROLINA, LLC, a Delaware
limited liability company (“Borrower”), each lender from time to time
party hereto (collectively, the “Lenders” and, individually, a “Lender”),
BANK OF AMERICA, N.A., as Administrative Agent (in such capacity, the “Administrative
Agent”) and Collateral Agent (in such capacity, the “Collateral Agent”),
WACHOVIA BANK, NATIONAL ASSOCIATION, as Syndication Agent (in such capacity, the
“Syndication Agent”), CIT LENDING SERVICES CORPORATION, as Documentation
Agent (in such capacity, the “Documentation Agent”), and BANC OF AMERICA
SECURITIES LLC and WACHOVIA CAPITAL MARKETS, LLC, as Joint Lead Arrangers and
Joint Bookrunning Managers (in such capacities, the “Arrangers”).


 


WHEREAS, Borrower has requested that the
Lenders make Loans to Borrower of $2,450,000 in the aggregate hereunder, and Borrower
has agreed to pledge certain of its assets as collateral in support thereof;


 


WHEREAS, the proceeds of the initial
borrowing hereunder will be used to repay certain outstanding indebtedness of
Borrower (the “Refinancing”) of up to $2,450,000 under the credit
facility dated February 6, 2006 among Borrower, SagamoreHill of Carolina
Licenses, LLC, CIT Lending Services Corporation, as agent, and the other
lenders thereunder (the “Existing Credit Facility”);


 


WHEREAS, the Guarantors (as defined below) have agreed to guaranty the
obligations of Borrower hereunder and to pledge certain of their assets as
collateral in support thereof; and


 


WHEREAS the applicable Lenders have indicated
their willingness to lend on the terms and subject to the conditions set forth
herein.


 


NOW, THEREFORE, in consideration of the
mutual covenants and agreements herein contained, the parties hereto covenant
and agree as follows:


 


ARTICLE I



DEFINITIONS AND ACCOUNTING TERMS


 


1.01        Defined Terms. As used
in this Agreement, the following terms shall have the meanings set forth below:


 


“Administrative Agent” has the meaning
assigned to such term in the introductory paragraph hereto, and includes any
successor administrative agent hereunder.


 


“Administrative Agent’s Office” means
the Administrative Agent’s address and, as appropriate, account as set forth on
Schedule 10.02, or such other address or account as the Administrative
Agent may from time to time notify in writing to Borrower and the Lenders.


 

















 


“Administrative Questionnaire” means
an Administrative Questionnaire in a form supplied by the Administrative Agent.


 


“Affected Loans” has the meaning assigned
to such term in Section 2.03(c).


 


“Affiliate” means, when used with
respect to a specified Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.


 


“Agents” means the Administrative
Agent, the Collateral Agent, the Syndication Agent, the Documentation Agent and
the Arrangers; and “Agent” shall mean any of them.


 


“Aggregate Commitments” means the
Commitments of all of the Lenders.


 


“Agreement” has the meaning assigned
to such term in the introductory paragraph hereto.


 


“Anti-Terrorism Laws” has the meaning
assigned to such term in Section 5.21(a).


 


“Applicable Rate” means 2.25%, in the
case of Eurodollar Rate Loans and 1.25%, in the case of Base Rate Loans.


 


“Approved Fund” means any Fund that is
advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that advises or manages a Lender.


 


“Arrangers” has the meaning assigned
to such term in the introductory paragraph hereto.


 


“Assignee Group” means two or more
Eligible Assignees that are Affiliates of one another or two or more Approved
Funds managed by the same investment advisor.


 


“Assignment and Assumption” means an
assignment and assumption entered into by a Lender and an Eligible Assignee
(with the consent of any party whose consent is required by Section 10.06(b)),
and accepted by the Administrative Agent, substantially in the form of Exhibit C
or any other form approved by the Administrative Agent and Borrower.


 


“Assumption Agreement” means an Assumption
Agreement substantially in the form of Exhibit H.


 


“Bank of America” means Bank of America,
N.A. and its successors.


 


“Barrington Credit Facility” means the
Credit Agreement, dated as of August 11, 2006, as amended, amended and
restated, extended, supplemented or otherwise modified in writing from time to
time, among Barrington Broadcasting Group LLC, a Delaware limited liability
company, Barrington Broadcasting LLC, a Delaware limited liability company,
each lender from time to time party thereto, each guarantor from time to time
party thereto, Bank of America, N.A., as Administrative Agent, Swing Line
Lender, L/C Issuer and Collateral Agent, Wachovia Bank, National Association,
as Syndication Agent, Banc of America Securities LLC and Wachovia Capital
Markets, LLC, as Joint Lead Arrangers and Joint Bookrunning Managers, and CIT
Lending Services Corporation, as Documentation Agent.


 


2

















 


“Barrington Guarantors” means,
collectively, Barrington Peoria LLC, Barrington Quincy LLC, Barrington Flint
LLC, Barrington Jefferson City LLC, Barrington Bay City LLC, Barrington
Amarillo LLC, Barrington Myrtle Beach LLC, Barrington Toledo LLC, Barrington
Syracuse LLC, Barrington Columbia LLC, Barrington Harlingen LLC, Barrington
Colorado Springs LLC, Barrington Traverse City LLC, Barrington Albany LLC,
Barrington Marquette LLC, Barrington Kirksville LLC, Barrington Peoria License
LLC, Barrington Quincy License LLC, Barrington Flint License LLC, Barrington
Jefferson City License LLC, Barrington Bay City License LLC, Barrington
Amarillo LLC, Barrington Myrtle Beach LLC, Barrington Toledo License LLC,
Barrington Syracuse License LLC, Barrington Columbia License LLC, Barrington
Harlingen License LLC, Barrington Colorado Springs License LLC, Barrington
Traverse City License LLC, Barrington Albany License LLC, Barrington Marquette
License LLC, Barrington Kirksville License LLC and Barrington Broadcasting
Capital Corporation and any other Person that may become a Guarantor pursuant to
Section 6.09(d) of the Barrington Credit Facility pursuant to a duly
executed joinder agreement thereto.


 


“Barrington Guaranty” means the
guaranty made by the Barrington Guarantors in favor of the Collateral Agent on
behalf of the Secured Parties, substantially in the form of Exhibit D-2,
together with each other guaranty and guaranty supplement in respect of the
Obligations delivered pursuant to Section 6.09(d).


 


“Base Rate” means with
respect to any Loan, for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate for such day plus 1/2 of 1%
and (b) the rate of interest in effect for such day as publicly announced from
time to time by Bank of America as its “prime rate.” The relevant “prime rate”
is a rate set by Bank of America based upon various factors including Bank of
America’s costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any change in such rate announced
by Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.


 


“Base Rate Loan” means a Loan that
bears interest based on the Base Rate.


 


“Borrower” has the meaning assigned to
such term in the introductory paragraph hereto.


 


“Borrowing” means a borrowing
consisting of Loans of the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period.


 


“Borrowing or Conversion Notice” means
a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the
other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section
2.02(a), which, if in writing, shall be executed by Borrower, and
substantially in the form of Exhibit A-1.


 


“Business Day” means any day other
than a Saturday, Sunday or other day on which commercial banks are authorized
to close under the Laws of, or are in fact closed in the State of New York or
in Charlotte, North Carolina and if such day relates to any Eurodollar Rate
Loan, means any such day on which dealings in Dollar deposits are conducted by
and between banks in the London interbank eurodollar market.


 


3

















 


“Capital Lease Obligations” means, as
to any Person, the obligations of such Person to pay rent or other amounts
under any lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such Person
under GAAP, and, for purposes hereof, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in accordance
with GAAP.


 


“CERCLA” means the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended, 42
U.S.C. § 9601 et  seq.


 


“Change in Law” means the occurrence,
after the date of this Agreement, of any of the following: (a) the adoption or
taking effect of any law, rule, regulation or treaty, (b) any change in any
law, rule, regulation or treaty or in the administration, interpretation or
application thereof by any Governmental Authority or (c) the making or issuance
of any request, guideline or directive (whether or not having the force of law)
by any Governmental Authority.


 


“Closing Date” means the first date
all the conditions precedent in Section 4.01 are satisfied or waived in
accordance with Section 10.01.


 


“Code” means the Internal Revenue Code
of 1986, as amended from time to time.


 


“Collateral” means, collectively, all
of the Security Agreement Collateral, the Mortgaged Property and all other
property of whatever kind and nature subject or purported to be subject from
time to time to a Lien under any Security Document.


 


“Collateral Agent” has the meaning
assigned to such term in the introductory paragraph hereto, and includes any
successor collateral agent hereunder.


 


“Commitment” means, as to each Lender,
its obligation to make a Loan to Borrower pursuant to Section 2.01 in an
aggregate amount not to exceed the amount set forth opposite such Lender’s name
on Schedule 2.01 under the caption “Commitment” or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable,
as such amount may be adjusted from time to time in accordance with this
Agreement. The aggregate Commitments of all Lenders at the Closing Date is
$2,450,000.


 


“Communications Act” shall mean the
Communications Act of 1934, as amended, and any successor federal statute, and
the rules and regulations and published policies of the FCC thereunder, all as
the same may be in effect from time to time.


 


“Communications Law” means all laws,
rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions,
notices or binding agreements issued, promulgated or entered into by any
Governmental Authority (including the FCC), relating in any way to the offering
or provision of communications, including the Communications Act.


 


“Contractual Obligation” means, as to
any Person, any provision of any security issued by such Person or of any material
agreement, instrument, contract, indenture, mortgage, deed of trust or other
undertaking to which such Person is a party or by which it or any of its
property is bound.


 


4

















 


“Control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the exercise of voting power,
by contract or otherwise, and “Controlling” and “Controlled”
shall have meanings correlative thereto.


 


“Debtor Relief Laws” means the
Bankruptcy Code of the United States, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws of the United States or other applicable jurisdictions from
time to time in effect and affecting the rights of creditors generally.


 


“Default” means any event or condition
that constitutes an Event of Default or that, with the giving of any notice,
the passage of time, or both, would be an Event of Default.


 


“Default Rate” has the meaning assigned
to such term in Section 2.06(b).


 


“Defaulting Lender” means any Lender
that (a) has failed to fund any portion of the Loans required to be funded by
it hereunder within one Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay over to the Administrative Agent or
any other Lender any other amount required to be paid by it hereunder within
one Business Day of the date when due, unless the subject of a good faith
dispute or (c) has been deemed insolvent or become the subject of a bankruptcy,
insolvency or similar proceeding.


 


“Documentation Agent” has the meaning
assigned to such term in the introductory paragraph hereto.


 


“Dollar” and “$” mean lawful
money of the United States.


 


“Eligible Assignee” means, as of any
proposed assignment date, (a) a Lender; (b) an Affiliate of a Lender; (c) an
Approved Fund; and (d) any other Person approved by (i) the Administrative
Agent (such approval not to be unreasonably withheld) and (ii) unless an Event
of Default has occurred and is continuing, Borrower (each such approval not to
be unreasonably withheld or delayed); provided that notwithstanding the
foregoing, “Eligible Assignee” shall not include (x) any natural Person or (y) Borrower,
any of Borrower’s Subsidiaries or any of the Barrington Guarantors.


 


“Embargoed Person” has the meaning assigned
to such term in Section 7.11.


 


“Employee Benefit Plan” means an
employee benefit plan (as defined in Section 3(3) of ERISA) that is maintained
or contributed to by Borrower or any ERISA Affiliate or with respect to which Borrower
or a Subsidiary could incur liability.


 


“Environment” means ambient air,
surface water and groundwater (including potable water, navigable water and
wetlands), the land surface or subsurface strata, natural resources, the
workplace or as otherwise defined in any Environmental Law.


 


“Environmental Claim” means any claim,
notice, demand, order, action, suit, proceeding or other communication alleging
liability for investigation, remediation, removal, cleanup, response,


 


5

















 


corrective
action, damages to natural resources, personal injury, property damage, fines,
penalties or other costs resulting from, related to or arising out of
(i) the presence, Release or threatened Release in or into the Environment
of Hazardous Material at any location or (ii) any violation of
Environmental Law, and shall include any claim seeking damages, contribution, indemnification,
cost recovery, compensation or injunctive relief resulting from, related to or
arising out of the presence, Release or threatened Release of Hazardous Material
or alleged injury or threat of injury to health, safety or the Environment.


 


“Environmental Law” means any and all
applicable present and future treaties, laws, statutes, ordinances,
regulations, rules, decrees, orders, judgments, consent orders, consent decrees,
codes or other binding requirements, and the common law, relating to pollution
or protection of the Environment or of human health (to the extent relating to
Releases of or exposure to Hazardous Materials), or to the Release or
threatened Release of Hazardous Materials, or natural resource damages and any
and all Environmental Permits.


 


“Environmental Permit” means any
permit, license, approval, consent or other authorization required by or from a
Governmental Authority under Environmental Law.


 


“Equity Interest” of any Person means
any and all shares, interests, rights to purchase, warrants, options,
participation or other equivalents of or interests in (however designated) equity
of such Person, including any preferred stock, convertible preferred equity
certificate (whether or not equity under local law), any limited or general
partnership interest and any limited liability company membership interest.


 


“ERISA” means the Employee Retirement
Income Security Act of 1974, as amended from time to time.


 


“ERISA Affiliate” means any trade or
business (whether or not incorporated) under common control with Borrower or a
Subsidiary within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to
Section 412 of the Code).


 


“Eurodollar Base Rate” means, for such
Interest Period, the rate per annum equal to the British Bankers Association LIBOR
Rate (“BBA LIBOR”), as published by Reuters (or other commercially
available source providing quotations of BBA LIBOR as reasonably designated by
the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for
Dollar deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period. If such rate is not available at such
time for any reason, then the “Eurodollar Base Rate” for such Interest Period
shall be the rate per annum determined by the Administrative Agent to be the
rate at which deposits in Dollars for delivery on the first day of such Interest
Period in same day funds in the approximate amount of the Eurodollar Rate Loan
being made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of America’s London
Branch to major banks in the London interbank eurodollar market at their
request at approximately 11:00 a.m. (London time) two Business Days prior to
the commencement of such Interest Period.


 


6

















 


“Eurodollar Rate” means for any
Interest Period with respect to a Eurodollar Rate Loan, a rate per annum
determined by the Administrative Agent pursuant to the following formula:


 


	
   

  	
  Eurodollar Rate =

  	
  Eurodollar Base Rate

  	
   

  
	
  1.00 – Eurodollar Reserve Percentage

  	
   

  



 


“Eurodollar Rate Loan” means a Loan
that bears interest at a rate based on the Eurodollar Rate.


 


“Eurodollar Reserve Percentage” means,
for any day during any Interest Period, the reserve percentage (expressed as a
decimal, carried out to five decimal places) in effect on such day, whether or
not applicable to any Lender, under regulations issued from time to time by the
FRB for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurodollar
funding (currently referred to as “Eurocurrency liabilities”). The Eurodollar
Rate for each outstanding Eurodollar Rate Loan shall be adjusted automatically
as of the effective date of any change in the Eurodollar Reserve Percentage.


 


“Event of Default” has the meaning assigned
to such term in Section 8.01.


 


“Exchange Act” means the Securities Exchange
Act of 1934.


 


“Excluded Equity Issuances” means the
issuance of Equity Interests by Borrower to SagamoreHill Midwest, LLC.


 


“Excluded Taxes” means, with respect
to the Administrative Agent, any Lender or any other recipient of any payment
to be made by or on account of any obligation of Borrower hereunder, (a) Taxes
imposed on or measured by overall net income or net profits, franchise taxes
imposed in lieu of net income taxes, and branch profits or similar Taxes
imposed, in each case, on it by a jurisdiction (or any political subdivision
thereof) as a result of the recipient being organized, doing business or having
its Lending Office in such jurisdiction or by reason of any other connection
between the jurisdiction imposing such Tax and such Administrative Agent or
Lender (other than a business or connection arising or deemed to arise from any
transaction contemplated under the Loan Documents) and (b) in the case of a Foreign
Lender (other than an assignee pursuant to a request by Borrower under Section
10.13), (i) any U.S. federal withholding Tax that is imposed on amounts
payable to such Lender under a law in effect at the time such Lender becomes a
party hereto (or designates a new Lending Office), except to the extent that
such Lender (or its assignor, if any) was entitled, immediately prior to the
time of designation of a new Lending Office (or assignment), to receive
additional amounts from Borrower with respect to such withholding Tax pursuant
to Section 3.01(a); provided  that this subclause
(b)(i) shall not apply to any Tax imposed on a Lender in connection with an
interest or participation in any Loan or other obligation that such Lender was
required to acquire pursuant to Section 2.10, and (ii) any Tax that is
attributable to such Lender’s failure to comply with Section 3.01(e).


 


“Executive Order” has the meaning assigned
to such term in Section 5.21(a).


 


“Existing Credit Facility” has the
meaning assigned to such term in the recitals hereto.


 


7

















 


“Extraordinary Receipts” means any
receipt by Borrower or any of the Subsidiaries of any insurance proceeds or
condemnation awards in respect of any equipment, fixed assets or real property
(including any improvements thereon) to replace or repair such equipment, fixed
assets or real property, tax refunds, indemnity payments or pension reversions,
in each case excluding any receipt by Borrower or any of the Subsidiaries in
the ordinary course of business.


 


“FCC” means the United States Federal
Communications Commission.


 


“Federal Funds Rate” means, for any
day, the rate per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve Bank
of New York on the Business Day next succeeding such day; provided that
(a) if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as
so published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate (rounded upward, if necessary, to a whole multiple
of 1/100 of 1%) charged to Bank of America on such day on such transactions as reasonably
determined by the Administrative Agent.


 


“Financial Officer” means, of any
Person, the chief financial officer, principal accounting officer, treasurer or
controller of such Person.


 


“First Priority” means, with respect
to any Lien purported to be created in any Collateral pursuant to any Security
Document, that such Lien is the most senior Lien to which such Collateral is
subject (subject to Liens permitted by Section 7.02).


 


“Flow Through Entity” means an entity
that is treated as a partnership not taxable as a corporation, a grantor trust
or a disregarded entity for United States federal income tax purposes or
subject to treatment on a comparable basis for purposes of state, local or
foreign tax law.


 


“Foreign Lender” means a Lender that
is not a U.S. Person within the meaning of Section 7701(a)(30) of the Code.


 


“Foreign Subsidiary” means any direct
or indirect Subsidiary of Borrower which is not organized under the laws of the
United States, any State thereof or the District of Columbia.


 


“FRB” means the Board of Governors of
the Federal Reserve System of the United States.


 


“Fund” means any Person (other than a
natural Person) that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the
ordinary course.


 


“GAAP” means generally accepted
accounting principles in the United States set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board, that are applicable to the circumstances as of the
date of determination, consistently applied.


 


8

















 


 “Governmental
Authority” means the government of the United States or any other nation,
or of any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including
any supranational bodies such as the European Union or the European Central
Bank).


 


“Governmental Real Property Disclosure
Requirements” means any applicable law of any Governmental Authority
requiring notification to the buyer, lessee, mortgagee, assignee or other
transferee of any Real Property, facility, establishment or business, or
notification, registration or filing to or with any Governmental Authority, in
connection with the sale, lease, mortgage, assignment or other transfer
(including any transfer of control) of any Real Property, facility,
establishment or business, of the actual or threatened presence or Release in
or into the Environment, or the use, disposal or handling of Hazardous Material
on, at, under or near the Real Property, facility, establishment or business to
be sold, leased, mortgaged, assigned or transferred.


 


“Granting Lender” has the meaning assigned
to such term in Section 10.06(g).


 


“Guarantors” means, collectively, the
Barrington Guarantors and the Subsidiary Guarantors.


 


“Guaranty” means, collectively, the
guaranty made by the Subsidiary Guarantors in favor of the Collateral Agent on
behalf of the Secured Parties, substantially in the form of Exhibit D-1,
together with each other guaranty and guaranty supplement in respect of the
Obligations delivered pursuant to Section 6.09(d).


 


“Hazardous Materials” means the
following: hazardous substances; hazardous wastes; polychlorinated biphenyls (“PCBs”)
or any substance or compound containing PCBs; asbestos or any
asbestos-containing materials; radon or any other radioactive materials
including any source, special nuclear or by-product material or microwaves;
petroleum, crude oil or any fraction thereof; and any other pollutant or
contaminant or chemicals, wastes, materials, compounds, constituents or
substances, subject to regulation or which can give rise to liability under any
Environmental Law.


 


“Improvements” means all on-site and
off-site improvements to the Property, constructed on the Property, together
with all fixtures, tenant improvements, and appurtenances now or later to be
located on the Property and/or in such improvements.


 


“Indebtedness” of any Person means,
without duplication, (a) all obligations of such Person for borrowed money, (b)
all obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person under conditional sale or other
title retention agreements relating to property or assets purchased by such Person,
(d) all obligations of such Person issued or assumed as the deferred purchase
price of property or services (other than current trade liabilities and current
intercompany liabilities (but not any refinancings, extensions, renewals or
replacements thereof) incurred in the ordinary course of business and maturing
within 365 days after the incurrence thereof, Programming Obligations, earnout obligations



 


9

















 


and reimbursement
obligations in respect of trade letters of credit obtained in the ordinary
course of business with expiration dates not in excess of 365 days from the
date of issuance (x) to the extent undrawn or (y) if drawn, to the extent
repaid in full within ten Business Days of any such drawing), (e) all guarantees
by such Person of Indebtedness of others, (f) all Capital Lease Obligations of
such Person, (g) all payments that such Person would have to make in the event
of an early termination, on the date Indebtedness of such Person is being
determined, in respect of outstanding Swap Agreements, (h) except as provided
in clause (d) above, the principal component of all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit
and (i) the principal component of all obligations of such Person in respect of
bankers’ acceptances. The Indebtedness of any Person shall include the
Indebtedness of any partnership in which such Person is a general partner,
other than to the extent that the instrument or agreement evidencing such
Indebtedness expressly limits the liability of such Person in respect thereof.


 


“Indemnified Taxes” means all Taxes
other than Excluded Taxes.


 


“Indemnitee” has the meaning assigned
to such term in Section 10.04(b).


 


“Information” has the meaning assigned
to such term in Section 5.15.


 


“Insurance Policies” means the
insurance policies and coverages required to be maintained by the Barrington
Guarantors and/or each Loan Party which is an owner of or holder of any
interest in the Mortgaged Property with respect to the applicable Mortgaged
Property pursuant to Section 6.02 and all renewals and extensions
thereof.


 


“Insurance Requirements” means,
collectively, all provisions of the Insurance Policies, all requirements of the
issuer of any of the Insurance Policies and all orders, rules, regulations and
any other requirements of the National Board of Fire Underwriters (or any other
body exercising similar functions) binding upon the Barrington Guarantors and/or
each Loan Party which is an owner of or holder of any interest in the Mortgaged
Property and applicable to the Mortgaged Property or any use or condition
thereof.


 


“Intellectual Property” has the
meaning assigned to such term in Section 5.18.


 


“Interest Payment Date” means (a) as
to any Loan other than a Base Rate Loan, the last day of each Interest Period
applicable to such Loan and the Maturity Date; provided
that if any Interest Period for a Eurodollar Rate Loan exceeds three months,
the respective dates that fall every three months after the beginning of such Interest
Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, March 31,
June 30, September 30 and December 31 of each year and the
Maturity Date; provided that if any such date is not a Business Day then
such date shall fall on the next preceding Business Day.


 


“Interest Period” means, as to each Eurodollar
Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed
or converted to or continued as a Eurodollar Rate Loan and ending on the date
one, two, three or six months thereafter or (ii) if agreed to by all Lenders, nine
or twelve months thereafter, in each case as selected by Borrower in a
Borrowing or Conversion Notice; provided that:


 


10

















 


(i)            any Interest Period
that would otherwise end on a day that is not a Business Day shall be extended
to the next succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Business Day;


 


(ii)           any Interest Period
that begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of the calendar month
at the end of such Interest Period; and


 


(iii)          no Interest Period shall
extend beyond the Maturity Date.


 


“Investment” has the meaning assigned
to such term in Section 7.04.


 


“IRS” means the United States Internal
Revenue Service.


 


“Laws” means, collectively, all applicable
international, foreign, Federal, state and local statutes, treaties, rules,
regulations, ordinances, codes and administrative or judicial precedents,
including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration
thereof, and all applicable administrative orders, directed duties, licenses,
authorizations and permits of, and agreements with, any Governmental Authority.


 


“Leases” means any and all leases,
subleases, tenancies, options, concession agreements, rental agreements,
occupancy agreements, franchise agreements, access agreements and any other similar
agreements (including all amendments, extensions, replacements, renewals, modifications
and/or guarantees thereof), whether or not of record and whether now in
existence or hereafter entered into, affecting the use or occupancy of all or
any portion of any Real Property.


 


“Lender” has the meaning assigned to
such term in the introductory paragraph hereto, together with any Person that
subsequently becomes a Lender by way of assignment in accordance with the terms
of Section 10.06, together with their respective successors, other than
any Person that ceases to be a Lender as a result of an assignment in accordance
with Section 10.06 or an amendment of this Agreement.


 


“Lending Office” means, as to any
Lender, the office or offices of such Lender described as such in such Lender’s
Administrative Questionnaire, or such other office or offices as a Lender may
from time to time notify Borrower and the Administrative Agent.


 


“License Subsidiary” means a Wholly Owned
Subsidiary of Borrower (i) formed for the purpose of holding Licenses, (ii)
holding Licenses (in each case of (i) and (ii), such licenses issued to or to
be issued to Borrower or any of its Subsidiaries in the operation of their
respective businesses) or (iii) which owns an entity described in (i) or (ii).


 


“Licenses” has the meaning assigned to
such term in Section 5.22.


 


“Lien” means, with respect to any
asset, (a) any mortgage, deed of trust, lien, hypothecation, pledge, encumbrance,
claim, charge, security interest, assignment or encumbrance of any 


 


11

















 


kind or any
arrangement to provide priority or preference or any filing of any financing
statement under the UCC or any other similar notice of liens under any similar
notice or recording statute of any Governmental Authority, including any
easement, right of way or other encumbrance on title to Real Property, in each
of the foregoing cases whether voluntary or imposed by law, in or on such asset
and any agreement to give any of the foregoing, (b) the interest of a vendor or
a lessor under any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same economic effect
as any of the foregoing) relating to such asset, and (c) in the case of
securities, any purchase option, call or similar right of a third party with
respect to such securities.


 


“Loan” has the meaning assigned to
such term in Section 2.01.


 


“Loan Documents” means this Agreement,
the Assumption Agreement, each Note, the Security Documents, the Guaranty and
the Barrington Guaranty.


 


“Loan Parties” means, collectively, Borrower
and each Subsidiary Guarantor.


