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TERM LOAN AGREEMENT
among
PEGASUS MEDIA & COMMUNICATIONS FINANCE CORPORATION
THE SEVERAL LENDERS FROM
TIME TO TIME PARTIES HERETO
and
DBS INVESTORS AGENT, INC.
as Administrative Agent for such Lenders
Dated as of April 2, 2003
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TABLE OF CONTENTS
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SECTION PAGE NO.
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ARTICLE I GENERAL TERMS..................................................................................2
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Section 1.01. Term Loans......................................................................2
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Section 1.02. Interest on the Notes...........................................................2
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Section 1.03. Loan Requests...................................................................3
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Section 1.04. Loan Disbursements..............................................................4
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Section 1.05. Voluntary Prepayments...........................................................4
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Section 1.06. Mandatory Prepayments Upon Change of Control....................................5
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Section 1.07. Fees............................................................................5
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Section 1.08. Requirements of Law.............................................................6
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Section 1.09. Taxes...........................................................................7
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Section 1.10. Payments Under the Notes........................................................9
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Section 1.11. Set-Off, Etc....................................................................9
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Section 1.12. Pro Rata Treatment; Sharing; Payments after Default............................10
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Section 1.13. Non-Receipt of Funds by the Agent..............................................11
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Section 1.14. Replacement of Notes...........................................................12
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ARTICLE II USE OF PROCEEDS..............................................................................12
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Section 2.01. Use of Proceeds................................................................12
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ARTICLE III CONDITIONS OF MAKING THE LOANS..............................................................13
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Section 3.01. Conditions to the Initial Loans................................................13
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Section 3.02. All Loans......................................................................17
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Section 3.03. Lender Approvals...............................................................18
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ARTICLE IV REPRESENTATIONS AND WARRANTIES...............................................................18
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Section 4.01. Reports; Financial Statements..................................................18
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Section 4.02. Organization, Qualification, Etc...............................................19
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Section 4.03. Authorization; Compliance; Etc.................................................19
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Section 4.04. Governmental and Other Consents, Etc...........................................20
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Section 4.05. Litigation.....................................................................21
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Section 4.06. Compliance with Laws and Agreements............................................21
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Section 4.07. Licenses.......................................................................22
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Section 4.08. The Stations...................................................................22
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Section 4.09. DBS Rights.....................................................................23
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Section 4.10. Title to Properties; Condition of Properties...................................24
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Section 4.11. Interests in Other Businesses..................................................24
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Section 4.12. Solvency.......................................................................24
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Section 4.13. Full Disclosure; Absence of Certain Changes....................................25
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Section 4.14. Margin Stock...................................................................25
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Section 4.15. Tax Returns....................................................................25
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Section 4.16. Pension Plans, Etc.............................................................26
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Section 4.17. Material Agreements............................................................26
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Section 4.18. [Intentionally omitted.].......................................................26
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SECTION PAGE NO.
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Section 4.19. Brokers, Etc...................................................................26
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Section 4.20. Capitalization.................................................................26
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Section 4.21. Environmental Compliance.......................................................27
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Section 4.22. Investment Company Act.........................................................28
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Section 4.23. Labor Matters..................................................................28
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Section 4.24. Delaware Code Provisions.......................................................28
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ARTICLE V FINANCIAL COVENANTS...........................................................................28
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Section 5.01. Leverage.......................................................................28
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Section 5.02. Restricted Payments............................................................29
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ARTICLE VI AFFIRMATIVE COVENANTS........................................................................32
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Section 6.01. Preservation of Assets; Compliance with Laws, Etc..............................32
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Section 6.02. Insurance......................................................................32
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Section 6.03. Taxes, Etc.....................................................................33
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Section 6.04. Notice of Proceedings, Defaults, Adverse Change, Etc...........................33
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Section 6.05. Financial Statements and Reports...............................................34
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Section 6.06. Inspection.....................................................................37
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Section 6.07. Accounting System..............................................................37
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Section 6.08. Additional Assurances..........................................................37
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Section 6.09. Renewal of DBS Agreements and FCC Licenses.....................................38
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Section 6.10. Compliance with Environmental Laws.............................................38
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Section 6.11. Maintenance of Corporate Identity..............................................39
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Section 6.12. Prepayment of Loans with Excess L/C Cash Collateral............................40
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ARTICLE VII NEGATIVE COVENANTS..........................................................................40
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Section 7.01. Indebtedness and Guarantees....................................................41
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Section 7.02. Liens..........................................................................42
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Section 7.03. Disposition of Assets; Mergers, Etc............................................44
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Section 7.04. Fundamental Changes............................................................45
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Section 7.05. Investments and Acquisitions...................................................45
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Section 7.06. [Intentionally Omitted.].......................................................48
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Section 7.07. Management.....................................................................48
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Section 7.08. Sale and Leaseback.............................................................48
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Section 7.09. Repurchase or Issuance of Equity Securities....................................48
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Section 7.10. Change in Business, Ownership of Special Purpose Subsidiary and L/C Subsidiary.49
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Section 7.11. Accounts Receivable............................................................49
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Section 7.12. Transactions with Affiliates...................................................49
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Section 7.13. Amendment of Certain Agreements, Negative Pledges, Etc.........................49
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Section 7.14. ERISA..........................................................................51
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Section 7.15. Margin Stock...................................................................51
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Section 7.16. Limitations on Borrower........................................................51
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Section 7.17. Limitations on L/C Subsidiary..................................................51
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Section 7.18. Limitations on Payments on Account of Indebtedness.............................52
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SECTION PAGE NO.
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ARTICLE VIII DEFAULTS...................................................................................52
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ARTICLE IX REMEDIES ON DEFAULT, ETC.....................................................................56
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ARTICLE X THE AGENT ....................................................................................56
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Section 10.01. Appointment, Powers and Immunities.............................................56
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Section 10.02. Reliance by Agent..............................................................58
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Section 10.03. Events of Default..............................................................58
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Section 10.04. Rights as a Lender.............................................................58
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Section 10.05. Indemnification................................................................58
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Section 10.06. Non-Reliance on Agent and Other Lenders........................................59
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Section 10.07. Failure to Act.................................................................59
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Section 10.08. Resignation of Agent...........................................................59
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Section 10.09. Cooperation of Lenders.........................................................60
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ARTICLE XI ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS; SEPARATE ACTIONS BY THE LENDERS....................60
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ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS........................................62
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ARTICLE XIII MISCELLANEOUS..............................................................................66
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Section 13.01. Survival.......................................................................66
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Section 13.02. Fees and Expenses; Indemnity; Etc..............................................66
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Section 13.03. Notice.........................................................................68
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Section 13.04. Governing Law..................................................................69
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Section 13.05. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL..................................69
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Section 13.06. Severability...................................................................70
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Section 13.07. Section Headings, Etc..........................................................70
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Section 13.08. Several Nature of Lenders' Obligations.........................................70
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Section 13.09. Counterparts...................................................................71
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Section 13.10. Knowledge and Discovery........................................................71
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Section 13.11. Amendment of Other Agreements..................................................71
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Section 13.12. FCC and Municipal Approvals....................................................71
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Section 13.13. Disclaimer of Reliance.........................................................72
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Section 13.14. Environmental Indemnification..................................................72
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Section 13.15. Effectiveness..................................................................73
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ARTICLE XIV DEFINITIONS.................................................................................73
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INDEX OF SCHEDULES
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Schedule 1.01(a) Allocation of Commitments
Schedule 1.01(b) Form of Term Note
Schedule 4.01 Opening Balance Sheet
Schedule 4.02 Organization, Qualification, Etc.
Schedule 4.04 Governmental and Other Consents
Schedule 4.05 Litigation
Schedule 4.07 FCC Licenses
Schedule 4.11 Interests in Other Businesses
Schedule 4.13 Certain Matters Since December 31, 2002
Schedule 4.16 Pension Plans
Schedule 4.17 Certain Matters Concerning Material Contracts
Schedule 4.20 Capitalization
Schedule 7.02 Certain Permitted Liens
Schedule 12 Form of Assignment and Acceptance
Schedule 14(a) Form of Indemnity Agreement
Schedule 14(b) Form of Intercreditor Agreement
Schedule 14(c) Form of Borrower Security and Pledge Agreement
Schedule 14(d) Form of Warrant and Investor Rights Agreement
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TERM LOAN AGREEMENT
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TERM LOAN AGREEMENT (this "Agreement") dated as of April 2,
2003, by and among the institutions which are now, or in accordance with Article
XII hereafter become, parties hereto (collectively, the "Lenders" and each
individually, a "Lender"); DBS Investors Agent, Inc., as administrative agent
for the Lenders (in such capacity, together with its successors and assigns in
such capacity, the "Agent"); and Pegasus Media & Communications Finance
Corporation, a Delaware corporation (the "Borrower") which is (i) a wholly owned
subsidiary of Pegasus Satellite Communications, Inc., a Delaware corporation
(the "Parent") and (ii) from and after the Closing Date will be the direct
parent of Pegasus Media & Communications, Inc., a Delaware corporation ("PM&C").
