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EXHIBIT 10.1
CONFORMED COPY
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DIGITAL TELEVISION SERVICES, LLC
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of July 30, 1997
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$90,000,000
Credit Facility
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CIBC WOOD GUNDY SECURITIES CORP.,
as Arranger,
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Syndication Agent,
FLEET NATIONAL BANK,
as Documentation Agent
and
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 30,
1997, among DIGITAL TELEVISION SERVICES, LLC, a Delaware limited liability
company formerly known as Columbia DBS Holdings, LLC (the "Borrower"), the
several banks and other financial institutions from time to time parties to this
Agreement (the "Lenders"), CIBC WOOD GUNDY SECURITIES CORP. ("CIBCWG"), as
arranger (the "Arranger"), ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK ("MGT"), a
New York banking corporation, as syndication agent (in such capacity, the
"Syndication Agent"), FLEET NATIONAL BANK ("Fleet"), as documentation agent (in
such capacity, the "Documentation Agent"), and CANADIAN IMPERIAL BANK OF
COMMERCE, a Canadian-chartered bank acting through its New York Agency, as
administrative agent for the Lenders hereunder (in such capacity, the
"Administrative Agent").
W I T N E S S E T H :
WHEREAS, the Borrower and its Subsidiaries are in the business
of providing direct broadcast services and related equipment pursuant to the
Contracts (as hereinafter defined);
WHEREAS, the Borrower, certain Lenders (the "Existing
Lenders") and the Administrative Agent are parties to the Amended and Restated
Credit Agreement, dated as of May 9, 1997 (as the same has been amended,
supplemented or otherwise modified through the date hereof, the "Existing Credit
Agreement");
WHEREAS, the parties hereto wish to amend and restate the
Existing Credit Agreement pursuant to this Agreement in order to effect certain
modifications to the terms and conditions of the Existing Credit Agreement;
WHEREAS, the parties hereto have elected to amend and restate
the Existing Credit Agreement pursuant to this Agreement rather than amend the
Existing Credit Agreement or enter into a new credit agreement for their
convenience and intend that all indebtedness, obligations and liens created
under the Existing Credit Agreement and the other Loan Documents be continued
hereunder and thereunder and remain in full force and effect and not be
discharged, paid, satisfied or cancelled except to the extent otherwise provided
herein and therein; and
WHEREAS, on the Closing Date (as hereinafter defined), (i) all
amounts owing under or in connection with the Existing Credit Agreement will be
paid in full, (ii) the Existing Credit Agreement will be amended and restated in
its entirety as set forth in this Agreement and (iii) the Borrower may then and
thereafter obtain extensions of credit from the Lenders under this Agreement in
accordance with the Commitments hereunder;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto hereby agree that, effective on
the Closing Date, the Existing Credit Agreement shall be and hereby is amended
and restated in its entirety to read as follows:
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SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall
have the following meanings (such terms to be equally applicable to the singular
and plural forms thereof):
"ABR Loans": Loans the rate of interest applicable to which is
based upon the CIBC Alternate Base Rate.
"Adjusted EBITDA": for any period, with respect to the
Borrower and its Subsidiaries on a consolidated basis, EBITDA for such
period plus the following expenses of the Borrower and its Subsidiaries
for such period: (a) payroll expense in respect of employees or agents
of the Borrower and such Subsidiaries engaged exclusively in sales and
marketing, (b) sales expense, and (c) the excess, if any, of (i) the
sum of (x) the cost of equipment and (y) the expenses incurred in
generating installation revenue over (ii) equipment and installation
revenue.
"Adjusted Interest Coverage Ratio": as of the end of each
calendar quarter of the Borrower, the ratio of (a) Annualized Adjusted
EBITDA for such calendar quarter to (b) Cash Interest Expense
(excluding the first four payments of interest on the Subordinated
Notes to the extent paid in cash from amounts on deposit in the
Subordinated Notes Escrow Account) for the twelve month period ending
on the last day of such calendar quarter.
"Adjusted Leverage Ratio": at the end of each calendar quarter
of the Borrower, with respect to the Borrower and its Subsidiaries on a
consolidated basis, the ratio of (a) Total Indebtedness on such date to
(b) Annualized Adjusted EBITDA for such calendar quarter.
"Adjustment Date": each date on or after December 31, 1997,
that is the second Business Day following receipt by the Administrative
Agent of both (i) the financial statements required to be delivered
pursuant to subsection 7.1(a) or 7.1(b), as applicable, for the then
most recently completed fiscal period and (ii) the related Compliance
Certificate required to be delivered pursuant to subsection 7.2(b) with
respect to such fiscal period.
"Affiliate": as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or indirectly, either
to (a) vote 10% or more of the securities having ordinary voting power
for the election of directors of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by
contract or otherwise.
"Aggregate Outstanding Revolving Credit": as to any Revolving
Credit Lender at any time, an amount equal to the sum of (a) the
aggregate principal amount of all Revolving Credit Loans made by such
Revolving Credit Lender then outstanding and
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(b) such Revolving Credit Lender's Revolving Credit Commitment
Percentage of the L/C Obligations then outstanding.
"Agreement": this Second Amended and Restated Credit
Agreement, as amended, supplemented or otherwise modified from time to
time.
"Annualized Adjusted EBITDA": for any calendar quarter, four
times Adjusted EBITDA for such quarter.
"Annualized Contribution": for any calendar quarter, four
times Contribution for such quarter.
"Annualized EBITDA": for any calendar quarter, four times
EBITDA for such quarter.
"Applicable Margin": during the period from the Closing Date
until the first Adjustment Date, the Applicable Margin in respect of
Loans shall equal (i) with respect to Revolving Credit Loans which are
ABR Loans, 2.25% per annum, (ii) with respect to Revolving Credit Loans
which are Eurodollar Loans, 3.50% per annum, (iii) with respect to Term
Loans which are ABR Loans, 2.50% per annum and (iv) with respect to
Term Loans which are Eurodollar Loans 3.75% per annum; provided such
Applicable Margin will be adjusted on each Adjustment Date to the
applicable rate per annum set forth under the applicable heading on
Schedule 2 which corresponds to the Leverage Ratio determined from the
financial statements and Compliance Certificate relating to the end of
the calendar quarter immediately preceding such Adjustment Date; and
provided, further that in the event that the financial statements
required to be delivered pursuant to subsection 7.1(a) or 7.1(b), as
applicable, and the related Compliance Certificate required to be
delivered pursuant to subsection 7.2(b), are not delivered when due,
then
(a) if such financial statements and Compliance
Certificate are delivered after the date such financial
statements and Compliance Certificate were required to be
delivered (without giving effect to the thirty-day cure period
provided in Section 9(d) but prior to the expiration of the
thirty-day cure period provided in Section 9(d), and the
Applicable Margin increases (or decreases) from that
previously in effect as a result of the delivery of such
financial statements and Compliance Certificate, then the
Applicable Margin in respect of Loans during the period from
the date upon which such financial statements and Compliance
Certificate were required to be delivered (without giving
effect to any applicable cure period) until the date upon
which they actually are delivered shall, except as otherwise
provided in clause (b) below, be the Applicable Margin as so
increased (or decreased); or
(b) if such financial statements and Compliance
Certificate are not delivered prior to the expiration of the
thirty-day cure period provided in Section 9.1(d), then,
effective upon such expiration, for the period from the
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date upon which such financial statements and Compliance
Certificate were required to be delivered (after the
expiration of the applicable cure period) until two Business
Days following the date upon which such financial statements
and Compliance Certificate actually are delivered, the
Applicable Margin in respect of all Loans shall be the highest
rate which could then be applicable thereto as set forth on
Schedule 2.
"Assignee": as defined in subsection 11.6(c).
"Assignment and Assumption Agreement": the Assignment and
Assumption Agreement to be entered into by the Borrower and/or certain
of its Subsidiaries, substantially in the form of Exhibit A to the
Existing Credit Agreement, (i) entered into pursuant to the Guarantee
and Collateral Agreement and (ii) for each Contract and rights therein
assigned to the Administrative Agent, for the ratable benefit of the
Lenders, by the Borrower and/or certain of its Subsidiaries and
consented to by DirecTv, Inc. and the NRTC.
"Assignment and Consent": the Assignment and Consent, dated as
of November 27, 1996 substantially in the form of Exhibit A to the
Original Credit Agreement, for each Contract and rights therein
assigned to the Administrative Agent, for the ratable benefit of the
Lenders, by the Borrower and/or its Subsidiaries and consented to by
DirecTv, Inc. and the NRTC, as the same has been amended, supplemented
or otherwise modified to the date hereof and as may be further amended,
supplemented or otherwise modified from time to time.
"Available Revolving Credit Commitment": as to any Revolving
Credit Lender at any time, an amount equal to the excess, if any, of
(a) the amount of such Revolving Credit Lender's Revolving Credit
Commitment at such time over (b) the sum of (i) the aggregate unpaid
principal amount at such time of all Revolving Credit Loans made by
such Revolving Credit Lender, and (ii) an amount equal to such
Revolving Credit Lender's Revolving Credit Commitment Percentage of the
outstanding L/C Obligations at such time; collectively, as to all the
Revolving Credit Lenders, the "Available Revolving Credit Commitments".
"Board of Directors": with respect to any Person, the board of
directors, board of managers or similar governing body of such Person
or of the general partner or of the Manager of such Person.
"Borrower": as defined in the preamble hereto.
"Borrower's Service Areas": the Service Areas in which the
Borrower and its Subsidiaries have rights to market direct DirecTv
pursuant to the NRTC Agreements.
"Borrower's Subscriber Base": collectively, the Subscriber
Bases of the Borrower and its Subsidiaries.
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"Borrowing Base": at any time, the sum of (i) $1050 times the
number of Paying Subscribers within the Borrower's Service Areas (other
than any Paying Subscriber which is the obligor on accounts receivable
upon which the Administrative Agent, for the ratable benefit of the
Lenders, does not have a first perfected Lien) plus (ii) $40 times the
number of households within the Borrower's Service Areas; provided that
if the Borrower fails to deliver any Borrowing Base Certificate in the
form and at the times required by subsection 7.2(e), the Borrowing Base
shall, at the close of business on the fifteenth day following notice
to the Borrower of the failure to deliver such Borrowing Base
Certificate, be reduced to $0 and shall remain $0 until such time as a
Borrowing Base Certificate in proper form is delivered, at which time
the Borrowing Base shall be calculated as set forth herein.
"Borrowing Base Certificate": as defined in subsection 7.2.
"Borrowing Certificate": as defined in subsection 2.3.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.3, 2.8 or 3.2 as a date on which the Borrower
requests the Lenders to make Loans hereunder or the Issuing Lender to
issue Letters of Credit hereunder.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close, except that, when used in connection with a
Eurodollar Loan, "Business Day" shall mean any Business Day on which
dealings in Dollars between banks may be carried on in London, England
and New York, New York.
"Capital": DTS Capital, Inc., a Delaware corporation and a
wholly owned subsidiary of the Borrower.
"Capital Expenditure": as defined in subsection 8.10.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"Cash Equivalents": (a) securities with maturities of one year
or less from the date of acquisition issued or fully guaranteed or
insured by the United States Government or any agency thereof, (b)
certificates of deposit and eurodollar time deposits with maturities of
one year or less from the date of acquisition and overnight bank
deposits and demand deposits of any Lender or of any commercial bank
having capital and surplus in excess of $500,000,000, (c) repurchase
obligations of any Lender or of any commercial bank satisfying the
requirements of clause (b) of this definition, having a term of not
more than 30 days with respect to securities issued or fully guaranteed
or insured by the United States Government, (d) commercial paper of a
domestic issuer rated at least A-2 by Standard and Poor's Ratings
Services ("S&P") or
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P-2 by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), (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, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may
be) are rated at least A by S&P or A by Moody's, (f) securities with
maturities of one year or less from the date of acquisition backed by
standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (b) of this definition or (g)
shares of money market mutual or similar funds substantially all of the
assets of which are invested in assets satisfying the requirements of
clauses (a) through (f) of this definition.
"Cash Interest Expense": for any period and without
duplication, with respect to the Borrower and its Subsidiaries on a
consolidated basis, Interest Expense paid or payable in cash in respect
of Total Indebtedness during such period.
"Change of Control": the occurrence of any of the following
events:
(i) the Control Group, as a whole, shall at any time
cease to own, directly or indirectly, free and clear of all
Liens, 30% of the Capital Stock of the Borrower, determined on
a fully diluted basis; or
(ii) the Control Group, as a whole, shall at any time
cease to own, determined on a fully diluted basis, sufficient
shares of the Capital Stock of the Borrower, determined on a
fully diluted basis, to elect a majority of the Board of
Directors of the Borrower or otherwise cease to have the right
or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of
the Borrower; or
(iii) Senior Management ceases to be employed by
Management, the Borrower or any Subsidiary of the Borrower;
(iv) Senior Management ceases both to be employed by
Management and to be responsible for the overall operation of
the Borrower and its Subsidiaries; or
(v) a Change in Control (as defined in the
Subordinated Notes Indenture).
"CIBC": Canadian Imperial Bank of Commerce, a
Canadian-chartered bank, acting through its New York Agency.
"CIBC Alternate Base Rate": on any particular date, a
rate of interest per annum equal to the highest of:
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(a) the rate of interest most recently announced by
CIBC as its base rate (the "CIBC Prime Rate"); and
(b) the Federal Funds Rate for such date plus 1/2 of
1%.
The CIBC Alternate Base Rate is not necessarily intended to be
the lowest rate of interest charged by CIBC in connection with
extensions of credit.
"Closing Date": the date on which the conditions precedent set
forth in subsection 6.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": all assets (including rights under the Contracts
and assets constituting shares of Capital Stock) of the Loan Parties,
now owned or hereinafter acquired, upon which a Lien is purported to be
created by any Security Document; provided, however, that Collateral
shall not include the Interest Escrow Agreement, any amounts held in
the Subordinated Notes Escrow Account or any proceeds thereof.
"Columbia": the collective reference to Columbia Capital
Corporation, and, so long as such Persons remain shareholders of
Columbia Capital Corporation, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
Mixer, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ Blow, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., and their
respective Affiliates.
"Columbia Capital Corporation": Columbia Capital Corporation,
a Virginia corporation.
"Commitment Percentage": as to any Lender, the percentage of
the aggregate Revolving Credit Commitments and Term Loan Commitments
constituted by such Lender's Revolving Credit Commitment and Term Loan
Commitment, or following the Closing Date, the percentage representing
a fraction the numerator of which is the sum of (i) the aggregate
principal amount of such Lender's Term Loans then outstanding plus (ii)
the Revolving Credit Commitment of such Lender (or, following the
termination or expiration of the Revolving Credit Commitments, the sum
of (x) the aggregate principal amount of such Lender's Revolving Credit
Loans then outstanding plus (y) such Lender's Revolving Credit
Commitment Percentage of all L/C Obligations then outstanding), and the
denominator of which is the sum of (i) the aggregate principal amount
of Term Loans of all Lenders then outstanding plus (ii) the aggregate
Revolving Credit Commitments of all Lenders (or, following the
termination or expiration of the Revolving Credit Commitments, the sum
of (x) the aggregate principal amount of all Revolving Credit Loans
then outstanding plus (y) the aggregate principal amount of all L/C
Obligations then outstanding).
"Commitments": the collective reference to the Revolving
Credit Commitments, the Term Loan Commitments and the L/C Commitment;
individually, a "Commitment".
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"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Compliance Certificate": as defined in subsection 7.2(b).
"Consolidated Current Assets": on any date, with respect to
the Borrower and its Subsidiaries on a consolidated basis, all assets
of the Borrower and its Subsidiaries on such date which, in accordance
with GAAP would be classified on a consolidated balance sheet of the
Borrower as "current assets".
"Consolidated Current Liabilities": on any date, with respect
to the Borrower and its Subsidiaries on a consolidated basis, all
liabilities of the Borrower and its Subsidiaries on such date which, in
accordance with GAAP, would be classified on a consolidated balance
sheet of the Borrower as "current liabilities".
"Consolidated Net Income": for any period, the net income (or
deficit) of the Borrower and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Working Capital": on any date, with respect to
the Borrower and its Subsidiaries on a consolidated basis, the
Consolidated Current Assets (other than cash and Cash Equivalents) of
the Borrower and its Subsidiaries on such date minus the Consolidated
Current Liabilities (other than the current portion of long-term
Indebtedness) of the Borrower and its Subsidiaries on such date.
"Contract": the collective reference to the contracts and
agreements listed on Schedule 5.20 and any other contractual
arrangements or agreements entered into by the Borrower or any of its
Subsidiaries with the NRTC providing rights to market, distribute
and/or sell DirecTv and other broadcast services and related equipment.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"Contribution": for any period, with respect to the Borrower
and its Subsidiaries on a consolidated basis, EBITDA for such period
plus the following expenses of the Borrower and its Subsidiaries for
such period: (a) payroll and benefits expenses, (b) administrative
expenses, (c) sales expenses, and (d) the excess, if any, of (i) the
sum of (x) the cost of equipment and (y) the expenses incurred in
generating installation revenue over (ii) equipment and installation
revenue.
"Control Group": collectively, Columbia, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and
their respective Affiliates.
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"Default": any of the events specified in Section 9, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"DirecTv": the direct broadcast satellite and programming
services available from DirecTv, Inc.
"DirecTv, Inc.": DirecTv, Inc., a California corporation.
"DirecTv Obligations": the obligations of the Borrower and its
Subsidiaries to the NRTC and DirecTv, Inc. in respect of certain
programming services provided by the NRTC and DirecTv, Inc.
"Documentation Agent": Fleet, as documentation agent for the
Lenders under this Agreement and the other Loan Documents.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"EBITDA": for any period, with respect to the Borrower and its
Subsidiaries on a consolidated basis, determined in accordance with
GAAP, an amount equal to the sum of (a) Net Income for such period,
plus (b) income taxes, excluding income taxes (either positive or
negative) attributable to extraordinary and non-recurring gains or
losses or sales or other dispositions of assets permitted under
subsection 8.7, plus (c) Interest Expense for such period, plus (d)
depreciation for such period, plus (e) amortization for such period.
"Environmental Costs": any and all costs or expenses
(including, without limitation, attorney's and consultant's fees,
investigation and laboratory fees, response costs, court costs and
litigation expenses, fines, penalties, damages, settlement payments,
judgments and awards), of whatever kind or nature, contingent or
otherwise, arising out of, or in any way relating to, any violation of,
noncompliance with or liability under any Environmental Laws or any
orders, requirements, demands, or investigations of any person related
to any Environmental Laws. Environmental Costs include any and all of
the foregoing, without regard to whether they arise out of or are
related to any past, pending or threatened proceeding of any kind.
"Environmental Laws": any and all laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, or other legally
enforceable requirements (including, without limitation, common law) of
any foreign government, the United States, or any state, local,
municipal or other Governmental Authority, regulating, relating to or
imposing liability or standards of conduct concerning protection of the
environment or of human health, or employee health and safety, as has
been, is now, or may at any time hereafter be, in effect.
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"Environmental Permits": any and all permits, licenses,
registrations, notifications, exemptions and any other authorization
required under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Escrow Security Agreement": the Escrow Security Agreement,
dated as of July ___, 1997 among the Borrower and Capital, as grantors
and The Bank of New York, as Collateral Agent for the benefit of the
holders of the Subordinated Notes.
"Eurocurrency Reserve Requirements": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board of Governors
of the Federal Reserve System or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of such Board) maintained by
a member bank of such System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined by the Administrative Agent to be the arithmetic mean of the
offered rates for deposits in Dollars with a term comparable to such
Interest Period that appears on the Telerate British Bankers Assoc.
Interest Settlement Rates Page (as defined below) at approximately
11:00 A.M., London time, on the second full Business Day preceding the
first day of such Interest Period; provided, however, that if there
shall at any time no longer exist a Telerate British Bankers Assoc.
Interest Settlement Rates Page, "Eurodollar Base Rate" shall mean, with
respect to each day during each Interest Period pertaining to a
Eurodollar Loan, the rate per annum equal to the rate at which CIBC is
offered Dollar deposits at or about 10:00 A.M., New York City time, two
Business Days prior to the beginning of such Interest Period in the
interbank eurodollar market where the eurodollar and foreign currency
and exchange operations in respect of its Eurodollar Loans are then
being conducted for delivery on the first day of such Interest Period
for the number of days comprised therein and in an amount comparable to
the amount of its Eurodollar Loan to be outstanding during such
Interest Period. "Telerate British Bankers Assoc. Interest Settlement
Rates Page" shall mean the display designated as Page 3750 on the
Telerate System Incorporated Service (or such other page as may replace
such page on such service for the purpose of displaying the rates at
which Dollar deposits are offered by leading banks in the London
interbank deposit market).
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
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"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurodollar
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1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Excess Cash Flow": with respect to any fiscal year of the
Borrower, an amount equal to (a) Consolidated Net Income for such
fiscal year, plus (b) amortization and depreciation for such fiscal
year, plus (c) extraordinary, unusual or non-recurring losses for such
fiscal year, plus (d) interest paid from the Subordinated Notes Escrow
Account to the extent deducted in the calculation of Consolidated Net
Income, minus (e) extraordinary, unusual or non-recurring gains for
such fiscal year, minus (f) capital expenditures made in accordance
with subsection 8.9 during such fiscal year, minus (g) payments of
principal on Indebtedness resulting in a permanent reduction of such
Indebtedness during such fiscal year (other than mandatory prepayments
pursuant to subsection 4.3), minus (h) amounts arising from sales of
assets permitted by subsection 8.7 during such fiscal year to the
extent included in Consolidated Net Income and paid to the Lenders as a
mandatory prepayment pursuant to subsection 4.3(a), minus (i) increases
in Consolidated Working Capital for such fiscal year, plus (j)
decreases in Consolidated Working Capital for such fiscal year.