 


“Material Adverse Effect” means (a) on
the Closing Date, a “Material Adverse Effect” as defined by clause (a) in such
definition thereof of the Barrington Credit Facility as in effect on the
Closing Date; and (b) following the Closing Date, (i) a material adverse
effect on the properties, operations, business, financial condition or results
of operation of the Barrington Guarantors and the Loan Parties, taken as a
whole, (ii) a material impairment of the ability of the Barrington Guarantors
and the Loan Parties to fully and timely perform their obligations under any
Loan Document; (iii) a material impairment of the rights or remedies
available to the Lenders or the Collateral Agent under any Loan Document; or (iv) a
material adverse effect on the Liens in favor of the Collateral Agent (for its
benefit and for the benefit of the other Secured Parties) on a material portion
of the Collateral or the priority of such Liens.


 


“Material Indebtedness” shall mean
Indebtedness (other than Loans) of any one or more of Borrower or any
Subsidiary in an aggregate principal amount exceeding $250,000.


 


“Maturity Date” means the earliest of
(i) the date which is seven years after the Closing Date, (ii) the date of
termination in whole of the Commitments pursuant to Section 2.04 or 8.01
and (iii) the “Maturity Date” as such term is defined in the Barrington Credit
Facility.


 


“Maximum Rate” has the meaning
assigned to such term in Section 10.09.


 


“Minority Lenders” has the meaning
assigned to such term in Section 10.01.


 


“Moody’s” means Moody’s Investors Service,
Inc.


 


“Mortgage” means an agreement,
including, but not limited to, a mortgage, deed of trust or any other document,
creating and evidencing a Lien on a Mortgaged Property in favor of the
Collateral Agent for the benefit of the Secured Parties, which shall be substantially
in the form of Exhibit J, with such schedules and including such
provisions as shall be necessary to conform such document to applicable local
or foreign law or as shall be customary under applicable local or foreign law.


 


12

















 


“Mortgaged Properties” means the owned
real properties of any Barrington Guarantor set forth on Schedule 4.01(j)
of the Barrington Credit Facility and any Loan Party set forth on Schedule
4.01(j) hereto, and in each case designated therein as “Mortgaged
Properties” (if any) and additional owned real property (if any) of the
Barrington Guarantors and the Loan Parties encumbered by a Mortgage pursuant to
Section 6.09.


 


“Net Income” means, with respect to
any Person, the net income (loss) of such Person, determined in accordance with
GAAP and before any reduction in respect of preferred stock dividends.


 


“Net Proceeds” means:


 


(a)           100% of the cash
proceeds actually received by Borrower or any of the Subsidiaries (including
any cash payments received by way of deferred payment of principal pursuant to
a note or installment receivable or purchase price adjustment receivable or
otherwise and including casualty insurance settlements and condemnation awards,
but only as and when received) from any Extraordinary Receipts or loss, damage,
destruction or condemnation of, or any sale, transfer or other disposition
(including any sale and leaseback of assets and any mortgage or lease of real
property) to any Person of any asset or assets of Borrower or any Subsidiary
(other than those pursuant to Section 7.05(a), (c), (e), (g),
(h), (i) or (k)), net of (i) attorneys’ fees, accountants’
fees, investment banking fees, survey costs, title insurance premiums, and
related search and recording charges, transfer taxes, deed or mortgage
recording taxes, required debt payments, including payment of outstanding
principal amounts, premiums or penalties, if any, and interest, and required
payments of other obligations relating to or secured by the applicable asset
(other than pursuant hereto), other customary expenses and brokerage,
consultant and other customary fees actually incurred in connection therewith,
(ii) Taxes or Tax Distributions paid or payable as a result thereof and (iii) appropriate
amounts set up as a reserve against liabilities associated with the assets or
business so disposed of and retained by the selling entity after such sale,
transfer or other disposition, as reasonably determined by Borrower, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters, liabilities related to
post-closing purchase price adjustments and liabilities related to any other
indemnification obligation associated with the assets or business so disposed
of, provided that, upon any reversal, release or termination of such
reserve, all amounts not paid-out in connection therewith shall be deemed to be
“Net Proceeds” of such sale, transfer or other disposition; provided
that, if no Event of Default exists and Borrower shall deliver a certificate of
a Responsible Officer of Borrower to the Administrative Agent promptly
following receipt of any such proceeds setting forth Borrower’s intention to
use or contractually commit to use any portion of such proceeds to acquire,
maintain, develop, construct, improve, upgrade or repair assets useful in the
business of Borrower and the Subsidiaries, in each case within 12 months of
such receipt such portion of such proceeds shall not constitute Net Proceeds
except to the extent not so used (or contractually committed to be used) within
such 12-month period (provided that if contractually committed to be
used within such 12-month period, they must actually be used within 180 days
after the end of such 12-month period or they will then be deemed Net Proceeds);
and provided, further, that 


 


13

















 


no such
transactions resulting in aggregate proceeds of less than $100,000 in any
fiscal year shall constitute Net Proceeds,


 


(b)           100% of the cash
proceeds from the incurrence, issuance or sale by Borrower or any Subsidiary of
any Indebtedness (other than Indebtedness permitted to be incurred under Section
7.01), net of all taxes and fees (including investment banking fees),
commissions, costs and other expenses (including attorneys’ fees and
accountants’ fees), in each case incurred in connection with such issuance or
sale, and


 


(c)           50% of the cash
proceeds from the issuance or sale by Borrower of any Equity Interests (other
than Excluded Equity Issuances), net of all taxes and fees (including
investment banking fees), commissions, costs and other expenses, in each case incurred
in connection with such issuance or sale.


 


For purposes
of calculating the amount of Net Proceeds, fees, commissions and other costs
and expenses payable to Borrower or any Affiliate of either of them shall be
disregarded.


 


 “Note”
means a promissory note made by Borrower in favor of a Lender or its registered
assigns, substantially in the form of Exhibit B hereto, evidencing Loans
made by such Lender to Borrower.


 


“Obligations” means obligations of Borrower
and the other Loan Parties from time to time arising under or in respect of the
due and punctual payment of (i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise and (ii) all other monetary obligations, including fees, costs,
expenses and indemnities, owing by Borrower and the other Loan Parties under
this Agreement and the other Loan Documents.


 


“OFAC” has the meaning assigned to
such term in Section 5.21(b).


 


“on” when used with respect to the
Property or any property adjacent to the Property, means “on, in, under, above
or about.”


 


“Other Taxes” means all present or
future stamp or documentary taxes or any other excise taxes, or similar charges
or levies with respect to any payment made hereunder or under any other Loan
Document or arising from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement or any other Loan Document.


 


“Outstanding Amount” means, on any
date, the aggregate outstanding principal amount thereof after giving effect to
any borrowings and prepayments or repayments of Loans occurring on such date.


 


“Parent Company” means any Person who,
directly or indirectly, owns 100% of the issued and outstanding Equity
Interests of Borrower.


 


“Participant” has the meaning assigned
to such term in Section 10.06(d).


 


14

















 


“Perfection Certificate” means a
certificate substantially in the form of Exhibit F.


 


“Permitted Investments” means:


 


(a)           direct obligations of
the United States of America or any member of the European Union or any agency
thereof or obligations guaranteed by the United States of America or any member
of the European Union or any agency thereof, in each case with maturities not
exceeding one year;


 


(b)           cash, cash held in time
deposit accounts, certificates of deposit and money market deposits maturing
within 180 days of the date of acquisition thereof issued by a bank or trust
company that is organized under the laws of the United States of America, any
state thereof or any foreign country recognized by the United States of America
having capital, surplus and undivided profits having a Dollar Equivalent that
is in excess of $500.0 million and whose long-term debt, or whose parent
holding company’s long-term debt, is rated A by S&P (or such similar
equivalent rating or higher by at least one nationally recognized statistical
rating organization (as defined in Rule 436 under the Securities Act));


 


(c)           repurchase obligations
with a term of not more than 180 days for underlying securities of the types described
in clause (a) above entered into with a bank meeting the qualifications
described in clause (b) above;


 


(d)           commercial paper,
maturing not more than one year after the date of acquisition, issued by a
corporation (other than an Affiliate of Borrower) organized and in existence
under the laws of the United States of America or any foreign country
recognized by the United States of America with a rating at the time as of
which any investment therein is made of P-1 (or higher) according to Moody’s or
A-1 (or higher) according to S&P;


 


(e)           securities with
maturities of one year or less from the date of acquisition issued or fully
guaranteed by any State, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated
at least A by S&P or A2 by Moody’s;


 


(f)            shares of mutual funds
whose investment guidelines restrict 95% of such funds’ investments to those
satisfying the provisions of clauses (a) through (e) above;


 


(g)           money market funds that
(i) comply with the criteria set forth in Rule 2a-7 under the Investment
Company Act of 1940 and (ii) are rated AAA by S&P and Aaa by Moody’s; and


 


(h)           time deposit accounts,
certificates of deposit and money market deposits in an aggregate face amount
not in excess of 1/2 of 1% of the total assets of Borrower and the
Subsidiaries, on a consolidated basis, as of the end of Borrower’s most
recently completed fiscal year.


 


15

















 


“Permitted Refinancing Indebtedness”
means any Indebtedness issued in exchange for, or the net proceeds of which are
used to extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”),
the Indebtedness being Refinanced (or previous refinancings thereof
constituting Permitted Refinancing Indebtedness); provided that (a) the
principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted
value, if applicable) of the Indebtedness so Refinanced (plus unpaid accrued
interest and premium thereon), (b) such Permitted Refinancing Indebtedness has
a later or equal stated maturity and longer or equal Weighted Average Life to Maturity
than the Indebtedness being Refinanced, (c) if the Indebtedness being
Refinanced is subordinated in right of payment to the Obligations under this
Agreement, such Permitted Refinancing Indebtedness shall be subordinated in
right of payment to such Obligations on terms, taken as a whole, at least as favorable
to the Lenders as those contained in the documentation governing the
Indebtedness being Refinanced, (d) no Permitted Refinancing Indebtedness shall
have different obligors, or greater guarantees or security, than the
Indebtedness being Refinanced and (e) if the Indebtedness being Refinanced is
secured by any collateral (whether equally and ratably with, or junior to, the
Secured Parties or otherwise), such Permitted Refinancing Indebtedness may be
secured by such collateral on terms, taken as a whole, no less favorable to the
Secured Parties than those contained in the documentation governing the
Indebtedness being Refinanced.


 


“Person” means any natural person,
corporation, limited liability company, trust, joint venture, association,
company, partnership, Governmental Authority or other entity.


 


“Premises” has the meaning assigned
thereto in the applicable Mortgage.


 


“Presumed Tax Rate” means, where the
entity in question has (to the knowledge of the entity in question) both
corporate and non-corporate owners (including beneficial owners if a direct
owner is a Flow Through Entity) for the applicable period, the greater of
(x) the highest effective marginal statutory combined U.S. federal, state
and local income tax rate prescribed for an individual residing in New York
City (taking into account (i) the deductibility of state and local income taxes
for U.S. federal income tax purposes, assuming the limitation of Section
68(a)(2) of the Code applies and taking into account any impact of the Code,
and (ii) the character (long-term or short-term capital gain, dividend income
or other ordinary income) of the applicable income) and (y) the highest combined
U.S. federal, state and local tax rate prescribed for a corporation doing
business in New York City (taking into account the deductibility of state and
local income taxes for U.S. federal income tax purposes), or if there are, to
the knowledge of the entity in question, only non-corporate owners or corporate
owners (including beneficial owners if a direct owner is a Flow Through Entity)
for the applicable period, either (x) or (y) as applicable.


 


“Programming Obligations” means all
obligations in respect of the purchase, use, license or acquisition of
programs, programming materials, films and similar assets used in connection
with the business and operation of Borrower and the Subsidiaries.


 


“Pro Rata Share” means, with respect
to each Lender at any time, a fraction (expressed as a percentage carried out
to the ninth decimal place), the numerator of which is the amount of the
Commitments of such Lender at such time and the denominator of which is the
amount of the Aggregate Commitments at such time; provided that if such
Commitments have been terminated, 


 


16

















 


then the Pro
Rata Share of each Lender shall be determined based on the Pro Rata Share of
such Lender immediately prior to such termination and after giving effect to
any subsequent assignments made pursuant to the terms hereof.


 


“Property” means any right, title or
interest in or to property or assets of any kind whatsoever, whether real,
personal or mixed and whether tangible or intangible and including Equity
Interests or other ownership interests of any Person and whether now in
existence or owned or hereafter entered into or acquired, including all Real
Property.


 


“Real Property” means, collectively,
all right, title and interest (including any leasehold, mineral or other
estate) in and to any and all parcels of or interests in real property owned,
leased or operated by any Person, whether by lease, license or other means, together
with, in each case, all easements, hereditaments and appurtenances relating
thereto, all improvements and appurtenant fixtures and equipment, and other
property and rights incidental to the ownership or lease thereof.


 


“Refinanced Loans” has the meaning assigned
to such term in Section 10.01.


 


“Refinancing” has the meaning assigned
to such term in the recitals hereto.


 


“Register” has the meaning specified
in Section 10.06(c).


 


“Regulation U” shall mean Regulation U
of the FRB as from time to time in effect and all official rulings and
interpretations thereunder or thereof.


 


“Related Parties” means, with respect
to any Person, such Person’s Affiliates and the partners, directors, officers,
employees, agents, advisors and trustees of such Person and of such Person’s
Affiliates.


 


“Release” means any spilling, leaking,
seepage, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, disposing, depositing, dispersing, emanating or
migrating of any Hazardous Material in, into, onto or through the Environment.


 


“Replacement Loans” has the meaning assigned
to such term in Section 10.01.


 


“Required Lenders” means, as of any
date of determination, Lenders having more than 50% of the sum of the (a) the
aggregate Outstanding Amount of all Loans and (b) aggregate unused Commitments;
provided that the unused Commitment of, and the portion of the aggregate
Outstanding Amount of all Loans held or deemed held by, any Defaulting Lender
shall be excluded for purposes of making a determination of Required Lenders.


 


“Response” means (a) ”response” as
such term is defined in CERCLA, 42 U.S.C. § 9601(24), and (b) all
other actions required by any Governmental Authority or voluntarily undertaken to
(i) clean up, remove, treat, abate or in any other way address any
Hazardous Material in the Environment; (ii) prevent the Release or threat
of Release, or minimize the further Release, of any Hazardous Material; or
(iii) perform studies, investigations and monitoring in connection with,
or as a precondition to, clause (i) or (ii) above.


 


17














 


“Responsible Officer” means the chief
executive officer, president or chief financial officer of Borrower or another Loan
Party, as applicable.


 


“SagamoreHill Time Brokerage Agreement”
means the Time Brokerage Agreement, dated as of April 28, 1994, by and between
Atlantic Media Group, Inc. (“Atlantic”), as licensee, and Vision
Communications, Inc. (“Vision”), as programmer/time broker; as amended
by that certain Amendment to and Extension of Time Brokerage Agreement, dated
as of December 9, 2003, by and between Atlantic and Diversified
Communications (“Diversified”), as the assignee of Vision; as further
amended by that certain Second Amendment to Time Brokerage Agreement, dated as
of July 19, 2005, by and between Atlantic and Diversified; and as further
amended by that certain Third Amendment to Time Brokerage Agreement, dated as
of July 19, 2005, by and between Borrower, as the contemplated assignee of
Atlantic, and Barrington Broadcasting South Carolina Corporation, a Delaware
corporation, as further amended by that certain Fourth Amendment to Time
Brokerage Agreement, dated as of February 6, 2006 by and between Borrower and
Barrington Broadcasting South Carolina Corporation, as the same may be further
amended, assigned, restated, extended or otherwise modified from time to time.


 


“Sale and Lease-Back Transaction” has
the meaning assigned to such term in Section 7.03.


 


“SEC” means the Securities and
Exchange Commission, or any Governmental Authority succeeding to any of its
principal functions.


 


“Secured Obligations” means
(a) the Obligations, (b) the due and punctual payment of all obligations
of Borrower and the other Loan Parties under each Swap Agreement permitted to
be incurred pursuant to Section 7.01(d) entered into with any
counterparty that is a Secured Party and (c) the due and punctual payment
of all obligations in respect of any Treasury Management Agreement between any
Loan Party and any Person that is a Secured Party.


 


“Secured Parties” means, collectively,
(i) the Administrative Agent, (ii) the Collateral Agent, (iii) each other
Agent, (iv) the Lenders and (v) each counterparty to a Swap Agreement or
Treasury Management Agreement permitted by Section 7.01(d) with Borrower
or any Subsidiary Guarantor if at the date of entering into such Swap Agreement
or Treasury Management Agreement such Person was a Lender or Affiliate of a
Lender.


 


“Securities Act” means the Securities
Act of 1933.


 


“Securities Collateral” has the
meanings assigned to such term in the Security Agreement.


 


“Security Agreement” means the
collective reference to the security agreements substantially in the form of Exhibit
E-1 among the Barrington Guarantors and the Collateral Agent for the
benefit of the Secured Parties and the security agreement substantially in the
form of Exhibit E-2 among Borrower and the Subsidiary Guarantors and the
Collateral Agent for the benefit of the Secured Parties.


 


18

















 


“Security Agreement Collateral” means
all property pledged in which a security interest is created pursuant to the
Security Agreement (a) on the Closing Date or (b) thereafter pursuant to Section
6.09.


 


“Security Documents” means the
Security Agreement, the Mortgages and each other security agreement, pledge
agreement or other document or agreement delivered in accordance with
applicable law to grant, or purport to grant, a security interest in any Property
as collateral for the Secured Obligations.


 


“SPC” has the meaning assigned to such
term in Section 10.06(g).


 


“Station” means any television station
licensed by the FCC whose ownership is at the relevant time held by Borrower or
any of the Subsidiaries.


 


“Subordinated Indebtedness” means
Indebtedness of Borrower, any Subsidiary Guarantor or any Barrington Guarantor that
is by its terms subordinated in right of payment to the Obligations of Borrower,
such Subsidiary Guarantor or such Barrington Guarantor, as applicable.


 


“Subordinated Intercompany Debt” has
the meaning assigned to such term in Section 7.01(f).


 


“Subsidiary” means, with respect to
any Person (herein referred to as the “parent”), any corporation,
partnership, association or other business entity of which securities or other
ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or more than 50% of the general partnership
interests are, at the time any determination is being made, directly or
indirectly, owned, Controlled, or held (or that is, at the time any determination
is made, otherwise Controlled) by the parent or one or more subsidiaries of the
parent. Unless the context otherwise requires, all references herein to a “Subsidiary”
or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of Borrower,
and Subsidiaries of any Person shall include Persons that will become
Subsidiaries of such Person as a result of the Acquisition.


 


“Subsidiary Guarantors” means,
collectively, each existing and future direct and indirect Subsidiary of
Borrower that becomes a Guarantor pursuant to Section 6.09(d).


 


“Survey” means a survey of any
Mortgaged Property (and all improvements thereon) which is (a)
(i) prepared by a surveyor or engineer licensed to perform surveys in the
jurisdiction where such Mortgaged Property is located, (ii) dated (or redated)
not earlier than six months prior to the date of delivery thereof unless there
shall have occurred within six months prior to such date of delivery any
exterior construction on the site of such Mortgaged Property or any easement,
or right of way or other interest in the Mortgaged Property has been granted or
become effective through operation of law or otherwise with respect to such
Mortgaged Property which, in either case, can be depicted on a survey, in which
events, as applicable, such survey shall be dated (or redated) after the completion
of such construction or if such construction shall not have been completed as
of such date of delivery, not earlier than 20 days prior to such date of
delivery, or after the grant or effectiveness of any such easement, right of
way or other interest in the Mortgaged Property, (iii) certified by the
surveyor (in a manner reasonably acceptable to the Administrative Agent) to the
Administrative Agent, the Collateral Agent and the Title Company,
(iv) complying in all material respects with the minimum detail
requirements of the American 


 


19

















 


Land Title
Association as such requirements are in effect on the date of preparation of
such survey and (v) sufficient for the Title Company to remove all
standard survey exceptions from the title insurance policy (or commitment)
relating to such Mortgaged Property and issue the endorsements of the type
required under the definition of “Title Policy” hereunder or (b) otherwise
reasonably acceptable to the Collateral Agent.


 


“Swap Agreement” means any agreement
with respect to any swap, forward, future or derivative transaction or option
or similar agreement involving, or settled by reference to, one or more rates,
currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk
or value or any similar transaction or any combination of these transactions; provided
that no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of Borrower or any of its Subsidiaries shall be a Swap Agreement.


 


“Syndication Agent” has the meaning
assigned to such term in the introductory paragraph hereto.


 


“Tax Distribution” means any distribution
described in Section 7.06(e).


 


“Taxes” means all present or
future taxes, levies, imposts, duties, deductions, withholdings, assessments,
fees or other charges imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.


 


“Title Company” means Chicago Title
Insurance Company or any other title insurance company as shall be retained by Borrower
and reasonably acceptable to the Administrative Agent.


 


“Title Policy” means with respect to
each Mortgage, a policy of title insurance (or pro forma or marked-up title
insurance commitment having the effect of a policy of title insurance) insuring
the Lien of such Mortgage as a valid First Priority Mortgage Lien on the
Mortgaged Property and fixtures described therein subject to Liens permitted by
Section 7.02 in the amount equal to not less than 115% of the fair
market value of such Mortgaged Property and fixtures, which fair market value
shall be determined by the Collateral Agent and Borrower in their reasonable
judgment and which policy (or such pro forma or marked-up commitment) shall
(A) be issued by the Title Company, (B) to the extent necessary,
include such reinsurance arrangements as shall be reasonably acceptable to the
Collateral Agent and approved by Borrower, (C) have been supplemented by
such endorsements (unless endorsements are not available or are prohibitively
expensive) as shall be reasonably requested by the Collateral Agent, and
(D) evidence reasonably acceptable to the Collateral Agent of payment by Borrower
of all Title Policy premiums, search and examination charges, escrow charges
and related charges, mortgage recording taxes, fees, charges, costs and
expenses required for the recording of the Mortgages and issuance of the Title
Policies referred to herein.


 


“Transactions” means, collectively,
(a) the funding of the Loans and the effectiveness of the Loan Documents, (b) the
Refinancing, (c) the entry into, and the funding of the initial Loans
under, the Barrington Credit Facility, (d) the consummation of any other
transactions in connection 


 


20

















 


with the foregoing,
and (e) the payment of the fees and expenses incurred in connection with
any of the foregoing.


 


“Treasury Management Agreement” means
any agreement governing the provision of treasury or cash management services,
including netting services, deposit accounts, funds transfer, automated
clearinghouse, zero balance accounts, returned check concentration, controlled
disbursement, lockbox, account reconciliation and reporting and trade finance
services.


 


“Type” means, as to any Loan, its
character as a Base Rate Loan or a Eurodollar Rate Loan.


 


“UCC” means the Uniform Commercial
Code as in effect from time to time (except as otherwise specified) in any
applicable state or jurisdiction.


 


“United States” and “U.S.” mean
the United States of America.


 


“Weighted Average Life to Maturity”
means, when applied to any Indebtedness at any date, the number of years
obtained by dividing: (a) the sum of the products obtained by multiplying
(i) the amount of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including payment at final
maturity, in respect thereof, by (ii) the number of years (calculated to
the nearest one-twelfth) that will elapse between such date and the making of
such payment; by (b) the then outstanding principal amount of such Indebtedness.


 


“Wholly Owned Subsidiary” of any Person
means a Subsidiary of such Person, all of the Equity Interests of which (other
than directors’ qualifying shares or nominee or other similar shares required
pursuant to applicable Law) are owned by such Person or another Wholly Owned
Subsidiary of such Person.


 


1.02        Other Interpretive
Provisions. With reference to this Agreement and each other Loan Document,
unless otherwise specified herein or in such other Loan Document:


 


(a)           The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include,” “includes” and “including”
shall be deemed to be followed by the phrase “without limitation.” The word “will”
shall be construed to have the same meaning and effect as the word “shall.”
Unless the context requires otherwise, (i) any definition of or reference to
any agreement, instrument or other document (including any Organization
Document) shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein or in any other Loan Document), (ii) any reference herein to
any Person shall be construed to include such Person’s permitted successors and
assigns, (iii) the words “herein,” “hereof,” “hereto” and “hereunder,” and
words of similar import when used in any Loan Document, shall be construed to
refer to such Loan Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits
and Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, the Loan Document in which such references appear,
(v) any reference to any law 


 


21

















 


shall include all statutory and regulatory provisions consolidating,
amending, replacing or interpreting such law and any reference to any law or
regulation shall, unless otherwise specified, refer to such law or regulation
as amended, modified or supplemented from time to time and (vi) the words “asset”
and “property” shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.


 


(b)           In the computation of periods of time from a
specified date to a later specified date, the word “from” means “from and
including,” the words “to” and “until” each mean “to but excluding,” and the
word “through” means “to and including.”


 


(c)           Section headings herein and in the other
Loan Documents are included for convenience of reference only and shall not affect
the interpretation of this Agreement or any other Loan Document.


 


1.03        Accounting Terms. All
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial
ratios and other financial calculations) required to be submitted pursuant to
this Agreement shall be prepared in conformity with, GAAP, as in effect from
time to time.


 


1.04        Rounding. Any
financial ratios required to be maintained by Borrower pursuant to this Agreement
shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such
ratio is expressed herein and rounding the result up or down to the nearest
number (with a rounding-up if there is no nearest number).


 


1.05        Times of Day. Unless
otherwise specified, all references herein to times of day shall be references
to Eastern time (daylight or standard, as applicable).


 


1.06        Resolution of Drafting
Ambiguities. The Loan Parties acknowledge and agree that they were
represented by counsel in connection with the execution and delivery of the
Loan Documents, that they and their counsel reviewed and participated in the
preparation and negotiation of the Loan Documents and that any rule of
construction to the effect that ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of the Loan Documents.


 


1.07        Effectuation of
Transactions. Each of the representations and warranties contained in this
Agreement (and all corresponding definitions) are made after giving effect to
the Transactions, unless the context requires otherwise.


 


ARTICLE II



THE COMMITMENTS AND BORROWINGS


 


2.01        Loans. Subject to the
terms and conditions set forth herein, each Lender severally agrees to make a
loan (each such loan, a “Loan”) to Borrower on the Closing Date, in the
amount of such Lender’s Commitment as set forth on Schedule 2.01. Amounts
borrowed as 


 


22

















 


Loans under this Section 2.01 and subsequently repaid or prepaid
may not be reborrowed. Loans may be Base Rate Loans or Eurodollar Rate Loans,
as further provided herein.