Certain capitalized terms used herein without definition are defined in Article
XIV of this Agreement.
RECITALS
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A. The Operating Companies (1) own the rights to deliver
direct broadcast satellite ("DBS") service in various territories in the United
States and (2) own and operate broadcast television stations located in Florida,
Maine, Mississippi, Pennsylvania and Tennessee. Certain special purpose
subsidiaries of PM&C, referred to herein as the License Subsidiaries, own the
licenses for each broadcast television station except those operated under LMAs.
B. The Borrower desires to obtain additional funds (1) to
finance the repurchase or redemption of Indebtedness of PM&C under the Original
Subordinated Notes and preferred Equity Securities and Indebtedness of the
Parent, (2) to finance the repurchase of preferred and/or common Equity
Securities of PCC, (3) to make an equity Investment in the L/C Subsidiary to
fund the L/C Cash Collateral under the L/C Facility or to make an equity
Investment in PM&C to fund the PM&C L/C Cash Collateral under the PM&C L/C
Facility and (4) to pay fees and expenses of the Borrower in connection with the
transactions contemplated by the Transaction Documents.
C. The Borrower and the Lenders have agreed that the Loans
(and all accrued interest in respect thereof) shall constitute senior
Indebtedness of the Borrower and shall be structurally senior in right of
payment to all existing and future Indebtedness and Equity Securities of the
Parent.
D. The Lenders are willing to provide such funds, all subject
to the terms and conditions of this Agreement.
NOW THEREFORE, the parties hereto, intending to be legally
bound, and in consideration of the foregoing and the mutual covenants contained
herein, hereby agree as follows:
ARTICLE I
GENERAL TERMS
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Section 1.01. Term Loans.
(a) Subject to the terms and conditions contained in this
Agreement, the Lenders agree to make one or more term loans to the Borrower from
time to time during the Commitment Period in an aggregate amount of Original
Principal not to exceed $100,000,000 (collectively, the "Loans"), allocated
among the Lenders as set forth in Schedule 1.01(a) (collectively, as reduced
pursuant to Section 1.01(d) and subject to adjustment for assignments under
Article XII, the "Commitments" and, with respect to each Lender's allocation of
the Loans, its "Commitment"). No Loans repaid may be reborrowed hereunder.
(b) The Loans shall be evidenced by the Borrower's Term Notes,
substantially in the form attached hereto as Schedule 1.01(b) (together with any
additional such Term Notes issued to any assignee(s) of the Loans under Article
XII or otherwise issued in substitution therefor or replacement thereof, the
"Notes").
(c) The Borrower will pay to the Agent, for the ratable account
of each Lender, the unpaid principal amount (which includes any capitalized
interest with respect thereto) then outstanding under the Notes, without setoff,
deduction or counterclaim, on the Maturity Date, when all amounts outstanding
under the Notes, including all outstanding principal (which includes any
capitalized interest with respect thereto) and accrued interest, fees, expenses
and other charges in respect thereof shall be due and payable in full, and shall
otherwise pay such amounts prior to the Maturity Date to the extent so required
by the terms of this Agreement or the other Loan Documents.
(d) The Commitments shall terminate and expire at 5:00 p.m.
(New York time) on the Commitment Termination Date unless the conditions to
making the initial Loans in Sections 3.01 and 3.02 have been satisfied or waived
and the initial borrowing of Loans on the Closing Date in an aggregate amount of
Original Principal of not less than $35,000,000 for the purpose described in
Section 2.01(a) shall have previously occurred.
Section 1.02. Interest on the Notes.
(a) Interest Rate. Subject to the terms and conditions set
forth in this Section 1.02, the Loans shall bear interest on the unpaid
principal amount thereof (which includes any capitalized interest with respect
thereto) at a rate per annum equal to 12.5%.
(b) Computations. Interest on Loans shall be computed on the
basis of the actual number of days elapsed over a 365 or 366-day year, as
applicable.
(c) Interest Payment Dates. Interest on the Loans shall be
payable in arrears, without setoff, deduction or counterclaim and shall be due
and payable on the Quarterly Dates, commencing with the first Quarterly Date to
occur after the Closing Date and at maturity, whether by reason of an
acceleration, prepayment, payment or otherwise as follows:
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(i) 48% of interest accrued from time to time in respect of
the Loans shall be payable in cash on each such Quarterly Date;
(ii) 52% of interest accrued from time to time in respect of
the Loans shall be automatically added, without any action by any Person, on
each such Quarterly Date to the principal amount of such Loan (and any such
interest so added to the principal of a Loan shall bear interest from and after
such Quarterly Date as provided hereunder as if it had been part of the Original
Principal of such Loan); and
(iii) Any accrued and unpaid interest on the Loans shall be
payable in full in cash on the Maturity Date.
(d) Effect of Defaults, Etc.
(i) During the existence of any Event of Default, the
outstanding principal (which includes any capitalized interest with respect
thereto) under the Notes and, to the extent permitted by applicable law, overdue
interest, fees or other amounts payable hereunder or under the other Loan
Documents shall bear interest, from and including the date such Event of Default
occurred until such Event of Default is waived in writing as provided herein, at
a rate per annum (computed on the basis of the actual number of days elapsed
over a 365 or 366-day year as applicable) equal to 15% payable as follows:
(A) 48% of interest accrued from time to time pursuant to
this Section 1.02(d) shall be payable in cash on each Quarterly Date;
and
(B) 52% of interest accrued from time to time pursuant to
this Section 1.02(d) shall be automatically added, without any action
by any Person, on each Quarterly Date to the principal amount of each
Loan (and any such interest so added to the principal of a Loan shall
bear interest from and after such Quarterly Date as provided hereunder
as if it had been part of the Original Principal of such Loan).
(ii) Nothing in this Section 1.02(d) shall affect the
rights of the Agent or the Lenders to exercise any rights or remedies under the
Loan Documents or applicable law arising upon the occurrence of an Event of
Default.
Section 1.03. Loan Requests. Each request by the Borrower for Loans
shall be made not later than 11:00 A.M. (New York time) on the eleventh Business
Day prior to the proposed Borrowing Date by a written loan request in form and
substance reasonably satisfactory to the Agent (each, a "Loan Request"), signed
by an Authorized Officer of the Borrower and indicating (i) the aggregate amount
of Original Principal of Loans to be borrowed, (ii) the Borrowing Date of such
Loans, (iii) the use of proceeds thereof and (iv) the current and pro forma
certifications of leverage and no Default. Each borrowing of Loans shall be in
aggregate amount of Original Principal equal to (i) $35,000,000 or a whole
multiple of $1,000,000 in excess thereof, for the purpose described in Section
2.01(a) in the case of the initial borrowing of Loans on the Closing Date and
(ii) $10,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if
less, the remaining undrawn Commitment), for any purpose described in Section
2.01 in the case of any subsequent borrowing of Loans on any Borrowing Date. The
Agent shall promptly notify the Lenders of such Loan Request and the information
contained therein. Such Loan Request shall be irrevocable and binding on the
Borrower.
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Section 1.04. Loan Disbursements. The Loans shall be made by the
Lenders pro rata as provided in Section 1.12. Not later than 2:00 P.M. (New York
time) on the Business Day prior to the Borrowing Date for any Loans, each
applicable Lender shall make available to the Agent the portion of the Loans to
be made by it on such date, in immediately available funds, for the account of
the Borrower. The amount so received by the Agent shall, subject to the terms
and conditions of this Agreement, be made available to the Borrower by
depositing the same in immediately available funds in the appropriate account or
accounts of the Borrower and by disbursing such funds as indicated in writing in
the related Loan Request on the Borrowing Date for such Loans.
Section 1.05. Voluntary Prepayments.
(a) Voluntary Prepayments of Loans. The Borrower may at any
time and from time to time prepay the Loans, in whole or in part, at a
prepayment price equal to the Fixed Early Payment Amount, plus accrued and
unpaid interest on the principal amount being prepaid to the prepayment date,
upon written notice to the Agent in form and substance reasonably satisfactory
to the Agent (each, a "Prepayment Notice") at least three (3) Business Days
prior thereto, provided as follows:
(i) any such prepayment shall apply to each Lender's Note,
pro rata as provided in Section 1.12; and
(ii) any such prepayment shall be an aggregate principal
amount of not less than $1,000,000 or, if greater, an integral multiple of
$250,000.
Each Prepayment Notice shall specify the date fixed for such prepayment and the
aggregate principal amount thereof. Upon receipt of any Prepayment Notice, the
Agent shall promptly notify each affected Lender thereof.