"Exchange Act": the Securities Exchange Act of 1934, as
amended from time to time.
"Existing Credit Agreement": as defined in the second recital
hereto.
"Existing Lender": as defined in the second recital hereto.
"Facility": as defined in the third recital hereto.
"Federal Funds Rate": for any particular date, an interest
rate per annum equal to the interest rate (rounded upwards, if
necessary, to the nearest 1/16th of 1%) offered in the interbank market
to the Administrative Agent as the overnight Federal Funds Rate at or
about 10:00 A.M. New York City time, on such day (or if such day is not
a Business Day, for the next preceding Business Day).
"Financing Lease": any lease of property, real or personal,
the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
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"Fleet": as defined in the preamble hereto.
"Funded Indebtedness": at any date, an amount equal to all
Indebtedness of any Person other than that described in clause (e) of
the definition of Indebtedness. "Funded Indebtedness" with respect to
the Borrower shall include, among other things, the principal balance
of all then outstanding Loans under this Agreement.
"GAAP": generally accepted accounting principles in the United
States of America as in effect at the time of preparation of the
financial statements referred to in subsection 5.1, applied on a
consistent basis, provided, however, that, for purposes of the
financial statements required to be delivered pursuant to subsection
7.1, GAAP shall mean generally accepted accounting principles in the
United States of America as in effect at the time of the applicable
financial statements.
"General and Administrative Expenses": for any period for the
Borrower and its Subsidiaries, (i) all general and administrative
expenses of the Borrower and such Subsidiaries for such period and (ii)
all payroll expenses of the Borrower and such Subsidiaries for such
period other than payroll expenses with respect to employees of the
Borrower and such Subsidiaries engaged exclusively in the marketing and
sales of DirecTv and related services of the Borrower and such
Subsidiaries, including in the case of clauses (i) and (ii) above
management fees paid by the Borrower and/or its Subsidiaries to
Columbia Capital Corporation to the extent permitted hereunder.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity (including,
without limitation, any central bank) exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government. For purposes of subsections 4.9, 4.10 and
11.15, the term "Governmental Authority" shall be deemed to include,
without limitation, the National Association of Insurance
Commissioners.
"Guarantee": as defined in the definition of "Guarantor."
"Guarantee and Collateral Agreement": the Guarantee and
Collateral Agreement, dated as of November 27, 1996, as amended and
restated through the Closing Date pursuant to a Second Amended and
Restated Guarantee and Collateral Agreement to be executed and
delivered by Management, the Borrower and each of its Subsidiaries,
substantially in the form of Exhibit A, as the same may be amended,
supplemented or otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any third Person (the "primary obligor") in any manner, whether
directly or indirectly, including,
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without limitation, any obligation of the guaranteeing person, whether
or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities
or services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in
respect thereof; provided, however, that the term Guarantee Obligation
shall not include endorsements of instruments for deposit or collection
in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee Obligation is
made and (b) the maximum amount for which such guaranteeing person may
be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum
amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated
liability in respect thereof as determined by the Borrower in good
faith.
"Guarantor": any Person which is now or hereafter a party to
(a) the Guarantee and Collateral Agreement or (b) any other guarantee
(a "Guarantee") hereafter delivered to the Administrative Agent
guaranteeing the obligations and liabilities of each of the Loan
Parties hereunder or under any other Loan Documents, including, without
limitation, any guarantee delivered pursuant to subsection 7.10.
"Households": for any Service Area, the estimated number of
households in such Service Area as of April 1, 1996 and as defined by
the U.S. Census Bureau, provided to the Borrower by Claritas, a
demographic data provider based in Arlington, Virginia; provided that,
for any Service Area as to which the Borrower and its Subsidiaries have
acquired, or have proposed to acquire, the rights to market DirecTv
solely to households not passed by a cable television operator,
"Households" shall mean the number of households estimated by the NRTC
in connection with the original grant, by the NRTC, of the rights to
market DirecTv to households in such Service Area as set forth in the
related NRTC Agreement.
"Indebtedness": as to any Person, at any date, an amount equal
to (a) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than current
trade liabilities incurred in the ordinary course of business and
payable in accordance with customary practices), (b) any other
indebtedness of such Person which is evidenced by a note, bond,
debenture or similar instrument, (c) all obligations of such Person
under Financing Leases, (d) all obligations of such Person in respect
of bankers acceptances issued or created for the account of such
Person, (e) for purposes of subsection 8.3 and Section 9(e), all
obligations of such Person in respect of interest rate protection
agreements, interest
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rate futures, interest rate options, interest rate caps and any other
interest rate, currency, commodity or other hedging arrangement and (f)
all liabilities of another Person secured by any Lien on any property
owned by such Person whether or not such Person has assumed or
otherwise become liable for the payment thereof.
"Information Memorandum": the Information Memorandum, dated
July ___, 1997, issued by the Borrower with respect to the Subordinated
Notes.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": as defined in subsection 5.9.
"Interest Coverage Ratio": as of the end of each calendar
quarter of the Borrower, the ratio of (a) Annualized EBITDA for such
calendar quarter to (b) cash Interest Expense (excluding the first four
payments of interest on the Subordinated Notes to the extent paid in
cash from amounts on deposit in the Subordinated Notes Escrow Account)
for the twelve month period ending on the last day of such calendar
quarter.
"Interest Escrow Agreement": the Interest Escrow Agreement,
dated as of July __, 1997 among the Borrower and Capital, as the
issuers, and The Bank of New York, as trustee and as escrow agent.
"Interest Expense": for any period and without duplication,
with respect to the Borrower and its Subsidiaries on a consolidated
basis, the aggregate amount of interest which would be set forth
opposite the caption "interest expense" or any like caption on an
income statement for such period for the Borrower and its Subsidiaries
on a consolidated basis, determined in accordance with GAAP (as such
term is defined herein without reference to the proviso to such
definition).
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December, (b) as to any Eurodollar
Loan having an Interest Period of three months or less, the last day of
such Interest Period, and (c) as to any Eurodollar Loan having an
Interest Period longer than three months, (x) each day which is three
months, or a whole multiple thereof, after the first day of such
Interest Period and (y) the last day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing
or conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its notice of
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borrowing or notice of conversion, as the case may be, given
with respect thereto; and
(ii) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice
to the Administrative Agent not less than three Business Days
prior to the last day of the then current Interest Period with
respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a Eurodollar
Loan would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately
preceding Business Day;
(2) any Interest Period that would otherwise extend
beyond (a) the Revolving Credit Commitment Termination Date
(in the case of Revolving Credit Loans) shall end on the
Revolving Credit Commitment Termination Date or (b) the Term
Loan Maturity Date (in the case of the Term Loans) shall end
on the Term Loan Maturity Date;
(3) any Interest Period pertaining to a Eurodollar
Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month; and
(4) the Borrower shall select Interest Periods so as
not to require a payment or prepayment of any Eurodollar Loan
during an Interest Period for such Loan on account of
scheduled reductions of the Revolving Credit Commitments and
related required amortization of the Revolving Credit Loans or
on account of scheduled amortization of the Term Loans.
"Interest Rate Protection Agreement": any interest rate
protection agreement, interest rate future, interest rate option,
interest rate swap, interest rate cap or collar or other interest rate
hedge arrangement or other similar agreement or arrangement, to or
under which the Borrower or any of its Subsidiaries is a party or a
beneficiary.
"Investment": as defined in subsection 8.11.
"Issuing Lender": CIBC or any of its affiliates.
"JPMSI": ▇.▇. ▇▇▇▇▇▇ Securities Corporation.
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"L/C Commitment": $50,000,000.
"L/C Fee Payment Date": the last day of each March, June,
September and December.
"L/C Obligations": at any date, the sum of (a) the aggregate
amount then available to be drawn under all outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit
which have not then been reimbursed by the Borrower pursuant to
subsection 3.5.
"L/C Participants": the collective reference to all the
Revolving Credit Lenders other than the Issuing Lender.
"L/C Participating Interest": with respect to any Letter of
Credit (a) in the case of the Issuing Lender with respect thereto, its
interest in such Letter of Credit and any Letter of Credit Application
relating thereto after giving effect to the granting of participating
interests therein, if any, pursuant hereto and (b) in the case of each
L/C Participant, its undivided participating interest in such Letter of
Credit and any Letter of Credit Application relating thereto.
"Lenders": as defined in the preamble hereto and including,
without limitation, the Issuing Lender.
"Letter of Credit Application": an application in such form as
the Issuing Lender may specify from time to time, requesting the
Issuing Lender to open a Letter of Credit.
"Letters of Credit": as defined in subsection 3.1.
"Lien": any mortgage, pledge, hypothecation, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"Loan Documents": this Agreement, any Note, any Letter of
Credit Application, any Letters of Credit, the Security Documents and
any Guarantees.
"Loan Parties": Management, the Borrower and each Subsidiary
of the Borrower which is a party to a Loan Document, individually, a
"Loan Party".
"Loans": collectively, the Revolving Credit Loans and the Term
Loans.
"Management": DTS Management, LLC, a Georgia limited liability
company, formerly known as Columbia DBS Management, LLC, and its
successors and assigns.
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"Manager": any officer or member of the Board of Directors of
Management.
"Managing Agents": the collective reference to the
Administrative Agent, the Syndication Agent and the Documentation
Agent.
"Material Adverse Effect": a material adverse effect on (a)
the business, operations, property, condition (financial or otherwise)
or (with respect to Section 6.1(i) only) prospects of the Borrower and
its Subsidiaries taken as a whole or (b) the validity or enforceability
of this Agreement or any of the other Loan Documents or the rights or
remedies of the Administrative Agent or the Lenders hereunder or
thereunder.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Member": as defined in any NRTC Agreement.
"MGT": ▇▇▇▇▇▇ Guaranty Trust Company of New York, a New York
banking corporation.
"▇▇▇▇▇'▇": as defined in the definition of "Cash Equivalents."
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": with respect to any sale or other
disposition of assets by the Borrower or any of its Subsidiaries, the
net amount equal to the aggregate amount received in cash (including
any cash received by way of deferred payment pursuant to a note
receivable, other non-cash consideration or otherwise, but only as and
when such cash is so received) minus the sum of (i) the reasonable
fees, commissions and other out-of-pocket expenses incurred by the
Borrower or such Subsidiary in connection with such sale or other
disposition, (ii) federal, state and local taxes incurred in connection
with such sale or other disposition, whether payable at such time or
thereafter and (iii) in the case of any such sale or other disposition
of assets subject to a Lien securing any Indebtedness (which Lien and
Indebtedness are permitted by this Agreement), any amounts required to
be repaid by the Borrower or such Subsidiary in respect of such
Indebtedness (other than Indebtedness under this Agreement and any
Notes) in connection with such sale or other disposition.
"Net Income": for any period, the aggregate of the net income
of the Borrower and its Subsidiaries for such period on a consolidated
basis, determined in accordance with GAAP but before any deduction of
the minority interest therein of any Guarantor, for such period;
provided, however, that there shall be excluded from Net Income (a) the
net income of a Person whose net income is not consolidated with the
Borrower's
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under GAAP (other than the amount of dividends and other distributions
paid or made by such Person to the Borrower or any of its Subsidiaries
during such period), (b) the net income of any Person for such period
acquired in a pooling of interests transaction for any period prior to
the date of such acquisition, (c) any net gain or loss for such period
(net of the related tax effect thereof) resulting from any sale or
other disposition of assets or any sale or other disposition of any
Capital Stock of any Person by the Borrower or any of its Subsidiaries,
in each case, other than in the ordinary course of business or
otherwise permitted by subsection 8.7, (d) extraordinary gains and
losses for such period (net of the related tax effect thereof), (e)
non-recurring and unusual gains and losses for such period (net of the
related tax effect thereof) and (f) cash returns on or on account of
Investments permitted under subsection 8.11(g).
"Non-Excluded Taxes": as defined in subsection 4.11.
"Notes": the collective reference to the Revolving Credit
Notes and the Term Notes.
"NRTC": National Rural Telecommunications Cooperative, a
District of Columbia corporation.
"NRTC Agreement": any agreement for the marketing and
distribution of DirecTv and for retail sales of DirecTv related
equipment between the Borrower or any Subsidiary, as the case may be,
as a "Member" or "Affiliate" and the NRTC listed on Schedule 5.20 and
any other such agreements entered into or assumed by the Borrower or
any of its Subsidiaries from time to time; provided that for purposes
of determining the number of households in a Service Area as to which
the Borrower and its Subsidiaries have acquired, or have proposed to
acquire, the right to market DirecTv solely to households not passed by
a cable television operator, "NRTC Agreement" shall mean and include
any such agreement pursuant to which the NRTC initially granted such
rights to any "Member" or "Affiliate."
"Original Credit Agreement": the Credit Agreement, dated as of
November 27, 1996.
"Participant": as defined in subsection 11.6(b).
"Paying Subscribers": all Subscribers of the Borrower or any
Subsidiary other than Subscribers currently under promotional plans for
free basic DirecTv .
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any successor.
"Permitted Business Acquisitions": any acquisition of the
rights to provide DirecTv pursuant to any Contract or acquisition of
all or substantially all the assets of, or shares or other equity
interests in, a Person or division or line of business of a Person or
other significant assets of a Person which includes the acquisition of
such
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rights in additional Service Areas on or before December 31, 1998
provided that: (a) the purchase price of such acquisition does not
exceed the greater of (i) $120 times the number of Households in the
acquired Service Area, or (ii) $1800 times the number of Subscribers in
the acquired Service Area, (b) immediately after giving effect to such
acquisition, the Borrower's Subscriber Base does not increase by more
than 50%; (c) immediately after giving effect to such acquisition the
total number of Households within the Borrower's Service Areas does not
increase by more than 30%, (d) upon the consummation of such
acquisition, the Available Revolving Credit Commitments of all Lenders
are greater than (i) $10,000,000 if such acquisition is consummated on
or before December 31, 1997, or (ii) $5,000,000 if such acquisition is
consummated after December 31, 1997, (e) no Default or Event of Default
shall have occurred and be continuing or result therefrom, (f) all
transactions related thereto shall have been consummated in all
material respects in accordance with applicable laws and (g) all
actions required to be taken, if any, with respect to such acquired
assets or newly formed subsidiary under subsection 7.10 shall have been
taken.
"Permitted Junior Debt": Subordinated Debt of the Borrower (i)
no amount of the principal of which shall be stated to mature or be the
subject of a mandatory prepayment prior to June 30, 2005 (other than
from the proceeds of Subordinated Debt), (ii) no interest on which
shall be required to be paid in cash prior to the maturity thereof,
(iii) which contains no covenant, event of default or other provision
which would entitle the holder thereof to accelerate the maturity
thereof prior to the acceleration or payment in full of the Loans and
other obligations of the Borrower to which such Permitted Junior Debt
is subordinate and (iv) all the other terms and conditions of which
shall have been approved in writing by the Required Lenders.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Recently Acquired Households": as at any date, the number of
Households within Service Areas acquired by the Borrower or any of its
Subsidiaries during the twelve month period ending on such date.
"Register": as defined in subsection 11.6(d).
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Reimbursement Obligations": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to subsection 3.5 for amounts
drawn under Letters of Credit.
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"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .13, .14, .16, .18, .19 or
.20 of PBGC Reg. Section 2615.
"Required Lenders": at any time, Lenders the Commitment
Percentages of which aggregate more than 66 2/3%.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": as to any Loan Party, the chief
executive officer, the president, a vice president, a managing
director, the general counsel or a Manager of such Person or, with
respect to certifications of due authorization and correctness of Loan
Documents, the Secretary of such Person, or, with respect to financial
matters (including the execution of the Borrowing Base Certificate),
the chief financial officer, the treasurer or a Manager of such Person,
or, in any such case, of an entity which is the managing general
partner or the Manager of such Person.
"Revolving Credit Commitment": as to any Revolving Credit
Lender, its obligation to make Revolving Credit Loans to, and/or issue
or participate in Letters of Credit issued on behalf of, the Borrower
in an aggregate amount not to exceed at any one time outstanding the
amount set forth under such Revolving Credit Lender's name in Schedule
1 opposite the heading "Revolving Credit Commitment" or, in the case of
any Revolving Credit Lender that is an Assignee, the amount of the
assigning Revolving Credit Lender's Revolving Credit Commitment
assigned to such Assignee pursuant to subsection 11.6 (in each case as
such amount may be adjusted from time to time as provided herein).
"Revolving Credit Commitment Percentage": as to any Revolving
Credit Lender, the percentage of the aggregate Revolving Credit
Commitments constituted by its Revolving Credit Commitment (or, if the
Revolving Credit Commitments have terminated or expired, the percentage
which (i) the sum of (a) such Revolving Credit Lender's then
outstanding Revolving Credit Loans plus (b) such Revolving Credit
Lender's interests in the aggregate L/C Obligations then outstanding
then constitutes of (ii) the sum of (a) the aggregate Revolving Credit
Loans of all the Revolving Credit Lenders then outstanding plus (b) the
aggregate L/C Obligations then outstanding).
"Revolving Credit Commitment Period": the period from and
including the Closing Date to but not including the Revolving Credit
Commitment Termination Date.
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"Revolving Credit Commitment Termination Date": the earlier of
(a) July 31, 2003 or, if such date is not a Business Day, the Business
Day next preceding such date and (b) the date upon which the Revolving
Credit Commitments shall be terminated pursuant hereto.
"Revolving Credit Lender": any Lender having a Revolving
Credit Commitment or that holds outstanding Revolving Credit Loans or
L/C Participating Interests hereunder.
"Revolving Credit Loans": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 2.2.
"Securities Act": the Securities Act of 1933, as amended from
time to time.
"Security Documents": the collective reference to the
Guarantee and Collateral Agreement, the Assignment and Consent, the
Assignment and Assumption Agreement and all other security documents
previously and hereafter delivered to the Administrative Agent granting
a Lien on any asset or assets of any Person to secure the obligations
and liabilities of the Borrower hereunder or under any of the other
Loan Documents or to secure any guarantee of any such obligations and
liabilities, including, without limitation, any security document
delivered pursuant to subsection 7.10.
"Seller Notes": promissory notes of the Borrower or its
Subsidiaries issued to sellers of the rights to provide DirecTv to the
Borrower or such Subsidiaries, including the Seller Notes listed on
Schedule 4.
"Senior Debt": with respect to the Borrower and its
Subsidiaries, at any date, all then outstanding Funded Indebtedness of
the Borrower and its Subsidiaries other than Subordinated Debt and
Permitted Junior Debt.
"Senior Leverage Ratio": as at the last day of each calendar
quarter of the Borrower, with respect to the Borrower and its
Subsidiaries on a consolidated basis, the ratio of (a) Total
Indebtedness (other than the Subordinated Notes, Permitted Junior Debt
and Subordinated Debt) on such date to (b) Annualized EBITDA for such
quarter.
"Senior Management": at least two of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, each
employed by Management in a senior management capacity and, in such
capacity, responsible for the day-to-day operations of the Borrower and
its Subsidiaries.
"Service Area": the specific residences listed or geographic
area described in an NRTC Agreement in which a Member has exclusive
DirecTv distribution rights pursuant to and to the extent provided in
such NRTC Agreement.
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"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"S&P": as defined in the definition of "Cash Equivalents."
"Subordinated Debt": at any date, all then outstanding
Indebtedness of the Borrower under unsecured notes and debentures of
the Borrower which are subordinated to the prior payment of the Loans
and the other obligations and liabilities of the Borrower hereunder,
under the Loan Documents and under any Interest Rate Protection
Agreements entered into by the Borrower with any Lender or any
Affiliate thereof, all on terms and conditions approved in writing by
the Required Lenders.
"Subordinated Notes": the senior subordinated notes of the
Borrower and Capital, due 2007, having the terms and conditions
described in, and which are to be issued in an aggregate principal
amount not to exceed $155,000,000 in accordance with, the Information
Memorandum and any senior subordinated notes of the Borrower and
Capital due 2007 issued in exchange for the Subordinated Notes that are
identical to the Subordinated Notes and which are entitled to the
benefit of a trust indenture that is identical to the Subordinated
Notes Indenture.
"Subordinated Notes Escrow Account": the escrow account to be
funded by the Borrower on the date of issuance of the Subordinated
Notes with a portion of the Net Cash Proceeds of the issuance thereof
in an amount sufficient to pay at least (but no more than) the first
four interest payments due thereon and to be maintained with the escrow
agent under the Interest Escrow Agreement and the Escrow Security
Agreement as contemplated by the Subordinated Notes Indenture as
collateral security for the obligations of the Borrower in respect of
the Subordinated Notes, all as described in the Information Memorandum.
"Subordinated Notes Indenture": the Subordinated Notes
Indenture, dated as of July __, 1997 among the Borrower and Capital, as
joint and several obligors, the Guarantors and The Bank of New York, as
trustee, as amended, supplemented or otherwise modified from time to
time in accordance with subsection 8.17.
"Subscriber Base": the number of households and commercial
establishments in the Service Areas with the capacity to receive direct
broadcast services.