 


2.02        Borrowings, Conversions
and Continuations of Loans.


 


(a)           Each borrowing of Loans, each conversion of
Loans from one Type to the other, and each continuation of Eurodollar Rate
Loans shall be made upon Borrower’s irrevocable notice to the Administrative
Agent, which may be given by telephone. Each such notice must be received by
the Administrative Agent not later than (i) 12:00 noon, three Business Days
prior to the requested date of any borrowing of, conversion to or continuation
of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base
Rate Loans and (ii) 12:00 noon, at least one Business Day prior to the
requested date of any borrowing of Base Rate Loans. Each telephonic notice by Borrower
pursuant to this Section 2.02(a) must be confirmed promptly by delivery
to the Administrative Agent of a written Borrowing or Conversion Notice,
appropriately completed and signed by a Responsible Officer of Borrower. Each borrowing
of, conversion to or continuation of Eurodollar Rate Loans shall be in an
amount equal to $1.0 million or a whole multiple of $500,000 in excess thereof.
Each borrowing of or conversion to Base Rate Loans shall be in a principal
amount of $500,000 or a whole multiple of $50,000 in excess thereof. Each
Borrowing or Conversion Notice (whether telephonic or written) shall specify
(i) whether the requested borrowing is to be a conversion of Loans from one
Type to the other or a continuation of Eurodollar Rate Loans, (ii) the
requested date of the borrowing, conversion, continuation or rollover, as the
case may be (which shall be a Business Day), (iii) the principal amount of
Loans to be borrowed, converted, continued or rolled over, (iv) if applicable,
the Type of Loans to be borrowed or to which existing Loans are to be converted,
and (v) if applicable, the duration of the Interest Period with respect thereto.
If Borrower fails to specify a Type of Loan in a Borrowing or Conversion Notice
or if Borrower fails to give a timely notice requesting a conversion, continuation
or rollover, then the applicable Loans shall be made as, or converted to, Base
Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective
as of the last day of the Interest Period then in effect with respect to the
applicable Eurodollar Rate Loans. If Borrower requests a borrowing of,
conversion to or continuation of Eurodollar Rate Loans in any such Borrowing or
Conversion Notice, but fails to specify an Interest Period, it will be deemed
to have specified an Interest Period of one month.


 


(b)           Following receipt of a Borrowing or
Conversion Notice, the Administrative Agent shall promptly (and in any event,
on the same day) notify each Lender of the amount of its Pro Rata Share of the
Loans, and if no timely notice of a conversion or continuation is provided by Borrower,
the Administrative Agent shall notify each Lender of the details of any
automatic conversion to Base Rate Loans or continuation described in Section
2.02(a). In the case of each borrowing, each Lender shall make the amount
of its Loan available to the Administrative Agent in Dollars, in immediately
available funds at the Administrative Agent’s Office not later than 1:00 p.m.
on the Business Day specified in the applicable Borrowing or Conversion Notice.
Upon satisfaction of the applicable conditions set forth in Section 4.01,
the Administrative Agent shall make all funds so received available to Borrower
in like funds as received by the Administrative Agent, either by (i) crediting
the account of Borrower on the books of Bank of America with the amount of such
funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided (and reasonably acceptable to) to the Administrative
Agent by Borrower.


 


23

















 


(c)           Except as otherwise provided herein, a
Eurodollar Rate Loan may be continued or converted only on the last day of an
Interest Period for such Eurodollar Rate Loan unless Borrower pays the amount
due, if any, under Section 3.05 in connection therewith. During the existence
of an Event of Default, no Loans may be requested to or continued as Eurodollar
Rate Loans without the consent of the Required Lenders.


 


(d)           The Administrative Agent shall promptly
notify Borrower and the applicable Lenders of the interest rate applicable to
any Interest Period for Eurodollar Rate Loans upon determination of such
interest rate. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify Borrower and the Lenders of any change in Bank
of America’s prime rate used in determining the Base Rate promptly following
the public announcement of such change.


 


(e)           After giving effect to all borrowings, all
conversions of Loans from one Type to the other, and all continuations of Loans
as the same Type, there shall not be more than four Interest Periods in effect
with respect to Loans.


 


(f)            The failure of any Lender to make the Loan
to be made by it as part of any borrowing shall not relieve any other Lender of
its obligation, if any, hereunder to make the Loan on the date of such
borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Loan to be made by such other Lender on the date of any
borrowing.


 


2.03        Prepayments.


 


(a)           Optional. Borrower may, upon notice
to the Administrative Agent at any time or from time to time voluntarily prepay
Loans, in whole or in part without premium or penalty; provided that (A) such
notice must be received by the Administrative Agent not later than 12:00 noon
(i) three Business Days prior to any date of prepayment of Eurodollar Rate
Loans and (ii) one Business Day prior to any date of prepayment of Base
Rate Loans; (B) any prepayment of Eurodollar Rate Loans shall be in a
principal amount of $1.0 million or a whole multiple of $1.0 million in excess
thereof or, if less, the entire principal amount thereof then outstanding and (C)
any prepayment of Base Rate Loans made in Dollars shall be in a principal
amount of $500,000 or a whole multiple of $50,000 in excess thereof, or, if
less, the entire principal amount thereof then outstanding. Each such notice
shall be in the form of Exhibit A-2 and shall specify the date and
amount of such prepayment and the Type(s) of Loans to be prepaid. The Administrative
Agent will promptly notify each Lender of its receipt of each such notice, and
of the amount of such Lender’s Pro Rata Share of such prepayment. If such
notice is given by Borrower, Borrower shall be committed to make such
prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan
shall be accompanied by any additional amounts required pursuant to Section
3.05.


 


(b)           Mandatory Prepayments. Borrower shall
apply all Net Proceeds, promptly upon receipt thereof to prepay Borrowings in
accordance with Sections 2.03(c) and (d).


 


(c)           Application of Prepayments. Prior to
any optional or mandatory prepayment hereunder, Borrower shall select the
Borrowing or Borrowings to be prepaid and shall specify 


 


24

















 


such selection in the notice of such
prepayment pursuant to Section 2.03(d), subject to the provisions
of this Section 2.03(c). Any prepayments pursuant to Section
2.03(a) shall be applied to reduce scheduled prepayments required under Section
2.05, first, to any scheduled principal
installments of Loans due within the following eight quarters in direct order
of maturity, and second, on a pro  rata
basis to all remaining scheduled principal installments of the Loans. Any
prepayments pursuant to Section 2.03(b) shall be applied to reduce
scheduled prepayments required under Section 2.05 on a pro  rata
basis to all remaining scheduled principal installments of the Loans.


 


Amounts to be
applied pursuant to this Section 2.03 to the prepayment of Loans shall
be applied to the Type of Loan and specific Borrowing or Borrowings designated
by Borrower. Notwithstanding the foregoing, if any prepayment of Loans required
under this Section 2.03 would result in Borrower incurring breakage
costs under Section 3.05 (the “Affected Loans”), at the election
of Borrower, the Affected Loans may be deposited in an escrow account on terms
reasonably satisfactory to the Collateral Agent and Borrower and applied to the
prepayment of Eurodollar Rate Loans on the last day of the then next-expiring
Interest Period for Eurodollar Rate Loans (or such earlier date or dates as
shall be requested by Borrower); provided that at any time while an
Event of Default has occurred and is continuing, upon written direction from
the Required Lenders, the Administrative Agent shall apply any or all proceeds
then on deposit to the payment of such Affected Loans.


 


(d)           Notice of Prepayment. Borrower shall
notify the Administrative Agent by written notice of any prepayment hereunder
(i) in the case of prepayment of a Eurodollar Rate Loan, not later than 12:00
noon, three Business Days before the date of prepayment and (ii) in the
case of prepayment of a Base Rate Loan in Dollars, not later than 12:00 noon,
one Business Day before the date of prepayment. Each such notice shall be
irrevocable. Each such notice shall be in the form of Exhibit A-2 and
shall specify the prepayment date, the principal amount of each Borrowing or
portion thereof to be prepaid and, in the case of a mandatory prepayment, a
reasonably detailed calculation of the amount of such prepayment. Promptly
following receipt of any such notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing and otherwise in
accordance with this Section 2.03. Except as provided in Section
2.03(c), prepayments shall be accompanied by accrued interest to the extent
required by Section 2.06.


 


2.04        Termination or Reduction
of Commitments. The Commitments of each Lender shall be automatically
terminated on the Closing Date upon the borrowing of the Loans on such date. All
Commitments shall terminate at noon on December 31, 2006 if the Closing
Date has not occurred on or prior to such time.


 


2.05        Repayment of Loans. Borrower
shall repay to the Administrative Agent for the ratable account of the Lenders
the aggregate principal amount of the Loans as follows (as adjusted for any
payments made under Section 2.03), each such payment to be made on the
last Business Day of the applicable fiscal quarter:


 


25

















 


	
  Quarter Ending

  	
   

  	
  Aggregate Principal

  Amortization Payment

  	
   

  
	
  December 31, 2006

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  March 31, 2007

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  June 30, 2007

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  September 30, 2007

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  December 31, 2007

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  March 31, 2008

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  June 30, 2008

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  September 30, 2008

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  December 31, 2008

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  March 31, 2009

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  June 30, 2009

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  September 30, 2009

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  December 31, 2009

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  March 31, 2010

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  September 30, 2010

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  March 31, 2011

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  June 30, 2011

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  September 30, 2011

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  December 31, 2011

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  March 31, 2012

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  June 30, 2012

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  September 30, 2012

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  December 31, 2012

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  March 31, 2013

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  June 30, 2013

  	
   

  	
  $

  	
  6,125

  	
   

  
	
  Maturity Date

  	
   

  	
  $

  	
  2,284,625

  	
   

  



 


provided
that on the Maturity Date, all Loans outstanding on such date shall be repaid.


 


2.06        Interest.


 


(a)           Subject to the provisions of subsection (b)
below:


 


(i)            each Eurodollar
Rate Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the Eurodollar Rate for such
Interest Period plus the Applicable Rate; and


 


(ii)           each Base
Rate Loan shall bear interest on the outstanding principal amount thereof from
the applicable borrowing date at a rate per annum equal to the Base Rate plus
the Applicable Rate.


 


(b)           Notwithstanding the foregoing, if any principal
of or interest on any Loan or any fee or other amount payable by Borrower hereunder
is not paid when due (without regard to any 


 


26

















 


applicable grace periods), whether at stated
maturity, upon acceleration or otherwise, such overdue amount shall, to the
extent permitted by applicable law, bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue
principal and premium, if any, of or interest on any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in Section 2.06(a) or
(ii) in the case of any other overdue amount, 2% plus the rate applicable
to Base Rate Loans as provided in Section 2.06(a)(ii) (in either
case, the “Default Rate”).


 


(c)           Interest on each Loan shall be due and
payable in arrears on each Interest Payment Date applicable thereto; provided
that (i) interest accrued pursuant to Section 2.06(b) shall be
payable on demand, (ii) in the event of any repayment or prepayment of any
Loan (other than a prepayment of a Base Rate Loan), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Rate Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion. Interest hereunder shall be due and payable in accordance with the
terms hereof before and after judgment, and before and after the commencement
of any proceeding under any Debtor Relief Law.


 


2.07        Computation of Interest
and Fees.


 


All computations of interest for Base Rate
Loans when the Base Rate is determined by Bank of America’s “prime rate” shall
be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of fees and interest shall be made
on the basis of a 360-day year and actual days elapsed (which results in more
fees or interest, as applicable, being paid than if computed on the basis of a
365-day year). Interest shall accrue on each Loan for the day on which the Loan
is made, continued or converted from a Loan of another Type and shall not
accrue on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid; provided that any Loan
that is repaid on the same day on which it is made shall, subject to Section
2.09(a), bear interest for one day. Each determination by the
Administrative Agent of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent demonstrable error.


 


2.08        Evidence of Debt.


 


(a)           The Borrowings made by each Lender shall be
evidenced by one or more accounts or records maintained by such Lender and by
the Administrative Agent in the ordinary course of business. The accounts or
records maintained by the Administrative Agent and each Lender shall be conclusive
absent demonstrable error of the amount of the Borrowings made by the Lenders
to Borrower and the interest and payments thereon. Any failure to so record or
any error in doing so shall not, however, limit or otherwise affect the
obligation of Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of demonstrable error.


 


(b)           Upon the request of any Lender made through
the Administrative Agent, Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such Lender’s
Loans in addition to such accounts or records. Each Lender may 


 


27

















 


attach schedules to a Note and endorse
thereon the date, Type (if applicable), amount, currency and maturity of its
Loans and payments with respect thereto.


 


2.09        Payments Generally;
Administrative Agent’s Clawback.


 


(a)           General. All payments to be made by Borrower
shall be made without condition or deduction for any counterclaim, defense,
recoupment or setoff. Except as otherwise expressly provided herein, all
payments by Borrower hereunder shall be made to the Administrative Agent for
the account of the respective Lenders to which such payment is owed, at the
Administrative Agent’s Office in Dollars and in immediately available funds not
later than 2:00 p.m. on the date specified herein. The Administrative Agent
will promptly distribute to each Lender its Pro Rata Share (or other applicable
share as provided herein) of such payment in like funds as received by wire
transfer to such Lender’s Lending Office. All payments received by the
Administrative Agent after 2:00 p.m. shall in each case be deemed received on
the next succeeding Business Day and any applicable interest or fee shall
continue to accrue. If any payment to be made by Borrower shall come due on a
day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing
interest or fees, as the case may be.


 


(b)           (i) Funding by Lenders; Presumption by
Administrative Agent. Unless the Administrative Agent shall have received
notice from a Lender prior to the proposed date of any Borrowing that such
Lender will not make available to the Administrative Agent such Lender’s Pro
Rata Share of such Borrowing, the Administrative Agent may assume that such
Lender has made such share available on such date in accordance with Section
2.02 and may, in reliance upon such assumption, make available to Borrower,
a corresponding amount. In such event, if a Lender has not in fact made its
share of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender agrees to pay to the Administrative Agent forthwith on demand
such corresponding amount in immediately available funds with interest thereon,
for each day from and including the date such amount is made available to Borrower,
to but excluding the date of payment to the Administrative Agent in the case of
a payment to be made by such Lender at the applicable Federal Funds Rate in
effect from time to time. If such Lender’s Pro Rata Share of such Borrowing is
not made available to the Administrative Agent within three Business Days after
the date of such Borrowing, the Administrative Agent shall notify Borrower of
the failure of such Lender to make such amount available to the Administrative
Agent and the Administrative Agent shall be entitled to recover such amount
with interest thereon at the rate applicable to Loans of the Type comprising such
Borrowing and (y) then Borrower may, without waiving or limiting any rights or
remedies it may have hereunder or under applicable law against such Lender,
borrow a like amount on an unsecured basis from any commercial bank for a
period ending on the date upon which such Lender does in fact make such
Borrowing available. If Borrower and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period, the Administrative
Agent shall promptly remit to Borrower the amount of such interest paid by Borrower
for such period. If such Lender pays its share of the applicable Borrowing to
the Administrative Agent then the amount so paid shall constitute such Lender’s
Loan included in such Borrowing. Any payment by Borrower shall be without
prejudice to any claim Borrower may have against a Lender that shall have
failed to make such payment to the Administrative Agent.


 


28

















 


(ii)           Payments by Borrower; Presumptions by
Administrative Agent. Unless the Administrative Agent shall have received
notice from Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that Borrower
will not make such payment, the Administrative Agent may assume that Borrower
has made such payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the Lenders the amount due. In such event,
if Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender, in immediately available funds with interest thereon,
for each day from and including the date such amount is distributed to it to
but excluding the date of payment to the Administrative Agent at the applicable
Federal Funds Rate in effect from time to time.


 


A notice of the Administrative Agent to any
Lender or Borrower with respect to any amount owing under this subsection (b)
shall be conclusive, absent demonstrable error.


 


(c)           Failure to Satisfy Conditions Precedent.
If any Lender makes available to the Administrative Agent funds for any Loan to
be made by such Lender as provided in the foregoing provisions of this Article
II, and such funds are not made available to Borrower by the Administrative
Agent because the conditions to the Borrowing set forth in Article IV
are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.


 


(d)           Obligations of Lenders Several. The
obligations of the Lenders hereunder to make Loans and to make payments
pursuant to Section 10.04(c) are several and not joint. The failure of
any Lender to make any Loan, to fund any such participation or to make any
payment under Section 10.04(c) on any date required hereunder shall not
relieve any other Lender of its corresponding obligation to do so on such date,
and no Lender shall be responsible for the failure of any other Lender to so
make its Loan, to purchase its participation or to make its payment under Section
10.04(c).


 


(e)           Funding Source. Nothing herein shall
be deemed to obligate any Lender to obtain the funds for any Loan in any particular
place or manner or to constitute a representation by any Lender that it has
obtained or will obtain the funds for any Loan in any particular place or manner.


 


2.10        Sharing of Payments by
Lenders. If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of the Loans made by it, resulting in such Lender’s receiving
payment of a proportion of the aggregate amount of such Loans and accrued
interest thereon greater than its Pro Rata Share thereof as provided herein,
then the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in the Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with their respective Pro
Rata Share, provided that:


 


(i)            if any such
participations or subparticipations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations or subparticipations



 


29

















 


shall be rescinded and the purchase price restored to the extent of
such recovery, without interest; and


 


(ii)           the
provisions of this section shall not be construed to apply to (x) any payment
made by Borrower pursuant to and in accordance with the express terms of this
Agreement or (y) any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to Borrower or any Subsidiary thereof (as to which the
provisions of this section shall apply).


 


Borrower, each Subsidiary Guarantor and each
Barrington Guarantor consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against Borrower,
such Subsidiary Guarantor or such Barrington Guarantor rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of Borrower, such Subsidiary Guarantor or such Barrington
Guarantor in the amount of such participation.


 


ARTICLE III



TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01        Taxes.


 


(a)           Payments Free of Taxes. Any and all
payments by or on account of any obligation of any Loan Party or any Barrington
Guarantor hereunder or under any other Loan Document shall (except to the
extent required by law) be made free and clear of and without reduction or
withholding for any Indemnified Taxes or Other Taxes, provided that if any Loan Party or any Barrington Guarantor shall be
required by applicable law to deduct any Indemnified Taxes (or any Other Taxes)
from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions of such Taxes (including deductions
of such Taxes applicable to additional sums payable under this section) the
Administrative Agent or Lender, as the case may be, receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
applicable Loan Party shall make such deductions and (iii) the applicable Loan
Party or Barrington Guarantor shall timely pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.


 


(b)           Payment of Other Taxes by Borrower. Without
limiting the provisions of subsection (a) above, Borrower shall timely pay any
Other Taxes to the relevant Governmental Authority in accordance with
applicable law.


 


(c)           Indemnification by Borrower. Borrower
shall indemnify the Administrative Agent and each Lender, within 10 days after
a written demand setting forth the amount and the reasons in reasonable detail
therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this section) payable by the
Administrative Agent or such Lender, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto
(other than penalties attributable to (i) a failure or delay by the Administrative



 


30

















 


Agent or such Lender, as applicable, in
making such written demand to Borrower or (ii) the gross negligence or willful
misconduct of the Administrative Agent or such Lender, as the case may be),
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate setting
forth the amount of such payment or liability and the reasons for such payment
or liability in reasonable detail delivered to Borrower by a Lender (with a
copy to the Administrative Agent), or by the Administrative Agent on its own
behalf or on behalf of a Lender, shall be conclusive absent demonstrable error.


 


(d)           Evidence of Payments. As soon as
practicable after any payment of Indemnified Taxes or Other Taxes by Borrower
to a Governmental Authority, Borrower shall deliver to the Administrative Agent
the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative
Agent.


 


(e)           Status of Lenders. Each Foreign
Lender shall, to the extent it may lawfully do so, deliver to Borrower and the
Administrative Agent (in such number of original copies as shall be requested
by the recipient) on or prior to the date on which such Foreign Lender becomes
a Lender under this Agreement (and from time to time thereafter upon the
reasonable request of Borrower or the Administrative Agent, but only if such
Foreign Lender or beneficial owner is legally entitled to do so), whichever of
the following is applicable:


 


(i)            two duly
completed and executed original copies of Internal Revenue Service Form W-8BEN
(or any successor thereto) claiming eligibility for benefits of an income tax
treaty to which the United States is a party and entitlement to complete
exemption from (or reduction in) U.S. federal withholding tax on interest and
fees payable hereunder to or for the account of such Foreign Lender,


 


(ii)           two duly
completed and executed original copies of Internal Revenue Service Form W-8ECI
(or any successor thereto),


 


(iii)          in the case
of a Foreign Lender claiming the benefits of the exemption for portfolio
interest under Section 881(c) of the Code, (x) a certificate, substantially in the
form of Exhibit K, to the effect that such Foreign Lender or beneficial
owner is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the
Code, (B) a “10 percent shareholder” of Borrower within the meaning of Section
881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described
in Section 881(c)(3)(C) of the Code and (y) duly completed and executed
original copies of Internal Revenue Service Form W-8BEN (or any successor
thereto), and, if any fees are payable by Borrower to or for the account of
such Foreign Lender, claiming eligibility for benefits of an income tax treaty
to which the U.S. is a party and entitlement to complete exemption from (or
reduction in) U.S. federal withholding tax on such fees, or


 


(iv)          any other
form prescribed by applicable law as a basis for claiming exemption from (or,
after an applicable Change in Law, reduction in) United States federal
withholding tax duly completed together with such supplementary documentation
as may be prescribed by applicable law.


 


31

















 


Any Lender that is not a Foreign Lender and
that may not be treated as an exempt recipient based on the indicators
described in Treasury Regulation Section 1.6049-4(c)(1)(ii) or that has not
otherwise established to the reasonable satisfaction of Borrower that it is an
exempt recipient (as defined in Section 6049(b)(4) of the Code and the Treasury
regulations thereunder) shall deliver to Borrower (with copies to the
Administrative Agent) on or prior to the date on which such Lender becomes a
Lender under this Agreement (and from time to time thereafter as prescribed by
applicable law or upon the request of Borrower or the Administrative Agent),
duly executed and properly completed copies of U.S. Internal Revenue Service
Form W-9 or any successor form that such Lender is entitled to provide at such
time in order to comply with United States back-up withholding requirements.


 


From time to time, each Lender shall promptly
notify the Administrative Agent of any change in such Lender’s or beneficial
owner’s circumstances that would modify or render invalid any claimed exemption
or reduction.


 


(f)            Treatment of Certain Refunds. If the
Administrative Agent or any Lender determines, in its good faith sole discretion,
that it has received a refund (in cash or as an offset against other taxes
otherwise then due and payable) of any Indemnified Taxes or Other Taxes as to
which it has been indemnified by Borrower or with respect to which Borrower has
paid additional amounts pursuant to this section, it shall pay to Borrower an
amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by Borrower under this Section 3.01 with respect
to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all
reasonable out-of-pocket expenses of the Administrative Agent or such Lender,
as the case may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided that Borrower, upon the request of
the Administrative Agent or such Lender, agrees to repay the amount paid over
to Borrower (plus any penalties, interest or other charges imposed by
the relevant Governmental Authority other than penalties, interest and other
charges arising out of the willful misconduct or gross negligence of the Administrative
Agent or such Lender) to the Administrative Agent or such Lender in the event
the Administrative Agent or such Lender is required to repay such amount to
such Governmental Authority. This subsection shall not be construed to require
the Administrative Agent or any Lender to make available its tax returns (or
any other information relating to its taxes that it deems confidential) to Borrower
or any other Person. Notwithstanding anything to the contrary, in no event will
any Lender be required to pay any amount to Borrower the payment of which would
place such Lender in a less favorable net after-tax position than such Lender
would have been in if the additional amounts giving rise to such refund of any
Indemnified Taxes or Other Taxes had never been paid.


 


3.02        Illegality. If any Change
in Law has made it unlawful, or any Governmental Authority has asserted that it
is unlawful, for any Lender or its applicable Lending Office to make, maintain
or fund Eurodollar Rate Loans, or to determine or charge interest rates based
upon the Eurodollar Rate, then, on notice thereof by such Lender to Borrower
through the Administrative Agent, any obligation of such Lender to make or
continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate
Loans shall be suspended until such Lender notifies the Administrative Agent
and Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, Borrower shall, upon demand from such
Lender (with a copy to the Administrative Agent), convert all Eurodollar Rate
Loans of such Lender to Base 


 


32

















 


Rate Loans, either on the last day of the Interest Period therefor, if
such Lender may lawfully continue to maintain such Eurodollar Rate Loans to
such day, or immediately, if such Lender may not lawfully continue to maintain
such Eurodollar Rate Loans. Upon any such conversion, Borrower shall also pay
accrued interest on the amount so converted. Each Lender agrees to designate a
different Lending Office if such designation will avoid the need for such
notice and will not, in the good faith judgment of such Lender, otherwise be
materially disadvantageous to such Lender.


 


3.03        Inability To Determine
Rates. If the Required Lenders determine for any reason in connection with
any request for a Eurodollar Rate Loan or a conversion to or continuation
thereof that (i) Dollar deposits are not being offered to banks in the
London interbank eurodollar market for the applicable amount and Interest
Period of such Eurodollar Rate Loan, (ii) adequate and reasonable means do
not exist for determining the Eurodollar Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan or (iii) the Eurodollar
Rate for any requested Interest Period with respect to a proposed Eurodollar
Rate Loan does not adequately and fairly reflect the cost to such Lenders of
funding such Eurodollar Rate Loan, in any such case, the Administrative Agent
will promptly so notify Borrower and each Lender. Thereafter, the obligation of
the Lenders to make or maintain Eurodollar Rate Loans shall be suspended until
the Administrative Agent (upon the instruction of the Required Lenders) revokes
such notice. Upon receipt of such notice, Borrower may revoke any pending
request for a Borrowing of, conversion to or continuation of Eurodollar Rate
Loans or, failing that, will be deemed to have converted such request into a
request for a Borrowing of Base Rate Loans in the amount specified therein.


 


3.04        Increased Costs; Reserves
on Eurodollar Rate Loans.


 


(a)           Increased Costs Generally. If any
Change in Law after the Closing Date shall:


 


(i)            impose,
modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for
the account of, or credit extended or participated in by, any Lender (except
any reserve requirement contemplated by Section 3.04(d)); or


 


(ii)           impose on
any Lender any other condition, cost or expense affecting this Agreement or Eurodollar
Rate Loans made by such Lender;


 


and the result
of any of the foregoing shall be to increase the cost to such Lender of making
or maintaining any Eurodollar Rate Loan (or of maintaining its obligation to
make any such Loan), or to reduce the amount of any sum received or receivable
by such Lender hereunder (whether of principal, interest or any other amount),
then, from time to time upon written demand of such Lender setting forth in
reasonable detail such increased costs (with a copy of such demand to the
Administrative Agent given in accordance with Section 3.07), Borrower
will pay to such Lender such additional amount or amounts as will compensate
such Lender for such increased costs incurred or reduction suffered.