(b) Application of Prepayments. Voluntary prepayments of the
Loans shall be applied pro rata to the Loans. Voluntary prepayments of Loans may
not be reborrowed. Notwithstanding the foregoing, during the existence of any
Default, voluntary prepayments of the Loans shall be applied as determined by
the Required Lenders, in their sole discretion in accordance with the terms of
this Agreement.
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Section 1.06. Mandatory Prepayments Upon Change of Control.
(a) Upon the occurrence of a Change of Control, each Lender
shall have the right to require that the Borrower prepay such Lender's Loans in
full at a prepayment price equal to the Fixed Early Payment Amount, plus accrued
and unpaid interest, if any, to the date of prepayment in accordance with the
terms contemplated in Section 1.06(b).
(b) At least twelve (12) days prior to the occurrence of any
Change of Control the Borrower shall mail a notice to each Lender (the "Put
Offer") stating:
(A) that a Change of Control will occur and that such
Lender has the right to require the Borrower to prepay such Lender's
Loans in full at a prepayment price in cash equal to the Fixed Early
Payment Amount plus accrued and unpaid interest, if any, to the date of
prepayment, and showing the calculation of the prepayment price;
(B) the circumstances and relevant facts regarding such
Change of Control (including information with respect to pro forma
historical income, cash flow and capitalization, each after giving
effect to such Change of Control);
(C) the prepayment date (which shall be the date of the
occurrence of such Change of Control); and
(D) the instructions reasonably determined by the
Borrower, consistent with this Section, that a Lender must follow in
order to accept the Put Offer.
(c) Lenders electing to have their Loans prepaid will be
required to surrender their Notes, with an appropriate form duly completed, to
the Borrower at the address specified in the notice on the purchase date.
(d) On the prepayment date, all Notes evidencing any Loans
prepaid by the Borrower under this Section shall be cancelled by the Borrower
and the Commitments shall terminate, and the Borrower shall pay the Fixed Early
Payment Amount plus accrued and unpaid interest, if any, and all other
Obligations due to the Lenders under this Agreement and the other Loan Documents
to the Lenders entitled thereto.
Section 1.07. Fees.
(a) The Borrower agrees to pay to the Agent, for the ratable
account of each Lender, on the Agreement Effective Date, a non-refundable
structuring fee in the amount of $1,350,000 in immediately available funds.
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(b) The Borrower agrees to pay to the Agent, for the ratable
account of each Lender, on the Closing Date, a non-refundable transaction fee in
an amount equal to the difference between (x) $650,000 minus (y) the Extension
Fee to the extent previously paid by the Borrower in immediately available
funds.
(c) The Borrower agrees to pay to the Agent, for the ratable
account of each Lender, on each Borrowing Date (including the Closing Date with
respect to the initial extension of Loans), a non-refundable funding fee in an
amount equal to two percent (2%) of the amount of Original Principal of Loans
made by the Lenders on such Borrowing Date in immediately available funds.
Section 1.08. Requirements of Law.
(a) In the event that any Regulatory Change shall:
(i) change the basis of taxation of any amounts payable to
any Lender under this Agreement or any Notes in respect of any Loans (other than
taxes imposed on the overall net income of such Lender in its jurisdiction of
organization or in the jurisdiction where its lending office is located);
(ii) impose or modify any reserve, compulsory loan
assessment, special deposit or similar requirement relating to any extensions of
credit or other assets of, or any deposits with or other liabilities of, any
office of such Lender; or
(iii) impose any other conditions affecting this Agreement
in respect of Loans (or any of such extensions of credit, assets, deposits or
liabilities);
and the result of any of the foregoing shall be to increase such Lender's costs
of making or maintaining any Loans, then the Borrower shall pay on demand to
such Lender, through the Agent, and from time to time as specified by such
Lender, such additional amounts as such Lender shall reasonably determine are
sufficient to compensate such Lender for such increased cost or reduced amount
receivable.
(b) If at any time after the date of this Agreement any Lender
shall have determined that the applicability of any law, rule, regulation or
guideline adopted pursuant to or arising out of the July 1988 report of the
Basle Committee on Lending Regulations and Supervisory Practices entitled
"International Convergence of Capital Measurement and Capital Standards", or the
adoption or implementation of any Regulatory Change regarding capital adequacy,
or any change therein, or any change in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof (whether or not having the
force of law), has or will have the effect of reducing the rate of return on
such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of the existence of its obligations hereunder (whether
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with respect to the Commitments, the Loans, or any other Obligation) to a level
below that which such Lender or its holding company could have achieved but for
such adoption, change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy) by an amount reasonably deemed by
such Lender to be material, then from time to time following written notice by
such Lender to the Borrower as provided in paragraph (c) of this Section, within
fifteen (15) days after demand by such Lender, the Borrower shall pay to such
Lender, through the Agent, such additional amount or amounts as such Lender
shall reasonably determine will compensate such Lender or such corporation, as
the case may be, for such reduction, provided that to the extent that any or all
of the Borrower's liability under this Section arises following the date of the
adoption of any such Regulatory Change (the "Effective Date"), such compensation
shall be payable only with respect to that portion of such liability arising
after notice of such Regulatory Change is given by such Lender to the Borrower
(unless such notice is given within sixty (60) days after the Effective Date, in
which case such compensation shall be payable in respect of all periods before
and after the Effective Date).
(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this Section, it shall promptly notify the Borrower of the
event by reason of which it has become so entitled. A certificate setting forth
in reasonable detail the computation of any additional amounts payable pursuant
to this Section submitted by such Lender to the Borrower shall be delivered to
the Borrower and the other Lenders promptly after the initial incurrence of such
additional amounts and shall be conclusive in the absence of manifest error. The
covenants contained in this Section shall survive for six months following the
termination of this Agreement and the payment of the outstanding Notes. No
failure on the part of any Lender to demand compensation under paragraph (a) or
(b) above on any one occasion shall constitute a waiver of its rights to demand
compensation on any other occasion. The protection of this Section shall be
available to each Lender regardless of any possible contention of the invalidity
or inapplicability of any law, regulation or other condition which shall give
rise to any demand by such Lender for compensation thereunder.
Section 1.09. Taxes.
(a) All payments made by the Borrower under this Agreement and
the Notes shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority (all such taxes, levies, imposts, duties, charges, fees, deductions
and withholdings being hereinafter called "Taxes"); provided, however, that the
term "Taxes" shall not include net income taxes, franchise taxes (imposed in
lieu of net income taxes) and general intangibles taxes (such as those imposed
by the State of Florida) imposed on the Agent or any Lender, as the case may be,
as a result of a present or former connection or nexus between the jurisdiction
of the government or taxing authority imposing such tax (or any political
subdivision or taxing authority thereof or therein) and the Agent or such Lender
other than that arising solely from the Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or enforced,
this Agreement, the Notes or any of the Security Documents. If any Taxes are
required to be withheld from any amounts payable to the Agent or any Lender
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hereunder or under the Notes or the amounts so payable to the Agent or such
Lender shall be increased to the extent necessary to yield to the Agent or such
Lender (after payment of all Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement and the
Notes, as the case may be. Whenever any Taxes are payable by the Borrower in
respect of this Agreement or the Notes, as promptly as possible thereafter the
Borrower shall send to the Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay
any Taxes when due to the appropriate taxing authority or fails to remit to the
Agent the required receipts or other required documentary evidence, the Borrower
shall indemnify the Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Agent or any Lender as a result of any
such failure. If, after any payment of Taxes by the Borrower under this Section,
any part of any Tax paid by the Agent or any Lender is subsequently recovered by
the Agent or such Lender, the Agent or such Lender shall reimburse the Borrower
to the extent of the amount so recovered. A certificate of an officer of the
Agent or such Lender setting forth the amount of such recovery and the basis
therefor shall, in the absence of manifest error, be conclusive. The Agent and
the Lenders shall use reasonable efforts to notify the Borrower of their
attempts, if any, to obtain abatements of any such Taxes and the receipt by the
Agent or the Lenders of any funds in connection therewith. The agreements in
this subsection shall survive the termination of this Agreement and the payment
of the Notes and all other amounts payable hereunder.
(b) Each Lender that is organized under the laws of any
jurisdiction other than the United States or any state or other political
subdivision thereof (for purposes of this subsection 1.09, a "Non-US Lender"
shall deliver to the Agent and to the Borrower, on or prior to the Closing Date
(in the case of each Lender listed on the signature pages hereof) or on or prior
to the date of the Assignment and Acceptance pursuant to which it becomes a
Lender (in the case of each other Lender), and at such other times as may be
necessary in the determination of the Borrower or the Agent (each in the
reasonable exercise of its discretion), two original copies of Internal Revenue
Service Form W-8BEN or W-8ECI (or any successor forms) properly completed and
duly executed by such Lender, or, in the case of a Non-US Lender claiming
exemption from United States federal withholding tax under Section 871(h) or
881(c) of the Code with respect to payments of "portfolio interest", a form
W-8BEN, and, a certificate of such Lender certifying that such Lender is not (i)
a "bank" for purposes of Section 881(c) of the Code, (ii) a ten-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Borrower or (iii) a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code), properly completed and
duly executed by such Lender, in each case together with any other certificate
or statement of exemption required under the Code or the regulations issued
thereunder, properly completed and duly executed by such Lender, to establish
that such Lender is not subject to United States withholding tax with respect to
any payments to such Lender of interest payable under any of the Loan Documents.