"Subscribers": for any Service Area, the sum of (i) the number
of active subscribers to direct broadcast services in such Service Area
which pay at least the minimum standard monthly fees and charges for
basic direct broadcast services and which are not more than 60 days
past due in such payments plus (ii) the number obtained by dividing (x)
the total monthly charges paid by bulk and commercial subscribers to
such direct broadcast services by (y) the average minimum standard
monthly fees and charges for basic direct broadcast services paid by
households subscribing to such services in such Service Area. If one
Person subscribes to multiple subscriptions, then each such
subscription shall be considered a separate Subscriber;
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provided, however, that multiple connections within a Household for
which there is only one subscription shall count as only one
Subscriber.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or
other ownership interests having ordinary voting power (other than
stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the
Board of Directors of such corporation, partnership or other entity
("Voting Stock") are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise qualified,
all references to a "Subsidiary" or to "Subsidiaries" in this Agreement
shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Syndication Agent": MGT, as syndication agent for the Lenders
under this Agreement and the other Loan Documents.
"Term Loans": as defined in subsection 2.6.
"Term Loan Commitment": as to any Term Loan Lender, its
obligation to make a Term Loan to the Borrower pursuant to subsection
2.6 in an aggregate amount equal to the amount set forth under such
Lender's name in Schedule 1 opposite the heading "Term Loan
Commitment", collectively, the "Term Loan Commitments."
"Term Loan Commitment Percentage": as to any Term Loan Lender,
the percentage of the aggregate Term Loan Commitments constituted by
its Term Loan Commitment or, following the Closing Date, the percentage
of the aggregate outstanding Term Loans constituted by its Term Loan.
"Term Loan Lender": any Lender having a Term Loan Commitment
hereunder or that holds outstanding Term Loans.
"Term Loan Maturity Date": July 21, 2003.
"Term Note" and "Term Notes": as defined in subsection 2.7.
"Total Indebtedness": with respect to the Borrower and its
Subsidiaries, at any date, without duplication, (a) all then
outstanding Funded Indebtedness of the Borrower and its Subsidiaries
plus (b) all then outstanding Guarantee Obligations of the Borrower and
its Subsidiaries with respect to Funded Indebtedness.
"Total Leverage Ratio": as of the last day of each calendar
quarter of the Borrower, with respect to the Borrower and its
Subsidiaries on a consolidated basis, the ratio of (a) Total
Indebtedness on such date to (b) Annualized EBITDA for such calendar
quarter.
"Total Outstandings": as defined in subsection 4.3(c).
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"Tranche": the collective reference to Eurodollar Loans the
then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Loans
shall originally have been made on the same day).
"Transferee": as defined in subsection 11.6(f).
"Type": as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
"Voting Stock": as defined in the definition of "Subsidiary".
"Wholly Owned Subsidiary": means any Subsidiary, all of the
outstanding Voting Stock (other than directors' qualifying shares or
shares owned by Management, which in the aggregate are not more than 1%
of the outstanding Voting Stock) of which are owned, directly or
indirectly, by the Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Notes, any other Loan Documents or any certificate or other
document made or delivered pursuant hereto.
(b) As used herein and in any Notes, any other Loan Documents and any
certificate or other document made or delivered pursuant hereto, accounting
terms relating to the Borrower and its Subsidiaries not defined in subsection
1.1 and accounting terms partly defined in subsection 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS
AND TERM LOAN COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans (each a "Revolving Credit Loan", collectively, "Revolving
Credit Loans") to the Borrower from time
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to time during the Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding which, when added to such Revolving Credit
Lender's Revolving Credit Commitment Percentage of the then outstanding L/C
Obligations, does not exceed the amount of such Revolving Credit Lender's
Revolving Credit Commitment, provided that in no event shall any Revolving
Credit Lender be obligated to make any Revolving Credit Loan prior to the time
when the aggregate amount of the Term Loans made hereunder first equals
$20,000,000. During the Revolving Credit Commitment Period, the Borrower may use
the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i) Eurodollar
Loans, (ii) ABR Loans or (iii) a combination thereof, as determined by the
Borrower and of which the Administrative Agent has been advised in accordance
with subsections 2.3 and 4.4, provided that no Revolving Credit Loan shall be
made as a Eurodollar Loan after May 31, 2003.
2.2 Revolving Credit Notes. The Borrower agrees that, upon the request
to the Administrative Agent by any Revolving Credit Lender made on or prior to
the Closing Date or in connection with any assignment pursuant to subsection
11.6, to evidence such Lender's Revolving Credit Loans the Borrower will execute
and deliver to such Lender a promissory note substantially in the form of
Exhibit B-1, with appropriate insertions therein as to payee, date and principal
amount (each, as amended, supplemented, replaced or otherwise modified from time
to time, a "Revolving Credit Note"), payable to the order of such Lender and in
a principal amount equal to the lesser of (a) the amount set forth under such
Lender's name in Schedule 1 opposite the heading "Revolving Credit Commitment"
and (b) the aggregate unpaid principal amount of all Revolving Credit Loans made
by such Lender to such Borrower. Each Revolving Credit Note shall (x) be dated
the Closing Date, (y) be stated to mature on the Revolving Credit Commitment
Termination Date and (z) provide for the payment of interest in accordance with
subsection 4.1.
2.3 Procedure for Revolving Credit Borrowing. The Borrower may borrow
under the Revolving Credit Commitments during the Revolving Credit Commitment
Period on any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 11:00 A.M., New York City time, (a) three Business
Days prior to the requested Borrowing Date, if all or any part of the requested
Revolving Credit Loans are to be initially Eurodollar Loans or (b) one Business
Day prior to the requested Borrowing Date, otherwise), specifying (i) the amount
to be borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing
is to be of Eurodollar Loans, ABR Loans or a combination thereof and (iv) if the
borrowing is to be entirely or partly of Eurodollar Loans, the respective amount
of each Type of Loan and the respective length of the initial Interest Period
therefor. Each borrowing under the Revolving Credit Commitments shall be in an
amount equal to (x) in the case of ABR Loans, $500,000 or a whole multiple of
$100,000 in excess thereof (or, if the aggregate Available Revolving Credit
Commitments then in effect are less than $500,000, such lesser amount) and (y)
in the case of Eurodollar Loans, $1,000,000 or a whole multiple of $100,000 in
excess thereof. Upon receipt of any such notice in a certificate of the
Borrower, substantially in the form of
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Exhibit D, with appropriate insertions and attachments, executed by a
Responsible Officer of the Borrower (such certificate, a "Borrowing
Certificate"), the Administrative Agent shall promptly notify each Revolving
Credit Lender thereof. Each Revolving Credit Lender will make the amount of its
pro rata share of each borrowing available to the Administrative Agent for the
account of the Borrower at the office of the Administrative Agent specified in
subsection 11.2 prior to 1:00 P.M., New York City time, on the Borrowing Date
requested by the Borrower in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Borrower by the
Administrative Agent crediting the account of the Borrower on the books of such
office with the aggregate of the amounts made available to the Administrative
Agent by the Lenders and in like funds as received by the Administrative Agent.
2.4 Commitment Fees. The Borrower agrees to pay to the Administrative
Agent, for the account of each Revolving Credit Lender, a commitment fee for the
period from and including the first day of the Revolving Credit Commitment
Period to the Revolving Credit Commitment Termination Date, computed at the rate
of 1/2 of 1% per annum on the average daily amount of the Available Revolving
Credit Commitment of such Lender during the period for which payment is made, in
each case payable quarterly in arrears on the last day of each March, June,
September and December and on the Revolving Credit Commitment Termination Date,
commencing on the first of such days to occur after the Closing Date.
2.5 Termination or Reduction of Revolving Credit Commitments. (a) The
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent (which will promptly notify the Lenders thereof), to
terminate the Revolving Credit Commitments or, from time to time, to reduce the
amount of the Revolving Credit Commitments; provided that no such termination or
reduction shall be permitted if, after giving effect thereto and to any
prepayments of the Revolving Credit Loans made on the effective date thereof,
the aggregate principal amount of the Revolving Credit Loans then outstanding
when added to the sum of the then outstanding L/C Obligations, would exceed the
Revolving Credit Commitments then in effect. Any such reduction shall be in an
amount equal to $1,000,000 or a whole multiple of $500,000 in excess thereof and
shall reduce permanently the Revolving Credit Commitments then in effect.
(b) The total amount of the Revolving Credit Commitments on the Closing
Date shall be $70,000,000, and shall be reduced (i) on December 31, 1998 by an
amount equal to the Available Revolving Credit Commitments of all Revolving
Credit Lenders on such date minus $10,000,000 provided that the reduction
provided for in this subsection 2.5(b)(i) shall not be made unless the Available
Revolving Credit Commitments of all Revolving Credit Lenders on such date
exceeds $10,000,000, and (ii) on each of the dates specified below by an amount
equal to (x) the Revolving Credit Commitments as of January 1, 1999 minus
$10,000,000 multiplied by (y) the percentage set forth opposite such date:
Date Percentage
---- ----------
September 30, 1999 3.500%
December 31, 1999 3.500%
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March 31, 2000 5.75%
June 30, 2000 5.75%
September 30, 2000 5.75%
December 31, 2000 5.75%
March 31, 2001 7.000%
June 30, 2001 7.000%
September 30, 2001 7.000%
December 31, 2001 7.000%
March 31, 2002 9.000%
June 30, 2002 9.000%
September 30, 2002 9.000%
December 31, 2002 9.000%
March 31, 2003 3.000%
June 30, 2003 3.000%;
and, in any event, the total amount of the Revolving Credit Commitments shall be
reduced to $0 on the Revolving Credit Commitment Termination Date.
(c) The Revolving Credit Commitments shall also be automatically
reduced in accordance with subsection 4.3(d). Any such reduction shall reduce
permanently the Revolving Credit Commitments then in effect.
2.6 Term Loans. Subject to the terms and conditions hereof, each Term
Loan Lender severally agrees to make term loans to the Borrower (collectively,
the "Term Loans") from time to time during the period from the Closing Date to
and including the date which is twelve months following the Closing Date in an
aggregate principal amount not to exceed the amount set forth under such
Lender's name in Schedule 1 opposite the heading "Term Loan Commitment". The
Term Loans may from time to time be (a) Eurodollar Loans, (b) ABR Loans or (c) a
combination thereof, as determined by the Borrower and notified to the
Administrative Agent in accordance with subsection 4.4. Amounts paid on account
of the Term Loans pursuant to subsection 2.7 may not be reborrowed.
2.7 Term Notes. (a) The Borrower agrees that, upon the request to the
Administrative Agent by any Term Loan Lender made on or prior to the Closing
Date or in connection with any assignment pursuant to subsection 11.6, to
evidence such Term Loan Lender's Term Loan the Borrower will execute and deliver
to such Term Loan Lender a promissory note substantially in the form of Exhibit
B-2 (each, as amended, supplemented, replaced or otherwise modified from time to
time, a "Term Note"), with appropriate insertions therein as to payee, date and
principal amount, payable to the order of such Term Loan Lender and in a
principal amount equal to the amount set forth under such Lender's name on
Schedule 1 opposite the heading "Term Loan Commitment." Any Term Note shall (i)
be dated the Closing Date, (ii) be payable as provided in subsection 2.7(b) and
(iii) provide for the payment of interest in accordance with subsection 4.1.
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(b) The Term Loans shall be payable in 20 consecutive quarterly
installments, commencing on September 30, 1998, on each of the dates and in the
aggregate principal amount set forth below (together with all accrued interest
thereon) opposite the applicable installment date (or, if less, the aggregate
amount of the Term Loans then outstanding):
Installment Amount
----------- ------
September 30, 1998 $200,000.00
December 31, 1998 $200,000.00
March 31, 1999 $200,000.00
June 30, 1999 $200,000.00
September 30, 1999 $200,000.00
December 31, 1999 $200,000.00
March 31, 2000 $200,000.00
June 30, 2000 $200,000.00
September 30, 2000 $200,000.00
December 31, 2000 $200,000.00
March 31, 2001 $200,000.00
June 30, 2001 $200,000.00
September 30, 2001 $200,000.00
December 31, 2001 $200,000.00
March 31, 2002 $200,000.00
June 30, 2002 $200,000.00
September 30, 2002 $200,000.00
December 31, 2002 $200,000.00
March 31, 2003 $200,000.00
June 30, 2003 $200,000.00
July 31, 2003 the unpaid balance
2.8 Procedure for Term Loan Borrowing. The Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 11:00 A.M., New York City time, (a) three Business
Days prior to the Closing Date, if all or any part of the Term Loans are to be
initially Eurodollar Loans or (b) one Business Day prior to the requested
Borrowing Date, otherwise), specifying (i) the amount to be borrowed, (ii) the
requested Borrowing Date, (iii) whether the Term Loans are to be initially
Eurodollar Loans, ABR Loans or a combination thereof, and (iv) if the Term Loans
are to be entirely or partly Eurodollar Loans, the amount of such Type of Loan
and the length of the initial Interest Periods therefor. Each borrowing under
the Term Loan Commitments shall be in an amount equal to (x) in the case of ABR
Loans, $500,000 or a whole multiple of $100,000 in excess thereof (or, if the
then available Term Loan Commitments are less than $500,000, such lesser amount)
and (y) in the case of Eurodollar Loans, $1,000,000 or a whole multiple of
$100,000 in excess thereof. Upon receipt of such notice the Administrative Agent
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shall promptly notify each Term Loan Lender thereof. Each Term Loan Lender will
make the amount of its pro rata share of each borrowing available to the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in subsection 11.2 prior to 1:00 P.M., New York
City time, on the Borrowing Date requested by the Borrower in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the Borrower by the Administrative Agent crediting the account of
the Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.
2.9 Repayment of Loans. (a) The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of: (i) each
Revolving Credit Lender, the then unpaid principal amount of each Revolving
Credit Loan of such Lender made to the Borrower, on the Revolving Credit
Commitment Termination Date (or such earlier date on which the Revolving Credit
Loans become due and payable pursuant to Section 9); and (ii) each Term Loan
Lender, the amounts specified in subsection 2.7(b) on the dates specified in
subsection 2.7(b) (or such earlier date on which the Term Loans become due and
payable pursuant to Section 9). The Borrower hereby further agrees to pay
interest on the unpaid principal amount of the Loans from time to time
outstanding from the date of the making of the Loans until payment in full
thereof at the rates per annum, and on the dates, set forth in subsection 4.1.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including, without
limitation, the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register (as defined in
subsection 11.6(d)), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, the Type thereof and each
Interest Period, if any, applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) both the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 2.9(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
the Borrower by such Lender in accordance with the terms of this Agreement.
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SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions hereof, the
Issuing Lender, in reliance on the agreements of the other Revolving Credit
Lenders set forth in subsection 3.4(a), agrees to issue letters of credit
("Letters of Credit") for the account of the Borrower on any Business Day during
the Revolving Credit Commitment Period in such form as may be approved from time
to time by the Issuing Lender; provided that the Issuing Lender shall have no
obligation to issue any Letter of Credit if, after giving effect to such
issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii) the
Available Revolving Credit Commitment of all Revolving Credit Lenders would be
less than zero. Each Letter of Credit issued pursuant to the Existing Credit
Agreement shall, at all times on and after the Closing Date, be deemed to be a
"Letter of Credit" for all purposes of this Agreement and the other Loan
Documents.
(b) Each Letter of Credit shall (i) be denominated in Dollars, (ii) be
a standby letter of credit issued to support obligations of the Borrower or any
of its Subsidiaries, contingent or otherwise, including Seller Notes and DirecTv
Obligations, or to finance the working capital and business needs of the
Borrower or any of its Subsidiaries in the ordinary course of business and (iii)
expire no later than the earlier of (x) the date that is 12 months after the
date of its issuance and (y) the fifth Business Day prior to July 31, 2003;
provided that any Letter of Credit with an expiration date occurring up to
twelve months after such Letter of Credit's date of issuance may be
automatically renewable for subsequent 12-month periods (but in no event later
than the fifth Business Day prior to July 31, 2003); provided, further, that the
aggregate amount of L/C Obligations outstanding at any time supporting DirecTv
Obligations shall in no event exceed $10,000,000 and may be in the form of
Exhibit J to the Existing Credit Agreement; and provided, further, that
notwithstanding anything to the contrary in this Agreement, (a) the Letter of
Credit supporting the principal amount of the promissory note issued by Digital
Television Services of Georgia, LLC, a Georgia limited liability company and a
wholly owned subsidiary of Management ("DTS Georgia"), to Washington Electric
Membership Corporation, as more fully described on Schedule 8.4(o), shall expire
on January 15, 2001 and (b) the Letter of Credit supporting the principal amount
of the $9,427,984 original principal amount promissory note issued by DTS
Georgia to ▇▇▇▇▇▇▇▇ Electric Membership Corporation on the date hereof shall
expire on January 15, 2001.
(c) Each Letter of Credit shall be subject to the Uniform Customs and,
to the extent not inconsistent therewith, the laws of the State of New York.
(d) The Issuing Lender shall not at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause the
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 Procedure for Issuance of Letters of Credit. The Borrower may
request that the Issuing Lender issue a Letter of Credit at any time prior to
the fifth Business Day prior to July 31, 2003 by delivering to the Issuing
Lender at its address for notices specified herein a Letter of Credit
Application therefor, completed to the satisfaction of the Issuing
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Lender, and such other certificates, documents and other papers and information
as the Issuing Lender may reasonably request. Upon receipt of any Letter of
Credit Application, the Issuing Lender will process such Letter of Credit
Application and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary
procedures and shall promptly issue the Letter of Credit requested thereby (but
in no event shall the Issuing Lender be required to issue any Letter of Credit
earlier than three Business Days after its receipt of the Letter of Credit
Application therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof or as otherwise may be agreed by the Issuing
Lender and the Borrower. The Issuing Lender shall furnish a copy of such Letter
of Credit to the Borrower promptly following the issuance thereof.
3.3 Fees, Commissions and Other Charges. (a) The Borrower shall pay to
the Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, a letter of credit fee with respect to each Letter of Credit,
computed for the period from and including the date of issuance of such Letter
of Credit to the expiration date of such Letter of Credit, computed at a rate
per annum equal to the Applicable Margin then in effect for Revolving Credit
Loans that are Eurodollar Loans calculated on the basis of the actual number of
days elapsed over a 360-day year, of the aggregate face amount of Letters of
Credit outstanding, payable in arrears on each L/C Fee Payment Date and on the
Revolving Credit Commitment Termination Date. Such fee shall be payable to the
Administrative Agent to be shared ratably among the Revolving Credit Lenders in
accordance with their respective Revolving Credit Commitment Percentages. In
addition, the Borrower shall pay to the Administrative Agent, for the account of
the Issuing Lender, a fee equal to 0.25% per annum of the aggregate face amount
of outstanding Letters of Credit, payable quarterly in arrears on each L/C Fee
Payment Date and on the Revolving Credit Commitment Termination Date and
calculated on the basis of the actual number of days elapsed over a 360-day
year.
(b) In addition to the foregoing fees and commissions, the Borrower
shall pay or reimburse the Issuing Lender for such normal and customary costs
and expenses as are incurred or charged by the Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit.
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Issuing Lender and the L/C Participants all fees and
commissions received by the Administrative Agent for their respective accounts
pursuant to this subsection.
3.4 L/C Participations. (a) The Issuing Lender irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Commitment Percentage from time to time in effect
in the Issuing Lender's obligations and rights under each Letter of Credit
issued hereunder and the amount of each draft paid by the Issuing Lender
thereunder. Each L/C Participant unconditionally and irrevocably agrees with the
Issuing Lender that, if a draft is paid under
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any Letter of Credit for which the Issuing Lender is not reimbursed in full by
the Borrower in accordance with the terms of this Agreement, such L/C
Participant shall pay to the Issuing Lender upon demand at the Issuing Lender's
address for notices specified herein an amount equal to such L/C Participant's
then Revolving Credit Commitment Percentage of the amount of such draft, or any
part thereof, which is not so reimbursed; provided that, if such demand is made
prior to 12:00 Noon, New York City time, on a Business Day, such L/C Participant
shall make such payment to the Issuing Lender prior to the end of such Business
Day and otherwise such L/C Participant shall make such payment on the next
succeeding Business Day.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to paragraph 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Lender under any Letter of Credit is
paid to the Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal funds rate, as quoted by the Issuing Lender, during the period from and
including the date such payment is required to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any L/C
Participant pursuant to paragraph 3.4(a) is not in fact made available to the
Issuing Lender by such L/C Participant within three Business Days after the date
such payment is due, the Issuing Lender shall be entitled to recover from such
L/C Participant, on demand, such amount with interest thereon calculated from
such due date at the rate per annum applicable to Revolving Credit Loans that
are ABR Loans hereunder. A certificate of the Issuing Lender submitted to any
L/C Participant with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with subsection 3.4(a), the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by the Issuing Lender), or any payment of interest on account thereof, the
Issuing Lender will, if such payment is received prior to 12:00 Noon, New York
City time, on a Business Day, distribute to such L/C Participant its pro rata
share thereof prior to the end of such Business Day and otherwise the Issuing
Lender will distribute such payment on the next succeeding Business Day;
provided, however, that in the event that any such payment received by the
Issuing Lender and distributed to the L/C Participants shall be required to be
returned by the Issuing Lender, each such L/C Participant shall return to the
Issuing Lender the portion thereof previously distributed by the Issuing Lender
to it.