 


(b)           Capital Requirements. If any Lender
determines that any Change in Law after the Closing Date affecting such Lender
or any Lending Office of such Lender or such Lender’s holding company, if any,
regarding capital requirements has had the effect of reducing the rate of return



 


33

















 


on such Lender’s capital or on the capital of
such Lender’s holding company, if any, as a consequence of this Agreement, the
Commitments of such Lender or the Loans made by such Lender to a level below
that which such Lender or such Lender’s holding company could have achieved but
for such Change in Law (taking into consideration such Lender’s policies and
the policies of such Lender’s holding company with respect to capital adequacy),
then from time to time, upon written demand of such Lender setting forth in
reasonable detail such increased costs (with a copy of such demand to the
Administrative Agent given in accordance with Section 3.07), Borrower
will pay to such Lender such additional amount or amounts as will compensate
such Lender or such Lender’s holding company for any such reduction suffered.


 


(c)           Certificates for Reimbursement. A
certificate of a Lender in compliance with Section 3.07(a) setting
forth the amount or amounts necessary to compensate such Lender or its holding
company, as the case may be, as specified in subsection (a), (b) or (e) of this
Section 3.04 and delivered to Borrower shall be conclusive absent demonstrable
error. Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.


 


(d)           Reserves on Eurodollar Rate Loans. If
any Lender is required to maintain reserves with respect to liabilities or assets
consisting of or including Eurodollar funds or deposits (currently known as “Eurocurrency
liabilities”), Borrower shall pay to such Lender additional interest on the
unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs
of such reserves allocated to such Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive in the absence of
demonstrable error), which shall be due and payable on each date on which
interest is payable on such Loan; provided Borrower
shall have received at least 10 days’ prior notice (with a copy to the
Administrative Agent) of such additional interest (together with the
certificate referred to in clause (c) above) from such Lender. If a Lender
fails to give notice 15 days prior to the relevant Interest Payment Date, such
additional interest shall be due and payable 15 days from receipt of such notice.


 


3.05        Compensation for Losses. Upon
demand of any Lender (with a copy to the Administrative Agent) from time to
time, Borrower shall promptly compensate such Lender for and hold such Lender harmless
from any actual loss, cost or expense incurred by it as a result of:


 


(a)           any continuation, conversion, payment or
prepayment of any Loan other than a Base Rate Loan on a day other than the last
day of the Interest Period for such Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise); or


 


(b)           any failure by Borrower (for a reason other
than the failure of such Lender to make a Loan) to prepay, borrow, continue or
convert any Loan other than a Base Rate Loan on the date or in the amount
notified by Borrower;


 


including any
loss or expense arising from the liquidation or reemployment of funds obtained
by it to maintain such Loan or from fees payable to terminate the deposits from
which such funds were obtained. Borrower shall also pay any reasonable and customary
administrative fees charged by such Lender in connection with the foregoing.


 


34

















 


For purposes of calculating amounts payable
by Borrower to any Lender under this Section 3.05, such Lender
shall be deemed to have funded each Eurodollar Rate Loan made by it at the
Eurodollar Rate for such Loan by a matching deposit or other borrowing in the
London interbank eurodollar market for a comparable amount and for a comparable
period, whether or not such Eurodollar Rate Loan was in fact so funded.


 


3.06        Mitigation Obligations;
Replacement of Lenders.


 


(a)           Designation of a Different Lending Office.
If any Lender requests compensation under Section 3.04, or Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender gives a notice pursuant to Section 3.02, then such Lender
shall use commercially reasonable efforts (subject to such Lender’s internal
policies and any legal or regulatory restrictions) to avoid the consequences of
such event, including to designate a different Lending Office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of such
Lender, such efforts (i) would eliminate or reduce amounts payable pursuant to Section
3.01 or 3.04, as the case may be, or eliminate the need for the
notice pursuant to Section 3.02, as applicable, and (ii) in each case,
would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.


 


(b)           Replacement of Lenders. If any Lender
requests compensation under Section 3.04, or if Borrower is required to
pay any additional amount to or for the account of any Lender or any
Governmental Authority for the account of any Lender pursuant to Section
3.01, Borrower may replace such Lender in accordance with Section 10.13.


 


3.07        Matters Applicable to
Requests for Compensation.


 


(a)           Any Agent or any Lender claiming compensation
under Sections 3.02 through 3.05 shall deliver a certificate to Borrower
contemporaneously with the demand for payment setting forth in reasonable
detail a calculation of the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of demonstrable error. In
determining such amount, such Agent or such Lender may use any reasonable
averaging and attribution methods.


 


(b)           With respect to any Lender’s claim for
compensation under any of Sections 3.02 through 3.05, Borrower
shall not be required to compensate such Lender for any amount incurred more
than 180 days prior to the date that such Lender notifies Borrower of the event
that gives rise to such claim; provided that, if the circumstance giving
rise to such increased cost or reduction is retroactive, then such 180-day period
referred to above shall be extended to include the period of retroactive effect
thereof. If any Lender requests compensation from Borrower under Section
3.05, Borrower may, by notice to such Lender (with a copy to the Administrative
Agent), suspend the obligation of such Lender to make or continue from one
Interest Period to another Eurodollar Rate Loans, or to convert Base Rate Loans
into Eurodollar Rate Loans, until the event or condition giving rise to such
request ceases to be in effect (in which case the provisions of Section
3.07(c) shall be applicable); provided that such suspension shall
not affect the right of such Lender to receive the compensation so requested.


 


35

















 


(c)           If the obligation of any Lender to make or
continue from one Interest Period to another any Eurodollar Rate Loan (or to
convert Base Rate Loans into Eurodollar Rate Loans) shall be suspended pursuant
to Section 3.07(b) hereof, such Lender’s Eurodollar Rate Loans shall be
automatically converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for such Eurodollar Rate Loans (or, in the case of
an immediate conversion required by Section 3.02, on such earlier date
as required by Law) and, unless and until such Lender gives notice as provided
below that the circumstances specified in Sections 3.02 through 3.04
hereof that gave rise to such conversion no longer exist: (i) to the extent
that such Lender’s Eurodollar Rate Loans have been so converted, all payments
and prepayments of principal that would otherwise be applied to such Lender’s
Eurodollar Rate Loans shall be applied instead to its Base Rate Loans; and (ii)
all Loans that would otherwise be made or continued from one Interest Period to
another by such Lender as Eurodollar Rate Loans shall be made or continued instead
as Base Rate Loans, and all Base Rate Loans of such Lender that would otherwise
be converted into Eurodollar Rate Loans shall remain as Base Rate Loans.


 


(d)           If any Lender gives notice to Borrower (with
a copy to the Administrative Agent) that the circumstances specified in any of Sections
3.02 through 3.04 that gave rise to the conversion of such Lender’s
Eurodollar Rate Loans pursuant to this Section 3.07 no longer exist
(which such Lender agrees to do promptly upon such circumstances ceasing to
exist) at a time when Eurodollar Rate Loans made by other Lenders are
outstanding, such Lender’s Base Rate Loans shall be automatically converted, on
the first day(s) of the next succeeding Interest Period(s) for such outstanding
Eurodollar Rate Loans, to the extent necessary so that, after giving effect
thereto, all Loans held by the Lenders holding Eurodollar Rate Loans and by
such Lender are held pro rata (as to principal amounts, interest rate basis,
and Interest Periods) in accordance with their respective Commitments.


 


3.08        Survival. All of Borrower’s
obligations under this Article III shall survive termination of the
Aggregate Commitments and repayment of all other Obligations hereunder.


 


ARTICLE IV



CONDITIONS PRECEDENT TO BORROWING


 


4.01        Conditions of the Borrowing.
The obligation of each Lender to extend its Loans on the Closing Date is
subject to satisfaction or waiver of the following conditions precedent:


 


(a)           Loan and Corporate Documents;
Certificates. The Administrative Agent’s receipt of the following, each of
which shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each, if applicable, properly executed by a Responsible
Officer of the signing Loan Party (and the Barrington Guarantors, as
applicable), each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in form
and substance reasonably satisfactory to the Administrative Agent:


 


(i)            executed
counterparts of this Agreement, the Guaranty, the Barrington Guaranty, the
Security Agreement, each Mortgage and the Perfection Certificate;


 


36

















 


(ii)           a Note
executed by Borrower in favor of each Lender requesting a Note;


 


(iii)          such
certificates of resolutions or other equivalent action and incumbency
certificates of Responsible Officers of each Loan Party and each Barrington
Guarantor as the Administrative Agent may reasonably require evidencing the
identity, authority and capacity of each Responsible Officer thereof authorized
to act as a Responsible Officer in connection with this Agreement and the other
Loan Documents to which such Loan Party or such Barrington Guarantor is a party;


 


(iv)          such
documents and certifications as the Administrative Agent may reasonably require
to evidence that each Loan Party and each Barrington Guarantor is duly
organized or formed, is validly existing, in good standing and qualified to
engage in business in its jurisdiction of incorporation or organization or in
which Mortgaged Property owned or leased by it is located;


 


(v)           a
certificate signed by the President/CEO of Borrower and (as to clause (B) only)
a certificate signed by the president or vice president of the borrower under
the Barrington Credit Facility, in each case certifying (A) that the conditions
specified in Sections 4.01(k) and (l) have been satisfied and (B)
that there has been no event or circumstance since February 7, 2006 that has
had or would be reasonably expected to have, either individually or in the
aggregate, a Material Adverse Effect;


 


(vi)          [reserved];
and


 


(vii)         a Borrowing
or Conversion Notice relating to the Borrowing.


 


(b)           Financings and Other Transactions, Etc.
The Administrative Agent shall have received evidence reasonably satisfactory
to it that prior to or substantially concurrently with the Borrowing, the
initial extension of credit under the Barrington Credit Facility and the other
Transactions shall have been consummated or shall be consummated contemporaneously
on the Closing Date, in all material respects in accordance with the terms
hereof unless otherwise agreed by the Administrative Agent.


 


(c)           Opinions of Counsel. The
Administrative Agent shall have received, on behalf of itself, the other Agents
and the Lenders, (i) an opinion of Wiley Rein & Fielding LLP, counsel
to Borrower and the Subsidiary Guarantors, dated the Closing Date,
substantially in the form of Exhibit G-1 and (ii) an opinion
of Paul, Hastings, Janofsky & Walker LLP, counsel to the Barrington Guarantors,
dated the Closing Date, substantially in the form of Exhibit G-2;


 


(d)           Indebtedness. After giving effect to
the Transactions, Borrower and its Subsidiaries shall have no outstanding
Indebtedness or preferred stock, except for Indebtedness incurred pursuant to
(x) this Agreement, and (y) Indebtedness and preferred stock permitted
pursuant to Section 7.01(a).


 


37

















 


(e)           Personal Property Requirements. The
Collateral Agent shall have received:


 


(i)            all
certificates or instruments representing or evidencing the Securities
Collateral accompanied by instruments of transfer and stock powers undated and
endorsed in blank;


 


(ii)           all other
certificates and agreements, including control agreements with respect to bank
accounts with an average daily balance in excess of $200,000, instruments
necessary to perfect the Collateral Agent’s security interest in all Chattel
Paper, all Instruments, all Deposit Accounts, all Securities Accounts, all
Commodity Accounts, and all Investment Property (as each such term is defined
in the Security Agreement and to the extent required by the Security Agreement)
of each Loan Party have been delivered to the Collateral Agent;


 


(iii)          UCC
financing statements in appropriate form for filing under the UCC, filings with
the United States Patent and Trademark Office and United States Copyright
Office and such other documents under applicable law in each jurisdiction as
may be necessary to perfect the Liens created, or purported to be created, by
the Security Documents (to the extent required by the Security Agreement);


 


(iv)          copies of
UCC, United States Patent and Trademark Office and United States Copyright
Office, tax and judgment lien searches, bankruptcy and pending lawsuit searches
or equivalent reports or searches, each of a recent date in each of the jurisdictions
set forth in Schedules 1(c) and 4 attached to the Perfection
Certificate, the results of which shall not reveal any Liens on the Collateral
covered or intended to be covered by the Security Documents (other than Liens permitted
by Section 7.02 or any other Liens reasonably acceptable to the
Collateral Agent); and


 


(v)           evidence reasonably
acceptable to the Collateral Agent of payment or arrangements for payment by the
Loan Parties and the Barrington Guarantors of all applicable recording taxes,
fees, charges, costs and expenses required for the recording of the Security
Documents, if any.


 


(f)            Insurance. The Administrative Agent
shall have received a copy of, or a certificate as to coverage under, the
insurance policies required by Section 6.02 and the applicable
provisions of the Security Documents, each of which shall be endorsed or
otherwise amended to include a “standard” or “New York” lender’s loss payable
or mortgagee endorsement (as applicable) and shall name the Collateral Agent,
on behalf of the Secured Parties, as additional insured, in form and substance reasonably
satisfactory to the Administrative Agent.


 


(g)           Consents. All necessary governmental,
shareholder and third party consents (including Hart-Scott Rodino Antitrust
Improvements Act and FCC consents) and approvals necessary in connection with
the Transactions shall have been received and 


 


38

















 


shall be in full force and effect, except for such approvals and
consents the failure to obtain which would not reasonably be expected to result
in a Material Adverse Effect. No judgment, order, injunction or other restraint
by any Governmental Authority shall prohibit or impose any material adverse
conditions on the Transactions.


 


(h)           Fees and Expenses. All documented fees
and out-of-pocket expenses of the Administrative Agent, the Arrangers and the
Lenders (including those of Cahill Gordon & Reindel LLP, counsel for the
Administrative Agent and the Arrangers) required to be paid on or before the
Closing Date shall have been paid.


 


(i)            [reserved].


 


(j)            Mortgages. Mortgages encumbering the
Real Properties in favor of the Collateral Agent, for the benefit of the
Secured Parties set forth on Schedule 4.01(j) duly executed and
acknowledged by the appropriate Loan Parties, and Mortgages encumbering the
Real Properties in favor of the Collateral Agent, for the benefit of the
Secured Parties set forth in Schedule 4.01(j) to the Barrington Credit
Facility, duly executed and acknowledged by the appropriate Barrington Guarantors,
together with:


 


(i)            evidence
that counterparts of the Mortgages have been duly executed, acknowledged and
delivered and are in form suitable for filing or recording in all filing or
recording offices that the Collateral Agent may deem reasonably necessary in
order to create a valid and subsisting perfected Lien on the property described
therein in favor of the Collateral Agent for the benefit of the Secured Parties
and that all filing and recording taxes and fees have been paid or otherwise
provided for in a manner reasonably satisfactory to the Collateral Agent;


 


(ii)           fully paid
Fee Lender’s Extended Coverage title insurance policies or the equivalent or
other form available in each applicable jurisdiction in form and substance,
with endorsements and in coverage amounts, reasonably acceptable to the
Collateral Agent (not to exceed the value of the Real Properties covered
thereby issued by title insurers reasonably acceptable to the Collateral Agent,
insuring the Mortgages to be valid subsisting Liens on the Real Property
described therein, free and clear of all defects and encumbrances, subject to
First Priority Liens permitted by Section 7.02, and providing for such
other affirmative insurance (including endorsements for future advances under
the Loan Documents) as the Collateral Agent may deem reasonably necessary;


 


(iii)          opinions of
local counsel for the Loan Parties and the Barrington Guarantors, as
applicable, in states in which the Mortgaged Properties are located, with
respect to the enforceability and perfection of the Mortgages and any related
fixture filings in form and substance reasonably satisfactory to the Collateral
Agent;


 


(iv)          Surveys with
respect to each such Mortgaged Property;


 


39

















 


(v)           such other
evidence that all other actions that the Administrative Agent may reasonably
deem necessary in order to create valid and subsisting Liens on the property
described in the Mortgages has been taken; and


 


(vi)          a completed
Federal Emergency Management Agency Standard Flood Hazard Determination with
respect to each Mortgaged Property.


 


(k)           Representations and Warranties. The
representations and warranties of Borrower and each other Loan Party contained
in Article V or any other Loan Document, or which are contained in any
document furnished at the Closing Date shall be true and correct in all
material respects on and as of the Closing Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct in all material aspects as of such earlier
date.


 


(l)            No Default. No Default or Event of
Default shall have occurred and be continuing, or would result from the Borrowing
or from the application of the proceeds thereof.


 


(m)          Request for Borrowing. The
Administrative Agent shall have received a Borrowing or Conversion Notice in
accordance with the requirements hereof.


 


Without limiting the generality of the
provisions of Section 9.04, for purposes of determining compliance with
the conditions specified in this Section 4.01, each Lender that has
signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to a
Lender unless the Administrative Agent shall have received notice from such
Lender prior to the funding on the Closing Date specifying its objection
thereto.


 


ARTICLE V



REPRESENTATIONS AND WARRANTIES


 


Each Loan Party represents and warrants to
the Administrative Agent and the Lenders that:


 


5.01        Existence, Qualification
and Power; Compliance with Laws. Each Loan Party (a) is duly organized or
formed, validly existing and in good standing under the Laws of the
jurisdiction of its incorporation or organization, (b) has all requisite limited
liability company or corporate power and authority to (i) own its assets and
carry on its business and (ii) execute, deliver and perform its obligations
under the Loan Documents to which it is a party, (c) is duly qualified and in
good standing under the Laws of each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such
qualification or license, (d) is in compliance with all Laws and (e) has
all requisite governmental licenses, authorizations, consents and approvals to
operate its business as currently conducted, except in each case referred to in
clause (b)(i), (c), (d) or (e), to the extent that failure to do so would not
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect.


 


40

















 


5.02        Authorization; No
Contravention. The execution, delivery and performance by each Loan Party
of each Loan Document to which such Person is party have been duly authorized
by all necessary corporate, limited liability company, shareholder, member or
other organizational action, and do not and will not (a) contravene the terms
of any of such Person’s organizational documents; (b) conflict with or result
in any breach or contravention of, or the creation of any Lien (other than as
permitted under Section 7.02) under (i) any Contractual Obligation to
which such Person is a party or affecting such Person or the properties of such
Person or any of its Subsidiaries or (ii) any order, injunction, writ or
decree of any Governmental Authority or any arbitral award to which such Person
or its property is subject; or (c) violate any Law; except, with respect to any
conflict, breach or contravention (but not creation of Liens) referred to in
clause (b) or any violation referred to in clause (c), to the extent that such
conflict, breach, contravention or violation would not reasonably be expected
to have, either individually or in the aggregate, a Material Adverse Effect.


 


5.03        Governmental
Authorization; Other Consents. No material approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required to be made
or obtained by any Loan Party in connection with (a) the execution, delivery or
performance by any Loan Party of this Agreement or any other Loan Document, (b)
the grant by any Loan Party of the Liens granted by it pursuant to the Security
Documents, (c) the perfection or maintenance of the Liens created under the
Security Documents (including the priority thereof) or (d) the exercise by any Agent
or any Lender of its rights under the Loan Documents or the remedies in respect
of the Collateral pursuant to the Security Documents, except for (i) filings
necessary to perfect the Liens on the Collateral granted by the Loan Parties in
favor of the Secured Parties, (ii) the approvals, consents, exemptions,
authorizations, actions, notices and filings which have been duly obtained,
taken, given or made and are in full force and effect, (iii) those approvals,
consents, exemptions, authorizations, actions, notices or filings described in
the Security Agreement, (iv) the filing with the FCC of copies of certain of
the Loan Documents within thirty (30) days of the date of their execution, (v)
applications to the FCC requesting its prior consent to the exercise by the
Agents and/or the Lenders of certain of their remedies under this Agreement and
under the Security Documents, following an uncured Event of Default, as contemplated
by Section 10.17, and (vi) those approvals, consents, exemptions,
authorizations, actions, notices or filings, the failure of which to obtain or
make would not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect.


 


5.04        Binding Effect. This
Agreement has been duly executed and delivered by each Loan Party that is party
hereto. This Agreement constitutes, and each other Loan Document when so executed
and delivered will constitute, a valid and binding obligation of such Loan
Party, enforceable against each Loan Party that is a party thereto in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, receivership, fraudulent
conveyance, moratorium or similar laws affecting creditors’ rights generally,
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).


 


41

















 


5.05        No Material Adverse Effect.
Since February 7, 2006, no Material Adverse Effect has occurred.


 


5.06        Litigation. Except as
set forth on Schedule 5.06 on the Closing Date, there are no
actions, suits, proceedings, claims or disputes pending or, to the knowledge of
Borrower and its Subsidiaries, threatened or contemplated, at law, in equity,
in arbitration or before any Governmental Authority, by or against any Loan
Party or against any of their properties or revenues that (a) purport to affect
or pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby or (b) either individually or in the
aggregate, if determined adversely, would reasonably be expected to have a
Material Adverse Effect.


 


5.07        No Default. None of Borrower
or any of its Subsidiaries is in default under or with respect to any
Contractual Obligation that would, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has
occurred and is continuing or would result from the consummation of the
transactions contemplated by this Agreement or any other Loan Document.


 


5.08        Properties.


 


(a)           Generally. Borrower and each of its
Subsidiaries has marketable title to, or valid leasehold interests in, all its
tangible property material to its business, free and clear of all Liens except
for Liens permitted by Section 7.02 and minor irregularities or
deficiencies in title that do not materially interfere with its ability to
conduct its business as currently conducted or to utilize such property for its
intended purpose. As of the Closing Date, the tangible property of Borrower and
its Subsidiaries, taken as a whole, (i) is in reasonably good operating order,
condition and repair (other than ordinary wear and tear to be expected in the
ordinary course of business) and (ii) constitutes all the tangible property
which is required for the business and operations of Borrower and its Subsidiaries
as presently conducted.


 


(b)           Real Property. As of the Closing
Date, Schedule 4.01(j) contains a true and complete list of each
interest in Real Property (i) owned by the Loan Parties as of the Closing
Date and describes the type of interest therein held by the Loan Parties,
(ii) leased, subleased or otherwise occupied or utilized by Borrower or its
Subsidiaries, as lessee, sublessee, franchisee or licensee, as of the Closing Date
and describes the type of interest therein held by such company, and indicates
which Real Properties identified in clause (i) are encumbered by a Mortgage in
favor of the Collateral Agent for the benefit of the Secured Parties with such
Real Properties listed under the heading “Mortgaged Properties.”


 


(c)           No Extraordinary Receipts; Flood
Insurance. As of the Closing Date, none of Borrower or its Subsidiaries has
received any notice of, nor has any knowledge of, the occurrence or pendency or
contemplation of any Extraordinary Receipts affecting all or any material
portion of its property. As of the Closing Date, no Mortgage encumbers improved
Real Property that is located in an area that has been identified by the
Secretary of Housing and Urban Development as an area having special flood
hazards within the meaning of the National Flood Insurance Act of 1968 unless
flood insurance available under such Act has been obtained to the extent
required by Section 6.02(b).


 


42

















 


5.09        Environmental Matters.


 


(a)           Except as set forth in Schedule 5.09
and except as, individually or in the aggregate, would not reasonably be expected
to result in a Material Adverse Effect:


 


(i)            Borrower and
its Subsidiaries and their businesses, operations and Real Property are in
compliance with, and Borrower and its Subsidiaries have no liability under,
Environmental Law;


 


(ii)           Borrower and
its Subsidiaries have obtained all Environmental Permits required for the conduct
of their businesses and operations, and the ownership, operation and use of
their property, including Real Property, under Environmental Law, and all such
Environmental Permits are valid and in full force and effect;


 


(iii)          There has
been no Release, or to the knowledge of Borrower and its Subsidiaries no threatened
Release, of Hazardous Material on, at, under or from any Real Property or facility
presently or formerly owned, leased or operated by Borrower and its Subsidiaries
or their predecessors in interest that would reasonably be expected to result
in liability on the part of Borrower and its Subsidiaries under Environmental
Law;


 


(iv)          There is no
Environmental Claim pending, or to the knowledge of Borrower and its
Subsidiaries threatened, against Borrower and its Subsidiaries, or relating to
the Real Property currently or formerly owned, leased or operated by Borrower
and its Subsidiaries or relating to the operations of Borrower and its Subsidiaries,
and there are no actions, activities, circumstances, conditions, events or
incidents that could reasonably be expected to form the basis of such an Environmental
Claim; and


 


(v)           No Person
with an indemnity or contribution obligation to Borrower and its Subsidiaries
relating to compliance with or liability under Environmental Law is in default
with respect to such obligation.


 


(b)           Except as set forth in Schedule 5.09:


 


(i)            None of Borrower
or its Subsidiaries is obligated to perform any action or otherwise incur any
expense under Environmental Law pursuant to any order, decree, judgment or
agreement by which it is bound, and none of them is conducting or financing any
Response pursuant to any Environmental Law with respect to any Real Property or
any other location;


 


(ii)           No Real
Property or facility currently owned, operated or leased by Borrower and its Subsidiaries
and, to the knowledge of Borrower and the Subsidiaries no Real Property or
facility formerly owned, operated or leased by Borrower and its Subsidiaries or
any of their predecessors in interest, is (i) listed or proposed for
listing on the National Priorities List promulgated pursuant to CERCLA or (ii) listed
on the Comprehensive Environmental Response, Compensation and Liability
Information System promulgated pursuant to CERCLA or (iii) included on any
similar list maintained by any Governmental Authority including any such list
relating to petroleum;


 


43

















 


(iii)          No Lien has
been recorded or, to the knowledge of Borrower and the Subsidiaries threatened,
under any Environmental Law with respect to any owned real property or other
assets of Borrower and its Subsidiaries; and


 


(iv)          The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby will not require any material notification,
registration, filing, reporting, disclosure, investigation, or Response
pursuant to any Governmental Real Property Disclosure Requirements or any other
Environmental Law.


 


5.10        Insurance. With
respect to any Mortgage executed and delivered after the Closing Date pursuant
to Section 6.09(c), the Premises, and the use, occupancy and operation
thereof, comply in all material respects with all Insurance Requirements, and comply
with the requirements of Section 6.02 and there exists no default
under any Insurance Requirement. Each of Borrower and its Subsidiaries has
insurance in such amounts and covering such risks and liabilities as are
customary for companies of a similar size engaged in similar businesses in
similar locations. All insurance maintained by Borrower and its Subsidiaries is
in full force and effect, all premiums have been duly paid, and none of Borrower
or its Subsidiaries has received notice of violation or cancellation thereof.