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Section 1.10. Payments Under the Notes.
(a) All payments and prepayments made by the Borrower of
principal of, and interest on, the Notes and other sums and charges payable
under this Agreement and, with respect to fees payable to the Agent and its
affiliates, and any payments under Sections 1.08 and 1.09, shall be made in
immediately available funds to the Agent (as specified in Section 13.03) for the
accounts of the Lenders as provided in Section 1.12 and otherwise herein not
later than 2:00 P.M. (New York Time), on the date on which such payment shall
become due; provided, that upon written request of the Agent, the Borrower shall
be required to make all payments for the accounts of the Lenders as provided in
Section 1.12 directly to such Lenders. The failure by the Borrower to make any
such payment by such hour shall not constitute a Default hereunder so long as
payment is received later that day, provided that any such payment made after
2:00 P.M. (New York Time), on such due date shall be deemed to have been made on
the next Business Day for the purpose of calculating interest on amounts
outstanding on the Notes. The Borrower shall, at the time of making each payment
under this Agreement or the Notes, specify to the Agent the Notes or amounts
payable by the Borrower hereunder to which such payment is to be applied (and in
the event that it fails to so specify, or if an Event of Default has occurred
and is continuing, the Agent may distribute such payments in such manner as the
Required Lenders may direct or, absent such direction, as it determines to be
appropriate, subject to the provisions of Section 1.12).
(b) If any payment hereunder or under the Notes shall be due
and payable on a day which is not a Business Day, such payment shall be deemed
due on the next following Business Day and interest shall be payable at the
applicable rate specified herein through such extension period. The Agent, or
any Lender for whose account any such payment is made, may (but shall not be
obligated to) debit the amount of any such payment which is not made by such
time to any deposit account of the Borrower with the Agent or such Lender, as
the case may be. Each payment received by the Agent under this Agreement or any
Note for the account of a Lender shall be paid promptly to such Lender, in
immediately available funds, for the account of such Lender for the Note in
respect to which such payment is made.
Section 1.11. Set-Off, Etc. The Borrower agrees that, in addition to
(and without limitation of) any right of set-off, bankers' lien or counterclaim
a Lender may otherwise have and in addition to the debit right afforded in
Section 1.10, each Lender and each subsequent holder of any Note shall be
entitled, at its option, to offset balances held by it, or by any of its
respective branches or agencies, for the account of the Borrower at any of its
or their offices, in Dollars or in any other currency, against any principal of
or interest on the Notes held by such Lender (or subsequent noteholder) or other
fees or charges owed to such Lender (or subsequent noteholder) hereunder which
are not paid when due (regardless of whether such balances are then due to the
Borrower and regardless of whether the Lenders are otherwise fully secured), in
which case it shall promptly notify the Borrower and the Agent thereof, provided
that such Lender's (or subsequent noteholder's) failure to give such notice
shall not affect the validity thereof and (as security for any Indebtedness
hereunder) the Borrower hereby grants to the Agent and the Lenders a continuing
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security interest in any and all balances, credit, deposits, accounts or moneys
of the Borrower maintained with the Agent and any Lender now or hereafter. If a
Lender (or subsequent noteholder) shall obtain payment of any principal,
interest or other amounts payable under this Agreement through the exercise of
any right of set-off, banker's lien or counterclaim or otherwise or pursuant to
the debit right provided in Section 1.10, it shall promptly purchase from the
other Lenders participations in (or, if and to the extent specified by such
Lender, direct interests in) the Note(s) held by the other Lenders in such
amounts, and make such other adjustments from time to time as shall be
equitable, to the end that all the Lenders shall share the benefit of such
payment (net of any expenses which may be incurred by such Lender in obtaining
or preserving such benefit) pro rata based upon the unpaid principal amounts of
and interest on the Note(s) held by each of them. To such end, the Lenders shall
make appropriate adjustments among themselves (by the resale of participations
sold or otherwise) if such payment is rescinded or must otherwise be restored.
The Borrower agrees that any Lender or any other Person which purchases a
participation (or direct interest) in the Note(s) held by any or all of the
Lenders (each being hereinafter referred to as a "Participant") may exercise all
rights of set-off, bankers' lien, counterclaim or similar rights with respect to
such participation as fully as if such Participant were a direct holder of Notes
in the amount of such participation, provided that the Borrower was notified of
such purchase. Nothing contained herein shall be deemed to require any
Participant to exercise any such right or shall affect the right of any
Participant to exercise, and retain the benefits of exercising, any such right
with respect to any indebtedness or obligation of the Borrower, other than the
Borrower's indebtedness and obligations under this Agreement.
Section 1.12. Pro Rata Treatment; Sharing; Payments after Default.
(a) Except to the extent otherwise provided in this Agreement
and except as otherwise agreed by the Lenders: (i) each borrowing of Loans from
the Lenders under the Commitments shall be made from the Lenders pro rata
according to the amounts of their respective unutilized Commitments; (ii) each
payment and prepayment of principal of any Notes shall be allocated to the
Lenders holding such Notes pro rata in accordance with the unpaid principal
amounts of the respective Notes held by such Lenders; (iii) each payment of
interest on the Notes shall be allocated to the Lenders pro rata in accordance
with the unpaid principal amounts of their respective Loans evidenced by such
Notes; (iv) each payment of any other sums and charges payable for the Lenders'
account under this Agreement shall be allocated to the Lenders pro rata in
accordance with the respective unpaid principal amounts of the aggregate Loans
made by each of them; (v) each payment under Section 1.08 or 1.09 shall be made
to each Lender in the amount required to be paid to such Lender to adequately
indemnify or compensate such Lender for losses suffered or costs incurred by
such Lender as provided in such Section; and (vi) notwithstanding the foregoing,
after and during the continuance of a Default, each payment or distribution of
cash, property, securities or other value received by the Agent or any Lender,
directly or indirectly, in respect of the Borrower's Indebtedness hereunder,
whether pursuant to this Article I or any attachment, garnishment, execution or
other proceedings for the collection thereof or pursuant to any bankruptcy,
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reorganization, liquidation or other similar proceeding or otherwise, after
payment of collection and other expenses as provided herein and in the Security
Documents, shall be apportioned among the Lenders pro rata based upon the
respective aggregate unpaid principal amount of all Loans owed to each of them
and their respective shares of the aggregate Commitments, which Commitments
shall be permanently reduced to such pro rated amount.
(b) Notwithstanding the foregoing, if any Lender (a
"Recovering Party") shall receive any such distribution referred to in Section
1.12 (a)(vi) above (a "Recovery") in respect thereof, such Recovering Party
shall pay to the Agent for distribution to the Lenders as set forth herein their
respective pro rata shares of such Recovery, based on the Lenders' pro rata
shares of all Loans outstanding at such time, unless the Recovering Party is
legally required to return any Recovery, in which case each party receiving a
portion of such Recovery shall return to the Recovering Party its pro rata share
of the sum required to be returned without interest. For purposes of this
Agreement, calculations of the amount of the pro rata share of each Lender shall
be rounded to the nearest whole dollar.
(c) The Borrower acknowledges and agrees that, if any
Recovering Party shall be obligated to pay to the other Lenders a portion of any
Recovery pursuant to Section 1.12(b) and shall make such recovery payment, the
Borrower shall be deemed to have satisfied its obligations in respect of
Indebtedness held by such Recovering Party only to the extent of the Recovery
actually retained by such Recovering Party after giving effect to the pro rata
payments by such Recovering Party to the other Lenders. The obligations of the
Borrower in respect of Indebtedness held by each other Lender shall be deemed to
have been satisfied to the extent of the amount of the Recovery distributed to
each such other Lender by the Recovering Party.
Section 1.13. Non-Receipt of Funds by the Agent. Unless the Agent shall
have been notified in writing by a Lender or the Borrower prior to the date on
which such Lender or the Borrower is scheduled to make payment to the Agent of
(in the case of a Lender) the proceeds of a Loan to be made by it hereunder or
(in the case of the Borrower) a payment to the Agent for the account of any or
all of the Lenders hereunder (such payment being herein referred to as a
"Required Payment"), which notice shall be effective upon actual receipt, that
it does not intend to make such Required Payment to the Agent, the Agent may
(but shall not be required to) assume that the Required Payment has been made
and may (but shall not be required to), in reliance upon such assumption, make
the amount thereof available to the intended recipient(s) on such date and, if
such Lender or the Borrower (as the case may be) has not in fact made the
Required Payment to the Agent, the recipient(s) of such payment shall, on
demand, or with respect to payment received by the Borrower, within three (3)
Business Days after such receipt repay to the Agent for the Agent's own account
the amount so made available together with interest thereon in cash in respect
of each day during the period commencing on the date such amount was so made
available by the Agent until the date the Agent recovers such amount at a rate
per annum equal to the applicable rate provided under Section 1.02, with respect
to interest paid by the Borrower.