3.5 Reimbursement Obligation of the Borrower. (a) The Borrower agrees
to reimburse the Issuing Lender on the same Business Day on which a draft is
presented under any Letter of Credit and paid by the Issuing Lender, provided
that the Issuing Lender provides notice to the Borrower prior to 12:00 Noon, New
York City time, on such Business Day and otherwise the Borrower will reimburse
the Issuing Lender on the next succeeding Business Day; provided, further, that
the failure to provide such notice shall not affect the
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Borrower's absolute and unconditional obligation to reimburse the Issuing Lender
for any draft paid under any Letter of Credit. The Issuing Lender shall provide
notice to the Borrower on such Business Day as a draft is presented and paid by
the Issuing Lender indicating the amount of (i) such draft so paid and (ii) any
taxes, fees, charges or other costs or expenses incurred by the Issuing Lender
in connection with such payment. Each such payment shall be made to the Issuing
Lender at its address for notices specified herein in lawful money of the United
States of America and in immediately available funds.
(b) Interest shall be payable on any and all amounts remaining unpaid
by the Borrower under this subsection from the date such amounts become payable
until payment in full at the rate which would be payable on any outstanding
Revolving Credit Loans that are ABR Loans which were then overdue.
(c) Each drawing under any Letter of Credit shall constitute a request
by the Borrower to the Administrative Agent for a borrowing pursuant to
subsection 2.3 of ABR Loans in the amount of such drawing. The Borrowing Date
with respect to such borrowing shall be the date of such drawing.
3.6 Obligations Absolute. (a) The Borrower's obligations under
subsection 3.5(a) shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Borrower may have or have had against the Issuing Lender, any
L/C Participant or any beneficiary of a Letter of Credit.
(b) The Borrower also agrees with the Issuing Lender that the Issuing
Lender shall not be responsible for, and the Borrower's Reimbursement
Obligations under subsection 3.5(a) shall not be affected by, among other
things, (i) the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or (ii) any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or (iii) any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee.
(c) Neither the Issuing Lender nor any L/C Participant shall be liable
for any error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in connection with any
Letter of Credit, except for errors or omissions caused by the Issuing Lender's
gross negligence or willful misconduct.
(d) The Borrower agrees that any action taken or omitted by the Issuing
Lender under or in connection with any Letter of Credit or the related drafts or
documents, if done in the absence of gross negligence or willful misconduct and
in accordance with the standards of care specified in the Uniform Commercial
Code of the State of New York, shall be binding on the Borrower and shall not
result in any liability of the Issuing Lender or any L/C Participant to the
Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the responsibility of the Issuing Lender to
the Borrower in
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connection with such draft shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that
the documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit.
3.8 Application. To the extent that any provision of any Letter of
Credit Application related to any Letter of Credit is inconsistent with the
provisions of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. GENERAL PROVISIONS
4.1 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to the
CIBC Alternate Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) any principal of any Loan, (ii) any
interest payable thereon, (iii) any commitment fee or (iv) any other amount
payable hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), the principal of the Loans and any such overdue
interest, commitment fee or other amount shall bear interest at a rate per annum
which is (x) in the case of principal, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this subsection plus
2% or (y) in the case of any such overdue interest, commitment fee or other
amount, the rate described in paragraph (b) of this subsection plus 2%, in each
case from the date of such non-payment until such overdue principal, interest,
commitment fee or other amount is paid in full (as well after as before
judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date,
provided that interest accruing pursuant to paragraph (c) of this subsection
shall be payable from time to time on demand.
4.2 Optional Prepayments. The Borrower may at any time and from time to
time prepay the Loans made to it in whole or in part, without premium or penalty
on any Business Day, provided that (i) the Borrower shall have given (x) at
least three Business Days' irrevocable notice to the Administrative Agent (in
the case of Eurodollar Loans) or (y) same-day irrevocable notice to the
Administrative Agent (in the case of ABR Loans), (ii) such notice specifies the
date and amount of prepayment and whether the prepayment is of (x) Term Loans or
Revolving Credit Loans, and if a combination thereof, the principal amount
allocable to each and (y) Eurodollar Loans, ABR Loans or a combination thereof,
and, in each case if a combination thereof, the principal amount allocable to
each and (iii) each prepayment is in a minimum principal amount of $1,000,000
and a multiple of $100,000 in excess thereof (or, if the Loans outstanding are
less than $1,000,000, such lesser amount). Upon the receipt of any such notice
the Administrative Agent shall promptly notify each of
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the Lenders thereof. If any such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein, together with any
amounts payable pursuant to subsection 4.12 and, in the case of prepayments of
the Term Loans only, accrued interest to such date on the amount prepaid.
Partial prepayments of (i) the Term Loans pursuant to this subsection shall be
applied to the respective installments of the principal thereof in the inverse
order of their maturity and (ii) the Revolving Credit Loans and the Letters of
Credit pursuant to this subsection shall be applied, first, to payment of the
Revolving Credit Loans then outstanding and, second, to cash collateralize any
outstanding L/C Obligation upon terms reasonably satisfactory to the
Administrative Agent. On the Business Day next succeeding the date on which a
payment has caused the Aggregate Outstanding Revolving Credit with respect to
all Revolving Credit Lenders to be equal to or less than the Revolving Credit
Commitments then in effect, the Administrative Agent shall return to the
Borrower the cash used to cash collateralize the then outstanding L/C
Obligations pursuant to the preceding sentence.
4.3 Mandatory Prepayments and Reduction of Revolving Credit
Commitments. (a) If, subsequent to the Closing Date, the Borrower or any of its
Subsidiaries shall receive Net Cash Proceeds from any asset sales or other
dispositions permitted by subsection 8.7(b), then 100% of the portion of such
Net Cash Proceeds required by subsection 8.7(b) to be so applied shall on the
first Business Day after receipt thereof, be applied toward the prepayment of
the Loans and the permanent reduction of the Revolving Credit Commitments in
accordance with subsection 4.3(d); provided that such Net Cash Proceeds from any
such asset sales or other dispositions shall not be required to be so applied
(i) until the amount of such unapplied Net Cash Proceeds exceeds $5,000,000 in
the aggregate, at which time 100% of such unapplied Net Cash Proceeds shall be
applied immediately toward the permanent reduction of the Revolving Credit
Commitments and, to the extent required by subsection 4.3(d), the prepayment of
the Loans or (ii) to the extent that such Net Cash Proceeds from any such asset
sales or other dispositions may be used by the Borrower and its Subsidiaries to
acquire fixed or capital assets within 180 days of receipt thereof and otherwise
in accordance with subsection 8.7(b), but to the extent such Net Cash Proceeds
are not so used, such Net Cash Proceeds shall be applied toward the permanent
reduction of the Revolving Credit Commitments and, to the extent required by
subsection 4.3(d), the prepayment of the Loans on the earlier of (x) the 180th
day after receipt of such Net Cash Proceeds and (y) the date on which the
Borrower has reasonably determined that such Net Cash Proceeds shall not be so
used.
(b) If, at any time during the Revolving Credit Commitment Period, the
Aggregate Outstanding Revolving Credit with respect to all Revolving Credit
Lenders exceeds the aggregate Revolving Credit Commitments then in effect, the
Borrower shall, without notice or demand, immediately repay the Revolving Credit
Loans in an aggregate principal amount equal to the lesser of (x) the amount of
then outstanding Revolving Credit Loans and (y) the amount of such excess,
together with interest accrued to the date of such payment or prepayment and any
amounts payable under subsection 4.12. To the extent that after giving effect to
any prepayment of the Revolving Credit Loans required by the preceding sentence,
the Aggregate Outstanding Revolving Credit with respect to all Revolving Credit
Lenders exceeds the aggregate Revolving Credit Commitments then in effect, the
Borrower shall, without notice or demand, immediately cash collateralize the
then outstanding L/C Obligations
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in an amount equal to such excess upon terms reasonably satisfactory to the
Administrative Agent. On the Business Day next succeeding the date on which a
payment has caused the Aggregate Outstanding Revolving Credit with respect to
all Revolving Credit Lenders to be equal to or less than the Revolving Credit
Commitments then in effect, the Administrative Agent shall return to the
Borrower the cash used to cash collateralize the then outstanding L/C
Obligations pursuant to the preceding sentence.
(c) If, at any time during the Revolving Credit Commitment Period, (i)
the sum (the "Total Outstandings") of (1) the aggregate amount of Total
Indebtedness (other than in respect of the undrawn portion of any Letters of
Credit under this Agreement) minus (2) the aggregate amount then on deposit in
the Subordinated Notes Escrow Account exceeds (ii) the Borrowing Base then in
effect, the Borrower shall, without notice or demand, immediately prepay the
Revolving Credit Loans in an aggregate principal amount equal to the lesser of
(x) the amount of then outstanding Revolving Credit Loans and (y) the amount of
such excess, together with interest accrued to the date of such prepayment on
the amount prepaid and any amounts payable under subsection 4.12. To the extent
that after giving effect to any prepayment of the Revolving Credit Loans
required by the preceding sentence, the Total Outstandings exceed the Borrowing
Base then in effect, the Borrower shall, without notice or demand, immediately
cash collateralize the then outstanding L/C Obligations in an amount equal to
such excess upon terms reasonably satisfactory to the Administrative Agent.
(d) Prepayments of the Loans and permanent reductions of the Revolving
Credit Commitments pursuant to subsection 4.3(a) shall be applied, on a pro rata
basis, to the permanent reduction of the Revolving Credit Commitments then in
effect and to prepay the Term Loans then outstanding. Prepayments of the Term
Loans pursuant to subsection 4.3(a) shall be applied to the respective
installments of principal thereof, in the inverse order of their maturity.
(e) Amounts prepaid on account of Term Loans pursuant to subsection
4.3(a) may not be reborrowed.
(f) Beginning in March 31, 2000 if there shall be Excess Cash Flow with
respect to any fiscal year of the Borrower, commencing with the fiscal year
ending December 31, 1999, an amount equal to 50% of such Excess Cash Flow shall
be applied first, to the permanent reduction of the Revolving Credit Commitments
then in effect and, second to payments of the Term Loans then outstanding, in
each case applied to the respective installments of principal thereof, in the
inverse order of their maturity.
4.4 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least three Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert ABR Loans to Eurodollar Loans by giving
the Administrative Agent at least three Business Days' prior irrevocable notice
of such election. Any such notice of conversion to Eurodollar Loans shall
specify the length of the initial Interest Period or Interest Periods therefor.
Upon receipt of
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any such notice the Administrative Agent shall promptly notify each Lender
thereof. All or any part of outstanding Eurodollar Loans and ABR Loans may be
converted as provided herein, provided that (i) no Loan may be converted into a
Eurodollar Loan when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Required Lender have determined that such a
conversion is not appropriate and (ii) no ABR Loan may be converted into a
Eurodollar Loan after the date that is one month prior to the Revolving Credit
Commitment Termination Date (in the case of conversions of Revolving Credit
Loans) or the date of the final installment of principal of the Term Loans (in
the case of conversions of Term Loans).
(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower giving
notice to the Administrative Agent, in accordance with the applicable provisions
of the term "Interest Period" set forth in subsection 1.1, of the length of the
next Interest Period to be applicable to such Loans, provided that no Eurodollar
Loan may be continued as such (i) when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Required Lenders have
determined that such a continuation is not appropriate or (ii) after the date
that is one month prior to the Revolving Credit Commitment Termination Date (in
the case of continuations of Revolving Credit Loans) or the date of the final
installment of principal of the Term Loans (in the case of continuations of Term
Loans) and provided, further, that if the Borrower shall fail to give such
notice or if such continuation is not permitted such Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period.
(c) Each notice provided for under subsection 4.4 shall be
substantively in the form of Exhibit H hereto.
4.5 Minimum Amounts and Maximum Number of Tranches. All borrowings,
conversions and continuations of Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Loans comprising each Tranche shall be equal to $1,000,000 or a whole
multiple of $100,000 in excess thereof. In no event shall there be more than
seven Tranches outstanding at any time.
4.6 Computation of Interest and Fees. (a) Interest (other than interest
on ABR Loans) on all Loans payable pursuant hereto shall be calculated on the
basis of a year of 360 days for the actual days elapsed; interest on ABR Loans
and commitment fees shall be calculated on the basis of a 365-(or 366-, as the
case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower and the Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on the Loans
resulting from a change in the CIBC Alternate Base Rate or the Eurocurrency
Reserve Requirements shall become effective as of the opening of business on the
day on which such change shall become effective, provided that such change
becomes effective prior to 5:00 P.M., New York City time, on such day. The
Administrative Agent shall as soon as practicable notify the Borrower and each
Lender of the effective date and the amount of each such change.
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(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to subsection 4.1.
4.7 Inability to Determine Interest Rate. If prior to the first day of
any Interest Period:
(a) the Administrative Agent shall have reasonably determined
(which determination shall be conclusive and binding upon the Borrower)
that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Required Lenders that the Required Lenders have reasonably
determined that the Eurodollar Rate determined or to be determined for
such Interest Period will not adequately and fairly reflect the cost to
such Lenders (as certified by such Lenders) of making or maintaining
their affected Loans during such Interest Period
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as ABR Loans, (y) any Loans that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
converted to or continued as ABR Loans and (z) any outstanding Eurodollar Loans
shall be converted, on the first day of such Interest Period, to ABR Loans.
Until such notice has been withdrawn by the Agent, no further Eurodollar Loans
shall be made or continued as such, nor shall the Borrower have the right to
convert Loans to Eurodollar Loans.
4.8 Pro Rata Treatment and Payments. (a) Each borrowing of Revolving
Credit Loans by the Borrower from the Revolving Credit Lenders hereunder shall
be made, each payment by the Borrower on account of any commitment fee in
respect of the Revolving Credit Commitments hereunder shall be allocated by the
Administrative Agent, and any reduction of the Revolving Credit Commitments of
the Revolving Credit Lenders shall be allocated by the Administrative Agent, pro
rata according to the Revolving Credit Commitment Percentages of the Revolving
Credit Lenders. Each payment (including each prepayment) by the Borrower on
account of principal of and interest on any Revolving Credit Loan shall be
allocated by the Administrative Agent pro rata according to the respective
outstanding principal amounts of such Revolving Credit Loans then held by the
Revolving Credit Lenders. Each payment (including each prepayment) by the
Borrower on account of principal of and interest on any Term Loan shall be
allocated by the Administrative Agent pro rata according to the respective
outstanding principal amounts of such Term Loans then held by the Term Loan
Lenders. All payments (including prepayments) to be made by the Borrower
hereunder and under any Notes, whether on account of principal, interest, fees,
Reimbursement Obligations or otherwise, shall be made without set-off or
counterclaim and
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shall be made prior to 12:00 Noon, New York City time, on the due date thereof
to the Administrative Agent, for the account of the Lenders holding the relevant
Loans or the Issuing Lender and L/C Participants, as the case may be, at the
Administrative Agent's office specified in subsection 11.2, in Dollars and in
immediately available funds. Payments received by the Administrative Agent after
such time shall be deemed to have been received on the next Business Day. If any
payment hereunder (other than payments on Eurodollar Loans) becomes due and
payable on a day other than a Business Day, the maturity of such payment shall
be extended to the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity of such payment shall
be extended to the next succeeding Business Day (and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension) unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day.
(b) Unless the Administrative Agent shall have been notified in writing
by any Lender prior to a borrowing that such Lender will not make the amount
that would constitute its applicable share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Rate for the period until such
Lender makes such amount immediately available to the Administrative Agent. A
certificate of the Administrative Agent submitted to any Lender with respect to
any amounts owing under this subsection shall be conclusive in the absence of
manifest error. If such Lender's applicable share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with the interest accrued thereon at the rate applicable to
such borrowing.
4.9 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender (or any affiliate of
such Lender from which such Lender customarily obtains funds) to make or
maintain Eurodollar Loans as contemplated by this Agreement, (a) the commitment
of such Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as
such and convert ABR Loans to Eurodollar Loans shall forthwith be cancelled and
(b) such Lender's Loans then outstanding as Eurodollar Loans, if any, shall be
converted automatically to ABR Loans on the respective last days of the then
current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a Eurodollar Loan occurs on
a day which is prior to the last day of the then current Interest Period with
respect thereto, the Borrower shall pay to such Lender such amounts, if any, as
may be required pursuant to subsection 4.12.
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4.10 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note, any Letter of Credit, any
Letter of Credit Application or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender in respect
thereof (except for taxes covered by subsection 4.11 and changes in the
rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender (or any affiliate of
such Lender from which such Lender customarily obtains funds) which is
not otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender (or such affiliate) any
other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender
such additional amount or amounts as will compensate such Lender for such
increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under any Letter of Credit to a
level below that which such Lender or such corporation could have achieved but
for such adoption, change or compliance (taking into consideration such Lender's
or such corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, the Borrower shall
promptly pay to such Lender such additional amount or amounts as will compensate
such Lender or such corporation for such reduction.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection, such Lender shall promptly notify the Borrower
(with a copy to the Administrative Agent) of the event by reason of which it has
become so entitled. A certificate as to any additional amounts payable pursuant
to this subsection submitted by such Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the
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absence of manifest error. The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
4.11 Taxes. (a) Except as otherwise provided herein, all payments made
by the Borrower under this Agreement, any Notes, any Letters of Credit or any
Letter of Credit Applications shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Administrative Agent or any
Lender as a result of a present or former connection between the Administrative
Agent or such Lender and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from the Administrative Agent or
such Lender having executed, delivered or performed its obligations or received
a payment under, or enforced, this Agreement or any Note). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder or under any Note,
any Letters of Credit or any Letter of Credit Applications, the amounts so
payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, provided,
however, that the Borrower shall not be required to increase (and the Borrower
shall be entitled to deduct) any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a state thereof if
such Lender fails to comply with the requirements of paragraph (b) of this
subsection. Whenever any Non-Excluded Taxes are payable by the Borrower, as
promptly as possible thereafter the Borrower shall send to the Administrative
Agent for its own account or for the account of such Lender, as the case may be,
a certified copy of an original official receipt received by the Borrower
showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes
when due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(X)(i) in the case of any such Lender that is a "bank" within
the meaning of Section 881(c)(3)(A) of the Code, deliver to the
Borrower and the Administrative Agent (A) two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be certifying that it is entitled to
receive payments under this Agreement without deduction or withholding
of any United States federal income taxes and withholding taxes, and
(B) an Internal
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Revenue Service Form W-8 or W-9, or successor applicable form, as the
case may be, certifying that it is entitled to an exemption from United
States backup withholding tax;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower or the Administrative Agent; or
(Y) in the case of any such Lender that is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Code, (i) represent to the
Borrower (for the benefit of the Borrower and the Administrative Agent)
that it is not a bank within the meaning of Section 881(c)(3)(A) of the
Code, (ii) furnish to the Borrower on or before the date of any payment
by the Borrower, with a copy to the Administrative Agent, (A) a
certificate substantially in the form of Exhibit C (any such
certificate a "U.S. Tax Compliance Certificate") and (B) two accurate
and complete original signed copies of Internal Revenue Service Form
W-8, or successor applicable form certifying to such Lender's legal
entitlement at the date of such certificate to an exemption from U.S.
withholding tax under the provisions of Section 881(c) of the Code with
respect to payments to be made under this Agreement and any Notes (and
to deliver to the Borrower and the Administrative Agent two further
copies of such form on or before the date it expires or becomes
obsolete and after the occurrence of any event requiring a change in
the most recently provided form and, if necessary, obtain any
extensions of time reasonably requested by the Borrower or the
Administrative Agent for filing and completing such forms), and (iii)
upon reasonable request by the Borrower, to provide to the Borrower
(for the benefit of the Borrower and the Administrative Agent) such
other forms as may be reasonably required in order to establish the
legal entitlement of such Lender to an exemption from withholding with
respect to payments under this Agreement and any Notes, provided that
in determining the reasonableness of a request under this clause (iii)
such Lender shall be entitled to consider the cost (to the extent
unreimbursed by the Borrower) which would be imposed on such Lender of
complying with such request;
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a Lender hereunder which renders all such
forms inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Borrower and the Administrative Agent. Each Person that shall become a Lender or
a Participant pursuant to subsection 11.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms, certifications and
statements required pursuant to this subsection, provided that in the case of a
Participant the obligations of such Participant pursuant to this paragraph (b)
shall be determined as if such
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Participant were a Lender except that such Participant shall furnish all such
required forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
4.12 Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment of Eurodollar
Loans after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day which is prior to the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the excess, if any,
of (i) the amount of interest which would have accrued on the amount so prepaid,
or not so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. This covenant shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
4.13 Change of Lending Office. Each Lender agrees that if it makes any
demand for payment under subsection 4.10 or 4.11(a), or if any adoption or
change of the type described in subsection 4.9 shall occur with respect to it,
it shall use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions and so long as such efforts would not be
disadvantageous to it, as determined in its sole discretion) to designate a
different lending office if the making of such a designation would reduce or
obviate the need for the Borrower to make payments under subsection 4.10 or
4.11(a), or would eliminate or reduce the effect of any adoption or change
described in subsection 4.9.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Managing Agents and the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the Letters of
Credit, the Borrower hereby represents and warrants to the Managing Agents and
each Lender that:
5.1 Financial Condition. (a) The audited consolidated balance sheet of
the Borrower and its consolidated Subsidiaries as at December 31, 1996 and the
related consolidated statements of income and of cash flows for the period from
inception of the applicable entity to and including December 31 1996, reported
on by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., copies of which have heretofore been furnished to
each Lender, are complete and correct and present fairly in all material
respects the consolidated financial condition of the Borrower and
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its consolidated Subsidiaries as of such date, and the consolidated results of
their operations and their consolidated cash flows for the period from the
inception of the applicable entity to and including December 31, 1996. The
unaudited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries at March 31, 1997 and the related unaudited consolidated statements
of income and of cash flows for the three-month period ended on such date,
certified by a Responsible Officer, copies of which have heretofore been
furnished to each Lender, present fairly in all material respects the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the three-month period then ended (subject
to normal year-end audit adjustments). All such financial statements, including
the related schedules and notes thereto, have been prepared in accordance with
GAAP applied consistently throughout the periods involved (except as approved by
such accountants or Responsible Officer, as the case may be, and as disclosed
therein). Except as set forth on Schedule 5.1(a), neither the Borrower nor any
of its consolidated Subsidiaries had, at the date of the most recent balance
sheet referred to above, any material Guarantee Obligation, contingent liability
or liability for taxes, or any long-term lease or other material agreement or
unusual forward or long-term commitment, including, without limitation, any
interest rate or foreign currency swap or exchange transaction, which is not
reflected in the foregoing statements. Except as set forth on Schedule 5.1(a),
during the period from January 1, 1997 to and including the Closing Date there
has been no sale, transfer or other disposition by the Borrower or any of its
consolidated Subsidiaries of any material part of its business or property and,
no purchase or other acquisition of any business or material part thereof
(including any capital stock of any other Person).