 


5.11        Taxes. Borrower and the
Subsidiaries have timely filed all material Federal, state and other tax
returns and reports required to be filed, and have timely paid all material Federal,
state and other Taxes, assessments, fees and other governmental charges levied
or imposed upon them or their properties otherwise due and payable (whether or
not shown on any tax return), except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no written proposed
tax assessment against Borrower or any Subsidiary that, if made, would
reasonably be expected to result in a Material Adverse Effect. Borrower and
each Subsidiary has made adequate provision in accordance with GAAP for all Taxes
not yet due and payable. Neither Borrower nor any Subsidiary has ever been a
party to any understanding or arrangement constituting a “tax shelter” within
the meaning of Section 6662(d)(2)(C)(iii) of the Code or within the meaning of
Section 6111(c) or Section 6111(d) of the Code as in effect immediately prior
to the enactment of the American Jobs Creation Act of 2004, or has ever “participated”
in a “listed transaction” within the meaning of Treas. Reg. Section 1.6011-4,
except as would not be reasonably expected to, individually or in the
aggregate, result in a Material Adverse Effect. Neither Borrower nor any
Subsidiary thereof has any liabilities for the Taxes of any Person under Treas.
Reg. Section 1.1502-6 or any similar provision of state, local or foreign law,
as a transferee or successor, by contract or otherwise, except as would not,
either individually or in the aggregate, result in a Material Adverse Effect.


 


5.12        ERISA Compliance. Except
as set forth in Schedule 5.12, either Borrower nor any ERISA Affiliate
maintains or contributes to any Employee Benefit Plan.


 


5.13        Subsidiaries; Equity
Interests.


 


(a)           On the Closing Date, after giving effect to
the Transactions, the corporate structure of Borrower and the Subsidiaries is
as set forth on Schedule 5.13(a).


 


44

















 


(b)           Schedule 5.13(b) sets forth as of the
Closing Date the name and jurisdiction of incorporation, formation or organization
of each Subsidiary and, as to each such Subsidiary, the percentage of each
class of Equity Interests owned by Borrower or by any such Subsidiary, subject
to such changes as are reasonably satisfactory to the Administrative Agent.


 


(c)           As of the Closing Date, there are no
outstanding subscriptions, options, warrants, calls, rights or other similar
agreements or commitments (other than stock options granted to employees or
directors and directors’ qualifying shares) of any nature relating to any
Equity Interests of Borrower or any of the Subsidiaries, except as set forth on
Schedule 5.13(c).


 


5.14        Margin Regulations;
Investment Company Act; Public Utility Holding Company Act.


 


(a)           No proceeds of any Loan will be used to
purchase or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying margin stock in violation of Regulation U and neither
Borrower nor any of its Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying margin stock.


 


(b)           None of Borrower or any of its Subsidiaries (i)
is a “holding company,” or a “subsidiary company” of a “holding company,” or an
“affiliate” of a “holding company” or of a “subsidiary company” of a “holding
company,” within the meaning of the Energy Policy Act of 2005, or (ii) is or is
required to be registered as an “investment company” under the Investment Company
Act of 1940.


 


5.15        Disclosure. No report,
financial statement, certificate or other information concerning Borrower and
the Subsidiaries and the Transactions, including and the Perfection
Certificate, furnished in writing by or on behalf of Borrower or any Subsidiary
to any Agent or any Lender in connection with the Transactions or delivered
hereunder or under any other Loan Document (taken as a whole, the “Information”),
as of the date such Information was furnished, when taken as a whole contained any
material misstatement of fact or omitted to state any material fact necessary
to make the statements contained therein, in the light of the circumstances under
which they were made, not misleading.


 


5.16        Compliance with Laws. Borrower
and each of its Subsidiaries is in compliance in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees applicable
to it or to its properties, except in such instances in which (a) such
applicable law or order, writ, injunction or decree is being contested in good
faith by appropriate proceedings or (b) the failure to comply therewith, either
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect.


 


5.17        Solvency. Immediately
after the consummation of the Transactions to occur on the Closing Date, Borrower
and its Subsidiaries, taken as a whole, will be able to pay their debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured.


 


5.18        Intellectual Property
Matters. The Loan Parties have valid and enforceable common law rights to
the call signs of the TV station operated by such Loan Parties (the “Intellectual


 


45

















 


Property”). To the Loan Parties’ knowledge,
there are no United States patents, trademarks, trade names, service marks,
copyrights, technology, trade secrets, domain names, know-how and processes required
for the conduct of its business as currently conducted, except for those the
failure to own or be licensed which, individually or in the aggregate, would
not reasonably be expected to result in a Material Adverse Effect. To the
knowledge of Borrower, no claim has been asserted and is pending by any Person
challenging or questioning the use of any such Intellectual Property or the
validity or effectiveness of any such Intellectual Property, nor to the knowledge
of Borrower does the use of such Intellectual Property by Borrower and each of
its Subsidiaries infringe the rights of any Person, except, in each case, for
such claims and infringements that, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect.


 


5.19        Security Documents.


 


(a)           Security Agreement. The Security
Agreement effectively grants to the Collateral Agent for the benefit of the Secured
Parties, legal, valid and enforceable security interests in all right, title
and interest of the Loan Parties in the Security Agreement Collateral (subject
to any limitations specified therein and the limitations set forth in
applicable law). When financing statements and other filings in appropriate
form are filed in the offices specified on Schedule 7 to the
Perfection Certificate or upon the taking of possession or control by the
Collateral Agent of the Security Agreement Collateral with respect to which a
security interest may be perfected only by possession or control, the Liens
created by the Security Agreement shall (to the extent provided therein) constitute
perfected First Priority Liens on, and security interests in, all right, title
and interest of the grantors in the applicable Security Agreement Collateral
(other than such Security Agreement Collateral in which a security interest cannot
be perfected under the UCC as in effect at the relevant time in the relevant
jurisdiction and Commercial Tort Claims (as defined in the Security Agreement)
other than Commercial Tort Claims specifically described on Schedule 13
of the Perfection Certificate (if any)), in each case subject to no Liens other
than Liens permitted by Section 7.02.


 


(b)           [Reserved].


 


(c)           Mortgages. Each Mortgage effectively
grants and each Mortgage executed and delivered after the Closing Date pursuant
to Section 6.09(c) shall be effective to create, in favor of the
Collateral Agent, for its benefit and the benefit of the Secured Parties,
legal, valid and enforceable security interests in, all of the Loan Parties’
right, title and interest in and to the Mortgaged Properties thereunder and the
proceeds thereof, subject only to Liens permitted by Section 7.02 or
other Liens acceptable to the Collateral Agent. When the Mortgages are filed in
the offices specified in the local counsel opinions delivered with respect
thereto in accordance with the provisions of Section 6.09, and upon
compliance with all other applicable legal requirements identified in the local
counsel opinions delivered with respect thereto, the Mortgages shall (to the
extent provided therein) constitute perfected First Priority Liens on, and
security interests in, all right, title and interest of the Loan Parties in the
Mortgaged Properties and the proceeds thereof, in each case prior in right to
any other Person, other than Liens permitted by such Mortgage.


 


5.20        Use of Proceeds. Borrower
will use the proceeds of the Loans to effect the Refinancing.


 


46

















 


5.21        Anti-Terrorism Law.


 


(a)           None of Borrower or any of its Subsidiaries
and, to the knowledge of Borrower and its Subsidiaries, none of their
Affiliates is in violation of any applicable law relating to terrorism or money
laundering (“Anti-Terrorism Laws”), including Executive Order No. 13224
on Terrorist Financing, effective September 24, 2001 (the “Executive Order”),
and the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.


 


(b)           None of Borrower or any of its Subsidiaries
and, to the knowledge of Borrower and its Subsidiaries, no Affiliate or broker
or other agent of any of the foregoing acting or benefiting in any capacity in
connection with the Loans is any of the following:


 


(i)            a Person that
is listed in the annex to, or is otherwise subject to the provisions of, the Executive
Order;


 


(ii)           a Person
owned or controlled by, or acting for or on behalf of, any Person that is
listed in the annex to, or is otherwise subject to the provisions of, the
Executive Order;


 


(iii)          a Person
with which any Lender is prohibited from dealing or otherwise engaging in any
transaction by any Anti-Terrorism Law;


 


(iv)          a Person
that commits, threatens or conspires to commit or supports “terrorism” as
defined in the Executive Order; or


 


(v)           a Person
that is named as a “specially designated national and blocked Person” on the
most current list published by the U.S. Treasury Department Office of Foreign
Assets Control (“OFAC”) at its official website or any replacement
website or other replacement official publication of such list.


 


(c)           None of Borrower or any of its Subsidiaries
and, to the knowledge of Borrower and its Subsidiaries, no broker or other
agent of any of the foregoing acting in any capacity in connection with the
Loans (i) conducts any business or engages in making or receiving any
contribution of funds, goods or services to or for the benefit of any Person
described in paragraph (b) above, (ii) deals in, or otherwise engages
in any transaction relating to, any property or interests in property blocked
pursuant to the Executive Order, or (iii) engages in or conspires to
engage in any transaction that evades or avoids, or has the purpose of evading
or avoiding, or attempts to violate, any of the prohibitions set forth in any
Anti-Terrorism Law.


 


5.22        FCC Licenses, Etc.


 


Other than as set forth on Schedule 5.22,
Borrower and the Subsidiaries possess all licenses, certificates, franchises,
permits and other authorizations (“Licenses”) issued by the appropriate
federal, state, local or foreign regulatory authorities, including, without
limitation, Licenses from the FCC, necessary to own their respective properties
and to conduct their respective businesses in all material respects, and
neither Borrower nor any such Subsidiary has received any written notice of
proceedings relating to the revocation or modification of any such License that,
individually or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect; Borrower and each of its
Subsidiaries 


 


47

















 


have fulfilled
and performed in all material respects all of their respective obligations with
respect to such Licenses, and no event has occurred that allows or, after
notice or lapse of time would allow, revocation or termination thereof or
results in or, after notice or lapse of time would result in, any other
material impairment of the rights of the holders of any such License, except as
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and none of such Licenses contains any restriction
that is materially burdensome to Borrower or any of its Subsidiaries, taken as
a whole. There are no license renewal or rate or tariff proceedings existing or
pending other than as set forth on Schedule 5.22.


 


ARTICLE VI



AFFIRMATIVE COVENANTS


 


So long as any Lender shall have any
Commitment hereunder, any Loan shall remain unpaid or unsatisfied or any other
Obligation hereunder which is accrued and payable shall remain unpaid or
unsatisfied, Borrower shall, and shall (except in the case of the covenants set
forth in Section 6.04 and Section 6.05) cause each
Subsidiary to:


 


6.01        Existence; Businesses and
Properties.


 


(a)           Do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence,
except as otherwise expressly permitted under Section 7.05, and except
for the liquidation or dissolution of Subsidiaries if the assets of such
Subsidiaries to the extent they exceed estimated liabilities are acquired by any
of Borrower or a Wholly Owned Subsidiary of any of Borrower in such liquidation
or dissolution.


 


(b)           Do or cause to be done all things reasonably
necessary to (i) obtain, preserve, renew, extend and keep in full force and
effect the permits, franchises, authorizations, patents, trademarks, service
marks, trade names, copyrights, licenses and rights with respect thereto necessary
to the normal conduct of its business, it being understood, however, that the
expiration on February 17, 2009 of any and all Licenses from the FCC held by Borrower
or by any of its Subsidiaries that authorize or that purport to authorize any
Station to broadcast in the analog mode of transmission is required by Law, and
the foregoing covenant shall not be construed to require any of Borrower or any
of its Subsidiaries to take any action inconsistent with compliance with such
requirement of Law, (ii) comply in all material respects with all material applicable
Laws, rules, regulations (including any zoning, building, ordinance, code or
approval or any building permits or any restrictions of record or agreements
affecting the Mortgaged Properties) and material judgments, writs, injunctions,
decrees and orders of any Governmental Authority, whether now in effect or
hereafter enacted, except to the extent the failure to so comply would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect,
and (iii) at all times maintain and preserve all property necessary to the
normal conduct of its business and keep such property in good repair, working
order and condition and from time to time make, or cause to be made, all
needful and proper repairs, renewals, additions, improvements and replacements
thereto necessary in order that the business carried on in connection
therewith, if any, may be properly conducted at all times (in each case except
as expressly permitted by this Agreement).


 


48

















 


6.02        Insurance.


 


(a)           Maintain insurance by financially sound and
reputable insurers to such extent, in such amounts (after giving effect to any
self-insurance; provided that Borrower and each Subsidiary may not
obtain self-insurance with respect to flood insurance required pursuant to Section
6.02(c)) and against such risks as is customary with companies in the same
or similar businesses operating in the same or similar locations, against such
casualties and contingencies and of such types and in such amounts with such
deductibles as is customary in the case of similar businesses operating in the
same or similar locations.


 


(b)           With respect to each Mortgaged Property,
obtain flood insurance in such total amount as the Administrative Agent or the
Required Lenders may from time to time reasonably require, if at any time the
area in which any improvements are located on any Mortgaged Property that is
designated a “flood hazard area” in any Flood Insurance Rate Map published by
the Federal Emergency Management Agency and otherwise comply with the National
Flood Insurance Program as set forth in the Flood Disaster Protection Act of
1973, as amended from time to time.


 


(c)           In connection with the covenants set forth
in this Section 6.02, it is understood and agreed that:


 


(i)            none of the
Agents, the Lenders and their respective agents or employees shall be liable
for any loss or damage insured by the insurance policies required to be
maintained under this Section 6.02, it being understood that (A) Borrower
and its Subsidiaries shall look solely to their insurance companies or any
other parties other than the aforesaid parties for the recovery of such loss or
damage and (B) such insurance companies shall have no rights of subrogation
against the Agents, the Lenders or their agents or employees. If, however, the
insurance policies do not provide waiver of subrogation rights against such
parties, as required above, then each of Borrower hereby agrees, to the extent
permitted by law, to waive, and to cause each of its Subsidiaries to waive, its
right of recovery, if any, against the Agents, the Lenders and their agents and
employees; and


 


(ii)           the
designation of any form, type or amount of insurance coverage by the
Administrative Agent, the Collateral Agent under this Section 6.02 shall
in no event be deemed a representation, warranty or advice by the
Administrative Agent, the Collateral Agent or the Lenders that such insurance
is adequate for the purposes of the business of Borrower and the Subsidiaries
or the protection of their properties.


 


6.03        Taxes. Pay and
discharge promptly when due all material Taxes, assessments and governmental
charges or levies imposed upon it or in respect of its property, before the
same shall become delinquent or in default, as well as all lawful claims for
labor, materials and supplies or otherwise that, if unpaid, might give rise to
a Lien upon such properties or any part thereof; provided, however,
that such payment and discharge shall not be required with respect to any such
Tax, assessment, charge, levy or claim so long as the validity or amount
thereof shall be contested in good faith by appropriate proceedings, and Borrower
or the affected Subsidiary, as applicable, shall have set aside on its books reserves
in accordance with GAAP with respect thereto.


 


49














 


6.04        Reports, Etc. Furnish to the Administrative Agent (which
will promptly furnish such information to the Lenders) (a) within 45 days after
the end of each fiscal quarter a certificate of a Financial Officer of Borrower
certifying that no Event of Default or Default has occurred or, if such an
Event of Default or Default has occurred, specifying the nature and extent
thereof and any corrective action taken or proposed to be taken with respect
thereto and (b) promptly, from time to time, such information regarding the
operations, business affairs and financial condition of Borrower or any of the
Subsidiaries, or compliance with the terms of any Loan Document, as in each
case the Administrative Agent may reasonably request. The Administrative Agent
shall have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility to
monitor compliance by Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents.


 


6.05        Litigation and Other
Notices. Furnish to the Administrative Agent written notice of the
following promptly after any Responsible Officer of Borrower obtains actual
knowledge thereof:


 


(a)           any Event of Default or Default, specifying
the nature and extent thereof and the corrective action (if any) proposed to be
taken with respect thereto;


 


(b)           the filing or commencement of, or any
written threat or notice of intention of any Person to file or commence, any
action, suit or proceeding, whether at law or in equity or by or before any
Governmental Authority or in arbitration, against Borrower or any of the
Subsidiaries as to which an adverse determination is reasonably probable and
which, if adversely determined, would reasonably be expected to have a Material
Adverse Effect;


 


(c)           any other development specific to Borrower
or any of the Subsidiaries that has had, or would reasonably be expected to
have, a Material Adverse Effect; and


 


(d)           any material change in accounting policies
or financial reporting practices by Borrower or any of its Subsidiaries.


 


6.06        Compliance with Laws. Comply
with all laws, rules, regulations, orders writs, injunctions and decrees of any
Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect.


 


6.07        Maintaining Records;
Access to Properties and Inspections. Maintain all financial records in good
faith and consistent with past practices and permit any Persons designated by
the Agents or, upon the occurrence and during the continuance of an Event of
Default, any Lender to visit and inspect the financial records and the properties
of Borrower or any of the Subsidiaries at reasonable times, upon reasonable
prior notice to Borrower, and as often as reasonably requested and to make
extracts from and copies of such financial records, and permit any Persons
designated by the Agents or, upon the occurrence and during the continuance of
an Event of Default, any Lender upon reasonable prior notice to Borrower to
discuss the affairs, finances and condition of Borrower or any of the
Subsidiaries with the officers thereof and (subject


 


50

















 


to a senior officer of the respective company or a parent thereof being
present) independent accountants therefor (subject to reasonable requirements
of confidentiality, including requirements imposed by law or by contract).


 


6.08        Use of Proceeds. Use
the proceeds of Loans only in compliance with the representation contained in Section
5.20.


 


6.09        Further Assurances;
Additional Mortgages.


 


(a)           Execute any and all further documents,
financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture
filings, Mortgages and other documents and recordings of Liens in stock
registries), that may be required under any applicable law, or that the Administrative
Agent may reasonably request, for the continued validity, perfection and
priority of the Liens on the Collateral, all at the expense of the Loan Parties
and provide to the Administrative Agent, from time to time upon reasonable
request, evidence reasonably satisfactory to the Administrative Agent as to the
perfection and priority of the Liens created or intended to be created by the
Security Documents.


 


(b)           Subject to the terms of this Section 6.09,
with respect to any property (other than Real Property) that has an individual
fair market value (as determined in good faith by Borrower) of greater than $500,000
and that is acquired after the Closing Date by any Loan Party (in each case
other than assets constituting Collateral under a Security Document that become
subject to the Lien of such Security Document upon the acquisition thereof),
promptly (and in any event within 30 days after the acquisition thereof)
(i) execute and deliver to the Administrative Agent and the Collateral
Agent such amendments or supplements to the relevant Security Documents or such
other documents as the Administrative Agent or the Collateral Agent shall
reasonably deem necessary or advisable to grant to the Collateral Agent, for
its benefit and for the benefit of the other Secured Parties, a First Priority
Lien on such property subject to no Liens other than Liens permitted by Section
7.02, and (ii) take all actions necessary to cause such Lien to be
duly perfected to the extent required by such Security Documents in accordance
with all applicable law, including the filing of financing statements in such
jurisdictions as may be reasonably requested by the Administrative Agent.


 


(c)           Promptly grant to the Collateral Agent,
within 90 days of the acquisition thereof, a security interest in and Mortgage
on each Real Property owned in fee by any Loan Party as is acquired by
such Loan Party after the Closing Date and that, together with any improvements
thereon, individually has a fair market value (as determined in good faith by Borrower)
of at least $750,000 as additional security for the Secured Obligations (unless
the subject property is already mortgaged to a third party to the extent
permitted by Section 7.02). Such Mortgages shall be granted pursuant
to documentation substantially in the form of the Mortgages delivered to the
Collateral Agent on the Closing Date or in such other form as is reasonably
satisfactory in form and substance to the Administrative Agent and the
Collateral Agent and shall constitute valid and enforceable perfected First
Priority Liens subject to no other Liens except as are permitted by Section
7.02 or other Liens reasonably acceptable to the Collateral Agent. The
Mortgages or instruments related thereto shall be duly recorded or filed in
such manner and in such places as are required by law to establish and perfect
the Liens in favor of the Collateral Agent


 


51

















 


required to be granted pursuant to the
Mortgages and all taxes, fees and other charges payable in connection therewith
shall be paid in full.


 


(d)           With respect to any Person that is or
becomes a Subsidiary after the Closing Date, promptly (i) deliver to the Collateral
Agent the certificates, if any, representing the Equity Interests of such
Subsidiary, together with undated stock powers or other appropriate instruments
of transfer executed and delivered in blank by a duly authorized officer of the
holder(s) of such Equity Interests, provided that (x) only 65% of the
outstanding Equity Interests of any Foreign Subsidiary that is a direct
Subsidiary of a Loan Party shall be required to be delivered pursuant to this
clause (i) and (y) the Equity Interests of any Subsidiary that is a Subsidiary
of a Foreign Subsidiary shall not be required to be delivered pursuant to this
clause (i), (ii) cause such new Subsidiary if such Subsidiary is not a
Foreign Subsidiary, to execute joinder agreements to the Security Agreement, the
Guaranty and the Barrington Guaranty, substantially in the forms annexed
thereto and (iii) to take all actions necessary or advisable in the
reasonable opinion of the Administrative Agent or the Collateral Agent to cause
the Liens created by the Security Agreements in such new Subsidiary Collateral
to be duly perfected to the extent required by such agreement in accordance
with all applicable law, including the filing of financing statements in such
jurisdictions as may be reasonably requested by the Administrative Agent or the
Collateral Agent.


 


(e)           (i) Furnish to the Collateral Agent prompt
written notice of any change (A) in any Loan Party’s corporate or organization
name, (B) in any Loan Party’s identity or organizational structure or (C) in
any Loan Party’s organizational identification number; provided that Borrower
shall not effect or permit any such change unless all filings have been made,
or will have been made within any statutory period, under the UCC or otherwise
that are required in order for the Collateral Agent to continue at all times following
such change to have a valid, legal and perfected security interest in all the
Collateral for the benefit of the Secured Parties and (ii) promptly notify the
Administrative Agent if any material portion of the Collateral is damaged or destroyed.


 


(f)            The provisions of this Section 6.09
need not be satisfied with respect to any Equity Interests or assets acquired
after the Closing Date in accordance with this Agreement if, and to the extent
that, and for so long as (A) doing so would violate applicable law or a contractual
obligation binding on such Equity Interests or assets and (B) such law or
obligation existed at the time of the acquisition thereof and was not created
or made binding on such Equity Interests or assets in contemplation of or in
connection with the acquisition of such Subsidiary or assets (except in the
case of assets acquired with Indebtedness permitted pursuant to Section
7.01(i) that is secured by a Lien permitted pursuant to Section 7.02(i)).


 


6.10        [Reserved].


 


6.11        [Reserved].


 


6.12        Compliance with
Environmental Laws; Environmental Reports.


 


(a)           Comply, and cause all lessees and other
persons occupying Real Property of Borrower and its Subsidiaries to comply, in
all material respects with all Environmental Law and


 


52

















 


Environmental Permits applicable to its
operations and Real Property, obtain and renew all material Environmental
Permits applicable to its operations and Real Property, and conduct all
Responses required by, and in accordance with, Environmental Law, except where
the failure to do any of the above, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect; provided
that neither Borrower nor any of its Subsidiaries shall be required to
undertake any Response to the extent that its obligation to do so is being
contested in good faith and by proper proceedings and appropriate reserves are
being maintained with respect to such circumstances in accordance with GAAP.


 


(b)           If a Default caused by reason of a breach of
Section 5.09(b) or Section 6.12(a) shall have occurred
and be continuing for more than 30 days without Borrower or its
Subsidiaries commencing activities reasonably likely to cure such Default in
accordance with Environmental Law, at the written request of the Administrative
Agent or the Required Lenders through the Administrative Agent, provide to the
Lenders within 45 days after such request, at the expense of Borrower, an
environmental assessment report regarding the matters which are the subject of
such Default, including, where appropriate, soil and/or groundwater sampling,
prepared by an environmental consulting firm and, in form and substance reasonably
acceptable to the Administrative Agent and indicating the presence or absence
of Hazardous Materials and the estimated cost of any compliance or Response to
address them.


 


(c)           Borrower and its
Subsidiaries shall not use, store, handle or install nor permit to be used,
stored, handled or installed at, in, on or under the Mortgaged Property any
Hazardous Materials, other than in compliance with Environmental Law.