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Section 1.14. Replacement of Notes. Upon receipt of evidence reasonably
satisfactory to the Borrower of the loss, theft, destruction or mutilation of
any Note and (a) in the case of any such loss, theft or destruction, upon
delivery of an indemnity agreement reasonably satisfactory to the Borrower
(provided, however, that if the holder of such Note is the original holder of
such Note or an institution with net capital, capital surplus and undivided
profits or net tangible assets in excess of $50,000,000 its own agreement of
indemnity shall be deemed to be satisfactory), or (b) in the case of any such
mutilation, upon the surrender of such Note for cancellation, the Borrower will
execute and deliver, in lieu of such lost, stolen, destroyed, or mutilated Note,
a new Note of like tenor.
ARTICLE II
USE OF PROCEEDS.
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Section 2.01. Use of Proceeds. The proceeds of the Loans shall be used
as follows: (a) $70,000,000 of the proceeds of the Loans shall be used solely
for a combination of the purposes stated in the following clauses (i) and (ii),
(i) to finance the repurchase or redemption of Indebtedness of PM&C under the
Original Subordinated Notes or (ii) to make an equity Investment in either (A)
the L/C Subsidiary in an amount not to exceed $60,000,000 in order to fund a
portion of the L/C Cash Collateral under the L/C Facility or (B) if no proceeds
of the Loans are used pursuant to clause (a)(ii)(A), PM&C in an amount not to
exceed $35,000,000 in order to fund a portion of the PM&C L/C Cash Collateral
under the PM&C L/C Facility; (b) the balance of the proceeds of the Loans (not
to exceed $30,000,000) shall be used to finance (i) up to an additional
$3,000,000 of the L/C Cash Collateral or, if no proceeds of the Loans are used
pursuant to clause (a)(ii)(A), the PM&C L/C Cash Collateral, (ii) the repurchase
of Indebtedness and preferred Equity Securities of the Parent and preferred
and/or common Equity Securities of PCC and (iii) the payment of fees and
expenses of the Borrower in connection with the transactions contemplated by the
Transaction Documents, provided, not more than $10,000,000 of the proceeds of
the Loans shall be used to finance the repurchase of preferred and/or common
Equity Securities of PCC. In the event PM&C, the Parent or PCC repurchases or
redeems Indebtedness of PM&C under the Original Subordinated Notes after the
Agreement Effective Date and prior to the Closing Date with funds other than the
proceeds of any Loans, the proceeds of the Loans in an aggregate amount not to
exceed the amount set forth in Section 2.01(a) may also be used to reimburse
PM&C, the Parent or PCC on a dollar-for-dollar basis for the actual amount of
funds expended by PM&C, the Parent or PCC to repurchase or redeem the Original
Subordinated Notes, and such reimbursement shall be treated as a use of proceeds
permitted under Section 2.01(a) for all purposes of this Agreement. In the event
the Parent repurchases Indebtedness or preferred Equity Securities of the Parent
or preferred and/or common Equity Securities of PCC after the Agreement
Effective Date and prior to the Closing Date with funds other than the proceeds
of any Loans, the proceeds of the Loans in an aggregate amount not to exceed the
amount set forth in Section 2.01(b) may also be used to reimburse the Parent on
a dollar-for-dollar basis for the actual amount of funds expended by the Parent
to repurchase such Indebtedness or preferred Equity Securities of the Parent or
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preferred and/or common Equity Securities of PCC, provided, at the time of such
reimbursement, no Indebtedness under the Original Subordinated Notes is then
outstanding. Notwithstanding the foregoing, until all Indebtedness of PM&C
outstanding under the Original Subordinated Notes has been repurchased or repaid
by PM&C in full, the proceeds of the Loans shall not be used for any other
purpose described in clauses (a)(ii) or (b) above other than the payment of fees
and expenses of the Borrower contemplated by the Transaction Documents as
permitted by clause (b) above; provided, however, that the Original Subordinated
Notes will not be deemed to be "outstanding" and will be deemed to have been
"paid in full" if (i) PM&C shall have given notice of redemption of all of the
Original Subordinated Notes to the Original Subordinated Note holders pursuant
to the Subordinated Indenture (or shall have irrevocably instructed the trustee
under the Subordinated Indenture to give such notice of redemption with a
redemption date to occur no later than the earlier of thirty-one (31) days after
the Closing Date and July 31, 2003), and (ii) PM&C shall have irrevocably
transferred to such trustee cash in an amount equal to the aggregate outstanding
amount of the Original Subordinated Notes plus all interest accrued and to
accrue on the Original Subordinated Notes to the redemption date specified in
the notice of redemption (which shall be no later than the earlier of thirty-one
(31) days after the Closing Date and July 31, 2003), and instructed such trustee
to apply such cash to the redemption of the Original Subordinated Notes on such
redemption date.
ARTICLE III
CONDITIONS OF MAKING THE LOANS.
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Section 3.01. Conditions to the Initial Loans. The obligations of the
Lenders to make the initial Loans to the Borrower hereunder are subject to the
following conditions (the date on which such conditions are satisfied or waived,
which date must occur on or prior to 5:00 p.m. (New York time) on the Commitment
Termination Date being herein called the "Closing Date"):
(a) Effectiveness of Certain Agreements. Each of this
Agreement, the Notes, the Security Agreement, the Indemnity Agreement and the
Warrant Agreements shall have become binding on the parties thereto on the
Agreement Effective Date in accordance with Section 13.15, the Agent shall have
received the certificate as to financial matters referred to in Section 13.15
and all Uniform Commercial Code Financing Statements required by the Agent or
its counsel shall have been filed on or before the Agreement Effective Date.
(b) Representations and Warranties. The representations and
warranties of the Borrower, the Parent and their respective Affiliates set forth
in this Agreement and in the other Loan Documents and the Transaction Documents
shall be true and correct in all material respects on and as of the date hereof
and on the Closing Date, except to the extent they relate specifically to an
earlier specified date or are affected by transactions or events occurring after
the Agreement Effective Date and permitted hereunder, and the Borrower shall
have performed all obligations which were to have been performed by it hereunder
on or prior to the Closing Date.
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(c) Transaction Documents and Organizational Documents. The
Borrower shall have executed and/or delivered to the Agent (or shall have caused
to be executed and delivered to the Agent by the appropriate Persons), the
following:
(i) Copies of the resolutions of the Board of Directors of
the Borrower, the Parent and PCC authorizing the execution and delivery of the
Transaction Documents to which it is a party, certified by the Secretary or an
Assistant Secretary of the Borrower, the Parent or PCC, as applicable, in form
and substance reasonably satisfactory to the Agent;
(ii) Copies of the Organizational Documents of PM&C, the
Borrower, the Parent and PCC with any amendments thereto, certified (as
applicable) by the appropriate Secretary of State and by the Secretary or an
Assistant Secretary of the Borrower in form and substance reasonably
satisfactory to the Agent;
(iii) For PM&C, the Borrower, the Parent and PCC
certificates of legal existence and good standing (both as to corporate law, if
applicable, and, if available, tax matters) issued as of a reasonably recent
date by such Person's state of organization or formation and any other state in
which such Person is authorized or qualified to transact business;
(iv) No later than three (3) Business Days prior to the
Closing Date, true and correct copies of the Organizational Documents of NRTC,
the NRTC Member Agreements and other DBS Agreements for the top five (5)
territories by revenue, and all third party consents and material contracts,
agreements, instruments and other documents specified in Schedules 4.04 and
4.20, all certified by an Authorized Officer of the Borrower in form and
substance reasonably satisfactory to the Agent;
(v) Such Uniform Commercial Code, Federal tax lien and
judgment searches with respect to PM&C, the Borrower, the Parent and PCC and any
other third parties as the Agent shall require, the results thereof to be
satisfactory to the Agent;
(vi) Certificates of insurance evidencing the insurance
coverage and policy provisions required in this Agreement; and
(vii) Such other supporting documents and certificates as
the Agent or the Lenders may reasonably request from time to time.
(d) Officer's Certificates as to Compliance, Documents, Etc.
The Borrower shall have provided to the Agent a compliance certificate in form
and substance reasonably satisfactory to the Agent, duly executed on behalf of
the Borrower by its chief executive officer, principal financial officer or
chief operating officer, certifying as to satisfaction by the Borrower of the
conditions to lending set forth in this Section 3.01 and in Section 3.02, if and
as applicable.