(b) The pro forma balance sheet of the Borrower and its consolidated
Subsidiaries (the "Pro Forma Balance Sheet"), as set forth in the Information
Memorandum is the balance sheet of the Borrower and its consolidated
Subsidiaries as of March 31, 1997 (the "Pro Forma Date"), adjusted to give
effect (as if such events had occurred on the dates set forth therein) to (i)
the making of the Loans and other extension of credit hereunder to be made on
the Closing Date and the application of the proceeds thereof as contemplated
hereby, (ii) the issuance of the Subordinated Notes and (iii) the payment of
fees and expenses paid in connection with the consummation of the transactions
contemplated by the Loan Documents.
5.2 No Change; Solvency. (a) Since December 31, 1996, there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect, and (b) during the period from the inception of the
applicable entity to and including the date hereof no dividends or other
distributions have been declared, paid or made upon the Capital Stock of the
Borrower nor has any of the Capital Stock of the Borrower been redeemed,
retired, purchased or otherwise acquired for value by the Borrower or any of its
Subsidiaries. As of the Closing Date, after giving effect to the transactions
contemplated by the Loan Documents, the Borrower and its Subsidiaries are
solvent, on a consolidated basis and on an individual basis.
5.3 Corporate Existence; Compliance with Law. Each of the Borrower and
the other Loan Parties (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
power and authority, and the legal right, to
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own and operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign corporation, limited liability company or limited partnership (as
applicable) and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification, except for jurisdictions in which the failure to so
qualify, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect, and (d) is in compliance with all Requirements of Law except to
the extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
5.4 Corporate Power; Authorization; Enforceable Obligations. Each of
the Borrower and the other Loan Parties has the power and authority, and the
legal right, to execute, deliver and perform the Loan Documents to which it is a
party and, in the case of the Borrower, to borrow hereunder and each of the
Borrower and the other Loan Parties has taken all necessary action to authorize
the borrowings on the terms and conditions of this Agreement and any Notes and
to authorize the execution, delivery and performance of the Loan Documents to
which it is a party. No consent or authorization of, filing with, notice to or
other act by or in respect of, any Governmental Authority or any other Person is
required to be received, made, given or completed by any of the Loan Parties in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of the Loan Documents to which the
Borrower or any of the other Loan Parties is a party other than filings and
recordings to perfect the first priority security interest of the Lenders
created by the Security Documents and other than those set forth on Schedule 5.4
(which consents, authorizations, filings, notices and other acts have been
heretofore received, made, given or completed). This Agreement has been duly
executed and delivered by the Borrower, and each of the other Loan Documents to
which the Borrower or any of the other Loan Parties is a party will be duly
executed and delivered by the Borrower or such other Loan Party. This Agreement
constitutes a legal, valid and binding obligation of the Borrower, and each
other Loan Document to which the Borrower or any of the other Loan Parties is a
party when executed and delivered by the Borrower or such other Loan Party will
constitute a legal, valid and binding obligation of the Borrower or such other
Loan Party, enforceable against the Borrower or such other Loan Party in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
5.5 No Legal Bar. The execution, delivery and performance of the Loan
Documents to which the Borrower or any of the other Loan Parties is a party, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or Contractual Obligation of the Borrower or of any of the
other Loan Parties and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or revenues
pursuant to any such Requirement of Law or Contractual Obligation (other than
the Loan Documents).
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5.6 No Material Litigation. No litigation, investigation or proceeding
of or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Borrower, threatened by or against the Borrower or any of the
other Loan Parties or against any of its or their respective properties or
revenues which could reasonably be expected to have a Material Adverse Effect.
5.7 No Default. Neither the Borrower nor any of the other Loan Parties
is in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
5.8 Ownership of Property; Liens. Each of the Borrower and the other
Loan Parties has good record and marketable title in fee simple to, or a valid
leasehold interest in, all its material real property, and good title to, or a
valid leasehold interest in, all its other material property, and none of such
property is subject to any Lien except as permitted by subsection 8.4.
5.9 Intellectual Property. The Borrower and each of the other Loan
Parties owns, or is licensed to use, all trademarks, tradenames, copyrights,
technology, know-how and processes necessary for the conduct of its business as
currently conducted except for those the failure to own or license which could
not reasonably be expected to have a Material Adverse Effect (the "Intellectual
Property"). 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, except for such claims which,
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect, nor does the Borrower know of any valid basis for any such claim. The
use of such Intellectual Property by the Borrower and the other Loan Parties
does not infringe on the rights of any Person, except for such infringements
that, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
5.10 No Burdensome Restrictions. No Requirement of Law or Contractual
Obligation of the Borrower or any of the other Loan Parties could reasonably be
expected to have a Material Adverse Effect.
5.11 Taxes. Each of the Borrower and the other Loan Parties has filed
or caused to be filed all United States federal income tax returns and all other
material tax returns which, to the knowledge of the Borrower, are required to be
filed and has paid all taxes shown to be due and payable on said returns or on
any assessments made against it or any of its property and all other taxes, fees
or other charges imposed on it or any of its property by any Governmental
Authority (other than any taxes, fees or other charges (i) with respect to which
the failure to pay, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect or (ii) the amount or validity of which are currently
being contested in good faith by appropriate proceedings and with respect to
which reserves in conformity with GAAP have been provided on the books of the
Borrower or any of the other Loan Parties, as the case may be); no tax Lien has
been filed, and, to the knowledge of the Borrower, no claim is being asserted,
with respect to any such tax, fee or other charge.
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5.12 Federal Regulations. No part of the proceeds of any Loans or other
extensions of credit hereunder have been or will be used for "purchasing" or
"carrying" any "margin stock" within the respective meanings of each of the
quoted terms under Regulation G or Regulation U of the Board of Governors of the
Federal Reserve System as now and from time to time in effect. If requested by
any Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form G-1 or FR Form U-1 referred to in
said Regulation G or Regulation U, as the case may be.
5.13 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code. No termination of a Single Employer Plan has occurred, and no Lien
in favor of the PBGC or a Plan has arisen, during such five year period. The
present value of all accrued benefits under all Single Employer Plans taken as a
whole (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which the representation is made
or deemed made, exceed the value of the assets of such Single Employer Plans
allocable to such accrued benefits by more than $100,000. Neither the Borrower
nor any Commonly Controlled Entity has had a complete or partial withdrawal from
any Multiemployer Plan, and neither the Borrower nor any Commonly Controlled
Entity would become subject to any material liability under ERISA if the
Borrower or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding the date
on which this representation is made or deemed made. As of the Closing Date, and
to the knowledge of the Borrower on any Borrowing Date thereafter, no such
Multiemployer Plan is in Reorganization or Insolvent.
5.14 Collateral. The provisions of each of the Security Documents, when
executed and delivered, will constitute in favor of the Administrative Agent for
the ratable benefit of the Lenders, a legal, valid and enforceable security
interest in all right, title, and interest of the Borrower or any of the other
Loan Parties which is a party to such Security Document, as the case may be, in
the Collateral described in such Security Document, excluding the Interest
Escrow Agreement, the Subordinated Notes Escrow Account and any proceeds
thereof. As of the Closing Date, all Equipment and Inventory (as each of such
terms is defined in the Guarantee and Collateral Agreement) of Management, the
Borrower and each of its Subsidiaries will be kept at, or will be in transit to,
the locations listed on Schedule 5.14, and each of the Security Documents
constitutes a perfected security interest in all right, title and interest of
the Borrower or such other Loan Parties, as the case may be, in the Collateral
described therein, and except for Liens existing on the Closing Date which are
permitted by subsection 8.4 and the priority of which cannot be superseded by
the provisions hereof or of any Security Document and the filings hereunder or
thereunder, a perfected first lien on, and security interest in, all right,
title and interest of the Borrower or such other Loan Parties, as the case may
be, in the Collateral described in each Security Document. Notwithstanding
anything contained herein or in the Security Documents to the contrary, the
Administrative Agent hereby releases its security interest in (i) the Interest
Escrow
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Agreement, (ii) any funds held in the Subordinated Notes Escrow Account and
(iii) any proceeds thereof and acknowledges and agrees that The Bank of New
York, as collateral agent, has been granted a security interest therein pursuant
to the Escrow Security Agreement.
5.15 Investment Company Act; Other Regulations. The Borrower is not an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Borrower is not subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board of Governors of the Federal
Reserve System) which limits its ability to incur Indebtedness.
5.16 Subsidiaries. Schedule 5.16 hereto sets forth all of the
Subsidiaries of the Borrower, and all of the joint ventures in which the
Borrower or any of its Subsidiaries has an interest, at the Closing Date, the
jurisdiction of their incorporation or formation and the direct or indirect
ownership interest of the Borrower therein.
5.17 Purpose of Loans. The proceeds of the Loans shall be used by the
Borrower (i) to repay all of its outstanding Indebtedness under the Existing
Credit Agreement, (ii) to finance Permitted Business Acquisitions and related
expenses, (iii) to provide for up to $50,000,000 in Letters of Credit, (iv) to
finance capital expenditures of the Borrower and its Subsidiaries and for the
general corporate purposes and working capital needs of the Borrower and its
Subsidiaries and (v) to pay fees and expenses related to the preparation,
negotiation, execution and delivery of this Agreement and the other Loan
Documents and the transactions contemplated hereby.
5.18 Environmental Matters. Other than exceptions to any of the
following that would not, individually or in the aggregate, reasonably be
expected to give rise to a Material Adverse Effect:
(i) The Borrower and the other Loan Parties: (A) are, and
within the period of all applicable statutes of limitation have been,
in compliance with all applicable Environmental Laws; (B) hold all
Environmental Permits (each of which is in full force and effect)
required for any of their current operations or for any property owned,
leased, or otherwise operated by any of them and have no reason to
believe that they will not be able to timely obtain without material
expense all such Environmental Permits required for planned operations;
(C) are, and within the period of all applicable statutes of limitation
have been, in compliance with all of their Environmental Permits; and
(D) have no reason to believe that: any of their Environmental Permits
will not be, or will entail material expense to be, timely renewed or
complied with; any additional Environmental Permits that may be
required of any of them will not be, or will entail material expense to
be, timely granted or complied with; or that compliance with any
Environmental Law that is applicable to any of them will not be, or
will entail material expense to be, timely attained and maintained.
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(ii) To the best knowledge of the Borrower, Materials of
Environmental Concern have not been generated, transported, disposed
of, emitted, discharged, or otherwise released or threatened to be
released, to or at any real property presently or formerly owned,
leased or operated by the Borrower or any of the other Loan Parties or
at any other location, which could reasonably be expected to (A) give
rise to liability of the Borrower or any of the other Loan Parties
under any applicable Environmental Law, or (B) interfere with the
Borrower's or any other Loan Party's planned or continued operations,
or (C) impair the fair saleable value of any real property owned or
leased by the Borrower or any other Loan Parties.
(iii) There is no judicial, administrative, or arbitral
proceeding (including any notice of violation or alleged violation)
under any Environmental Law to which the Borrower or any of the other
Loan Parties is named as a party that is pending or, to the knowledge
of the Borrower, threatened.
(iv) Neither the Borrower nor any of the other Loan Parties
has received any written request for information, or been notified that
it is a potentially responsible party, under the federal Comprehensive
Environmental Response, Compensation, and Liability Act or any similar
Environmental Law, or received any other written request for
information with respect to any Materials of Environmental Concern.
(v) Neither the Borrower nor any of the other Loan Parties has
entered into or agreed to any consent decree, order, or settlement or
other agreement, nor is subject to any judgment, decree, or order or
other agreement, in any judicial, administrative, arbitral, or other
forum, relating to compliance with or liability under any Environmental
Law, as to which any obligation has not been fully and finally
resolved.
(vi) Neither the Borrower nor any of its Subsidiaries has
assumed or retained, by contract or, to the best knowledge of the
Borrower, by operation of law, any liabilities of any kind, fixed or
contingent, known or unknown, under any Environmental Law or with
respect to any Material of Environmental Concern.
5.19 No Material Misstatements. The written information, reports,
financial statements, exhibits and schedules furnished by or on behalf of the
Borrower and each other Loan Party to the Administrative Agent, the
Documentation Agent and the Lenders in connection with the negotiation of any
Loan Document or included therein or delivered pursuant thereto (including,
without limitation, the Information Memorandum), taken as a whole (in each case
after giving effect to revisions and updates furnished by or on behalf of a Loan
Party to the Administrative Agent in accordance with the terms of the Loan
Documents), does not contain, and will not contain as of the Closing Date, any
material misstatement of fact and does not, taken as a whole, omit, and will
not, taken as a whole, omit as of the Closing Date, to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not materially misleading. It is understood that no
representation or warranty is made concerning the forecasts, estimates, pro
forma information, projections and statements as to anticipated future
performance or conditions, and the assumptions on which they were based,
contained in any
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such information, reports, financial statements, exhibits or schedules, except
that as of the date such forecasts, estimates, pro forma information,
projections and statements were generated, (a) such forecasts, estimates, pro
forma information, projections and statements were based on the good faith
assumptions of the management of the Borrower or Management, as the case may be,
and (b) such assumptions were believed by such management to be reasonable at
the time made, it being understood that such forecasts, estimates, pro forma
information and statements, and the assumptions on which they were based, may or
may not prove to be correct.
5.20 Certain Agreements. The Borrower has delivered to each Lender
complete and correct copies of the Contracts listed on Schedule 5.20 including
all schedules, exhibits and amendments thereto (except as otherwise noted in
Schedule 5.20).
5.21 NRTC, DirecTv Matters. The Borrower and each of its Subsidiaries
meet the NRTC's requirements for affiliation or membership currently in effect.
Schedule 5.20 lists all of the Contracts granted or assigned, or to be granted
or assigned, to the Loan Parties in connection with the provision of DirecTv
owned or, upon consummation of any Permitted Business Acquisition, to be owned
by, the Loan Parties, and the rights and authorizations of the Loan Parties
under the Contracts are the only material authorizations and rights necessary
for the provision of DirecTv by the applicable Loan Parties as of the date
hereof or as of the consummation of Permitted Business Acquisitions. All of the
Contracts have been (or will be on or as of the date of the Permitted Business
Acquisitions to which they relate) validly entered into by or assigned to such
Loan Parties and in full force and effect, and the Loan Parties have fulfilled
and performed (or will on or as of the date of such fulfillment or performance
is then required) all of their obligations with respect thereto. All applicable
Assignments and Consents have been duly executed and are enforceable (or will be
executed and enforceable as of the date of any Permitted Business Acquisitions
to which they relate) against the NRTC and DirecTv, Inc.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Effectiveness of Agreement. This Agreement shall
become effective as of the date first written above upon satisfaction of the
following conditions:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly
authorized officer of the Borrower, with a counterpart for each Lender
and (ii) a Revolving Credit Note or a Term Note, as the case may be,
for the account of each of the Lenders which has requested a Note
pursuant to subsection 2.2 or 2.7, each conforming to the requirements
hereof and executed and delivered by a duly authorized officer of the
Borrower and (iii) the Guarantee and Collateral Agreement, executed and
delivered by a duly authorized officer of each party thereto, with a
counterpart or a conformed copy for each Lender.
(b) Existing Indebtedness. The Borrower and its Subsidiaries
shall have no Indebtedness or preferred stock outstanding on the
Closing Date except for (i) the
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Loans to be made on the Closing Date, (ii) the Seller Notes and (iii)
any other Indebtedness permitted by subsection 8.3.
(c) Financial Information. The Lenders shall have received
copies of and shall be reasonably satisfied, in form and substance,
with the financial statements referred to in subsection 5.1, including,
without limitation, the Pro Forma Balance Sheet. The Pro Forma Balance
Sheet shall not be materially inconsistent with the forecasts
previously provided to the Lenders.
(d) Borrowing Certificate; Other Certificates. The
Administrative Agent shall have received, with a counterpart for each
Lender, a Borrowing Certificate, dated the Closing Date, substantially
in the form of Exhibit E, with appropriate insertions and attachments
executed by a Responsible Officer of the Borrower. The Administrative
Agent shall have received, with a counterpart for each Lender, each
other certificate of the Borrower required to be delivered under
subsection 7.2 of this Agreement, including a Borrowing Base
Certificate.
(e) Authorization Proceedings of the Loan Parties. The
Administrative Agent shall have received, with a counterpart for each
Lender, a copy of the limited liability company agreement charter and
by-laws or limited partnership agreement, as applicable, for each Loan
Party and of the resolutions, in form and substance satisfactory to the
Administrative Agent, of the Board of Directors of each Loan Party
authorizing (i) the execution, delivery and performance of this
Agreement and the other Loan Documents to which each Loan Party is a
party, (ii) in the case of the Borrower, the borrowings contemplated
hereunder and (iii) the granting by the Borrower and each other Loan
Party of the Liens created pursuant to the Security Documents,
certified by a Responsible Officer of such Loan Party, as of the
Closing Date, which certificate shall be in form and substance
satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked
or rescinded.
(f) Incumbency Certificate of the Loan Parties. The
Administrative Agent shall have received, with a counterpart for each
Lender, a certificate of each of the Loan Parties, dated the Closing
Date, as to the incumbency and signature of the Responsible Officers of
each such Loan Party executing any Loan Document satisfactory in form
and substance to the Administrative Agent, executed by a Responsible
Officer of such Loan Party or its general partner or Manager, as
applicable.
(g) Charter Documents. The Administrative Agent shall have
received, with a counterpart for each Lender, true and complete copies
of, as appropriate the (x) certificate of incorporation and by-laws,
(y) certificate of formation and operating agreement, or (z)
certificate of limited partnership and limited partnership agreement of
each respective Loan Party, certified, as of the Closing Date as
complete and correct copies thereof by the Secretary or an Assistant
Secretary of such Loan Party or by a Responsible Officer of such Loan
Party serving in a similar capacity.
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(h) Consents, Licenses and Approvals. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate
of a Responsible Officer of the Borrower stating that all consents,
licenses and filings referred to in subsections 5.4 and 5.21 are in
full force and effect, and each such consent, authorization and filing
shall be in form and substance satisfactory to the Administrative
Agent.
(i) Adverse Change, etc. From December 31, 1996 to the Closing
Date, nothing shall have occurred (and neither the Lenders nor the
Administrative Agent shall have become aware of any facts or conditions
not previously known) which the Administrative Agent or the Required
Lenders shall determine has, or is reasonably likely to have, a
Material Adverse Effect.
(j) Litigation. On the Closing Date, there shall be no
actions, suits or proceedings pending or, to the knowledge of the
Borrower, threatened against any Loan Party (a) with respect to this
Agreement or any other Loan Document or the transactions contemplated
hereby or thereby (including the Permitted Business Acquisitions) which
could be reasonably expected to have a material adverse effect on the
rights or remedies of the Lenders under the Loan Documents or (b) which
the Administrative Agent or the Required Lenders shall determine could
reasonably be expected to have a Material Adverse Effect.
(k) Legal Opinions. The Administrative Agent shall have
received, with a counterpart for each Lender, the executed legal
opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, L.L.P., counsel to the
Borrower and the other Loan Parties, substantially in the form of
Exhibit E, with such changes thereto as may be approved by the
Administrative Agent. Such legal opinion shall cover such other matters
incident to the transactions contemplated by this Agreement as the
Administrative Agent may reasonably require.
(l) Actions to Perfect Liens. The Administrative Agent shall
have received evidence in form and substance satisfactory to it that
(i) all filings, recordings, registrations and other actions,
including, without limitation, the filing of duly executed financing
statements on Form UCC-1 necessary or, in the opinion of the
Administrative Agent, desirable to perfect the Liens created by the
Security Documents shall have been completed or (ii) all such financing
statements and other documents with respect to such filings,
recordings, registrations and other actions shall have been delivered
to the Administrative Agent. To the extent the Pledged Stock (as
defined in the Guarantee and Collateral Agreement) consists of
uncertificated limited liability company membership interests the
Issuer (as defined in the Guarantee and Collateral Agreement) of such
Pledged Stock shall have delivered to the Administrative Agent a
transaction statement or other documentary evidence satisfactory to the
Administrative Agent confirming that such Issuer has registered on its
books the pledge effected by the Guarantee and Collateral Agreement.
(m) Financial Forecast. Each Lender shall have received a copy
of the projections by the Borrower of the operating budget and cash
flow budget of the
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Borrower and its Subsidiaries for each of the next succeeding six
fiscal years, such projections to be accompanied by a certificate of a
Responsible Officer to the effect that such projections have been
prepared on the basis of sound financial practices and that such
Officer has no reason to believe they are incorrect or misleading in
any material respect.