 


ARTICLE VII



NEGATIVE COVENANTS


 


Borrower covenants and agrees with each
Lender that, so long as this Agreement shall remain in effect and until the Commitments
have been terminated and any other Obligations hereunder which are accrued and
payable are paid or satisfied, unless the Required Lenders shall otherwise
consent in writing, Borrower will not, nor will it cause or permit any of the
Subsidiaries to:


 


7.01        Indebtedness. Incur,
create, assume or permit to exist any Indebtedness (other than intercompany
Indebtedness incurred in the ordinary course of business and consistent with
past practices of Borrower and the Subsidiaries), except:


 


(a)           (i) Indebtedness (other than under letters
of credit) existing on the Closing Date and set forth on Schedule 7.01(a)
and any Permitted Refinancing Indebtedness incurred to Refinance such
Indebtedness and (ii) Indebtedness under letters of credit existing on the
Closing Date and set forth on Schedule 7.01(b), without giving effect to
any extension, renewal or replacement thereof;


 


(b)           Indebtedness created hereunder and under the
other Loan Documents;


 


(c)           [reserved];


 


53

















 


(d)           Indebtedness of Borrower and the
Subsidiaries pursuant to Swap Agreements permitted by Section 7.09;


 


(e)           Indebtedness owed to (including obligations
in respect of letters of credit or bank guarantees or similar instruments for
the benefit of) any Person providing workers’ compensation, health, disability
or other employee benefits or property, casualty or liability insurance to Borrower
or any Subsidiary, pursuant to reimbursement or indemnification obligations to
such Person; provided that upon the incurrence of Indebtedness with respect
to reimbursement obligations regarding workers’ compensation claims, such obligations
are reimbursed not later than 30 days following such incurrence;


 


(f)            Indebtedness of Borrower to any Subsidiary or
the Barrington Guarantors and of any Subsidiary to Borrower, the Barrington
Guarantors or any other Subsidiary; provided that such Indebtedness (the
“Subordinated Intercompany Debt”) shall be subordinated to the
Obligations in the manner set forth in Exhibit I (it being agreed that
such subordination provisions will not restrict the repayment of any such
Subordinated Intercompany Debt other than when an Event of Default exists);


 


(g)           Indebtedness in respect of performance
bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and
similar obligations, in each case provided in the ordinary course of business,
including those incurred to secure health, safety and environmental obligations
in the ordinary course of business;


 


(h)           Indebtedness arising from the honoring by a
bank or other financial institution of a check, draft or similar instrument
drawn against insufficient funds in the ordinary course of business or other
cash management services in the ordinary course of business; provided
that (x) such Indebtedness (other than credit or purchase cards) is extinguished
within three Business Days of its incurrence and (y) such Indebtedness in respect
of credit or purchase cards is extinguished within 60 days from its incurrence;


 


(i)            [reserved];


 


(j)            Capital Lease Obligations, mortgage
financings and purchase money Indebtedness incurred by Borrower or any
Subsidiary prior to or within 270 days after the acquisition, lease or
improvement of the respective asset permitted under this Agreement in order to
finance such acquisition or improvement, and any Permitted Refinancing
Indebtedness in respect thereof, in an aggregate principal amount that at the
time of, and after giving effect to, the incurrence thereof would not exceed $150,000;


 


(k)           Indebtedness arising from agreements of Borrower
or any Subsidiary providing for indemnification, adjustment of purchase price
or similar obligations, in each case, incurred or assumed in connection with
the Transactions or other acquisitions or dispositions permitted under this
Agreement, other than guarantees of Indebtedness incurred by any Person
acquiring all or any portion of such business, assets or a Subsidiary for the
purpose of financing such acquisition;


 


(l)            Indebtedness supported by a Letter of
Credit, in a principal amount not in excess of the stated amount of such Letter
of Credit;


 


54

















 


(m)          Indebtedness consisting of (x) the financing
of insurance premiums or (y) take or pay or similar obligations contained
in supply arrangements, in each case in the ordinary course of business;


 


(n)           Capital Lease Obligations incurred by Borrower
or any Subsidiary in respect of any Sale and Lease-Back Transaction that is
permitted under Section 7.03;


 


(o)           [reserved];


 


(p)           cash management obligations and Indebtedness
incurred by Borrower or any Subsidiary Guarantor in respect of netting
services, overdraft protections and similar arrangements in each case in
connection with cash management and deposit accounts;


 


(q)           [reserved];


 


(r)            Indebtedness incurred by Borrower or any Subsidiary
Guarantor representing deferred compensation to employees of Borrower or any Subsidiary
Guarantor incurred in the ordinary course of business;


 


(s)           guarantees (i) by Borrower or any Subsidiary
Guarantor of any other Indebtedness of Borrower or any Subsidiary Guarantor
expressly permitted to be incurred under this Agreement and (ii) by Borrower of
Indebtedness of Subsidiaries incurred for working capital purposes in the
ordinary course of business on ordinary business terms so long as such Indebtedness
is permitted to be incurred under Section 7.01(a); provided that guarantees
by Borrower or any Subsidiary Guarantor under this Section 7.01(s) of
any other Indebtedness of a Person that is subordinated to other Indebtedness
of such Person shall be expressly subordinated to the Obligations to at least
the same extent as the Indebtedness being guaranteed; and


 


(t)            all premium (if any), interest (including
post-petition interest), fees, expenses, charges and additional or contingent
interest on obligations described above.


 


7.02        Liens. Create, incur,
assume or permit to exist any Lien on any property or assets (including stock
or other securities of any Person, including any Subsidiary) at the time owned
by it or on any income or revenues or rights in respect of any thereof, except:


 


(a)           Liens on property or assets of Borrower and
the Subsidiaries existing on the Closing Date and set forth on Schedule 7.02;
provided that such Liens shall secure only those obligations that they
secure on the Closing Date (and extensions, renewals and refinancings of such
obligations permitted by Section 7.01(a)) and shall not subsequently
apply to any other property or assets of Borrower or any of the Subsidiaries;


 


(b)           any Lien created under the Loan Documents or
permitted in respect of any Mortgaged Property by the terms of the applicable
Mortgage;


 


(c)           [reserved];


 


55

















 


(d)           Liens for Taxes, assessments or other
governmental charges or levies not yet delinquent or that are being contested
in compliance with Section 6.03;


 


(e)           landlord’s, carriers’, warehousemen’s,
mechanics’, materialmen’s, repairmen’s, construction or other like Liens
arising in the ordinary course of business and securing obligations that are not
overdue by more than 45 days or that are being contested in good faith by
appropriate proceedings and in respect of which, if applicable, Borrower or any
Subsidiary shall have set aside on its books reserves in accordance with GAAP;


 


(f)            (i) pledges and deposits made in the
ordinary course of business in compliance with the Federal Employers Liability
Act or any other workers’ compensation, unemployment insurance and other social
security laws or regulations and deposits securing liability to insurance carriers
under insurance or self-insurance arrangements in respect of such obligations
and (ii) pledges and deposits securing liability for reimbursement or
indemnification obligations of (including obligations in respect of letters of
credit or bank guarantees for the benefit of) insurance carriers providing
property, casualty or liability insurance to Borrower or any Subsidiary;


 


(g)           pledges and deposits to secure the
performance of bids, trade contracts (other than for Indebtedness), leases
(other than Capital Lease Obligations), statutory obligations, surety and
appeal bonds, performance and return of money bonds, bids, leases, government
contracts, trade contracts, and other obligations of a like nature incurred in
the ordinary course of business, including those incurred to secure health,
safety and environmental obligations in the ordinary course of business;


 


(h)           zoning restrictions, easements, leases
(other than Capital Lease Obligations), licenses, special assessments,
rights-of-way, restrictions on use of real property and other similar
encumbrances incurred in the ordinary course of business that, in the
aggregate, do not interfere in any material respect with the ordinary conduct
of the business of Borrower or any Subsidiary;


 


(i)            security interests upon assets subject to
Capital Lease Obligations permitted hereunder and purchase money security
interests in equipment or other property or improvements thereto hereafter
acquired (or, in the case of improvements, constructed) by Borrower or any
Subsidiary (including the interests of vendors and lessors under conditional
sale and title retention agreements); provided that (i) such security
interests secure Indebtedness permitted by Section 7.01(j) (including
any Permitted Refinancing Indebtedness in respect thereof), (ii) such security
interests are incurred, and the Indebtedness secured thereby is created, within
270 days after such acquisition (or construction), (iii) the Indebtedness
secured thereby does not exceed 100% of the cost of such equipment or other
property or improvements at the time of such acquisition (or construction),
including transaction costs incurred by Borrower or any Subsidiary in
connection with such acquisition (or construction) and (iv) such security
interests do not apply to any other property or assets of Borrower or any
Subsidiary (other than to accessions to such equipment or other property or
improvements); provided, further, that individual financings of
equipment provided by a single lender may be cross-collateralized to other
financings of equipment provided solely by such lender or any of its Affiliates;


 


56

















 


(j)            Liens securing judgments that do not
constitute an Event of Default under Section 8.01(h);


 


(k)           Liens arising out of capitalized lease
transactions permitted under Section 7.03, so long as such Liens attach
only to the property sold and being leased in such transaction and any
accessions thereto or proceeds thereof and related property;


 


(l)            Liens disclosed by the title insurance
policies (if any) delivered pursuant to Section 6.09 and any replacement,
extension or renewal of any such Lien; provided that such replacement,
extension or renewal Lien shall not cover any property other than the property
that was subject to such Lien prior to such replacement, extension or renewal; provided,
further, that the Indebtedness and other obligations secured by such
replacement, extension or renewal Lien are not prohibited by this Agreement;


 


(m)          any interest, title, indebtedness or other
encumbrances of a lessor on its fee interest or its landlord’s interest under
any leases or subleases entered into by Borrower or any Subsidiary, as tenant,
in the ordinary course of business;


 


(n)           Liens that are contractual rights of setoff
(i) relating to the establishment of depository relations with banks not given
in connection with the issuance of Indebtedness, (ii) relating to pooled
deposit or sweep accounts of Borrower or any Subsidiary to permit satisfaction
of overdraft or similar obligations incurred in the ordinary course of business
of Borrower and the Subsidiaries, (iii) relating to purchase orders and other
agreements entered into with customers of Borrower or any Subsidiary in the
ordinary course of business or (iv) arising under or pursuant to general
banking conditions;


 


(o)           Liens arising solely by virtue of any
statutory or common law provision relating to banker’s liens, rights of setoff
or similar rights;


 


(p)           licenses of intellectual property granted in
the ordinary course of business and in a manner consistent with past practice;


 


(q)           Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties in
connection with the importation of goods;


 


(r)            Liens upon specific items of inventory or
other goods and proceeds of Borrower or any of the Subsidiaries securing such Person’s
obligations in respect of bankers’ acceptances issued or created for the
account of such Person to facilitate the purchase, shipment or storage of such
inventory or other goods;


 


(s)           Liens solely on any cash earnest money
deposits made by Borrower or any of the Subsidiaries in connection with any
letter of intent or purchase agreement permitted hereunder;


 


(t)            other Liens with respect to property or
assets of Borrower or any Subsidiary with an aggregate fair market value
(valued at the time of the creation thereof) of not more than $100,000 at any
time; and


 


57

















 


(u)           the filing of UCC financing statements
solely as a precautionary measure in connection with operating leases.


 


Notwithstanding the foregoing, no Liens shall
be permitted to exist, directly or indirectly, on Securities Collateral, other
than Liens in favor of the Collateral Agent and Liens permitted by Section 7.02(b),
(e), (f) or (o).


 


7.03        Sale and Lease-Back
Transactions. Enter into any arrangement, directly or indirectly, with any
Person whereby it shall sell or transfer any property, real or personal, used
or useful in its business, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property that it intends to use
for substantially the same purpose or purposes as the property being sold or
transferred (a “Sale and Lease-Back Transaction”).


 


7.04        Investments,
Loans and Advances. Purchase,
hold or acquire (including pursuant to any merger with a Person that is not a
Wholly Owned Subsidiary immediately prior to such merger) any Equity Interests,
evidences of Indebtedness or other securities of, make or permit to exist any
loans or advances (other than intercompany investments, loans or advances
incurred in the ordinary course of business and consistent with past practices
of Borrower and the Subsidiaries) to or guarantees of the obligations of, or
make or permit to exist any investment in (each, an “Investment”), any
other Person, except:


 


(a)           guarantees by Borrower or any Subsidiary of
operating leases (other than Capital Lease Obligations) or of other obligations
that do not constitute Indebtedness, in each case entered into by Borrower or
any Subsidiary in the ordinary course of business;


 


(b)           (i) Investments by Borrower or any
Subsidiary in the Equity Interests, evidence of Indebtedness or other
securities of Borrower or any Subsidiary; (ii) intercompany loans from Borrower
or any Subsidiary to Borrower or any Subsidiary; and (iii) guarantees by Borrower
or any Subsidiary of Indebtedness otherwise expressly permitted hereunder of Borrower
or any Subsidiary;


 


(c)           Permitted Investments and investments that
were Permitted Investments when made;


 


(d)           Investments received in connection with the
bankruptcy or reorganization of, or settlement of delinquent accounts and
disputes with or judgments against, customers and suppliers, in each case in
the ordinary course of business;


 


(e)           Investments of a Subsidiary acquired after
the Closing Date or of a corporation merged into Borrower or merged into or
consolidated with a Subsidiary in accordance with Section 7.05 after the
Closing Date to the extent that such Investments were not made in contemplation
of or in connection with such acquisition, merger or consolidation and were in
existence on the date of such acquisition, merger or consolidation;


 


(f)            Investments arising out of the receipt by Borrower
or any Subsidiary of noncash consideration for the sale of assets permitted
under Section 7.05;


 


(g)           [reserved];


 


58

















 


(h)           accounts receivable arising and trade credit
granted in the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof from financially troubled account
debtors to the extent reasonably necessary in order to prevent or limit loss
and any prepayments and other credits to suppliers made in the ordinary course
of business;


 


(i)            Swap Agreements permitted pursuant to Section
7.09;


 


(j)            Investments existing on the Closing Date
and Investments made pursuant to binding commitments in effect on the Closing
Date, in each case to the extent set forth on Schedule 7.04 together
with any modification, replacement, renewal, reinvestment or extension thereof;


 


(k)           Investments resulting from pledges and
deposits referred to in Sections 7.02(g) and (h);


 


(l)            the
Transactions; and


 


(m)          other Investments by Borrower or any
Subsidiary in an aggregate amount (valued at the time of the making thereof,
and without giving effect to any write-downs or write-offs thereof) not to
exceed $100,000.


 


7.05        Mergers, Consolidations,
Sales of Assets and Acquisitions. Merge into or consolidate with any other Person,
or permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions) all or any part of its assets (whether now owned or hereafter
acquired), or issue, sell, transfer or otherwise dispose of any Equity
Interests of Borrower or any Subsidiary or preferred Equity Interests of Borrower,
or purchase, lease or otherwise acquire (in one transaction or a series of
transactions) all or any substantial part of the assets of any other Person,
except that this Section shall not prohibit:


 


(a)           (i) the purchase and sale of inventory in
the ordinary course of business by Borrower or any Subsidiary, (ii) the
acquisition of any other asset in the ordinary course of business by Borrower or
any Subsidiary, (iii) the sale, transfer, lease or other disposition of
surplus, obsolete or worn out equipment or other property in the ordinary
course of business by Borrower or any Subsidiary, (iv) leases and subleases
(including, but not limited to, tower site ground leases and tower space
leases) in the ordinary course of business by Borrower or any Subsidiary or (v)
the sale of Permitted Investments in the ordinary course of business;


 


(b)           if at the time hereof and immediately after
giving effect thereto no Event of Default shall have occurred and be
continuing, the merger of any Subsidiary of Borrower into Borrower in a
transaction in which Borrower is the surviving corporation;


 


(c)           sales, transfers, leases, issuances or other
dispositions to Borrower or a Subsidiary (upon voluntary liquidation or
otherwise);


 


59

















 


(d)           Investments permitted by Section 7.04,
Liens permitted by Section 7.02 and dividends and distributions permitted
by Section 7.06;


 


(e)           the sale of defaulted receivables in the
ordinary course of business and not as part of an accounts receivables
financing transaction;


 


(f)            [reserved];


 


(g)           the Transactions;


 


(h)           (A) licensing and cross-licensing
arrangements involving any technology or other intellectual property of Borrower
or any Subsidiary in the ordinary course of business and (B) the abandonment or
other disposition of any intellectual property that is no longer economically
practicable to maintain or useful in the conduct of the business of Borrower or
any of the Subsidiaries;


 


(i)            sales, leases or other dispositions of
inventory of Borrower and the Subsidiaries determined in good faith by the
management of Borrower or Borrower to be no longer useful or necessary in the
operation of the business of Borrower or any of the Subsidiaries; provided
that the Net Proceeds thereof are applied in accordance with Section 2.03(b);


 


(j)            Sale and Lease-Back Transactions permitted
by Section 7.03; and


 


(k)           voluntary terminations of Swap Contracts.


 


Notwithstanding
anything to the contrary contained in Section 7.05 above, (i) no sale,
transfer, lease, issuance or other disposition shall be permitted by this Section
7.05 (other than sales, transfers, leases, issuances or other dispositions to
Borrower or its Subsidiaries pursuant to paragraph (c) hereof) unless such
disposition is for fair market value and (ii) no sale, transfer or other
disposition of assets shall be permitted by paragraph (a) or (i) of this Section
7.05 unless such disposition is for at least 75% cash consideration or at
least 75% of the consideration therefor constitutes assets used or useful in,
or a controlling interest in a Person operating, a business or business
activity permitted by Section 7.07; provided that for purposes of
clause (ii), the amount of any secured Indebtedness or other Indebtedness of Borrower
or any Subsidiary of Borrower that is assumed by the transferee of any such
assets shall be deemed cash.


 


7.06        Dividends and
Distributions. Declare or pay, directly or indirectly, any dividend or make
any other distribution (by reduction of capital or otherwise), whether in cash,
property, securities or a combination thereof, with respect to any of its
Equity Interests (other than dividends and distributions on Equity Interests
payable solely by the issuance of additional shares of Equity Interests of the
Person paying such dividends or distributions) or directly or indirectly
redeem, purchase, retire or otherwise acquire for value (or permit any
Subsidiary to purchase or acquire) any shares of any class of its Equity
Interests or set aside any amount for any such purpose; provided, however,
that:


 


(a)           any Subsidiary of Borrower may declare and
pay dividends to, repurchase its Equity Interests from or make other distributions
to Borrower or to any Wholly


 


60

















 


Owned Subsidiary of Borrower (or, in the case of non-Wholly Owned Subsidiaries,
to Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary
and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from
the perspective of Borrower or such Subsidiary) based on their relative
ownership interests);


 


(b)           Borrower may declare and pay dividends or
make other distributions to any Parent Company in respect of (i) overhead
liabilities of such Parent Company, legal, accounting and other professional
fees and expenses, (ii) reasonable fees and expenses related to any offering, financing,
investment, disposition or acquisition permitted hereunder (whether or not
successful) in connection with the business of Borrower or any Subsidiary and
(iii) other fees and expenses in connection with the maintenance of the
existence and ownership of such Parent Company; provided that the
aggregate amount of dividends and other distributions made pursuant to this
paragraph (b) shall not exceed $100,000 annually;


 


(c)           [reserved];


 


(d)           the foregoing shall not prohibit noncash
repurchases of Equity Interests deemed to occur upon exercise of stock options
if such Equity Interests represent a portion of the exercise price of such
options;


 


(e)           (i) with respect to each tax year (or
portion thereof) that Borrower qualifies as a Flow Through Entity, the
distribution by Borrower to the holders of the Equity Interests of Borrower of
an amount equal to the product of (A) the amount of aggregate net taxable
income allocated by Borrower to the direct holders of the Equity Interests of Borrower
for such period and (B) the Presumed Tax Rate for such period shall be permitted
and (ii) with respect to any tax year (or portion thereof) that Borrower does
not qualify as a Flow Through Entity and is part of a group filing consolidated
or combined federal, state or local income tax returns of which a direct or
indirect parent of Borrower is the common parent, the payment of dividends or
other distributions to any direct or indirect holders of Equity Interests of Borrower
in amounts required for such holder to pay consolidated, combined or similar federal,
state or local income taxes (as the case may be) imposed directly on such
holder to the extent such income taxes are attributable to the income of Borrower
and the Subsidiaries shall be permitted; provided, however, that
in each case the amount of such payments in respect of any tax year does not
exceed the amount that Borrower and the Subsidiaries would have been required
to pay in respect of federal, state or local income taxes (as the case may be)
in respect of such year if Borrower and the Subsidiaries paid such taxes
directly as a stand-alone taxpayer (or stand-alone group) less any such taxes
payable directly by Borrower or the Subsidiaries; and


 


(f)            Borrower may declare and pay dividends or
make other distributions to holders of its Equity Interests; provided
that (i) no Default or Event of Default exists at the time of any such dividend
or distribution or would exist immediately after giving effect thereto and (ii)
the aggregate amount of dividends and other distributions made pursuant to this
paragraph (f) after the Closing Date shall not exceed $5.0 million.


 


61

















 


7.07        Business of Borrower and
the Subsidiaries. Notwithstanding any of the provisions hereof, Borrower
will not, and will not permit any of the Subsidiaries to, engage at any time in
any business or business activity other than:


 


(a)           in the case of Borrower and any Subsidiary,
(i) any business or business activity conducted by it on the Closing Date and
any business or business activities incidental or related thereto, or any
business or activity that is reasonably similar thereto or a reasonable
extension, development or expansion thereof or ancillary thereto, including the
consummation of the Transactions and (ii) performance of its obligations under
and in connection with the Loan Documents;


 


(b)           [reserved]; or


 


(c)           in the case of each License Subsidiary,
engage in holding licenses issued to it by the FCC and entering into
arrangements with Borrower or other Subsidiaries to manage and operate the
Stations authorized by such licenses under its direction and control, in each
case to the maximum extent permitted by applicable law.


 


7.08        Limitation on
Modifications, Prepayments and Certain Interest Payments.


 


(a)           Amend or modify in any manner materially
adverse to the Lenders, or grant any waiver or release under or terminate in
any manner (if such granting or termination shall be materially adverse to the
Lenders), the articles or certificate of incorporation or by-laws or
partnership agreement or limited liability company operating agreement of Borrower
or any of the Subsidiaries.


 


(b)           (i) Make any voluntary or optional payment
or prepayment on or redemption or acquisition for value of, or any prepayment
or redemption as a result of any asset sale, change of control or similar event
of, any Subordinated Indebtedness, except as otherwise permitted by this Agreement
or (ii) amend or modify, or permit the amendment or modification of, the
SagamoreHill Time Brokerage Agreement, other than amendments or modifications
that are not in any matter materially adverse to the Lenders.


 


(c)           Permit any Subsidiary to enter into any
agreement or instrument that by its terms restricts (i) the payment of dividends
or distributions or the making of cash advances by such Subsidiary to Borrower or
any Subsidiary that is a direct or indirect parent of such Subsidiary or (ii)
the granting of Liens by such Subsidiary pursuant to the Security Documents, in
each case other than those arising under any Loan Document, except, in each
case, restrictions existing by reason of:


 


(A)          restrictions imposed by
applicable law;


 


(B)           contractual
encumbrances and restrictions in any agreements related to any permitted
renewal, extension or refinancing of any Indebtedness existing on the Closing
Date that does not expand the scope of any such encumbrance or restriction;


 


62

















 


(C)           any restriction on a
Subsidiary imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Equity Interests or assets of a
Subsidiary pending the closing of such sale or disposition;


 


(D)          customary provisions in
joint venture agreements and other similar agreements applicable to joint
ventures entered into in the ordinary course of business;


 


(E)           any restrictions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement to the extent that such restrictions apply only to the property or
assets securing such Indebtedness;


 


(F)           customary provisions
contained in leases or licenses of intellectual property and other similar
agreements entered into in the ordinary course of business;


 


(G)           customary provisions
restricting subletting or assignment of any lease governing a leasehold interest;


 


(H)          customary provisions
restricting assignment of any agreement entered into in the ordinary course of
business;


 


(I)            customary restrictions
and conditions contained in any agreement relating to the sale of any asset
permitted under Section 7.05 pending the consummation of such sale; or


 


(J)            any agreement in
effect at the time such subsidiary becomes a Subsidiary, so long as such
agreement was not entered into in contemplation of such Person becoming a
Subsidiary.


 


7.09        Swap Agreements. Enter
into any Swap Agreement, other than (a) Swap Agreements entered into in the
ordinary course of business to hedge or mitigate risks to which Borrower or any
Subsidiary is exposed in the conduct of its business or the management of its
liabilities and (b) Swap Agreements entered into not for speculative purposes
but in order to effectively cap, collar or exchange interest rates (from fixed
to floating rates, from one floating rate to another floating rate or
otherwise) with respect to any interest bearing liability or investment of Borrower
or any Subsidiary.


 


7.10        Anti-Terrorism Law;
Anti-Money Laundering.


 


(a)           Directly or indirectly, (i) knowingly
conduct any business or engage in making or receiving any contribution of
funds, goods or services to or for the benefit of any Person described in Section 5.21,
(ii) knowingly deal in, or otherwise knowingly engage in any transaction
relating to, any property or interests in property blocked pursuant to the
Executive Order or any other Anti-Terrorism Law, or (iii) knowingly engage
in or conspire to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions
set forth in any Anti-Terrorism Law (and Borrower and the Subsidiaries shall deliver
to the Lenders any certification or other evidence requested from time to time
by any Lender in its reasonable discretion, confirming Borrower and the Subsidiaries’
compliance with this Section 7.10).


 


63

















 


(b)           Knowingly cause or permit any of the funds
of Borrower or any of its Subsidiaries that are used to repay the Loans to be
derived from any unlawful activity with the result that the making of the Loans
would be in violation of any applicable law.


 


7.11        Embargoed Person. Knowingly
cause or permit (a) any of the funds or properties of Borrower or any of
its Subsidiaries that are used to repay the Loans to constitute property of, or
be beneficially owned directly or indirectly by, any Person subject to
sanctions or trade restrictions under United States law (“Embargoed Person”
or “Embargoed Persons”) that is identified on (1) the “List of
Specially Designated Nationals and Blocked Persons” maintained by OFAC and/or
on any other similar list maintained by OFAC pursuant to any authorizing
statute including, but not limited to, the International Emergency Economic
Powers Act, 50 U.S.C. §§ 1701 et  seq.,
The Trading with the Enemy Act, 50 U.S.C. App. 1 et  seq.,
and any Executive Order or applicable Law promulgated thereunder, with the
result that the investment in Borrower or any of its Subsidiaries (whether
directly or indirectly) is prohibited by applicable Law, or the Loans made by
the Lenders would be in violation of applicable Law, or (2) the Executive
Order, any related enabling legislation or any other similar Executive Orders
or (b) any Embargoed Person to have any direct or indirect interest, of
any nature whatsoever in Borrower or any of its Subsidiaries, with the result
that the investment in Borrower or any of its Subsidiaries (whether directly or
indirectly) is prohibited by applicable Law or the Loans are in violation of applicable
Law.


 


7.12        No Further Negative Pledge.
Enter into any agreement, instrument, deed or lease which prohibits or
limits the ability of Borrower or any Subsidiary to create, incur, assume or suffer
to exist any Lien upon any of their respective properties or revenues, whether
now owned or hereafter acquired, or which requires the grant of any security
for an obligation if security is granted for another obligation, except the
following: (1) this Agreement and the other Loan Documents;
(2) covenants in documents creating Liens permitted by Section 7.02
prohibiting further Liens on the properties encumbered thereby; (3) any
other agreement that does not restrict in any manner (directly or indirectly)
Liens created pursuant to the Loan Documents on any Collateral securing the
Obligations and does not require the direct or indirect granting of any Lien
securing any Indebtedness or other obligation by virtue of the granting of
Liens on or pledge of property of any Loan Party to secure the Obligations; and
(4) any prohibition or limitation that (a) exists pursuant to
applicable requirements of any Governmental Authority, including any and all
laws, judgments, orders, decrees, ordinances, rules, regulations, statues or
case law, (b) consists of customary restrictions and conditions contained
in any agreement relating to the sale of any property permitted under Section 7.05
pending the consummation of such sale, (c) restricts subletting or assignment
of any lease governing a leasehold interest of Borrower or a Subsidiary,
(d) exists in any agreement in effect at the time such Subsidiary becomes
a Subsidiary of Borrower, so long as such agreement was not entered into in
contemplation of such Person becoming a Subsidiary or (e) is imposed by
any amendments or refinancings that are otherwise permitted by the Loan
Documents of the contracts, instruments or obligations referred to in
clause (3) or (4)(d); provided that
such amendments and refinancings are no more materially restrictive with
respect to such prohibitions and limitations than those prior to such amendment
or refinancing.