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(e) No Material Adverse Effect. As of the date hereof and as
of the Closing Date, and since December 31, 2002, no event or circumstance shall
have occurred which could have a Material Adverse Effect.
(f) Company Counsel Opinions. The Agent shall have received
the favorable written opinion of Drinker Xxxxxx & Xxxxx LLP, counsel to the
Borrower, dated as of the Closing Date, addressed to the Agent and the Lenders
and reasonably satisfactory to the Agent in scope and substance.
(g) Legal and Other Fees. As of the date hereof and as of the
Closing Date, all fees owed to the Agent, the Lenders and their respective
Affiliates under this Agreement and all legal fees and expenses of counsel to
the Agent incurred through such date shall have been paid in full.
(h) Review by Agent's Counsel. All legal matters incident to
the transactions hereby contemplated shall be reasonably satisfactory to counsel
for the Agent.
(i) Amendment to Credit Agreement. An amendment to the Credit
Agreement to permit the transactions contemplated by this Agreement, the other
Loan Documents and the Transaction Documents (including, without limitation,
amendments to the Credit Agreement which permit (i) dividends and distributions
by PM&C for the payment of interest, fees and expenses and all other amounts
(other than principal) due from time to time under this Agreement and the other
Loan Documents and interest due under the PSC 2001 Senior Notes, (ii) the
transfer of all record and beneficial ownership of all of the Equity Securities
of PM&C to the Borrower, (iii) a Lien on all present and future Equity
Securities of PM&C owned by the Borrower in favor of the Agent, (iv) the
Indebtedness under this Agreement, (v) amendments and waivers of the Loan
Documents without consent of the agent or lenders under the Credit Agreement and
(vi) the restrictions contained in Section 5.02, Section 7.02 and Section 7.13)
shall have become effective and binding upon the parties thereto (and all
conditions thereto and requirements thereunder shall have been satisfied), an
Authorized Officer of the Borrower shall have delivered to the Agent certified
copies of such amendment and such amendment shall not make any other changes or
modifications to the Credit Agreement which are prohibited under this Agreement
and shall be in form and substance reasonably satisfactory to the Agent.
(j) Intercreditor Agreement. The Intercreditor Agreement shall
have become effective and binding upon the parties thereto.
(k) PCC Letter Agreement. The PCC Letter Agreement shall have
become effective and binding upon the parties thereto.
(l) Amendments to Indentures. An amendment to each of the PSC
Exchange Indenture, the PSC 1997 Indenture, the PSC 1998 Indenture, the PSC 2001
Indenture, the Golden Sky Exchange Indentures and the PSC Subordinated Notes
Indenture to permit the transfer of all record and beneficial ownership of all
of the Equity Securities of PM&C by the Parent to the Borrower without any
requirement that the Borrower become an obligor or guarantor of any Indebtedness
under such Indentures shall have become effective and binding upon the parties
thereto and the noteholders under each such Indenture, an Authorized Officer of
the Borrower shall have delivered to the Agent certified copies of such
amendments and each such amendment shall be in form and substance reasonably
satisfactory to the Agent.
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(m) Transfer of PM&C Equity Securities. (i) The Parent shall
have contributed all of the Equity Securities of PM&C to the Borrower as a
capital contribution pursuant to documentation in form and substance reasonably
satisfactory to the Agent, free and clear of any Liens other than Liens
permitted under Section 7.02(j), (ii) the Borrower shall have delivered to the
Agent a certificate of an Authorized Officer of the Borrower in form and
substance reasonably satisfactory to the Agent certifying that all of the Equity
Securities of PM&C have been duly registered in the name of the Borrower and
pledged to the Agent pursuant to the Security Agreement, (iii) the agent under
the Credit Agreement shall have delivered to the Agent a certificate in form and
substance reasonably satisfactory to the Agent that the agent under the Credit
Agreement has possession of the certificates evidencing all of the Equity
Securities of PM&C owned by the Borrower, together with stock powers executed in
blank by the Borrower and is holding such certificates as bailee for the Agent
and the Lenders pursuant to the Intercreditor Agreement, (iv) PM&C shall have
delivered to the Agent a certificate of an Authorized Officer of PM&C in form
and substance reasonably satisfactory to the Agent certifying that all of the
Equity Securities of PM&C have been duly transferred to the Borrower, the Agent
has a valid and enforceable second-priority Lien on all of the Equity Interests
of PM&C and that PM&C shall make all cash dividends and distributions in respect
of the Equity Securities of PM&C only to the Borrower Collateral Account and (v)
the documentation evidencing (x) the Borrower's assumption of the Guaranty of
the Indebtedness of PM&C under the Credit Agreement permitted under Section
7.01(e) and (y) the pledge of all of the Equity Securities of PM&C owned by the
Borrower to the agent under the Credit Agreement permitted under Section 7.02(j)
shall have become effective and binding on the parties thereto and shall be in
form and substance reasonably satisfactory to the Agent.
(n) Organizational Documents of Borrower and PM&C. The Agent
shall have received reasonably satisfactory evidence that the Organizational
Documents of each of the Borrower and PM&C prohibit the Borrower and PM&C from
(i) directly or indirectly, defeasing, or making or committing to make any
principal prepayment of, or issuing any Indebtedness in exchange for, or
otherwise repurchasing, any Indebtedness of any Affiliate (other than, in the
case of the PM&C Organizational Documents, Indebtedness of any Subsidiary of
PM&C) and (ii) making any Restricted Payments under clauses (d), (g), (h), (i),
(j) or (k) of Section 5.02 during the existence of a Default.
(o) Collateral Account Control Agreement. The Collateral
Account Control Agreement shall have become effective and binding upon the
parties thereto, and the Agent shall have received satisfactory evidence that
the Borrower Collateral Account shall have been established by the Borrower.
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Section 3.02. All Loans. The obligations of the Lenders to make any
Loans (including the initial Loans made on the Closing Date) are, in each case,
subject to the following conditions:
(a) (i) All warranties and representations set forth in
this Agreement shall be true and correct in all material respects as of the
applicable Borrowing Date, except to the extent they relate specifically to an
earlier specified date or are affected by transactions or events occurring after
the Agreement Effective Date and permitted hereunder;
(ii) No Default shall have occurred and be continuing;
(iii) No default or event of default under the Credit
Agreement or any Permitted Indebtedness shall have occurred and be continuing;
and
(iv) After giving effect to such Loans and since December
31, 2002, no event shall have occurred and no circumstance shall exist that has
had, or could reasonably be expected to have, a Material Adverse Effect.
Each telephonic or written request for Loans shall constitute a representation
to such effect as of the date of such request and as of the date of such
borrowing.
(b) After giving effect to such Loans, no Default shall have
occurred and be continuing.
(c) After giving effect to such Loans, no default or event of
default under the Credit Agreement or any Permitted Indebtedness shall have
occurred and be continuing;
(d) The proceeds of the Loans shall be used solely for the
purposes described in Section 2.01.
(e) With respect to the initial Loans made on the Closing
Date, the Agent shall have received a properly completed Loan Request requesting
an aggregate amount of Original Principal of Loans on the Closing Date of not
less than $35,000,000 for the purpose described in Section 2.01(a), and, if
requested by the Agent, all such certified financial calculations as the Agent
shall reasonably require to substantiate the current and pro forma
certifications of leverage and no Default referred to in such Loan Request.
(f) With respect to each Loan made on any Borrowing Date
occurring after the Closing Date, the Agent shall have received a properly
completed Loan Request requesting an aggregate amount of Original Principal of
Loans on such Borrowing Date of not less than $10,000,000 (or, if less, the
remaining undrawn Commitment) for any purpose described in Section 2.01, and, if
requested by the Agent, all such certified financial calculations as the Agent
shall reasonably require to substantiate the current and pro forma
certifications of leverage and no Default referred to in such Loan Request.
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(g) As of each Borrowing Date, all fees owed to the Agent, the
Lenders and their respective Affiliates under this Agreement and all legal fees
and expenses of counsel to the Agent incurred through such Borrowing Date shall
have been paid in full.
Section 3.03. Lender Approvals. For purposes of determining compliance
with the conditions precedent referred to in Sections 3.01 and 3.02 in respect
of the first Loans hereunder, on the date of the first Loans hereunder, each of
the Lenders shall be deemed to have consented to, approved or accepted or be
satisfied with each document or other matter which is the subject of such
Lender's consideration under any of the provisions of such Sections, unless an
officer of the Agent responsible for the transactions contemplated by the Loan
Documents shall have received notice from such Lender prior to the first Loans
hereunder specifying its objection thereto and such Lender shall have failed to
make available to the Agent such Lender's ratable share of the first Loans.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES.
-------------------------------
The Borrower represents and warrants to the Agent and the Lenders
(which representations and warranties shall give effect to the consummation of
all of the transactions referred to in Section 3.01 and shall survive the
delivery of the Notes and the making of the Loans) that:
Section 4.01. Reports; Financial Statements.