(n) Subordinated Debt. The Administrative Agent shall have
received evidence, in form and substance satisfactory to it, that the
Borrower shall have received gross proceeds from the issuance of the
Subordinated Notes of not less than $147,000,000 (of which an amount
sufficient to pay at least (but not more than) the first four interest
payments due thereon shall have been deposited in the Subordinated
Notes Escrow Account).
6.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any Loan or any other extension of credit requested to be made by
it on any date (including, without limitation, its initial extension of credit),
and of the Issuing Lender to issue any Letter of Credit requested to be issued
by it on any date, is subject to the satisfaction of the following conditions
precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower and any other Loan
Party in or pursuant to the Loan Documents shall be true and correct in
all material respects on and as of such date as if made on and as of
such date, except for representations and warranties stated to relate
to a specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects on and as
of such earlier date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
(c) Additional Matters. All corporate and other proceedings,
and all documents, instruments and other legal matters in connection
with the transactions contemplated by this Agreement and the other Loan
Documents shall be satisfactory in form and substance to the
Administrative Agent, and the Administrative Agent shall have received
such other documents and legal opinions in respect of any aspect or
consequence of the transactions contemplated hereby or thereby as it
shall reasonably request.
(d) Leverage Ratios. Upon giving effect to such extension of
credit, neither the Total Leverage Ratio , the Senior Leverage Ratio
nor the Adjusted Leverage Ratio, as the case may be, for the then most
recently ended calendar quarter for which the Borrower shall have
delivered financial statements pursuant to subsection 7.1(a) or (b)
shall be greater than the ratio set forth opposite the Test Period
listed in subsection 8.1(a) or subsection 8.1(b), as the case may be,
which includes the date of such extension of credit.
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(e) Subordinated Notes Indenture. No Default or Event of
Default (as defined in the Subordinated Notes Indenture) shall have
occurred after giving effect to the extensions of credit requested to
be made on such date.
(f) Borrowing Base. After giving effect to such extensions of
credit the Total Outstandings will not exceed the Borrowing Base.
Each borrowing by and Letter of Credit issued on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date thereof that the conditions contained in this subsection have been
satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, on and after the Closing Date and so
long as the Commitments remain in effect or any Letter of Credit remains
outstanding and unpaid or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the Borrower
shall and (except in the case of delivery of financial information, reports and
notices) shall cause each of its Subsidiaries to:
7.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the
audited consolidated balance sheets of the Borrower and its
consolidated Subsidiaries as at the end of such year and the related
consolidated statements of income and consolidated statements of
retained earnings and of cash flows for such year, setting forth (i) in
the case of such consolidated balance sheets, in comparative form the
figures as of the end of the previous fiscal year, to the extent
available, and (ii) in the case of such consolidated statements of
income and of cash flows, in comparative form the figures for the
previous fiscal year, to the extent available, reported on, in the case
of such consolidated financial statements, without a "going concern" or
like qualification or exception, or qualification arising out of the
scope of the audit, by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. or other independent
certified public accountants of nationally recognized standing;
(b) as soon as available, but in any event within 45 days
after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated balance sheets
of the Borrower and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income and
of cash flows of the Borrower and its consolidated Subsidiaries for
such quarter and the portion of the fiscal year through the end of such
quarter, setting forth (i) in the case of such consolidated balance
sheets, in comparative form the budgeted figures as at the end of such
quarter and the figures as at the end of the corresponding quarter of
the previous fiscal year and (ii) in the case of such consolidated
statements of income and of cash flows, in comparative form the
budgeted figures for such quarter and the figures for the corresponding
quarter of the previous fiscal year,
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certified by a Responsible Officer as presenting fairly in all material
respects the consolidated financial condition of the Borrower and its
consolidated Subsidiaries as at such date, and the consolidated results
of their operations and their consolidated cash flows for the quarter
then ended (subject to normal year-end audit adjustments);
(c) as soon as available, but in any event not later than 45
days after the end of such month, in form and substance reasonably
satisfactory to the Administrative Agent, (i) summaries of revenues,
expenses and EBITDA on a consolidated basis and Subscriber activity
reports for the Borrower and its consolidated Subsidiaries for such
month and the portion of the fiscal year through the end of such month,
certified by a Responsible Officer as presenting fairly, in all
material respects, such consolidated revenues, expenses and EBITDA and
Subscriber activity; and
(d) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the
audited consolidated balance sheets of the Borrower and its
consolidated Subsidiaries as of the end of such year and the related
audited consolidated statements of income and consolidated statements
of retained earnings and of cash flows of the Borrower and its
consolidated Subsidiaries for such year furnished to each Lender under
subsection 7.1(a), in a comparative form prepared by a Responsible
Officer to show (i) in the case of such consolidated balance sheets,
the budgeted figures as of the end of such year and the figures as of
the end of the previous fiscal year and (ii) in the case of such
consolidated statements of income and of cash flows, the budgeted
figures for such year and the figures for the previous fiscal year;
all such financial statements shall be prepared in reasonable detail and shall
present fairly, in all material respects, in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
(except as approved by such accountants or Responsible Officer, as the case may
be, and disclosed therein), as applicable, the financial condition of the
Borrower and its Subsidiaries as at such date, and the results of their
operations and their cash flows for the period then ended.
7.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in connection with their audit nothing has come to their
attention to cause them to believe that the Borrower or any of its
Subsidiaries failed to comply with the covenants contained in Section
8; provided, however, that such accountants may state that such audit
shall not have been directed primarily toward obtaining knowledge of
such noncompliance, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and (b), a certificate of a
Responsible Officer ("Compliance Certificate") stating that, to the
best of such Officer's knowledge, during such period
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(i) no Subsidiary has been formed or acquired (or, if any such
Subsidiary has been formed or acquired, the Borrower has complied with
the requirements of subsection 7.10 with respect thereto), (ii) neither
the Borrower nor any of its Subsidiaries has changed its name, its
principal place of business, its chief executive office or the location
of any material item of tangible Collateral without complying with the
requirements of this Agreement and the Security Documents with respect
thereto, (iii) the Borrower has observed or performed all of its
covenants and other agreements, and satisfied every condition,
contained in this Agreement and the other Loan Documents to be
observed, performed or satisfied by it, and (iv) the Borrower has set
forth in reasonable detail any and all calculations necessary to show
compliance with subsection 2.1(a) and all of the financial condition
covenants set forth in subsections 8.1 and 8.9, including, without
limitation, calculations and reconciliations, if any, necessary to show
compliance with such financial condition covenants on the basis of
generally accepted accounting principles in the United States of
America consistent with those utilized in preparing the audited
financial statements referred to in subsection 5.1, and that such
Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate;
(c) not later than 45 days after the end of each fiscal year
of the Borrower, a copy of the projections by the Borrower of the
balance sheet, statement of income and statement of cash flows on a
consolidated basis of the Borrower and its Subsidiaries for the next
succeeding fiscal year, such projections to be accompanied by a
certificate of a Responsible Officer to the effect that such
projections have been prepared on the basis of sound financial planning
practice and that such Officer has no reason to believe they are
incorrect or misleading in any material respect;
(d) not later than 45 days after the consummation of a
Permitted Business Acquisition which, after giving effect thereto,
results in an increase in Recently Acquired Households by more than the
lesser of (x) 25% of the number of households within the Borrower's
Service Areas on the date which is one year prior to the date of
consummation of such Permitted Business Acquisition (such number to be
certified by a Responsible Officer), and (y) 250,000, (i) a copy of the
projections by the Borrower of the balance sheet, statement of income
and statement of cash flows on a consolidated basis of the Borrower and
its Subsidiaries for each of the next succeeding five fiscal years, and
(ii) a statement in reasonable detail of the assumptions used in
preparing such projections accompanied by a certificate of a
Responsible Officer to the effect that such Officer has no reason to
believe that such projections are incorrect or misleading in any
material respect;
(e) (A) Promptly and in any event no later than the Closing
Date, (B) not later than 15 days after the end of each month,
commencing July 1997 (each such last day being called a "Determination
Date"), and (C) on the date which is 10 Business Days prior to the
consummation of a Permitted Business Acquisition to be financed (to the
extent permitted under this Agreement) by the Facility (such date, the
"Permitted Business Acquisition Determination Date"), a borrowing base
certificate substantially in the form of Exhibit F hereto (a "Borrowing
Base Certificate") and applicable
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supporting documentation, setting forth, as of a recent date
satisfactory to Administrative Agent, such Determination Date or such
Permitted Business Acquisition Determination Date (or as of such other
date provided in the definition of "Borrowing Base"), the Borrowing
Base;
(f) promptly, such additional financial and other information
as any Lender may from time to time reasonably request; and
(g) promptly upon receipt or delivery thereof, duplicates or
copies of all notices of default or termination received or delivered
by the Borrower or any of its Subsidiaries from or to any Person under
or pursuant to any Contract.
7.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, including, without limitation, taxes, except
where (a) the amount or validity thereof is currently being contested in good
faith by appropriate proceedings and reserves in conformity with GAAP with
respect thereto have been provided on the books of the Borrower or its
Subsidiaries, as the case may be, or (b) the failure to so pay, discharge or
otherwise satisfy such obligations could not, in the aggregate, be reasonably be
expected to have a Material Adverse Effect.
7.4 Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as now conducted by it and preserve,
renew and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business except as otherwise permitted
pursuant to subsection 8.5; comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith could
not, in the aggregate, be reasonably expected to have a Material Adverse Effect.
7.5 Maintenance of Property; Insurance. Keep all property necessary in
its business in good working order and condition, ordinary wear and tear
excepted, except where the failure to do so would not be reasonably likely to
have a Material Adverse Effect; maintain with financially sound and reputable
insurance companies insurance on all the Collateral in accordance with the
requirements of Section 5.3 of the Guarantee and Collateral Agreement and on all
its other property in at least such amounts (including as to amounts of
deductibles) and against at least such risks (but including in any event
commercial general liability, product liability and business interruption) as
are usually insured against in the same general area by companies engaged in the
same or a similar business; and furnish to each Lender, upon written request,
full information as to the insurance carried.
7.6 Inspection of Property; Books and Records; Discussions. Keep proper
books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and upon reasonable notice and as often as may reasonably be desired and to
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discuss the business, operations, properties and financial and other condition
of the Borrower and its Subsidiaries with officers and employees of the Borrower
and its Subsidiaries and with its independent certified public accountants
(provided that any officers or employees of the Borrower shall be permitted to
be present at any such discussions between representatives of any Lender and the
Borrower's independent certified public accountants).
7.7 Notices. Promptly give notice to the Administrative Agent and each
Lender after any Responsible Officer obtains knowledge of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries, including,
without limitation, under the Seller Notes or (ii) litigation,
investigation or proceeding which may exist at any time between the
Borrower or any of its Subsidiaries and any Governmental Authority,
which in either case, if not cured or if adversely determined, as the
case may be, could reasonably be expected to have a Material Adverse
Effect;
(c) any litigation or proceeding affecting the Borrower or any
of its Subsidiaries (i) in which the amount involved is $1,000,000 or
more and not covered by insurance or (ii) in which injunctive or
similar relief is sought which could reasonably be expected to have a
Material Adverse Effect;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any Plan, a failure to make any required contribution to a
Plan, the creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of,
any Multiemployer Plan or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of,
any Plan;
(e) any material adverse change in the business, operations,
property or condition (financial or otherwise) of the Borrower and its
Subsidiaries taken as a whole; and
(f) as soon as possible after a Responsible Officer of the
Borrower knows or reasonably should know thereof, (i) any release or
discharge by the Borrower or any of its Subsidiaries of any Materials
of Environmental Concern required to be reported under applicable
Environmental Laws to any Governmental Authority, unless the Borrower
reasonably determines that the total Environmental Costs arising out of
such release or discharge are unlikely to exceed $500,000 or to have a
Material Adverse Effect; (ii) any condition, circumstance, occurrence
or event not previously disclosed in writing to the Administrative
Agent that could result in liability under applicable Environmental
Laws unless the Borrower reasonably determines that the total
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Environmental Costs arising out of such condition, circumstance,
occurrence or event are unlikely to exceed $500,000 or to have a
Material Adverse Effect, or could result in the imposition of any Lien
or other restriction on the title, ownership or transferability of any
facilities and properties owned, leased or operated by the Borrower or
any of its Subsidiaries that could reasonably be expected to have a
Material Adverse Effect; and (iii) any proposed action to be taken by
the Borrower or any of its Subsidiaries that would reasonably be
expected to subject the Borrower or any of its Subsidiaries to any
material additional or different requirements or liabilities under
Environmental Laws, unless the Borrower determines that the total
Environmental Costs arising out of such proposed action are unlikely to
exceed $500,000 or to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
7.8 Environmental Laws. (a) (i) Comply substantially with, and
undertake all reasonable efforts to ensure substantial compliance by all
tenants, subtenants, and contractors with, all applicable Environmental Laws;
(ii) obtain, comply substantially with and maintain any and all Environmental
Permits necessary for its operations as conducted and as planned; and (iii)
undertake all reasonable efforts to ensure that all tenants, subtenants, and
contractors obtain, comply substantially with and maintain any and all
Environmental Permits necessary for their operations as conducted and as
planned, with respect to any property leased or subleased from, or operated by
the Borrower or its Subsidiaries. For purposes of this subsection 7.8(a), the
Borrower and its Subsidiaries shall be deemed to comply substantially, or to
undertake reasonable efforts to ensure substantial compliance, with an
Environmental Law or an Environmental Permit, provided that, upon learning of
any actual or suspected noncompliance, the Borrower and any such affected
Subsidiary shall promptly undertake all reasonable efforts, if any, to achieve
compliance, and provided, further that notwithstanding the foregoing, any such
noncompliance which would reasonably be expected to have a Material Adverse
Effect shall constitute a default under this subsection 7.8(a).
(b) Promptly comply with all orders and directives of all Governmental
Authorities regarding Environmental Laws, other than any such order or directive
as to which an appeal or other appropriate contest is or has been timely and
properly taken, is being diligently pursued in good faith, and the pendency of
which would not reasonably be expected to have a Material Adverse Effect.
7.9 Further Assurances. Upon the request of the Administrative Agent,
promptly perform or cause to be performed any and all acts and execute or cause
to be executed any and all documents (including, without limitation, financing
statements and continuation statements) for filing under the provisions of the
Uniform Commercial Code or any other Requirement of Law which are necessary or
advisable to maintain in favor of the Administrative Agent, for the benefit of
the Lenders, Liens on the Collateral that are duly perfected in accordance with
all applicable Requirements of Law.
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7.10 Additional Collateral. (a) With respect to any assets (or any
interest therein) acquired after the Closing Date by the Borrower or any of its
Subsidiaries that are intended to be subject to the Lien created by any of the
Security Documents but which are not so subject (including, without limitation,
any assets described in paragraph (b) or (c) of this subsection and any assets
(including any Contracts or any rights to or under any Contracts) required to be
so subjected pursuant to subsection 8.6(a) or 8.6(b)), promptly (and in any
event within 30 days after the acquisition thereof): (i) execute and deliver to
the Administrative Agent such amendments to the relevant Security Documents or
such other documents as the Administrative Agent shall deem necessary or
advisable to grant to the Administrative Agent, for the benefit of the Lenders,
a Lien on such assets (or such interest therein), (ii) take all actions
necessary or advisable to cause such Lien to be duly perfected in accordance
with all applicable Requirements of Law, including, without limitation, the
filing of financing statements in such jurisdictions as may be requested by the
Administrative Agent, (iii) if reasonably requested by the Administrative Agent,
deliver to the Administrative Agent legal opinions relating to the matters
described in clauses (i) and (ii) immediately preceding, which opinions shall be
in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent and (iv) if any such assets are rights to any Contracts
obtain and deliver to the Administrative Agent an Assignment and Consent
executed by DirecTv, Inc. and the NRTC.
(b) With respect to any Person that, subsequent to the Closing Date,
becomes a Subsidiary, promptly upon the request of the Administrative Agent: (i)
execute and deliver to the Administrative Agent, for the benefit of the Lenders,
a new pledge agreement or such amendments to the Guarantee and Collateral
Agreement as the Administrative Agent shall deem necessary or advisable to grant
to the Administrative Agent, for the benefit of the Lenders, a Lien on the
Capital Stock of such Subsidiary which is owned by the Borrower or any of its
Subsidiaries, (ii) deliver to the Administrative Agent any certificates
representing such Capital Stock, together with undated stock powers executed and
delivered in blank by a duly authorized officer of the Borrower or such
Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a
party to the Guarantee and Collateral Agreement and, if applicable, an
Assignment and Consent, in each case pursuant to an annex to the Guarantee and
Collateral Agreement or otherwise pursuant to documentation which is in form and
substance satisfactory to the Administrative Agent, and (B) to take all actions
necessary or advisable to cause the Lien created by the Guarantee and Collateral
Agreement and, if applicable, an Assignment and Consent, to be duly perfected in
accordance with all applicable Requirements of Law, including, without
limitation, the filing of financing statements in such jurisdictions as may be
requested by the Administrative Agent, (iv) if reasonably requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described in clauses (i), (ii) and (iii) immediately
preceding, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent and (iv) obtain and deliver
to the Administrative Agent an Assignment and Consent executed by DirecTv, Inc.
and the NRTC, if applicable.
7.11 Interest Rate Protection. (a) No later than 180 days following the
Closing Date, enter into Interest Rate Protection Agreements which (when taken
together with any other outstanding fixed rate Indebtedness) shall provide
interest rate protection in respect
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of at least 50% of all Funded Indebtedness of the Borrower and its Subsidiaries
as at the dates of such Interest Rate Protection Agreements, which shall be in
form and substance reasonably satisfactory to the Administrative Agent and for a
term of at least two years.
(b) For each calendar quarter ending (i) after the date on which the
Borrower shall have entered into Interest Rate Protection Agreements pursuant to
subsection 7.11(a) and (ii) on or before the date which is the second
anniversary of the Closing Date, enter into Interest Rate Protection Agreements
not later than 90 days following the end of such quarter which (when taken
together with any other outstanding fixed rate Indebtedness) shall provide
interest rate protection in respect of at least the amount by which 50% of all
Funded Indebtedness at the end of such quarter exceeds the amount of all Funded
Indebtedness covered by Interest Rate Protection Agreements, which shall be in
form and substance reasonably satisfactory to the Administrative Agent and for a
term of at least two years.
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that on and after the Closing Date and, so
long as the Commitments remain in effect or any Letter of Credit remains
outstanding and unpaid or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the Borrower
shall not, and (except with respect to subsection 8.1) shall not permit any of
its Subsidiaries to, directly or indirectly:
8.1 Financial Condition Covenants.
(a) Leverage Ratios. (i) Permit the Total Leverage Ratio on
the last day of any calendar quarter ending during any Test Period set
forth below to be greater than the ratio set forth opposite such Test
Period below:
Test Period Ratio
----------- -----
12/31/99 - 6/29/00 10.00 to 1.00
6/30/00 - 12/30/00 8.75 to 1.00
12/31/00 - 6/29/01 7.50 to 1.00
6/30/01 - 12/30/01 6.25 to 1.00
12/31/01 and thereafter 5.00 to 1.00
(ii) Permit the Adjusted Leverage Ratio on the last day of any
calendar quarter ending during any Test Period set forth below to be
greater than the ratio set forth opposite such Test Period below:
Test Period Ratio
----------- -----
12/31/98 - 6/29/99 9.00 to 1.00
6/30/99 - 12/30/99 7.50 to 1.00
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12/31/99 - 6/29/00 6.50 to 1.00
6/30/00 - 12/30/00 5.75 to 1.00
(iii) Permit at any time the Senior Leverage Ratio on the last
day of any calendar quarter ending during any Test Period set forth
below to be greater than the ratio set forth opposite such Test Period
below:
Test Period Ratio
----------- -----
12/31/99 - 6/29/00 4.50 to 1.00
6/30/00 - 12/30/00 3.75 to 1.00
Thereafter 3.00 to 1.00
(b) Interest Coverage Ratios. (i) Permit the Adjusted Interest
Coverage Ratio as of the end of any calendar quarter of the Borrower
ending during the period from and including March 31, 1998 to and
including December 30, 1999 to be less than 1.00 to 1.00
(ii) Permit the Interest Coverage Ratio as of the end of any
calendar quarter of the Borrower ending during any period set forth
below (each such period, a "Test Period") to be less than the ratio set
forth opposite such Test Period below:
Test Period Interest Coverage Ratio
----------- -----------------------
12/31/99 - 12/30/01 1.25 to 1.00
12/31/01 and thereafter 1.50 to 1.00
(c) General and Administrative Expense. Permit General and
Administrative Expenses of the Borrower and its consolidated
Subsidiaries for the 12-month period ending on the last day of any
calendar quarter included in any period set forth below (each such
period, a "Test Period") as a percentage of the total consolidated
revenues of the Borrower and such consolidated Subsidiaries for such
period to be more than the percentage set forth opposite such Test
Period below:
General and Administrative
Test Period Expense Percentage
----------- --------------------------
12/31/97 - 12/30/98 20.00%
12/31/98 - 12/30/99 16.50%
12/31/99 - 12/30/00 14.50%
12/31/00 and thereafter 13.50%
(d) Minimum Annualized Contribution per Paying Subscriber.