 


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ARTICLE
VIII



EVENTS OF DEFAULT AND REMEDIES


 


8.01        Events of Default. In
case of the happening of any of the following events (“Events of Default”):


 


(a)           any representation or warranty made or
deemed made by Borrower or any other Loan Party in any Loan Document, or any
representation, warranty or material statement contained in any report,
certificate, financial statement or other instrument furnished in connection
with or pursuant to any Loan Document, shall prove to have been false or misleading
in any material respect when so made, deemed made or furnished by Borrower or
any other Loan Party;


 


(b)           (i) default shall be made in the payment of
any principal of any Loan when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise or (ii) default shall be made in the payment
of any interest on any Loan due under any Loan Document, when and as the same
shall become due and payable, and such default shall continue unremedied for a
period of three Business Days;


 


(c)           default shall be made in the due observance
or performance by Borrower or any of the Subsidiaries of any covenant,
condition or agreement contained in Section 6.01(a) (with respect to Borrower),
6.06 (and such default shall continue unremedied for a period of 10
Business Days), 6.09(d) or in Article VII;


 


(d)           default shall be made in the due observance
or performance by Borrower or any of the Subsidiaries of any covenant,
condition or agreement contained in any Loan Document (other than those
specified in paragraphs (b) and (c) above) and such default shall continue
unremedied for a period of 30 days after written notice thereof from the
Administrative Agent to Borrower;


 


(e)           (i) any event or condition occurs that (A)
results in any Material Indebtedness becoming due prior to its scheduled
maturity or (B) enables or permits (with all applicable grace periods having
expired) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become due,
or to require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity or (ii) Borrower or any of the Subsidiaries
shall fail to pay the principal of any Material Indebtedness at the stated
final maturity thereof; provided that this paragraph (e) shall not apply
to secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness if such sale or
transfer is permitted hereunder and under the documents providing for such Indebtedness;


 


(f)            [reserved];


 


(g)           (i) an involuntary proceeding shall be
commenced or an involuntary petition shall be filed in a court of competent
jurisdiction seeking (A) relief in respect of Borrower


 


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or any of the Subsidiaries, or of a substantial part of the property or
assets of Borrower or any Subsidiary, under Title 11 of the United States Code,
as now constituted or hereafter amended, or any other federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (B) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
Borrower or any of the Subsidiaries or for a substantial part of the property
or assets of Borrower or any of the Subsidiaries or (C) the winding-up or
liquidation of Borrower or any Subsidiary (except, in the case of any
Subsidiary, in a transaction permitted by Section 7.05); and such
proceeding or petition shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall be entered; or (ii) Borrower
or any Subsidiary shall (A) voluntarily commence any proceeding or file any
petition seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (B) seek, or consent to, the
institution of, or fail to contest in a timely and appropriate manner, any proceeding
or the filing of any petition described in clause (i) above, (C) apply for or
consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Borrower or any of the Subsidiaries or for
a substantial part of the property or assets of Borrower or any Subsidiary, (D)
file an answer admitting the material allegations of a petition filed against
it in any such proceeding, (E) make a general assignment for the benefit of
creditors or (F) become unable, admit in writing its inability or fail
generally to pay its debts as they become due;


 


(h)           the failure by Borrower or any Subsidiary to
pay one or more final judgments (not covered by insurance) aggregating in
excess of $250,000, which judgments are not discharged or effectively waived or
stayed for a period of 30 consecutive days, or any action shall be legally
taken by a judgment creditor to levy upon any material assets or properties of Borrower
or any Subsidiary to enforce any such judgment;


 


(i)            [reserved];


 


(j)            (i) any Loan Document shall for any reason
be asserted in writing by Borrower or any Subsidiary not to be a legal, valid
and binding obligation of any party thereto, (ii) any security interest
purported to be created by any Security Document and to extend to assets that
are not immaterial to Borrower and the Subsidiaries on a consolidated basis
shall cease to be, or shall be asserted in writing by Borrower or any other
Loan Party not to be, a valid and perfected security interest (having the
priority required by this Agreement or the relevant Security Document) in the
securities, assets or properties covered thereby, except to the extent that any
such loss of perfection or priority results from the failure of the Collateral
Agent to maintain possession of certificates actually delivered to it
representing securities pledged under the Security Documents or to file Uniform
Commercial Code continuation statements and except to the extent that such loss
is covered by a lender’s title insurance policy and the Administrative Agent
shall be reasonably satisfied with the credit of such insurer or (iii) the Guaranty
pursuant to the Security Documents by Borrower or the Guarantors of any of the
Obligations shall cease to be in full force and effect (other than in
accordance with the terms thereof), or shall be asserted in writing by Borrower
or any Guarantor not to be in effect or not to be legal,


 


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valid and binding obligations for any reason other than satisfaction in
full of all Obligations;


 


(k)           the occurrence and continuance of an “Event
of Default” as defined in the Barrington Credit Facility; or


 


(l)            termination of the SagamoreHill Time
Brokerage Agreement;


 


then, in every
such event (other than an event with respect to Borrower described in paragraph
(g) above or an event with respect to Borrower described in Section 8.01(g)
of the Barrington Credit Facility), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to Borrower, take any or all of the
following actions, at the same or different times: (i) terminate forthwith the
Commitments, (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared
to be due and payable, together with accrued interest thereon and all other
liabilities of Borrower accrued hereunder and under any other Loan Document,
shall become forthwith due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by Borrower,
anything contained herein or in any other Loan Document to the contrary
notwithstanding and (iii) subject to Section 10.17, exercise, or direct
the Collateral Agent to exercise, any or all rights and remedies under the Loan
Documents; and in any event with respect to Borrower described in paragraph (g)
above, the Commitments shall automatically terminate, the principal of the
Loans then outstanding, together with accrued interest thereon and all other
liabilities of Borrower accrued hereunder and under any other Loan Document,
shall automatically become due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by Borrower, anything contained herein or in any other Loan Document to
the contrary notwithstanding.


 


Without limiting the generality of the foregoing or limiting in any way
the rights of the Lenders and the Agents under the Security Documents or
otherwise under applicable law, and to the extent permitted by the FCC, at any
time after the occurrence, and during the continuance, of an Event of Default
and a declaration pursuant to clause (ii) of the immediately preceding
paragraph, the Administrative Agent, at the direction of the Required Lenders,
shall be entitled to apply for and have a receiver or receiver and manager
appointed under state or federal law by a court of competent jurisdiction in
any action taken by the Agents or the Lenders to enforce their rights and
remedies hereunder and under the Loan Documents in order to manage, protect,
preserve, sell and otherwise dispose of all or any portion of the Collateral
and continue the operation of the business of the Loan Parties, or any of them,
and to collect all revenues and profits thereof and apply the same to the
payment of all expenses and other charges of such receivership, including the
compensation of the receiver, and to the payment of the Obligations until a
sale or other disposition of such Collateral shall be finally made and
consummated. EACH LOAN PARTY HEREBY IRREVOCABLY CONSENTS
TO AND WAIVES ANY RIGHT TO OBJECT TO OR OTHERWISE CONTEST THE APPOINTMENT OF A
RECEIVER AFTER THE OCCURRENCE OF AN EVENT OF DEFAULT (AFTER THE EXPIRATION OF
ANY APPLICABLE GRACE PERIOD) AND ACCELERATION OF THE OBLIGATIONS, AS PROVIDED
ABOVE. EACH LOAN PARTY GRANTS SUCH WAIVER AND CONSENT KNOWINGLY AFTER HAVING
DISCUSSED THE IMPLICATIONS


 


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THEREOF
WITH COUNSEL, ACKNOWLEDGES THAT THE UNCONTESTED RIGHT TO HAVE A RECEIVER
APPOINTED FOR THE FOREGOING PURPOSES IS CONSIDERED ESSENTIAL BY THE REQUIRED
LENDERS IN CONNECTION WITH THE ENFORCEMENT OF THEIR RIGHTS AND REMEDIES
HEREUNDER AND UNDER THE SECURITY DOCUMENTS AND OTHER LOAN DOCUMENTS, AND THE
AVAILABILITY OF SUCH APPOINTMENT AS A REMEDY UNDER THE FOREGOING CIRCUMSTANCES
WAS A MATERIAL FACTOR IN INDUCING THE LENDERS TO MAKE (AND COMMIT TO MAKE) THE
LOANS TO BORROWER, AND AGREES TO ENTER INTO ANY AND ALL STIPULATIONS IN ANY
LEGAL ACTIONS, OR AGREEMENTS OR OTHER INSTRUMENTS IN CONNECTION WITH THE
FOREGOING AND TO COOPERATE FULLY WITH THE ADMINISTRATIVE AGENT AND THE LENDERS
IN CONNECTION WITH THE ASSUMPTION AND EXERCISE OF CONTROL BY THE RECEIVER OVER
ALL OR ANY PORTION OF THE COLLATERAL AND PROPERTY OF THE LOAN PARTIES. NO RIGHT
CONFERRED UPON THE LENDERS OR THE ADMINISTRATIVE AGENT HEREBY OR BY ANY LOAN
DOCUMENT SHALL BE EXCLUSIVE OF ANY OTHER RIGHT REFERRED TO HEREIN OR THEREIN OR
NOW OR HEREAFTER AVAILABLE AT LAW, IN EQUITY, BY STATUTE OR OTHERWISE.


 


8.02        Application of Funds. After
the exercise of remedies provided for in Section 8.01 (or after the
Loans have automatically become immediately due and payable as set forth in Section
8.01), any amounts received on account of the Obligations shall be applied
by the Administrative Agent in the following order:


 


(a)           First, to payment of that portion of the
Secured Obligations constituting fees, indemnities, expenses and other amounts
(including documented fees, charges and out-of pocket disbursements of one lead
counsel plus one local counsel in each jurisdiction in which a Loan Party is
organized plus one regulatory counsel with respect to any regulatory matter to
the Administrative Agent payable in accordance with the Loan Documents and
amounts payable under Article III) payable to the Administrative Agent
and the Collateral Agent in their capacities as such;


 


(b)           Second, to payment of that portion of the
Secured Obligations constituting fees, indemnities and other amounts (other
than principal and interest) payable to the Lenders (including documented fees,
charges and out-of pocket disbursements of one lead counsel plus one local
counsel in each jurisdiction in which a Loan Party is organized plus one regulatory
counsel with respect to any regulatory matter to the respective Lenders payable
in accordance with the Loan Documents and amounts payable under Article III),
ratably among them in proportion to the amounts described in this clause (b)
payable to them;


 


(c)           Third, to payment of that portion of the
Secured Obligations constituting accrued and unpaid interest on the Loans,
ratably among the Lenders in proportion to the respective amounts described in
this clause (c) payable to them;


 


(d)           Fourth, (i) to payment of that portion of
the Secured Obligations constituting unpaid principal of the Loans and (ii) to
payment of breakage, termination or other


 


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amounts owing in respect of any Swap Agreement between Borrower or any
of its Subsidiaries and any Secured Party, to the extent such Swap Agreement is
permitted hereunder, ratably among the Secured Parties in proportion to the
respective amounts described in this clause (d) held by them;


 


(e)           Fifth, to payment of amounts due under any
Treasury Management Agreement between Borrower or any of its Subsidiaries and
any Secured Party;


 


(f)            Sixth, to the payment of all other
Obligations of Borrower or any of its Subsidiaries that are due and payable to
the Administrative Agent and the other Secured Parties on such date, ratably
based upon the respective aggregate amounts of all such Obligations owing to
the Administrative Agent and the other Secured Parties on such date; and


 


(g)           Last, the balance, if any, after all of the
Secured Obligations have been indefeasibly paid in full, to Borrower or as
otherwise required by Law.


 


ARTICLE IX



ADMINISTRATIVE AGENT AND COLLATERAL AGENT


 


9.01        Appointment and Authority.
Each of the Lenders hereby irrevocably appoints Bank of America to act on
its behalf as the Administrative Agent and Collateral Agent hereunder and under
the other Loan Documents and authorizes the Administrative Agent and Collateral
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent and Collateral Agent by the terms hereof
or thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article (other than Borrower’s consent right solely
with respect to the appointment of a successor Agent under Section 9.06)
are solely for the benefit of the Administrative Agent, the Collateral Agent
and the Lenders, and no Loan Party shall have rights as a third party
beneficiary of any of such provisions.


 


9.02        Rights as a Lender. The
Person serving as the Administrative Agent and Collateral Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent and Collateral
Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly
indicated or unless the context otherwise requires, include the Person serving
as the Administrative Agent and Collateral Agent hereunder in its individual
capacity. Such Person and its Affiliates may accept deposits from, lend money
to, act as the financial advisor or in any other advisory capacity for and
generally engage in any kind of business with Borrower or any Subsidiary or
other Affiliate thereof as if such Person were not the Administrative Agent and
Collateral Agent hereunder and without any duty to account therefor to the Lenders.


 


9.03        Exculpatory Provisions. No
Agent shall have any duties or obligations except those expressly set forth
herein and in the other Loan Documents. Without limiting the generality of the
foregoing, the Agents:


 


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(a)           shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing;


 


(b)           shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby or by the other Loan Documents
that such Agent is required to exercise as directed in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be
expressly provided for herein or in the other Loan Documents), provided that
such Agent shall not be required to take any action that, in its opinion or the
opinion of its counsel, may expose such Agent to liability or that is contrary
to any Loan Document or applicable law; and


 


(c)           shall not, except as expressly set forth
herein and in the other Loan Documents, have any duty to disclose, and shall
not be liable for the failure to disclose, any information relating to Borrower
or any of their Affiliates that is communicated to or obtained by the Person
serving as an Agent or any of its Affiliates in any capacity.


 


No Agent shall be liable for any action taken
or not taken by it (i) with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be
necessary, or as such Agent shall believe in good faith shall be necessary,
under the circumstances as provided in Sections 10.01 and 8.01)
or (ii) in the absence of its own gross negligence or willful misconduct. No
Agent shall be deemed to have knowledge of any Default unless and until notice
describing such Default is given to such Agent by Borrower or a Lender.


 


No Agent shall be responsible to the Lenders
or any of their respective Related Parties for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents of
any certificate, report or other document delivered hereunder or thereunder or
in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth
herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than
to confirm receipt of items expressly required to be delivered to such Agent.


 


9.04        Reliance by Agents. Each
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing (including any electronic message, Internet or
intranet website posting or other distribution) believed by it to be genuine
and to have been signed, sent or otherwise authenticated by the proper Person. Each
Agent also may rely upon any statement made to it orally or by telephone and believed
by it to have been made by the proper Person, and shall not incur any liability
for relying thereon. In determining compliance with any condition hereunder to
the making of a Loan, that by its terms must be fulfilled to the satisfaction
of a Lender, each Agent may presume that such condition is satisfactory to such
Lender unless such Agent shall have received notice to the contrary from such
Lender prior to the making of such Loan. Each Agent may consult with legal
counsel (who may be counsel for Borrower), independent accountants and other
experts selected by it, and shall not be liable to the Lenders or any of their
respective


 


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Related Parties for any action taken or not taken by it in accordance
with the advice of any such counsel, accountants or experts.


 


9.05        Delegation of Duties. Each
Agent may perform any and all of its duties and exercise its rights and powers
hereunder or under any other Loan Document by or through any one or more sub-agents
appointed by the Administrative Agent in its reasonable judgment. The Administrative
Agent and any such sub-agent may perform any and all of their duties and
exercise their rights and powers by or through their respective Related Parties.
The exculpatory provisions of this Article shall apply to any such sub-agent
and to the Related Parties of each Agent and any such sub-agent, and shall
apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as the Agents.


 


9.06        Resignation of Agent. Each
Agent may resign at any time upon written notice 30 Business Days prior to such
resignation to the Lenders and Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with Borrower,
to appoint a successor, which shall be a bank with an office in the United States,
or an Affiliate of any such bank with an office in the United States; provided
that Borrower must consent to the appointment of any such successor Agent at
all times other than during the existence of an Event of Default (which consent
shall not be unreasonably withheld). If no such successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Agent gives notice of its resignation, then the retiring
Agent may on behalf of the Lenders, appoint a successor Agent meeting the
qualifications set forth above in consultation with Borrower. Upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such amendments or supplements to the Mortgages, and such other
instruments or notices, as may be necessary, or as the Required Lenders may reasonably
request, in order to continue the perfection of the Liens granted or purported
to be granted by the Security Documents, such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Agent, and the retiring Agent shall be discharged from
all of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this Section 9.06).
The fees payable by Borrower to a successor Agent shall be the same as those
payable to its predecessor unless otherwise agreed between Borrower and such
successor. After the retiring Agent’s resignation hereunder and under the other
Loan Documents, the provisions of this Article and Section 10.04
shall continue in effect for the benefit of such retiring Agent, its sub-agents
and their respective Related Parties in respect of any actions taken or omitted
to be taken by any of them while the retiring Administrative Agent was acting
as Agent.


 


9.07        Non-Reliance on Agent and
Other Lenders. Each Lender acknowledges that it has, independently and
without reliance upon any Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender or any of their Related
Parties and based on such documents and information as it shall from time to
time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document or
any related agreement or any document furnished hereunder or thereunder.


 


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9.08        No Other Duties, Etc.Anything
herein to the contrary notwithstanding, none of the Administrative Agent,
Collateral Agent and Arrangers listed on the cover page hereof shall have any
powers, duties or responsibilities under this Agreement or any of the other
Loan Documents, except in its capacity, as applicable, as an Agent or a Lender
hereunder.


 


9.09        Agent May File Proofs of
Claim. In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to any Loan Party, any Agent
(irrespective of whether the principal of any Loan shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether such Agent shall have made any demand on any Loan Party) shall be
entitled and empowered, by intervention in such proceeding or otherwise


 


(a)           to file and prove a claim for the whole
amount of the principal and interest owing and unpaid in respect of the Loans
and all other Secured Obligations that are owing and unpaid and to file such
other documents as may be necessary or advisable in order to have the claims of
the Lenders and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders
and the Administrative Agent and their respective agents and counsel and all
other amounts due the Lenders and the Administrative Agent under Section 10.04)
allowed in such judicial proceeding; and


 


(b)           to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same;


 


and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender to make such payments to the Administrative Agent and, in the event that
the Administrative Agent shall consent to the making of such payments directly
to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Section  10.04.


 


Nothing contained herein shall be deemed to
authorize the Administrative Agent to authorize or consent to or accept or
adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender
or to authorize the Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding.


 


9.10        Collateral and Guaranty
Matters. The Lenders irrevocably authorize each of the Administrative Agent
and Collateral Agent, at its option and in its discretion,


 


(a)           to release any Lien on any property granted
to or held by the Collateral Agent under any Loan Document (i) upon termination
of the Aggregate Commitments and payment in full of all Secured Obligations
(other than contingent indemnification obligations), (ii) that is sold or to be
sold or otherwise disposed of as part of or in connection with any sale or
disposition permitted hereunder or under any other Loan Document, (iii) subject
to Section 10.01, if approved, authorized or ratified in writing by the
Required


 


72

















 


Lenders, or (iv) owned by a Guarantor upon release of such Guarantor
from its obligations under its Guaranty pursuant to clause (c) below;


 


(b)           to subordinate any Lien on any property
granted to or held by the Collateral Agent under any Loan Document to the
holder of any Lien on such property that is permitted by Section 7.01(j);
and


 


(c)           to release any Subsidiary Guarantor from its
obligations under any Loan Document to which it is a party if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder; provided
that no such release shall occur if such Subsidiary Guarantor continues to be a
guarantor in respect of any other Indebtedness of Borrower unless and until
such Subsidiary Guarantor is (or is being simultaneously) released from its
guaranty with respect to such other Indebtedness.


 


Upon request by the Administrative Agent or
Collateral Agent at any time, the Required Lenders will confirm in writing the
Administrative Agent’s or Collateral Agent’s, as the case may be, authority to
release or subordinate its interest in particular types or items of property,
or to release any Guarantor from its obligations under any Loan Document to
which it is a party pursuant to this Section 9.10. In each case as specified
in this Section 9.10, the Administrative Agent will, at Borrower’s
expense, execute and deliver to the applicable Loan Party such documents as
such Loan Party may reasonably request to evidence the release of such item of
Collateral from the assignment and security interest granted under the
Collateral Documents, or to release such Guarantor from its obligations under
the Loan Documents, in each case in accordance with the terms of the Loan
Documents and this Section 9.10.


 


ARTICLE X



MISCELLANEOUS


 


10.01      Amendments, Etc. No
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by any Loan Party therefrom, shall be
effective unless in writing signed by the Required Lenders and Borrower or the
applicable Loan Party, as the case may be, and acknowledged by the
Administrative Agent, and each such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given; provided
that no such amendment, waiver or consent shall:


 


(a)           extend or increase the Commitment of any
Lender (or reinstate any Commitment terminated pursuant to Section 8.01)
without the written consent of such Lender (it being understood that no
amendment, modification, termination, waiver or consent with respect to any
condition precedent, covenant, Default, Event of Default, mandatory prepayment
or mandatory reduction in the Commitments shall constitute an extension or increase
in the Commitment of any Lender);


 


(b)           postpone any date scheduled for payment of
principal or interest or fees (it being understood that the waiver of any
mandatory prepayment of the Loans shall not constitute a postponement of any
date scheduled for the payment of principal or interest) in any case, without
the written consent of each Lender affected thereby;


 


73

















 


(c)           reduce the principal of, or the rate of
interest specified herein on, any Loan, or any fees or other amounts payable
hereunder or under any other Loan Document or change the form or currency of
payment without the written consent of each Lender affected thereby (it being
understood that any amendment, modification or waiver to the financial
definitions in this Agreement shall not constitute a reduction in the rate of
interest for purposes of this clause (c)); provided, however,
that only the consent of the Required Lenders shall be necessary to amend Section
2.06(b) or to waive any obligation of Borrower to pay interest at the rates
set forth therein;


 


(d)           change Section 2.10 or Section
8.02 in a manner that would alter the pro rata sharing of payments required
thereby without the written consent of each Lender affected thereby;


 


(e)           change any provision of this Section
10.01 or the definition of “Required Lenders” or any other provision hereof
specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any
consent hereunder, without the written consent of each Lender;


 


(f)            other than in a transaction not prohibited by
Section 7.05, release all or substantially all of the Collateral in any
transaction or series of related transactions, without the written consent of
each Lender;


 


(g)           increase the maximum duration of Interest
Periods hereunder, without the written consent of each Lender affected thereby;
or


 


(h)           except as otherwise provided in Section 9.10,
release any Guarantor from the Guaranty without the written consent of each
Lender;


 


provided,
further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by any Agent in addition to the Lenders required above,
affect the rights or duties of such Agent under this Agreement or any other
Loan Document; and (ii) Section 10.06(g) may not be amended, waived or
otherwise modified without the consent of each Granting Lender all or any part
of whose Loans are being funded by an SPC at the time of such amendment, waiver
or other modification.


 


Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Commitment of such
Lender may not be increased or extended without the consent of such Lender (it
being understood that any Commitments or Loans held or deemed held by any Defaulting
Lender shall be excluded from a vote of the Lenders hereunder requiring any
consent of the Lenders).


 


If, in connection with any proposed change,
waiver, discharge or termination of the provisions of this Agreement as contemplated
by this Section 10.01, the consent of the Required Lenders is
obtained but the consent of one or more of such other Lenders whose consent is
required is not obtained, then Borrower shall have the right to replace all non-consenting
Lenders required to obtain such consent with one or more Eligible Assignees in
accordance with Section 10.13,


 


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so long as at
the time of such replacement each such new Lender consents to the proposed
change, waiver, discharge or termination.


 


Notwithstanding anything to the contrary,
without the consent of any other Person, the applicable Loan Party or Parties
and the Administrative Agent and/or Collateral Agent may (in its or their
respective sole discretion, or shall, to the extent required by any Loan
Document) enter into any amendment or waiver of any Loan Document, or enter
into any new agreement or instrument, to effect the granting, perfection,
protection, expansion or enhancement of any security interest in any Collateral
or additional property to become Collateral for the benefit of the Secured
Parties, or as required by local law to give effect to, or protect any security
interest for the benefit of the Secured Parties, in any property or so that the
security interests therein comply with applicable law.


 


Notwithstanding the foregoing, this Agreement may be
amended (or amended and restated) with the written consent of the Required
Lenders, the Administrative Agent and Borrower (a) to increase the aggregate
Commitments of the Lenders, (b) to add one or more additional credit facilities
to this Agreement and to permit the extensions of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof to share
ratably in the benefits of this Agreement and the other Loan Documents with the
Loans and the accrued interest and fees in respect thereof and (c) to include
appropriately the Lenders holding such credit facilities in any determination
of the Required Lenders.


 


In addition, notwithstanding the foregoing, this
Agreement may be amended with the written consent of the Administrative Agent, Borrower
and the Lenders providing the relevant Replacement Loans (as defined below) to
permit the refinancing of all outstanding Loans (“Refinanced Loans”)
with a replacement tranche hereunder (“Replacement Loans”), but only if
(a) the aggregate principal amount of the Replacement Loans does not exceed the
aggregate principal amount of the Refinanced Loans, (b) the Applicable Rate for
the Replacement Loans is not higher than the Applicable Rate for the Refinanced
Loans, (c) the weighted average life to maturity of the Replacement Loans is
not shorter than the weighted average life to maturity of such Refinanced Loans
at the time of the refinancing and (d) all other terms applicable to such
Replacement Loans are substantially similar to, or less favorable to the Lenders
providing such Replacement Loans than, those applicable to such Refinanced
Loans, except to the extent necessary to provide for covenants and other terms
applicable to any period after the latest final maturity of the Loans in effect
immediately prior to such refinancing.


 


In addition, notwithstanding the foregoing, in the
event that Borrower requests that this Agreement be modified or amended in a
manner that would require the unanimous consent of all of the Lenders and such
modification or amendment is agreed to by the Required Lenders, then with the
consent of Borrower and the Required Lenders, Borrower and the Required Lenders
shall be permitted to amend this Agreement without the consent of the Lender or
Lenders that did not agree to the modification or amendment requested by Borrower
(such Lender or Lenders, collectively, the “Minority Lenders”) to
provide for (i) the termination of the Commitment of each of the Minority
Lenders, (ii) the addition to this Agreement of one or more other financial
institutions (each of which shall be an Eligible Assignee), or an increase in
the Commitment of one or more of the Required Lenders (with the written consent
thereof), so that the total Commitment after giving effect to such amendment
shall be in the same amount as the total Commitment


 


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immediately before giving
effect to such amendment, (iii) if any Loans are outstanding at the time of
such amendment, the making of such additional Loans by such new financial institutions
or Required Lender or Lenders, as the case may be, as may be necessary to repay
in full, at par, the outstanding Loans of the Minority Lenders immediately
before giving effect to such amendment and (iv) such other modifications to
this Agreement as may be appropriate to effect the foregoing clauses (i), (ii)
and (iii).