(a) Since January 1, 2001 each of PCC, the Parent and PM&C
have duly filed all forms, reports, schedules, proxy statements and documents
required to be filed by it with the SEC. True and correct copies of all filings
made by PCC, the Parent or PM&C with the SEC since such date and prior to the
date hereof (the "SEC Reports"), whether or not required by law and including
any registration statement filed by PCC, the Parent or PM&C under the Securities
Act, have been either made available or are publicly available to the Agent. As
of their respective dates, the SEC Reports (other than preliminary material)
complied in all material respects with the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations of the SEC
thereunder applicable to such SEC Reports and none of the SEC Reports, at the
time filed, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. No other Person included in the Companies is subject to
periodic reporting requirements of the Exchange Act or is otherwise required to
file documents with the SEC or comparable Governmental Entity or any national
securities exchange or quotation service.
(b) The audited consolidated financial statements of each of
PCC, the Parent and PM&C for the year ended December 31, 2002, and the audited
and unaudited consolidated financial statements of PCC, the Parent and PM&C
included (or incorporated by reference) in the SEC Reports (the "Financial
Statements") comply when filed as to form in all material respects with
applicable accounting requirements and with the rules and regulations of the SEC
with respect thereto and were prepared in accordance with GAAP (except as may be
indicated in the notes thereto) and fairly present in all material respects the
consolidated financial position of PCC and its Subsidiaries, the Parent and its
Subsidiaries or PM&C and its Subsidiaries, as the case may be, as of their
respective dates, and the consolidated income, stockholders equity, results of
operations and changes in consolidated financial position or cash flows for the
periods presented therein, except that the unaudited interim financial
statements were or are subject to normal and recurring year-end adjustments. The
books and records of each of PCC, the Parent and PM&C and each of their
respective Subsidiaries accurately reflect in all material respects, the
transactions and accounts of such Persons.
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(c) The Borrower has heretofore furnished to the Lenders the
December 31, 2002 Consolidated balance sheet of the Companies showing their pro
forma financial condition after the consummation of any and all transactions
contemplated to have occurred as of the Closing Date, based upon the pro forma
application of proceeds of the Loans and other assumptions specified therein as
if they occurred on such date, attached as Schedule 4.01 (the "Opening Balance
Sheet").
(d) The Financial Statements have been prepared in accordance
with GAAP. Since December 31, 2002, there has been no material adverse change in
the assets, properties, business or condition (financial or otherwise) of PCC or
any of the Companies and, other than distributions permitted under the Credit
Agreement as in effect on the date hereof, no dividends or distributions have
been declared or paid by PCC or any of the Companies. Neither PCC nor any of the
Companies has any contingent obligations, liabilities for taxes or unusual
forward or long-term commitments except as specified in such Financial
Statements. The Opening Balance Sheet fairly represents the pro forma financial
condition of the Companies as of its date. All financial projections submitted
to the Lenders by the Borrower (including all projections set forth in the
Budget) are believed by the Borrower to be reasonable in light of all
information presently known by the Borrower. As of the date of this Agreement,
PCC has no Indebtedness other than its Series D and Series E preferred stock.
Section 4.02. Organization, Qualification, Etc. Each of PCC and the
Companies (a) is a corporation, limited partnership or limited liability
company, duly organized or formed, validly existing and in good standing under
the laws of its state of organization or formation, all as specified in Schedule
4.02, (b) has the power and authority to own its properties and to carry on its
business as now being conducted and as presently contemplated, and (c) is duly
qualified to transact business in the jurisdictions specified in such Schedule
4.02 and in each other jurisdiction where the nature of its activities requires
such qualification. As of the date of this Agreement none of the Companies or
PCC has any Subsidiaries, except as described in Schedule 4.20.
Section 4.03. Authorization; Compliance; Etc. The execution and
delivery of, and performance by the Borrower, the Parent and PCC of their
respective obligations under, this Agreement, the Notes, the Security Documents,
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the Loan Documents, the Warrant Agreements and the other agreements,
certificates (including certificates as to financial matters) and instruments
relating thereto (all of the foregoing being hereinafter referred to
collectively as the "Transaction Documents") are within their respective
corporate power, have been duly authorized by all requisite corporate action and
(subject to obtaining the consents specified in Schedule 4.04) will not violate
any provision of law (including without limitation the Communications Act of
1934, as amended, and all other rules, regulations, administrative orders and
policies of the FCC, the FAA, the Copyright Office and the rules and regulations
of NASDAQ), any order, judgment or decree of any court or other agency of
government, the Organizational Documents of PCC or any Company or any indenture,
agreement or other instrument to which any Company or PCC is a party, or by
which any Company or PCC is bound (including without limitation the PSC Exchange
Indenture, the PSC Exchange Notes, the PSC 1997 Indenture, the PSC 1997 Senior
Notes, the PSC 1998 Indenture, the PSC 1998 Senior Notes, the PSC 2001
Indenture, the PSC 2001 Senior Notes, the Golden Sky Exchange Indentures, the
Golden Sky Exchange Notes, the Subordinated Debt Documents, the PSC Preferred
Stock Designation, the PSC Subordinated Notes Indenture, the PSC Subordinated
Notes and any DBS Agreement), or be in conflict with, result in a breach of, or
constitute (with due notice or lapse of time or both) a default under, or except
as may be permitted under this Agreement, result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of the
property or assets of any Company or PCC pursuant to, any such indenture,
agreement or instrument. Each of the Transaction Documents constitutes the valid
and binding obligation of each of the Borrower, the Parent and PCC party
thereto, enforceable against such party in accordance with its terms, subject,
however to bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting the rights and remedies of creditors generally or the application of
principles of equity, whether in any action in law or proceeding in equity, and
subject to the availability of the remedy of specific performance or of any
other equitable remedy or relief to enforce any right under any such agreement.
Section 4.04. Governmental and Other Consents, Etc.
(a) Except for filings and recordings required under the
Security Documents and except as set forth in Schedule 4.04, none of the
Companies or PCC is required to obtain any consent, approval or authorization
from, to file any declaration or statement with or to give any notice to, any
Governmental Authority (including without limitation, any Specified Authority),
the NRTC, DirecTV, any Seller or any other Person (including, without
limitation, any notices required under the applicable bulk sales law) in
connection with or as a condition to the execution, delivery or performance of
any of the Transaction Documents. Except as set forth in such Schedule 4.04, all
consents, approvals and authorizations described in such Schedule have been duly
granted and are in full force and effect on the date hereof and all filings
described in such Schedule have been properly and timely made.
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(b) Notwithstanding the foregoing, (i) from time to time, the
Operating Companies may be required to obtain certain authorizations of or to
make certain filings with the FCC which are required in the ordinary course of
business, (ii) copies of certain documents, including without limitation certain
Transaction Documents, may be required to be filed with the FCC pursuant to 47
CFR ss.73.3613, (iii) the FCC must be notified of the consummation of any
assignments or transfers of control of FCC authorizations for any television
broadcast stations and ownership reports are required to be filed with the FCC
after such consummation pursuant to 47 CFR ss.73.3615, and (iv) prior to the
exercise of certain rights or remedies under the Loan Documents by the Agent or
the Lenders, FCC consents and notifications and the consent of the NRTC and
DirecTV with respect to such exercise may be required to be timely obtained or
made.
Section 4.05. Litigation. Except as specified in Schedule 4.05, there
is no action, suit or proceeding at law or in equity or by or before any
Governmental Authority (including without limitation any Specified Authority)
now pending or, to the knowledge of the Borrower, threatened (nor is any basis
therefor known to the Borrower), (a) which questions the validity of any of the
Transaction Documents, or any action taken or to be taken pursuant hereto or
thereto, in a manner or to an extent which could reasonably be expected to have
a Material Adverse Effect, or (b) against or affecting any Company or PCC which,
if adversely determined, either in any case or in the aggregate, would have a
Material Adverse Effect.
Section 4.06. Compliance with Laws and Agreements. Except as disclosed
in this Agreement, none of the Companies or PCC is a party to any agreement or
instrument or subject to any corporate, partnership or other restriction which
could have a Material Adverse Effect. None of the Companies or PCC is in
violation of any provision of its Organizational Documents or of any material
indenture, agreement or instrument to which it is a party or by which it is
bound (including without limitation the PSC Exchange Indenture, the PSC Exchange
Notes, the PSC 1997 Indenture, the PSC 1997 Senior Notes, the PSC 1998
Indenture, the PSC 1998 Senior Notes, the PSC 2001 Indenture, the PSC 2001
Senior Notes, the Golden Sky Exchange Indentures, the Golden Sky Exchange Notes,
the Subordinated Debt Documents, the PSC Preferred Stock Designation, the PSC
Subordinated Notes Indenture, the PSC Subordinated Notes and any DBS Agreement)
or, to the best of the Borrower's knowledge and belief, of any provision of law
(including without limitation the Communications Act of 1934, as amended, and
all other rules, regulations, administrative orders and policies of the FCC, the
FAA and the Copyright Office), the violation of which could have a Material
Adverse Effect, or any order, judgment or decree of any court or other
Governmental Authority (including without limitation any Specified Authority).