Permit Annualized Contribution for any calendar quarter ending during
any period set forth below (each such period, a "Test Period") divided
by the average number of Paying
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Subscribers for such quarter to be less than the amount set forth
opposite such Test Period below:
Test Period Annualized Contribution
----------- -----------------------
12/31/96-12/30/97 $150
12/31/97-12/30/98 $170
12/31/98-12/30/99 $190
12/31/99-12/30/00 $200
12/31/00-12/30/01 $210
12/31/01-12/30/02 $215
12/31/02 and thereafter $220
8.2 Minimum Penetration. Permit the number of Paying Subscribers as a
percentage of total Households in the Borrower's Service Areas as of the end of
any calendar quarter ending during any period (each such period, a "Test
Period") set forth below (the "Minimum Penetration Percentage") to be less than
the percentage set forth opposite such Test Period below:
Minimum Penetration
Test Period Percentage
----------- -------------------
3/31/97-12/30/97 5.00%
12/31/97-12/30/98 6.50%
12/31/98-12/30/99 8.00%
12/31/99-12/30/00 9.50%
12/31/00 and thereafter 11.00%
For purposes of calculating the Minimum Penetration Percentages at any
time, the number of Paying Subscribers and total Households in any Service Area
acquired (i) subsequent to the Closing Date and (ii) within the nine-month
period immediately preceding the date for which such calculation is made may be
excluded at the Borrower's option.
8.3 Limitation on Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness of the Borrower under this Agreement and any
Notes;
(b) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary;
(c) Indebtedness of the Borrower and its Subsidiaries under
Interest Rate Protection Agreements contemplated by subsection 7.11;
(d) Indebtedness outstanding on the Closing Date and listed on
Schedule 8.3(d) and any refinancings, refundings, renewals or
extensions thereof; provided that the
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amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension;
(e) Indebtedness of a Person which becomes a Subsidiary after
the Closing Date; provided that (i) such Indebtedness existed at the
time such Person became a Subsidiary and was not created in
anticipation thereof and (ii) immediately after giving effect to the
acquisition of such Person by the Borrower no Default or Event of
Default shall have occurred and be continuing, and any refinancings,
refundings, renewals or extensions thereof; provided that the amount of
such Indebtedness is not increased at the time of such refinancing,
refunding, renewal or extension; and provided, further, that the
aggregate principal amount of Indebtedness described in this paragraph
shall in no event exceed $1,500,000 at any one time outstanding;
(f) Indebtedness under Seller Notes which are secured by
Letters of Credit;
(g) other Indebtedness of the Borrower and any of its
Subsidiaries in an aggregate principal amount at any time outstanding
not in excess of $1,500,000;
(h) the Subordinated Notes (provided that the interest rate
payable thereon does not exceed 13.5% per annum); and
(i) Permitted Junior Debt.
8.4 Limitation on Liens. Create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes, assessments and governmental charges and
Liens not yet due or which are being contested in good faith by
appropriate proceedings; provided that adequate reserves with respect
thereto are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;
(b) Liens imposed by law, such as carrier's, warehousemen's,
mechanic's, landlord's, materialmen's, repairmen's or other like Liens,
arising in the ordinary course of business which are not overdue for a
period of more than 60 days or which are being contested in good faith
by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;
(d) Liens on deposits to secure the performance of bids,
tenders, trade contracts (other than for borrowed money), leases,
statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary course of
business;
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(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or such Subsidiary conducted at the property subject thereto;
(f) Liens on the property or assets of a Person which becomes
a Subsidiary after the Closing Date securing Indebtedness permitted by
subsection 8.3(e); provided that (i) such Liens existed at the time
such Person became a Subsidiary and were not created in anticipation
thereof, (ii) any such Lien is not spread to cover any property or
assets of such Person after the time such corporation becomes a
Subsidiary, and (iii) the amount of Indebtedness secured thereby is not
increased;
(g) Liens created pursuant to the Security Documents;
(h) Liens in existence on the Closing Date and listed on
Schedule 8.4(h), securing Indebtedness permitted by subsection 8.3(d);
provided that no such Lien is spread to cover any additional property
after the Closing Date and that the amount of Indebtedness secured
thereby is not increased;
(i) leases and subleases of real property owned or leased by
the Borrower or any of its Subsidiaries not interfering with the
ordinary conduct of the business of the Borrower and its Subsidiaries;
(j) renewals, extensions and replacements of the Liens
permitted under clauses (f) and (h) above; provided that no such Lien
shall as a result thereof cover any additional assets and the principal
amount of Indebtedness secured thereby is not increased;
(k) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security;
(l) (i) purchase money Liens upon or Liens in any property
acquired or held by the Borrower or any of its Subsidiaries, incurred
within 90 days of the date on which such property is acquired, to
secure the purchase price of such property or to secure Indebtedness
(including interest, fees, reimbursement and indemnification amounts,
and all other accruals and obligations accruing on or after the time at
which the principal amount of such Indebtedness is incurred) incurred
in accordance with subsection 8.3(g) solely for the purpose of
financing the acquisition, construction or improvement of the property
subject to such Liens, (ii) Liens existing on any such property at the
time of acquisition, and extensions, renewals, refinancings or
replacements of any of the foregoing for the same or a lesser principal
amount (including Liens securing Indebtedness permitted under
subsection 8.3(e)) and (iii) any interest or title of a lessor in the
property subject to any Financing Lease;
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(m) Liens on inventory acquired in the ordinary course of
business under conditional sale, title retention, consignment or
similar arrangements entered into by the Borrower or any of its
Subsidiaries to secure payment for the purchase price thereof;
(n) rights of the NRTC to set off amounts owing by it under
the Contracts against amounts owing to it thereunder;
(o) any Lien that may exist on assets of Digital Television
Services of Georgia, LLC, a Georgia limited liability company and a
wholly owned Subsidiary of Management, as set forth on Schedule 8.4(o);
and
(p) the Lien on the funds held in the Subordinated Notes
Escrow Account as described in subsection 6.1(p), on any obligations in
which such cash may be invested from time to time and on the earnings
therefrom, any proceeds thereof and the Interest Escrow Agreement.
8.5 Limitation on Guarantee Obligations. Create, incur, assume or
suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the Closing Date and
listed on Schedule 8.5(a), and any refinancing, refundings, renewals or
extensions thereof provided that the amount of such Guarantee
Obligation shall not be increased at the time of such refinancing,
refunding, extension or renewal;
(b) guarantees made in the ordinary course of its business by
the Borrower or any of its Subsidiaries of obligations of any of the
Borrower's Subsidiaries, which obligations are otherwise permitted
under this Agreement;
(c) the Guarantee and Collateral Agreement and any of the
other Guarantees;
(d) Guarantee Obligations of certain Subsidiaries of the
Borrower set forth in the Seller Notes which are subordinated as
provided therein;
(e) Guarantee Obligations of a Person which becomes a
Subsidiary after the Closing Date; provided that (i) such Guarantee
Obligations existed at the time such Person became a Subsidiary and
were not created in anticipation thereof and (ii) immediately after
giving effect to the acquisition of such Person by the Borrower no
Default or Event of Default shall have occurred and be continuing, and
any refinancings, refundings, renewals or extensions thereof; provided
that the amount of such Guarantee Obligations is not increased at the
time of such refinancing, refunding, renewal or extension; and
(f) Guarantee Obligations of the Subsidiaries of the Borrower
that are in existence on the date of issuance of the Subordinated Notes
guaranteeing the obligations of the Borrower and Capital in respect to
the Subordinated Notes on the
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terms and conditions described in the Information Memorandum and the
Subordinated Notes Indenture.
8.6 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower
shall be the continuing or surviving corporation) or with or into any
one or more Wholly Owned Subsidiaries of the Borrower (provided that
the Wholly Owned Subsidiary or Subsidiaries shall be the continuing or
surviving corporation or other organization) provided, in either case,
that the continuing or surviving corporation or other organization must
assume the Contracts to which the merged or consolidated Person is a
party or otherwise is entitled to the benefits thereof and meet the
NRTC's requirements for affiliation or membership in effect at the time
of such assignment and assumption and receives the prior written
consent of the NRTC and DirecTv, Inc. in accordance with the provisions
of the Contracts;
(b) any Wholly Owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or any other Wholly Owned
Subsidiary of the Borrower provided that if such assignee assumes any
Contracts, it must meet the NRTC's requirements for affiliation or
membership in effect at the time of such assignment and assumption and
receives the prior written consent of the NRTC and DirecTv, Inc. in
accordance with the provisions of the Contracts;
(c) mergers and consolidations in connection with Permitted
Business Acquisitions permitted under subsection 8.10(e), subject to
compliance with subsection 7.10; and
(d) sales and other dispositions of assets permitted by
subsection 8.7(b).
8.7 Limitation on Sale of Assets. Convey, sell, lease, assign, transfer
or otherwise dispose of any of its property, business or assets (including,
without limitation, receivables and leasehold interests), whether now owned or
hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares
of such Subsidiary's Capital Stock to any Person other than the Borrower or any
Wholly Owned Subsidiary, except:
(a) the sale or other disposition of any property or assets in
the ordinary course of business;
(b) the sale or other disposition of any assets (other than
any rights to provide DirecTv) at fair market value, provided that the
Net Cash Proceeds of all sales of
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assets permitted by this clause (b) in excess of $1,500,000 are applied
to make mandatory prepayments and permanent reductions of the Revolving
Credit Commitments pursuant to subsection 4.3(a), except that any such
Net Cash Proceeds of sales or other dispositions of assets permitted by
this clause (b) in excess of $1,500,000 which are used by the Borrower
and its Subsidiaries to acquire fixed or capital assets within 180 days
of receipt thereof shall not be required to be applied to make
mandatory prepayments and permanent reductions of the Revolving Credit
Commitments pursuant to subsection 4.3(a);
(c) the sale or discount without recourse of accounts
receivable arising in the ordinary course of business, but only in
connection with the compromise or collection thereof;
(d) as permitted by subsection 8.6(b); and
(e) sales, leases, conveyances, transfers or other
dispositions to the Borrower or to any Subsidiary of the Borrower or to
any Person if after giving effect to such sale, lease, conveyance,
transfer or other disposition such other Person becomes a Subsidiary,
subject to compliance with subsection 7.10 and, to the extent
applicable, subsection 8.10.
8.8 Limitation on Dividends. Declare or pay any dividend on, or make
any payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, defeasance, retirement or other acquisition
of, any shares of any class of Capital Stock of the Borrower or any warrants or
options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Borrower or
any Subsidiary, except (i) for dividends, payments or distributions solely in
Capital Stock of the Borrower, (ii) to the members of the Borrower in amounts
equal to a reasonable estimate of the actual Federal, state and local income tax
obligations of the members of the Borrower with respect to their distributive
share of such Person's items of income and gain in excess of prior allocations
of items of loss and deduction, assuming that all such members are subject to
income taxation at the highest combined effective marginal Federal, state and
local income tax rates applicable to any single member or group or members
holding more than 5% of Capital Stock of the Borrower, which amount may be
distributed annually in advance in four (4) installments to enable such members
to make estimated income tax payments, provided that taxable income exceeds
cumulative tax losses subsequent to November 27, 1996 and (iii) so long as on
the date thereof or after giving effect thereto no Default or Event of Default
shall have occurred or is continuing, to purchase, redeem or acquire shares of
such Capital Stock, held by any employee or former employee of Management, the
Borrower or any Subsidiary of the Borrower or any of their respective heirs or
administrators or executors of their respective estates, or by any Person
substantially all of the beneficial ownership of which is held by members of
such employee's or former employee's family, in each case in connection with
such employee's or former employee's termination of employment with Management,
the Borrower or such Subsidiary, provided that the aggregate payments made
pursuant to this clause (iii) shall not exceed $1,000,000.
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8.9 Limitation on Capital Expenditures. Make any expenditure in respect
of the purchase or other acquisition of fixed or capital assets (other than
Permitted Business Acquisitions or Investments contemplated under subsection
8.10(g) (a "Capital Expenditure") except for Capital Expenditures in the
ordinary course of business not exceeding, in the aggregate for the Borrower and
its Subsidiaries during any of the calendar years or periods set forth below,
the amount set forth opposite such calendar year or period set forth below:
Calendar Year/ Period Amount
--------------------- ------
1997 $ 2,000,000
1998 $ 2,000,000
1999 $ 2,000,000
2000 $ 2,000,000
2001 $ 2,000,000;
provided that up to $250,000 of any Capital Expenditures permitted to be made
during any such period and not made during such period may be carried over and
expended during the next succeeding test period (it being understood and agreed
that any Capital Expenditures made during such next succeeding period shall
count, first, against the amount permitted to be made during such next
succeeding period as set forth in the table above and, second, against any
amounts carried over to such next succeeding period).
8.10 Limitation on Investments, Loans and Advances. Make any advance,
loan, extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of or any assets constituting a
business unit of, or make any other investment, in cash or by transfer of assets
or property, in, any Person (each, an "Investment"), except:
(a) extensions of trade credit in the ordinary course of
business;
(b) Investments in Cash Equivalents;
(c) loans and advances to employees of Management, the
Borrower or Subsidiaries of the Borrower in the ordinary course of
business in an aggregate amount for the Borrower and its Subsidiaries
not to exceed $500,000 at any one time outstanding;
(d) Investments by the Borrower in its Subsidiaries and
Investments by Subsidiaries of the Borrower in the Borrower and in
other Subsidiaries of the Borrower;
(e) Permitted Business Acquisitions by the Borrower or any of
its Subsidiaries provided that (i) if any Permitted Business
Acquisition occurs in respect of a Person, (x) such Person becomes a
Subsidiary of the Borrower, subject to compliance with subsection 7.10,
or (y) such Person is merged or consolidated with or into, or transfers
or conveys substantially all of its assets to, or is liquidated into,
the Borrower or any
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of its Subsidiaries, subject to compliance with subsection 7.10; and
(ii) no Default or Event of Default shall have occurred and be
continuing on the date of any such Permitted Business Acquisitions or
would result therefrom;
(f) Investments in the nature of promissory notes, other
securities or other property received in connection with the bankruptcy
or reorganization of Persons having obligations in favor of the
Borrower or its Subsidiaries, in settlement of such obligations;
provided that such promissory notes, other securities or other property
held by the Borrower or any Subsidiary are pledged to the
Administrative Agent for the benefit of the Lenders pursuant to the
Security Documents;
(g) Investments paid for solely in Capital Stock of the
Borrower;
(h) loans or advances by the Borrower or any Subsidiary in the
ordinary course of business consistent with prudent business practice
to dealers or distributors in an aggregate amount not to exceed
$500,000 at any time outstanding; and
(i) Investments by the Borrower or any Subsidiary in any
Person engaged in the same businesses as the businesses in which the
Borrower and its Subsidiaries are engaged on the Closing Date or which
are directly related thereto provided that (i) the Borrower or such
Subsidiary holds a minority interest in such Person, (ii) the Borrower
or such Subsidiary directs or causes the direction of the management
and policies of such Person, whether by contract or otherwise, and
(iii) such Investments by the Borrower and its Subsidiaries do not
exceed $2.5 million in the aggregate at any time outstanding.
8.11 Limitation on Amendment and Termination of Contracts. Amend,
modify, change or terminate or consent or agree to any amendment, modification,
change or termination of any Contract that would violate the terms of the
Assignment and Consent related thereto.
8.12 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under this Agreement and (b) upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary,
as the case may be, than it would obtain in a comparable arm's length
transaction with a Person which is not an Affiliate.
The foregoing limitation does not limit, and shall not apply to:
(i) any transaction between the Borrower and any Wholly Owned
Subsidiary or between Wholly Owned Subsidiaries;
(ii) any payments described in subsection 8.8 and not
prohibited by subsection 8.8; and
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(iii) so long as no Default or Event of Default shall have
occurred or be continuing on the date thereof or after giving effect
thereto, any payments of fees and expenses pursuant to or in respect of
management services performed by Columbia Capital Corporation not to
exceed $500,000 annually in the aggregate.
8.13 Limitation on Changes in Fiscal Year. Permit the fiscal year of
the Borrower to end on a day other than December 31.
8.14 Limitation on Lines of Business. Enter into any business, either
directly or through any Subsidiary, except for those businesses in which the
Borrower and its Subsidiaries are engaged on the Closing Date or which are
directly related thereto.
8.15 Limitation on Sales and Leasebacks. Enter into any arrangement
with any Person providing for the leasing by the Borrower or any Subsidiary of
real or personal property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Borrower or such Subsidiary.
8.16 Borrower Activities. Engage in any business or activity other than
the owning of Capital Stock of Management and Capital and any actions reasonably
incidental thereto.
8.17 Prepayments and Amendments of Subordinated Debt. (a) Optionally
prepay, retire, redeem, purchase, defease or exchange any Subordinated Note,
Subordinated Debt or Permitted Junior Debt or pay any interest on Permitted
Junior Debt in cash, (b) amend, supplement or otherwise modify any documentation
governing any Permitted Junior Debt (other than amendments thereto which reduce
the interest rate or extend the maturity thereof) or (c) amend, supplement or
otherwise modify the Subordinated Notes Indenture, the Interest Escrow Agreement
or the Escrow Security Agreement in any manner which is adverse to the Lenders.
8.18 Designation of "Designated Senior Indebtedness". The Borrower will
not, without the prior written consent of the Required Lenders, designate any
Indebtedness as "Designated Senior Indebtedness" within the meaning of such term
as used in the Subordinated Notes Indenture.
8.19 Limitation on Cash Interest Payments. Make any cash interest
payment on the Subordinated Notes from any source other than funds on deposit in
the Subordinated Notes Escrow Account unless and until all amounts originally
deposited therein and any earnings thereon shall have been utilized to make the
first four semiannual interest payments on the Subordinated Notes and no amounts
shall be remaining on deposit in such account.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
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(a) The Borrower shall fail to pay any principal of any Loan
or any Reimbursement Obligation when due in accordance with the terms
thereof or hereof; or the Borrower shall fail to pay any interest on
any Loan, or any other amount payable hereunder, within five days after
any such interest or other amount becomes due in accordance with the
terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document
or which is contained in any certificate furnished by it at any time
under or in connection with this Agreement or any such other Loan
Document shall prove to have been incorrect in any material respect on
or as of the date made or deemed made; or
(c) The Borrower or any other Loan Party shall default in the
observance or performance of any agreement contained in subsection
7.8(a), subsection 7.11 or Section 8; or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Section 9), and such default shall
continue unremedied for a period of 30 days after a Responsible Officer
of the Borrower or such Loan Party has knowledge of such default or
after notice from the Administrative Agent or any Lender; or
(e) The Borrower or any other Loan Party shall (i) default in
any payment of principal of or interest on any Indebtedness (other than
the Loans and the Reimbursement Obligations) in excess of $1,000,000 or
in the payment of any Guarantee Obligation in excess of $1,000,000,
beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness or Guarantee Obligation was
created; or (ii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or Guarantee
Obligation or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity
or such Guarantee Obligation to become payable; or
(f) (i) The Borrower or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for
it or for all or any substantial part of its assets, or the
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Borrower or any of its Subsidiaries shall make a general assignment for
the benefit of its creditors; or (ii) there shall be commenced against
the Borrower or any of its Subsidiaries any case, proceeding or other
action of a nature referred to in clause (i) above which (A) results in
the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there shall be commenced against the
Borrower or any of its Subsidiaries any case, proceeding or other
action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its
assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) the Borrower or
any of its Subsidiaries shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower
or any of its Subsidiaries shall generally not, or shall be unable to,
or a Responsible Officer of such Person shall admit in writing its
inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance) of $1,000,000 or
more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
(i) Except as, and to the extent, permitted by this Agreement,
(i) any of the Security Documents or any of the other Loan Documents
shall cease, for any reason, to be in full force and effect, or the
Borrower or any other Loan Party which is a party to any of the
Security Documents or any of the other Loan Documents shall so assert
in writing or (ii) the Lien created by any of the Security Documents
shall cease to be enforceable and of the same effect and priority
purported to be created thereby; or
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(j) The occurrence of any Change of Control; or
(k) Any Guarantee shall cease, for any reason, to be in full
force and effect or any Guarantor shall so assert in writing; or
(l) The Subordinated Notes for any reason shall not be or
shall cease to be subordinated as provided in the Subordinated Notes
Indenture to the obligations of the Borrower under this Agreement and
the other Loan Documents;
(m) The Permitted Junior Debt, if any, for any reason, shall
not be or shall cease to be validly subordinated, as provided therein,
to the obligations of the Borrower under this Agreement, any Notes and
the other Loan Documents;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section with respect to the
Borrower, automatically the Commitments shall immediately terminate and
automatically the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement (including, without limitation, all amounts
of L/C Obligations, whether or not the beneficiaries of the then outstanding
Letters of Credit shall have presented the documents required thereunder) shall
immediately become due and payable, and (B) if such event is any other Event of
Default, either or both of the following actions may be taken: (i) with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement (including, without limitation, all amounts
of L/C Obligations, whether or not the beneficiaries of the then outstanding
Letters of Credit shall have presented the documents required thereunder) and
the Notes to be due and payable forthwith, whereupon the same shall immediately
become due and payable.
With respect to all Letters of Credit with respect to which presentment
for honor shall not have occurred at the time of an acceleration pursuant to the
preceding paragraph, the Borrower shall at such time deposit in a cash
collateral account opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. The
Borrower hereby grants to the Administrative Agent, for the benefit of the
Issuing Lender and the L/C Participants, a security interest in such cash
collateral to secure all obligations of the Borrower under this Agreement and
the other Loan Documents. Amounts held in such cash collateral account shall be
applied by the Administrative Agent to the payment of drafts drawn under such
Letters of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay other obligations of the Borrower hereunder and under the Notes. Within a
reasonable period after all such Letters of Credit shall have expired or been
fully drawn upon, all Reimbursement Obligations shall have been satisfied and
all other obligations of the Borrower hereunder and under the Notes shall have
been paid in full, the
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balance, if any, in such cash collateral account shall be returned to the
Borrower. The Borrower shall execute and deliver to the Administrative Agent,
for the account of the Issuing Lender and the L/C Participants, such further
documents and instruments as the Administrative Agent may request to evidence
the creation and perfection of the within security interest in such cash
collateral account.
Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 10. THE MANAGING AGENTS
10.1 Appointment. Each Lender hereby irrevocably designates and
appoints CIBC as the Administrative Agent of such Lender under this Agreement
and the other Loan Documents, MGT as Syndication Agent under this Agreement and
the other Loan Documents and Fleet as Documentation Agent under this Agreement
and the other Loan Documents, and each such Lender irrevocably authorizes CIBC
as the Administrative Agent, MGT as the Syndication Agent and Fleet as the
Documentation Agent, in such capacities, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent, the Syndication Agent and the Documentation Agent by the
terms of this Agreement and the other Loan Documents, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere in this Agreement, none of the Administrative Agent, the
Syndication Agent and the Documentation Agent shall have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against either the
Administrative Agent or the Syndication Agent or the Documentation Agent.
10.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
10.3 Exculpatory Provisions. Neither the Administrative Agent, the
Syndication Agent, the Documentation Agent nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or Affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with this Agreement or any other Loan Document (except
for its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent, the Syndication Agent or the Documentation Agent
under or in connection with, this
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Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Borrower to perform its obligations hereunder
or thereunder. Neither the Administrative Agent, the Syndication Agent nor the
Documentation Agent shall be under any obligation to any Lender to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Borrower.
10.4 Reliance by Administrative Agent, Syndication Agent and
Documentation Agent. Each of the Administrative Agent, the Syndication Agent and
the Documentation Agent shall be entitled to rely, and shall be fully protected
in relying, upon any Note, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or conversation reasonably believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including, without limitation,
counsel to the Borrower), independent accountants and other experts selected by
it. The Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Administrative
Agent. The Administrative Agent shall be fully justified in failing or refusing
to take any action under this Agreement or any other Loan Document unless it
shall first receive such advice or concurrence of the Required Lenders as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement and the other Loan Documents in accordance with a request
of the Required Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
10.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof, reasonably promptly thereof to the Documentation Agent and
to the Lenders. The Administrative Agent shall take such action reasonably
promptly with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
10.6 Non-Reliance on Administrative Agent, Syndication Agent,
Documentation Agent and Other Lenders. Each Lender expressly acknowledges that
neither the Administrative Agent, the Syndication Agent, the Documentation Agent
nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to it
and that no act by the Administrative Agent or the
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Syndication Agent or the Documentation Agent hereinafter taken, including any
review of the affairs of the Borrower or any other Loan Party, shall be deemed
to constitute any representation or warranty by the Administrative Agent or the
Syndication Agent or the Documentation Agent to any Lender. Each Lender
represents to the Administrative Agent, the Syndication Agent and the
Documentation Agent that it has, independently and without reliance upon the
Administrative Agent or the Syndication Agent or the Documentation Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Administrative Agent or the Syndication Agent or the
Documentation Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower or any of the
other Loan Parties and the other Loan Parties. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent, the Syndication Agent
and the Documentation Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of the Borrower or any of the other Loan Parties which may come
into the possession of the Administrative Agent, the Syndication Agent or the
Documentation Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
10.7 Indemnification. The Lenders agree to indemnify each of the
Administrative Agent, the Syndication Agent and the Documentation Agent in their
respective capacities as such (to the extent not reimbursed by the Borrower or
any of the other Loan Parties and without limiting the obligation of the
Borrower or any of the other Loan Parties to do so), ratably according to their
respective Commitment Percentages in effect on the date on which indemnification
is sought, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Loans) be imposed on, incurred by or
asserted against the Administrative Agent, the Syndication Agent or the
Documentation Agent in any way relating to or arising out of, the Commitments,
this Agreement, any of the other Loan Documents or any documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Administrative Agent, the
Syndication Agent or the Documentation Agent under or in connection with any of
the foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's, the Syndication Agent's or the Documentation Agent's
gross negligence or willful misconduct, as the case may be. The agreements in
this subsection shall survive the payment of the Loans and all other amounts
payable hereunder.
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10.8 Administrative Agent, Syndication Agent and Documentation Agent in
Their Individual Capacities. The Administrative Agent, the Syndication Agent,
the Documentation Agent and their respective Affiliates may make loans to,
accept deposits from and generally engage in any kind of business with the
Borrower as if the Administrative Agent, the Syndication Agent and the
Documentation Agent were not the Administrative Agent, the Syndication Agent or
the Documentation Agent, as the case may be, hereunder and under the other Loan
Documents. With respect to the Loans made by it and with respect to any Letter
of Credit issued or participated in by it, each of the Administrative Agent, the
Syndication Agent and the Documentation Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not the Administrative Agent, the
Syndication Agent or the Documentation Agent, as the case may be, and the terms
"Lender" and "Lenders" shall include each of the Administrative Agent and the
Documentation Agent in its individual capacity.
10.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 15 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent (provided
that it shall have been approved by the Borrower), shall succeed to the rights,
powers and duties of the Administrative Agent hereunder. Effective upon such
appointment and approval, the term "Administrative Agent" shall mean such
successor agent, such former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans. After any retiring Administrative
Agent's resignation as Administrative Agent, the provisions of this Section 10
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was an Administrative Agent under this Agreement and the other Loan
Documents.
10.10 Issuing Lender. The provisions of this Section 10 shall apply to
the Issuing Lender in its capacity as such to the same extent that such
provisions apply to the Administrative Agent.
10.11 Releases of Guarantees and Collateral. In connection with the
sale or other disposition of all of the Capital Stock of any Guarantor or the
sale or other disposition of Collateral (as defined in each of the Security
Documents) permitted under subsection 8.7, the Administrative Agent shall, and
is hereby authorized by the Lenders to, promptly, upon the request of the
Borrower and at the sole expense of the Borrower, take all actions reasonably
necessary to release such Guarantor from its guarantee contained in the
Guarantee and Collateral Agreement or its Guarantee or to release the Collateral
subject to such sale or other disposition, as the case may be, and shall take
any other actions reasonably requested by the Borrower to effect the
transactions permitted under subsection 8.7.
SECTION 11. MISCELLANEOUS
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11.1 Amendments and Waivers. Neither this Agreement nor any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with the Borrower
and the other Loan Parties written amendments, supplements or modifications
hereto and to the other Loan Documents for the purpose of amending,
supplementing or modifying any provisions of this Agreement or the other Loan
Documents or changing in any manner the rights of the Lenders or of the Borrower
hereunder or thereunder or (b) waive, on such terms and conditions as the
Required Lenders or the Administrative Agent, as the case may be, may specify in
such instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or modification
shall:
(i) reduce the amount or extend the scheduled date of maturity
of any Loan or any installment thereof or any Reimbursement Obligation
or the scheduled date of any reduction in the Revolving Credit
Commitments as set forth in subsection 2.5 or reduce the stated rate of
any interest or fee payable hereunder or extend the scheduled date of
any payment thereof or increase the amount or extend the expiration
date of any Lender's Commitments, in each case without the consent of
each Lender affected thereby; or
(ii) amend, modify or waive any provision of this subsection
11.1 or reduce the percentage specified in the definition of Required
Lenders, or consent to the assignment or transfer by the Borrower of
any of its rights and obligations under this Agreement and the other
Loan Documents or release any guarantee obligation contained in the
Guarantee and Collateral Document or any of the other Guarantees or
release all or a substantial part of the Collateral (other than in
connection with any release permitted by subsection 10.11), in each
case without the written consent of all the Lenders; or
(iii) amend, modify or waive any provision of Section 10
without the written consent of the then Administrative Agent; or
(iv) amend, modify or waive any provision of this Agreement
regarding the allocation of prepayment amounts among the Term Loans or
the application of such prepayment amounts to the respective
installments of principal under the respective Term Loans without the
written consent of the Term Loan Lenders the Term Loan Commitment
Percentages of which aggregate more than 66 2/3%; or
(v) subject to clause (i) of this subsection 11.1(a) as it
relates to reducing the amount or extending the scheduled date of
maturity of any Loan or any installment thereof, amend, modify or waive
any provision of subsection 2.6 or subsection 2.7 without the written
consent of Term Loan Lenders the Term Loan Commitment Percentages of
which aggregate more than 66 2/3%; or
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(vi) amend, modify or waive any provision of subsection 2.1,
2.2, 2.3 or 2.5 or, subject to paragraph (i) of this subsection 11.1(a)
as it relates to reducing the amount or extending the scheduled date of
maturity of any Reimbursement Obligation, Section 3 without the written
consent of the Revolving Credit Lenders the Revolving Credit Commitment
Percentages of which aggregate more than 66 2/3%; or
(vii) amend, modify or waive the provisions of any Letter of
Credit or any L/C Obligation without the written consent of the Issuing
Lender; or
(viii) amend, modify or waive any provision of any Security
Document that provides for the ratable sharing by the Lenders under
such Security Document of the proceeds of any realization on the
Collateral to provide for a non-ratable sharing thereof, without the
consent of (x) Revolving Credit Lenders the Revolving Credit Commitment
Percentages of which aggregate more than 66 2/3% and (y) Term Loan
Lenders the Term Loan Commitment Percentages of which aggregate more
than 66 2/3%.
Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the Lenders and shall be binding upon the
Borrower, the Lenders, the Managing Agents, the Issuing Lender and all future
holders of the Loans. In the case of any waiver, the Borrower, the Lenders, the
Managing Agents and the Issuing Lender shall be restored to their former
positions and rights hereunder and under the other Loan Documents, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; no such waiver shall extend to any subsequent or other Default or
Event of Default or impair any right consequent thereon.
11.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand or
by overnight courier, when delivered, (b) in the case of delivery by mail, three
days after being deposited in the mails, postage prepaid, or (c) in the case of
delivery by facsimile transmission, when sent and receipt has been confirmed,
addressed as follows in the case of the Borrower and each Managing Agent, and as
set forth in Schedule 1 in the case of the other parties hereto, or to such
other address as may be hereafter notified by the respective parties hereto:
The Borrower:
Digital Television Services, LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative Agent:
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Canadian Imperial Bank of Commerce
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Syndication Agent:
The ▇▇▇▇▇▇ Guaranty Trust Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ III
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Documentation Agent:
Fleet National Bank
One Federal Street
Mail Stop MA/0FD03D
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.3, 2.5, 2.8, 3.2, 4.2, 4.4 or 4.8 shall
not be effective until received.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents (or in any amendment,
modification or supplement hereto or thereto) and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the making of the Loans
hereunder.
11.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Managing Agents and the Arranger for all their respective
reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement and the
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other Loan Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby (including the syndication of the Commitments
(including the reasonable expenses of the Administrative Agent's due diligence
investigation)), including, without limitation, the reasonable fees and
disbursements of counsel to the Managing Agents and the Arranger, (b) to pay or
reimburse each Lender and the Managing Agents and the Arranger for all their
respective costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, including, without limitation, the fees and
disbursements of counsel (including the allocated fees and expenses of in-house
counsel) to the respective Lenders, the Managing Agents and the Arranger, (c) to
pay, indemnify, and hold each Lender and the Managing Agents and the Arranger
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify, and hold
each Lender and the Managing Agents and the Arranger and their respective
directors, trustees, officers, employees and agents harmless from and against
any and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents or the use or
proposed use of the proceeds of the Loans in connection with the transactions
contemplated hereby and thereby and any such other documents regardless of
whether the Managing Agents, the Arranger or any Lender is a party to the
litigation or other proceeding giving rise thereto and regardless of whether any
such litigation or other proceeding is brought by the Borrower or any other
Person, including, without limitation, any of the foregoing relating to the
violation of, noncompliance with or liability under, any Environmental Law
applicable to the operations of the Borrower, any of its Subsidiaries or any of
the facilities and properties owed, leased or operated by the Borrower or any of
its Subsidiaries (all the foregoing in this clause (d), collectively, the
"indemnified liabilities"), provided that the Borrower shall have no obligation
hereunder to the Managing Agents, the Arranger or any Lender or any other Person
with respect to indemnified liabilities arising from the gross negligence or
willful misconduct of the party seeking indemnification. The agreements in this
subsection shall survive repayment of the Loans and all other amounts payable
hereunder.
11.6 Successors and Assigns; Participations and Assignments. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Lenders, the Administrative Agent, the Syndication Agent, the Documentation
Agent and their respective successors and assigns, except that the Borrower may
not assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its business or
investment activities and in accordance with applicable law, at any time sell to
one or more banks or other entities ("Participants") participating interests in
any Loan owing to such Lender, any
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Commitment of such Lender or any other interest of such Lender hereunder and
under the other Loan Documents. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of any such Loan for all purposes under this Agreement
and the other Loan Documents, and the Borrower and the Administrative Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and the other Loan
Documents. No Lender shall be entitled to create in favor of any Participant, in
the participation agreement pursuant to which such Participant's participating
interest shall be created or otherwise, any right to vote on, consent to or
approve any matter relating to this Agreement or any other Loan Document except
for those matters specified in clauses (i) and (ii) of the proviso to subsection
11.1. The Borrower agrees that if amounts outstanding under this Agreement are
due or unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall, to the
maximum extent permitted by applicable law, be deemed to have the right of
setoff in respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in subsection
11.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that
each Participant shall be entitled to the benefits of subsections 4.10, 4.11 and
4.12 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if it was a Lender; provided that, in the case
of subsection 4.11, such Participant shall have complied with the requirements
of said subsection and provided, further that no Participant shall be entitled
to receive any greater amount pursuant to any such subsection than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its business or
investment activities and in accordance with applicable law, at any time and
from time to time assign to any Lender or any branch or affiliate thereof or,
with the consent of the Borrower and the Administrative Agent (which in each
case shall not be unreasonably withheld or delayed), to an additional bank or
financial institution (an "Assignee") all or any part of its rights and
obligations under this Agreement and the other Loan Documents pursuant to an
Assignment and Acceptance, substantially in the form of Exhibit G, executed by
such Assignee and such assigning Lender (and, in the case of an Assignee that is
not then a Lender or a branch or an affiliate thereof, by the Borrower and the
Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register, provided that, in the case of any such
assignment to an additional bank or financial institution, if such assignment is
of less than all of the rights and obligations of the assigning Lender, the sum
of the aggregate principal amount of the Loans, the aggregate amount of the L/C
Obligations and the aggregate amount of the Available Revolving Credit
Commitment being assigned shall not be less than $10,000,000 (or such lesser
amount as may be agreed to by the Borrower and the Administrative Agent). Upon
such execution, delivery, acceptance and recording, from and
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after the effective date determined pursuant to such Assignment and Acceptance,
(x) the Assignee thereunder shall be a party hereto and, to the extent provided
in such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein, and (y) the assigning Lender
thereunder shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such assigning Lender
shall cease to be a party hereto but shall nonetheless continue to be entitled
to the benefits of subsections 4.10, 4.11, 4.12 and 11.5). Notwithstanding any
provision of this paragraph (c) and paragraph (e) of this subsection, the
consent of the Borrower shall not be required, and, unless requested by the
Assignee and/or the assigning Lender, new Notes shall not be required to be
executed and delivered by the Borrower, for any assignment which occurs at any
time when any of the Events of Default described in Section 9(f) shall have
occurred and be continuing.
(d) The Administrative Agent, on behalf of the Borrower, shall maintain
at the address of the Administrative Agent referred to in subsection 11.2 a copy
of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders and
the Commitments of, and principal amounts of the Loans owing to, and any Notes
evidencing the Loans owned by, each Lender from time to time. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders shall treat each Person whose
name is recorded in the Register as the owner of a Loan or other obligation
hereunder as the owner thereof for all purposes of this Agreement and the other
Loan Documents, notwithstanding any notice to the contrary. Any assignment of
any Loan or other obligation hereunder shall be effective only upon appropriate
entries with respect thereto being made in the Register.The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the Borrower and the Administrative
Agent) together with payment to the Administrative Agent of a registration and
processing fee of $3,500, the Administrative Agent shall promptly accept such
Assignment and Acceptance and record the information contained therein in the
Register and give notice of such acceptance and recordation to the Lenders and
the Borrower. Such Assignment and Acceptance and the assignment evidenced
thereby shall only be effective upon appropriate entries with respect to the
information contained therein being made in the Register pursuant to subsection
11.6(d).
(f) The Borrower authorizes each Lender to disclose to any Participant
or Assignee (each, a "Transferee") and any prospective Transferee, subject to
such Person agreeing to comply with the provisions of subsection 11.15, any and
all financial and other information in such Lender's possession concerning the
Borrower and its Affiliates which has been delivered to such Lender by or on
behalf of the Borrower pursuant to this Agreement or which has been delivered to
such Lender by or on behalf of the Borrower in connection with
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such Lender's credit evaluation of the Borrower and its Affiliates prior to
becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this subsection concerning assignments of Loans and Notes
relate only to absolute assignments and that such provisions do not prohibit
assignments creating security interests, including, without limitation, any
pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank
in accordance with applicable law.
11.7 Adjustments; Set-off. (a) If any Lender (a "benefitted Lender")
shall at any time receive any payment of all or part of its Loans or the
Reimbursement Obligations owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 9(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's Loans or
the Reimbursement Obligations owing to it, or interest thereon, such benefitted
Lender shall purchase for cash from the other Lenders a participating interest
(or, at the option of such benefitted Lender, a direct interest) in such portion
of each such other Lender's Loan or the Reimbursement Obligations owing to it,
or shall provide such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such benefitted Lender to
share the excess payment or benefits of such collateral or proceeds ratably with
each of the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to the Borrower, any
such notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount remaining unpaid (including, without limitation,
any amount owing to such Lender in respect of an undivided interest purchased by
such Lender in any draft paid by the Issuing Lender under any Letter of Credit
pursuant to subsection 3.4(a)) after it becomes due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any affiliate, branch or agency thereof to or
for the credit or the account of the Borrower. Each Lender agrees promptly to
notify the Borrower and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
11.8 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one
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and the same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
11.9 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Managing Agents and the Lenders
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Managing Agents or any Lender
relative to subject matter hereof not expressly set forth or referred to herein
or in the other Loan Documents.
11.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11.12 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any
judgement in respect thereof, to the non-exclusive general jurisdiction
of the courts of the State of New York, the courts of the United States
of America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in subsection 11.2 or
at such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to ▇▇▇ in any other jurisdiction; and
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(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or
consequential damages.
11.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between Administrative Agent and Lenders, on one
hand, and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
11.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.15 Confidentiality. Each Lender agrees to keep confidential any
written information (a) provided to it by or on behalf of the Borrower or any of
its Subsidiaries pursuant to or in connection with this Agreement or (b)
obtained by such Lender based on a review of the books and records of the
Borrower or any of its Subsidiaries; provided that nothing herein shall prevent
any Lender from disclosing any such information (i) to the Administrative Agent
or any other Lender, (ii) to any Transferee or prospective Transferee which
agrees to comply with the provisions of this subsection, (iii) to its employees,
directors, agents, attorneys, accountants and other professional advisors, (iv)
upon the request or demand of any Governmental Authority having jurisdiction
over such Lender or as shall be required pursuant to any Requirement of Law, (v)
in response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (vi) in connection
with any litigation to which such Lender is a party, (vii) which has been
publicly disclosed other than in breach of this Agreement, or (viii) to the
extent reasonably necessary, in connection with the exercise of any remedy
hereunder (provided that upon receipt of such an order, request or demand from
any Person other than a regulatory authority having jurisdiction over such
Lender described in subclause (iv) or (v) of this subsection 11.15, such Lender
shall (x) promptly notify the Borrower thereof and (y) cooperate with the
Borrower in any efforts the Borrower may make to oppose or narrow such request
or to assure confidentiality for all or any portion of any information
delivered).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
DIGITAL TELEVISION SERVICES, LLC
By: DTS Management, LLC,
its Manager
By:/s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------
Title: Vice President
CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY, as
Administrative Agent and as a Lender
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Title: Director, CIBC Wood Gundy
Securities, as Agent for Canadian Imperial
Bank of Commerce
▇▇▇▇▇▇ GUARANTY TRUST COMPANY,
as Syndication Agent and as a Lender
By:/s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
FLEET NATIONAL BANK, as Documentation
Agent and as a Lender
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Title: Senior Vice President
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BANK OF MONTREAL
By:/s/ ▇.▇. ▇▇▇▇▇▇
----------------------------
Title: Director
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BANQUE PARIBAS
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Title: Vice President
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Vice President
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BANKBOSTON, N.A.
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Title: Managaing Director
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Schedule 2
to Credit Agreement
Applicable Margin Calculation
ABR Loans Eurodollar Loans Eurodollar
Applicable ABR Loans Applicable Loans
Margin Applicable Margin Applicable
(Revolving Margin (Revolving Margin
Leverage Ratio Credit Loans) (Term Loans) Credit Loans) (Term Loans)
-------------- ------------- ------------ ------------- ------------
Greater than or equal to 6.75 to 2.25% 2.50% 3.50% 3.75%
1.00
Less than 6.75 to 1.00 but 2.00% 2.25% 3.25% 3.50%
greater than or equal to 6.25 to
1.00
Less than 6.25 to 1.00 but 1.50% 1.75% 2.75% 3.00%
greater than or equal to 5.75 to
1.00
Less than 5.75 1.25% 1.50% 2.50% 2.75%