 


10.02      Notices; Effectiveness;
Electronic Communication.


 


(a)           Notices Generally. Except in the case
of notices and other communications expressly permitted to be given by telephone
(and except as provided in subsection (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or
sent by facsimile as follows, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:


 


(i)            if to Borrower,
the Administrative Agent, the Collateral Agent, the Syndication Agent or the
Documentation Agent, to the address, facsimile number, electronic mail address
or telephone number specified for such Person on Schedule 10.02; and


 


(ii)           if to any
other Lender, to the address, facsimile number, electronic mail address or
telephone number specified in its Administrative Questionnaire.


 


Notices sent
by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
facsimile shall be deemed to have been given when sent and receipt has been
confirmed by telephone (except that, if not given during normal business hours
for the recipient, shall be deemed to have been given at the opening of
business on the next business day for the recipient). Notices delivered through
electronic communications to the extent provided in subsection (b) below, shall
be effective as provided in such subsection (b).


 


(b)           Electronic Communications. Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communication (including e-mail and Internet or intranet
websites) pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices to any Lender pursuant to Article
II if such Lender has notified the Administrative Agent that it is
incapable of receiving notices under such Article by electronic communication. The
Administrative Agent, the Collateral Agent or Borrower may, in their
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.


 


Unless the Administrative Agent and Borrower
otherwise agree, notices and other communications sent to an e-mail address
shall be deemed received upon the sender’s receipt of an acknowledgement from
the intended recipient (such as by the “return receipt requested” function, as
available, return e-mail or other written acknowledgement); provided
that if such notice or other communication is not sent during the normal
business hours of the recipient, such notice


 


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or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient.


 


(c)           [Reserved].


 


(d)           Change of Address, Etc. Each of Borrower,
the Administrative Agent and the Collateral Agent may change its address,
facsimile or telephone number for notices and other communications hereunder by
notice to the other parties hereto. Each other Lender may change its address,
facsimile or telephone number for notices and other communications hereunder by
notice to Borrower, the Administrative Agent and the Collateral Agent.


 


(e)           Reliance by Administrative Agent, the
Collateral Agent and the Lenders. The Administrative Agent, the Collateral
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Borrowing or Conversion Notices) purportedly given by or
on behalf of Borrower even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other
form of notice specified herein, or (ii) the terms thereof, as understood by
the recipient, varied from any confirmation thereof. Borrower shall indemnify
the Administrative Agent, the Collateral Agent, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given by
or on behalf of Borrower in the absence of gross negligence or willful
misconduct.


 


10.03      No Waiver; Cumulative
Remedies. No failure by any Lender, the Administrative Agent or the
Collateral Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder 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.


 


10.04      Expenses; Indemnity; Damage
Waiver.


 


(a)           Costs and Expenses. Borrower shall
pay (i) all reasonable and documented out-of-pocket expenses incurred by each
Agent and its Affiliates (including the reasonable documented fees, charges and
out-of-pocket disbursements of one lead counsel plus one local counsel in each
jurisdiction in which a Loan Party is organized plus one regulatory counsel
with respect to any regulatory matter for the Agents), in connection with the
syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated) and (ii) all out-of-pocket and
documented expenses incurred by each Agent and each Lender  in
connection with the enforcement or protection of its rights under this
Agreement and the other Loan Documents, including its rights under this Section
10.04, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans.


 


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(b)           Indemnification by Borrower. Borrower
shall indemnify each Agent (and any sub-agent thereof), each Lender and each
Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses (including the reasonable fees, charges and disbursements of counsel) incurred
by any Indemnitee or asserted against any Indemnitee by any third party or by
any Loan Party arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, any other Loan Document or any agreement
or instrument contemplated hereby or thereby, the performance by the parties
hereto of their respective obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby, (ii) any Loan
or the use or proposed use of the proceeds therefrom, (iii) any actual or
alleged presence or Release or threatened Release of Hazardous Material on, at,
under or from any property owned, leased or operated by Borrower or any of the
Subsidiaries, or any Environmental Claim related in any way to Borrower or any
of the Subsidiaries, or (iv) any actual or threatened claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by any
other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are determined
by a court of competent jurisdiction by final and nonappealable judgment to
have resulted from the gross negligence or willful misconduct of such
Indemnitee or its Affiliates or the respective officers, directors, employees,
attorneys, agents, advisors and trustees of such Indemnitee or its Affiliates or
result from a claim brought by Borrower or any other Loan Party against an Indemnitee
for breach of such Indemnitee’s obligations hereunder or under any other Loan
Document, if such Loan Party has obtained a final and nonappealable judgment in
its favor on such claim as determined by a court of competent jurisdiction and provided further that Article III
(instead of this Section 10.04) shall govern indemnity with respect to
the matters addressed in such Article (including, without limitation, Taxes).


 


(c)           Reimbursement by Lenders. To the
extent that the Loan Parties for any reason fail to indefeasibly pay any amount
required under subsection (a) or (b) of this Section 10.04 to
be paid by it to each Agent (or any sub-agent thereof) or any Related Party of
any of the foregoing, each Lender severally agrees to pay to the Administrative
Agent (or any such sub-agent), the Collateral Agent or such Related Party, as
the case may be, such Lender’s Pro Rata Share (determined as of the time that
the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent (or any such
sub-agent), or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or the Collateral Agent in
connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.09(d).


 


(d)           Waiver of Consequential Damages, Etc.
Except as provided in Section 10.02(c), no Indemnitee referred to in subsection
(b) above shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby, nor shall any Indemnitee or any Loan Party have
any liability for any special, punitive, indirect or


 


78

















 


consequential damages relating to this
Agreement or any other Loan Document or arising out of its activities in
connection herewith or therewith (whether before or after the Closing Date)
except to the extent any Indemnitee is required to pay any such damages to a
third party.


 


(e)           Payments. All amounts due under this Section
10.04 shall be payable promptly after receipt of an invoice setting forth
such amounts in reasonable detail.


 


(f)            Survival. The agreements in this Section
10.04 shall survive the resignation of the Administrative Agent and the
Collateral Agent, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.


 


10.05      Payments Set Aside. To
the extent that any payment by or on behalf of Borrower is made to any Agent or
any Lender, or any Agent or any Lender exercises its right of setoff, and such
payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by any Agent or such Lender
in its discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such setoff had not occurred, and (b) each
Lender severally agrees to pay to each Agent upon demand its applicable share
(without duplication) of any amount so recovered from or repaid by such Agent, plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the Federal Funds Rate from time to time in effect.
The obligations of the Lenders under clause (b) of the preceding sentence shall
survive the payment in full of the Obligations and the termination of this Agreement.


 


10.06      Successors and Assigns.


 


(a)           Successors and Assigns Generally. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted
hereby, except that, other than connection with a merger permitted under Section 7.05,
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of the Administrative Agent and
each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section 10.06, (ii) by way of
participation in accordance with the provisions of subsection (d) of this Section
10.06, (iii) by way of pledge or assignment of a security interest subject
to the restrictions of subsection (f) of this Section 10.06, or (iv) to
an SPC in accordance with the provisions of subsection (g) of this Section
10.06 (and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.


 


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(b)           Assignments by Lenders. Any Lender
may at any time assign to one or more Eligible Assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans at the time owing to it; provided that


 


(i)            except in
the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment or Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund, the
aggregate amount of the Commitment or the principal outstanding balance of the
Loans of the assigning Lender subject to each such assignment determined as of
the date the Assignment and Assumption with respect to such assignment, is
delivered to the Administrative Agent or, if “Trade Date” is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than $1.0
million with respect to Commitments and Loans unless, in each case, each of the
Administrative Agent and, so long as no Event of Default under Section 8.01(b)
or (g) has occurred and is continuing, Borrower otherwise consent
(each such consent not to be unreasonably withheld or delayed; provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met;


 


(ii)           each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement with respect to
the Loans or the Commitment assigned, except that this clause (ii) shall not prohibit
any Lender from assigning all or a portion of its rights and obligations among Commitments
and Loans on a non-pro rata basis;


 


(iii)          [reserved];


 


(iv)          the parties to
each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee in
the amount, if any, required as set forth in Schedule 10.06, and the
Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and


 


(v)           the
assigning Lender shall deliver any Notes evidencing such Loans to Borrower or
the Administrative Agent (and the Administrative Agent shall deliver such Notes
to Borrower).


 


Subject to acceptance and recording thereof
by the Administrative Agent pursuant to subsection (c) of this Section,
from and after the effective date specified in each Assignment and Assumption,
the Eligible Assignee thereunder shall be a party to this Agreement and, to the
extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto) but shall continue to be entitled to the
benefits of Sections 3.01, 3.04, 3.05, and 10.04


 


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with respect to facts and circumstances
occurring prior to the effective date of such assignment. Upon request, and
surrender by the assigning Lender of its Note, Borrower (at its expense) shall
execute and deliver the applicable Note to the assignee Lender. Any assignment
or transfer by a Lender of rights or obligations under this Agreement that does
not comply with this subsection shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section 10.06.


 


(c)           Register. The Administrative Agent,
acting solely for this purpose as an agent of Borrower, shall maintain at the
Administrative Agent’s Office a copy of each Assignment and Assumption
delivered to it and a 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 pursuant to the terms hereof from time to time (the “Register”).
The entries in the Register shall be conclusive absent demonstrable error, and Borrower,
the Administrative Agent and the Lenders shall treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by Borrower at any reasonable time
and from time to time upon reasonable prior notice. In addition, at any time
that a request for a consent for a material or substantive change to the Loan
Documents is pending, any Lender wishing to consult with other Lenders in
connection therewith may request and receive from the Administrative Agent a
copy of the Register.


 


(d)           Participations. Any Lender may at any
time, without the consent of, or notice to, Borrower or the Administrative
Agent sell participations to any Person (other than a natural Person or Borrower
or Borrower’s Subsidiaries) (each, a “Participant”) in all or a portion
of such Lender’s rights and/or obligations under this Agreement (including all
or a portion of its Commitment and/or the Loans owing to it; provided
that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) Borrower,
the Administrative Agent and the Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement; provided that such Lender may agree that it will
not, without the consent of such Participant, agree to any amendment,
modification or waiver described Section 10.01(b), (c) and (d)
to the extent affecting such Participant.


 


Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and the other Loan Documents and to
approve any amendment, modification or waiver of any provision of this
Agreement or the other Loan Documents; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in
the first proviso to Section 10.01 that affects such Participant. Subject
to subsection (e) of this Section, Borrower agrees that each Participant shall
be entitled to the benefits of Sections 3.01, 3.04 and 3.05
(subject to the requirements and obligations of those Sections, including the
timely delivery of forms pursuant to Section 3.01(e)) to the same extent
as if it were the relevant Lender and had acquired its interest by assignment pursuant
to subsection (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.08
as though it were a Lender; provided such Participant agrees to be
subject to Section 2.10 as though it were a Lender.


 


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(e)           Limitations upon Participant Rights. A
Participant shall not be entitled to receive any greater payment under Section
3.01, 3.04 or 3.05 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with Borrower’s
prior written consent (not to be unreasonably withheld or delayed); provided
that, for purposes of this clause (f), entering into this Agreement or other
Loan Document shall not be construed as providing such consent.


 


(f)            Certain Pledges. Any Lender may at
any time pledge or assign a security interest in all or any portion of its
rights under this Agreement (including under its Note(s), if any) to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.


 


(g)           Special Purpose Funding Vehicles. Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”)
may grant to a special purpose funding vehicle identified as such in writing
from time to time by the Granting Lender to the Administrative Agent and Borrower
(an “SPC”) the option to provide all or any part of any Loan that such
Granting Lender would otherwise be obligated to make pursuant to this
Agreement; provided that (i) nothing herein shall constitute a commitment
by any SPC to fund any Loan, and (ii) if an SPC elects not to exercise such
option or otherwise fails to make all or any part of such Loan, the Granting
Lender shall be obligated to make such Loan pursuant to the terms hereof or, if
it fails to do so, to make such payment to the Administrative Agent as is
required under Section 2.09(b)(ii). Each party hereto hereby agrees that
(i) neither the grant to any SPC nor the exercise by any SPC of such option
shall increase the costs or expenses or otherwise increase or change the obligations
of Borrower under this Agreement (including its obligations under Section 3.01
or 3.04), (ii) no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement for which a Lender would be liable, and
(iii) the Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender. In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior debt of any SPC, it will not institute against, or join any other Person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency, or liquidation proceeding under the laws of the United States or
any State thereof. Notwithstanding anything to the contrary contained herein,
any SPC may (i) with notice to, but without prior consent of Borrower and the
Administrative Agent and with the payment of a processing fee of $3,500, assign
all or any portion of its right to receive payment with respect to any Loan to
the Granting Lender and (ii) disclose on a confidential basis any non-public
information relating to its funding of Loans to any rating agency, commercial
paper dealer or provider of any surety or guarantee or credit or liquidity
enhancement to such SPC.


 


10.07      Treatment of Certain
Information; Confidentiality. Each of the Agents and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective


 


82

















 


partners, directors, officers, employees, agents, advisors and
representatives on a “need to know” basis in connection with the transactions
contemplated hereby (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and shall have agreed or otherwise be obligated to maintain its confidentiality),
(b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar
legal process; provided that the Administrative Agent or such Lender,
unless prohibited by any Law, shall use reasonable efforts to notify Borrower
in advance of any disclosure pursuant to this clause (c) but only to the extent
reasonably practicable under the circumstances and on the understanding that
neither the Administrative Agent nor any Lender shall incur any liability for
failure to give such notice, (d) to any other party hereto, (e) in order
to enforce its rights under this Agreement or any other Loan Document in a
legal proceeding, (f) subject to an agreement for the benefit of Borrower
containing provisions substantially the same as those of this Section 10.07,
to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any actual or prospective counterparty (or its advisors) to any Swap Agreement
with Borrower or any Subsidiary, (g) with the consent of Borrower or (h)
to the extent such Information (x) becomes publicly available other than as a result
of a breach of this Section 10.07 or (y) becomes available to any Agent,
any Lender or any of their respective Affiliates on a nonconfidential basis
from a source other than any Loan Party or their Subsidiaries and Affiliates.


 


For purposes of this Section 10.07, “Information”
means all information received from Borrower or any Subsidiary relating to Borrower
or any Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by Borrower or any Subsidiary.


 


10.08      Right of Setoff. If an
Event of Default shall have occurred and be continuing, each Lender and each of
its Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by applicable law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any
time owing by such Lender or any such Affiliate to or for the credit or the
account of Borrower or any other Loan Party other than deposits held in a
custodial, trust or other fiduciary capacity against any and all of the obligations
of Borrower or such Loan Party now or hereafter existing under this Agreement
or any other Loan Document to such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement or any other Loan
Document and although such obligations of Borrower or such Loan Party may be
contingent or unmatured or are owed to a branch or office of such Lender
different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender and its Affiliates under this Section
10.08 are in addition to other rights and remedies (including other rights
of setoff) that such Lender or its Affiliates may have. Each Lender agrees to
notify Borrower and the Administrative Agent promptly after any such setoff and
application; provided that the failure to give such notice shall not
affect the validity of such setoff and application.


 


10.09      Interest Rate Limitation. Notwithstanding
anything to the contrary contained in any Loan Document, the interest paid or agreed
to be paid under the Loan Documents shall not exceed the maximum rate of
non-usurious interest permitted by applicable Law (the “Maximum


 


83

















 


Rate”). If the Administrative Agent or any
Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to Borrower. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an expense,
fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or
unequal parts the total amount of interest throughout the contemplated term of
the Obligations hereunder.


 


10.10      Counterparts; Integration;
Effectiveness. This Agreement may be executed in counterparts (and by
different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Agreement and the other Loan Documents constitute the
entire contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in Section 4.01,
this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.


 


10.11      Survival of Representations
and Warranties. All representations and warranties made hereunder and in
any other Loan Document or other document delivered pursuant hereto or thereto
or in connection herewith or therewith shall survive the execution and delivery
hereof and thereof. Such representations and warranties have been or will be
relied upon by the Administrative Agent and each Lender, regardless of any investigation
made by the Administrative Agent or any Lender or on their behalf and
notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default at the time of the Borrowing, and shall continue in
full force and effect as long as any Loan or any other Obligation hereunder
shall remain unpaid or unsatisfied.


 


10.12      Severability. If any
provision of this Agreement or the other Loan Documents is held to be illegal,
invalid or unenforceable, the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not
be affected or impaired thereby. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.


 


10.13      Replacement of Lenders. If
(i) Borrower becomes obligated to pay additional amounts to any Lender under
Section 3.04, (ii) Borrower is required to pay any additional
amount to or for the account of any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 3.01, (iii) a Lender does
not consent to a proposed change, waiver, discharge or termination with respect
to any Loan Document that requires unanimous consent of all affected Lenders
and that has been approved by the Required Lenders as provided in Section
10.01, (iv) any Lender delivers a notice pursuant to Section 3.02
with respect to circumstances that do not affect the other Lenders hereunder,
or (v) any Lender is a Defaulting Lender, then Borrower may, at its sole
expense and effort, upon notice to such Lender and the


 


84

















 


Administrative Agent (x) terminate the Commitments of such Lender and
repay all obligations of Borrower owing to such Lender relating to the Loans
and participations held by such Lender as of such termination date or (y)
require such Lender to assign and delegate, without recourse (in accordance with
and subject to the restrictions contained in, and consents required by, Section
10.06), all of its interests, rights and obligations under this Agreement
and the related Loan Documents to an assignee that is acceptable to Borrower
and shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that:


 


(a)           Borrower shall have paid to the
Administrative Agent the assignment fee specified in Section 10.06(b)
(unless the Administrative Agent waives such fee);


 


(b)           such Lender shall have received payment of
an amount equal to the outstanding principal of and premium (if any) on its
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder and under the other Loan Documents (including any amounts under Section
3.05) from the assignee (to the extent of such outstanding principal and
accrued interest and fees); and


 


(c)           such assignment does not conflict with
applicable Laws.


 


A Lender shall not be required to make any
such assignment or delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling Borrower to require such
assignment and delegation cease to apply.


 


10.14      Governing Law, Jurisdiction,
Etc.


 


(a)           GOVERNING LAW. THIS AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF
CONFLICTS OF LAWS TO THE EXTENT THAT THE SAME ARE NOT MANDATORILY APPLICABLE BY
STATUTE AND THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.


 


(b)           SUBMISSION TO JURISDICTION. EACH OF THE
PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE
SOUTHERN DISTRICT OF SUCH STATE, AND ANY APPELLATE COURT FROM ANY THEREOF, IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF
THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN
SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY


 


85

















 


LAW. NOTHING IN THIS AGREEMENT OR IN ANY
OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY PARTY HERETO MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT IN THE COURTS OF ANY JURISDICTION.


 


(c)           WAIVER OF VENUE. EACH OF THE PARTIES
HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN
PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.


 


(d)           SERVICE OF PROCESS. EACH PARTY HERETO
IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES
IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT
OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.


 


10.15      Waiver of Jury Trial. EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


10.16      USA PATRIOT Act Notice. Each
Lender that is subject to the Patriot Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies Borrower that pursuant to the requirements of the USA PATRIOT Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot
Act”), it is required to obtain, verify and record information that
identifies the Loan Parties, which information includes the names and addresses
of the Loan Parties and other information that will allow such Lender or the
Administrative Agent to identify the Loan Parties in accordance with the Patriot
Act.


 


10.17      FCC. Notwithstanding
anything to the contrary contained herein or in any of the Loan Documents,
neither the Lenders nor their agents will take any action pursuant to this Agreement
or any of the Loan Documents that would constitute or result in any
assignment of


 


86

















 


the Licenses issued by the FCC or any transfer of control thereof
within the meaning of Section 310(d) of the Communications Act or other
Communications Law if such assignment of license or transfer of control would
require the prior approval of the FCC without first obtaining such approval of
the FCC. The Lenders and the Administrative Agent specifically agree, to the
extent required by Communications Law, that (a) voting rights in the
capital stock of Borrower and any Subsidiary will remain with the holders of
such voting rights upon and following the occurrence of an Event of Default
until any required prior approvals of the FCC to the transfer of such voting
rights shall have been obtained; (b) upon and following the occurrence of
any Event of Default and foreclosure upon the capital stock of Borrower or any
Subsidiary by the Lenders or their agents, there will be either an arm’s length
private or public sale of such capital stock (to the extent required under then
existing law); and (c) prior to the exercise of stockholder rights by the
purchaser at any such sale, the prior consent of the FCC pursuant to Section
310(d) of the Communications Act will be obtained.


 


[Signature Pages Follow]


 


87

















 


IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed as of the date first above written.


 


	
   

  	
  SAGAMOREHILL
  OF CAROLINA, LLC,

  
	
   

  	
  as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Louis S. Wall

  	
   

  
	
   

  	
  Name: Louis
  S. Wall

  
	
   

  	
  Title:
  President and CEO

  



 

















 


	
   

  	
  BANK OF
  AMERICA, N.A.,

  
	
   

  	
  as Administrative Agent, Collateral Agent
  and as a

  
	
   

  	
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Aaron Peyton

  	
   

  
	
   

  	
  Name: Aaron
  Peyton

  
	
   

  	
  Title: Vice
  President

  



 

















 


	
   

  	
  WACHOVIA
  BANK, NATIONAL

  
	
   

  	
  ASSOCIATION,

  
	
   

  	
  as a Lender and Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Arthur D. Burns

  	
   

  
	
   

  	
  Name: Arthur
  D. Burns

  
	
   

  	
  Title: Vice
  President

  



 

















 


	
   

  	
  CIT
  LENDING SERVICES CORPORATION,

  
	
   

  	
  as a Lender and Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Donald J. Oberg, Jr.

  	
   

  
	
   

  	
  Name: Donald
  J. Oberg, Jr.

  
	
   

  	
  Title: Vice
  President

  



 

















 


SCHEDULE 2.01


 


COMMITMENTS


 


	
  Lender

  	
   

  	
  Commitment

  	
   

  
	
  Bank of
  America, N.A.

  	
   

  	
  $

  	
  825,000

  	
   

  
	
  Wachovia Bank,
  National Association

  	
   

  	
  825,000

  	
   

  
	
  CIT Lending
  Services Corporation

  	
   

  	
  800,000

  	
   

  
	
  Total

  	
   

  	
  $

  	
  2,450,000

  	
   

  



 

















 


SCHEDULE 10.02


 


ADMINISTRATIVE AGENT’S OFFICE;

CERTAIN ADDRESSES FOR NOTICES


 


BORROWER:


 


SagamoreHill of Carolina, LLC


3825 Inverness Way


Augusta, Georgia 30907


Attention: Louis Wall


Telephone: 706-855-8506


Facsimile: 706-855-8747


E-Mail Address:
louisshb@bellsouth.net


 


and


 


Barrington Broadcasting Group LLC


c/o The Pilot Group LP


745 Fifth Avenue, 24th Floor


New York, New York 10151


Attention: Paul McNicol


Telephone: (212) 468-4446


Facsimile: (212) 486-2896


E-Mail Address: paulmcnicol@aol.com


 


Copies of material notices, including notices of any Default (which
shall not constitute a notice for purposes of Section 10.02), to:


 


Wiley Rein & Fielding LLP


1776 K Street NW


Washington, DC 20006


Attention: Brook A. Edinger, Esq.


Telephone: 202-719-7000


Facsimile: 202-719-7049


E-Mail Address: bedinger@wrf.com


 


ADMINISTRATIVE AGENT:


 


Administrative Agent’s Office


(for payments and the Notice of Borrowing or Conversion)


 


Bank of America, NA


101 N. Tryon Street


Mail Code: NC1-001-04-39


Charlotte, NC 28255-0001


 

















 


Attention: Renyette Lockhart


Telephone: (704) 387-2471


Facsimile: (704) 719-8582


E-mail Address: renyette.lockhart@bankofamerica.com


Account No.: 1366212250600


Ref: Barrington Broadcasting


ABA# 026009593


 


All Other Notices as Administrative Agent and Other Credit Matters:


 


Bank of America, N.A.


Agency Management


1455 Market Street, 5th Floor


Mail Code: CA5-701-05-19


San Francisco, CA 94103


Attention: Liliana Claar


Telephone: (415) 436-2770


Facsimile: (415) 503-5003


E-mail Address: liliana.claar@bankofamerica.com


 


with a copy to:


 


Bank of America, N.A.


Charlotte PM Office


100 N. Tryon Street


Mail Code: NC1-007-17-15


Charlotte, NC 28255-0001


Attention: David H. Strickert


SVP, Portfolio Manager


Telephone: (704) 386-3798


Facsimile: (704) 719-8949


E-mail Address: david.h.strickert@bankofamerica.com


 


Copies of material notices, including notices of any Default (which
shall not constitute a notice for purposes of Section 10.02), to:


 


Cahill Gordon & Reindel LLP


80 Pine Street


New York, New York 10005


Attention: Ann Makich, Esq.


Telephone: (212) 701-3699


Facsimile: (212) 269-5420


E-Mail Address: amakich@cahill.com


 


2

















 


SYNDICATION AGENT:


 


Wachovia Bank, National Association 

301 South College Street, NC5562

Charlotte, NC 28288

Attention: John D. Brady 

Telephone: (704) 715-1795 

Facsimile: (704) 383-1625

E-mail Address: johnd.brady@wachovia.com


 


DOCUMENTATION AGENT:


 


CIT Lending Services Corporation


44 Whippany Road


Morristown, NJ 07960


Attention: Don Oberg


Telephone: (973) 647-1394


Facsimile: (973) 647-1411


E-mail Address: don.oberg@cit.com


 


3

















 


SCHEDULE 10.06


 


PROCESSING AND RECORDATION FEES


 


The Administrative Agent will charge a
processing and recordation fee (an “Assignment Fee”) in the amount of $3,500
for each assignment; provided, however, such Assignment Fee shall
be waived in connection with any assignment by a Lender to an Approved Fund of
such Lender; provided, further, that in the event of two or more
concurrent assignments to members of the same Assignee Group (which may be
effected by a suballocation of an assigned amount among members of such
Assignee Group) or two or more concurrent assignments by members of the same
Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and
members of its Assignee Group), the Assignment Fee will be $3,500 plus the
amount set forth below:


 


 


	
  Transaction

  	
   

  	
  Additional 

  Assignment Fee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  First four concurrent assignments or
  suballocations to members of an Assignee Group (or from members of an
  Assignee Group, as applicable)

  	
   

  	
  -0-

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Each additional concurrent assignment or
  suballocation to a member of such Assignee Group (or from a member of such
  Assignee Group, as applicable)

  	
   

  	
  $

  	
  500