Without limiting the generality of the foregoing, all of the Obligations (a) are
permitted under, and do not and will not violate, the PSC Preferred Stock
Designation, the PSC Subordinated Notes Indenture, the PSC Subordinated Notes,
the PSC Exchange Indenture, the PSC Exchange Notes, the PSC 1997 Indenture, the
PSC 1997 Senior Notes, the PSC 1998 Indenture, the PSC 1998 Senior Notes, the
PSC 2001 Indenture, the PSC 2001 Senior Notes, the Golden Sky Exchange
Indentures, the Golden Sky Exchange Notes and the Subordinated Debt Documents;
and (b) constitute a "Bank Facility" and "Eligible Indebtedness" with respect to
obligations of the Borrower under the PSC Exchange Indenture, the PSC 1997
Indenture, the PSC 1988 Indenture, the PSC 2001 Indenture and the Golden Sky
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Exchange Indentures. Each of the Companies and PCC has devised and maintains
systems of internal accounting controls sufficient to provide reasonable
assurances, that (i) all material transactions are executed in accordance with
management's general or specific authorization, (ii) all material transactions
are recorded as necessary to permit the preparation of financial statements in
conformity with GAAP consistently applied or any other criteria applicable to
such statements, (iii) access to the property and assets of any of the Companies
or PCC, as the case may be, is permitted only in accordance with management's
general or specific authorization and (iv) the recorded amounts for items is
compared with the actual levels at reasonable intervals and appropriate action
is taken with respect to any differences.
Section 4.07. Licenses. Each FCC License is held by a License Company,
except FCC Licenses for Stations operated by the Operating Companies under LMAs.
The Operating Companies hold all Licenses (except for Stations operated under
LMAs) and all copyrights, licenses, trademarks, service marks, trade names and
other contract rights, including agreements with public utilities, use, access
or rental agreements, utility easements, network affiliation agreements, film
rental agreements and talent employment agreements that are necessary for the
operation of the Stations, free and clear of any Liens other than Permitted
Liens, except to the extent the absence thereof could not reasonably be expected
to have a Material Adverse Effect. Each of such Licenses, copyrights, licenses,
patents, trademarks, service marks, trade names and other rights and agreements
is in full force and effect and no material default by any Operating Company has
occurred and is continuing thereunder. As of the date hereof, except as limited
by the provisions of the Communications Act of 1934, as amended, and the FCC's
rules and regulations and as otherwise specified on the face of any FCC License,
none of the FCC Licenses is subject to any restriction or condition that would
limit in any material respect the operation of the business as it is now
conducted. Except as specified in Schedule 4.07, (a) there is not, as of the
date hereof, pending or to, the knowledge of the Borrower threatened any action
by or before the FCC to revoke, cancel, rescind or modify (including a reduction
in coverage area) any of the FCC Licenses (other than proceedings to amend FCC
rules of general applicability) or refuse to renew the FCC Licenses, and (b)
there is not now issued or outstanding, pending or, to the knowledge of the
Borrower threatened by or before the FCC, any order to show cause, notice of
violation, notice of apparent liability, or notice of forfeiture or complaint
against any of the Operating Companies with respect to any of the FCC Licenses.
Except as specified in Schedule 4.07, none of the FCC Licenses is the subject of
a pending license renewal application and the Borrower has no reason to believe
that any of the FCC Licenses will be revoked or will not be renewed in the
ordinary course.
Section 4.08. The Stations.
(a) Each of the Operating Companies and the Stations is in
compliance with all applicable federal, state and local laws, rules and
regulations, including without limitation, the Telecommunications Act of 1996,
the Communications Act of 1934, as amended, and the rules and policies of the
FCC and all rules and laws governing equal employment opportunity, except to the
extent that the failure to so comply could not (either individually or in the
aggregate) reasonably be expected to have a Material Adverse Effect. Without
limiting the generality of the foregoing (except to the extent that the failure
to comply with any of the following could not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect):
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(i) the Operating Companies have filed all material
reports and other submissions required to be filed with the FCC by the Operating
Companies or any of them with respect to the Stations and their operations;
(ii) the operation of the Stations is in compliance in all
material respects with ANSI Standards C95.1-1982 to the extent required under
applicable rules and regulations;
(iii) all of the existing towers used in the operation of
the Stations are obstruction-marked and lighted to the extent required by, and
in accordance with, the rules and regulations of the FAA and appropriate
notification to the FAA has been filed for each such tower where required by the
rules and policies of the FCC;
(iv) the Stations are in compliance with Part V of Title
VI of the Communications Act of 1934, as amended, as well as any and all rules
and policies adopted by the FCC to implement said Part V;
(v) the Stations are being operated in compliance with the
applicable Licenses; and
(vi) the Stations are in compliance with the provisions of
the Communications Decency Act of 1996 in effect, as well as any and all FCC
rules and policies in effect to implement such Act.
(b) No FCC proceedings against any of the Operating Companies
in respect of EEO violations are pending or, to the Borrower's best knowledge,
threatened.
(c) The assets of the Stations are adequate and sufficient for
all of the current operations of the Stations as contemplated as of the date
hereof.
Section 4.09. DBS Rights. The DBS Subsidiaries possess all DBS
Agreements, all exclusive DBS Rights and all copyrights, licenses, trademarks,
service marks, trade names and other contract rights necessary for the operation
of the Operating Companies' DBS businesses, including the distribution of DBS
services, free and clear of any Liens other than Permitted Liens, except to the
extent the absence of such rights could not reasonably be expected to have a
Material Adverse Effect. Each of such DBS Agreements, copyrights, licenses,
trademarks, service marks, trade names and other contract rights is in full
force and effect and no material default has occurred and is continuing
thereunder.
-23-
Section 4.10. Title to Properties; Condition of Properties.
(a) The Companies and PCC have good title to all of their
properties and assets free and clear of all Liens (other than FCC restrictions
on the transfer of equity interests or FCC Licenses) of any kind, except
Permitted Liens.
(b) Each of the Companies and PCC enjoys quiet possession
under all leases (including without limitation the tower and transmitter sites
used in the operation of the Stations) to which it is a party as lessee, and all
of such leases are valid, subsisting and in full force and effect. None of such
leases contains any provision restricting the incurrence of indebtedness by the
lessee and the same constitutes the only leases necessary in connection with the
conduct by the Companies and PCC of their businesses as presently conducted.
Section 4.11. Interests in Other Businesses. Except as reflected in
Schedule 4.11 hereto, none of PCC or the Companies holds or owns any of the
issued and outstanding capital stock, partnership interests, membership
interests or similar equity interests, or any rights to acquire the same, of any
corporation, partnership, limited liability company, firm or entity other than
as specified or permitted in this Agreement.
Section 4.12. Solvency.
(a) The aggregate amount of the full saleable value of the
assets and properties of each Company and PCC exceeds the amount that will be
required to be paid on or in respect of such Company's or PCC's existing debts
and other liabilities (including contingent liabilities) as they mature.
(b) No Company's or PCC's assets and properties constitute
unreasonably small capital for such Company or PCC to carry out its business as
now conducted and as proposed to be conducted, including such Company's or PCC's
capital needs, taking into account the particular capital requirements of such
Company's or PCC's business and the projected capital requirements and capital
availability thereof.
(c) The Companies and PCC do not intend to, nor will the
Companies or PCC, incur debts beyond their ability to pay such debts as they
mature, taking into account the timing and amounts of cash reasonably
anticipated to be received by each Company or PCC and the amounts of cash
reasonably anticipated to be payable on or in respect of each Company's or PCC's
obligations. The Companies' and PCC's aggregate cash flow, after taking into
account all anticipated sources and uses of cash, will at all times be
sufficient to pay all such amounts on or in respect of their indebtedness when
such amounts are required to be paid.
(d) The Borrower believes that no reasonably anticipated final
judgment in a pending action or, to its knowledge, any threatened actions for
money damages will be rendered at a time when, or in an amount such that, any
Company or PCC will be unable to satisfy such judgments promptly in accordance
with their terms (taking into account the maximum reasonable amount thereof and
the earliest reasonable time at which such judgments might be rendered). The
cash available to each Company and PCC, after taking into account all other
anticipated uses of cash (including the payment of all such Company's and PCC's
indebtedness) is anticipated to be sufficient to pay any such judgments promptly
in accordance with their terms.
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(e) No Company or PCC is contemplating either the filing of a
petition by it under any state or federal bankruptcy or insolvency laws or the
liquidating of all or a substantial portion of its property, and the Borrower
has no knowledge of any Person contemplating the filing of any such petition
against any Company or PCC.
Section 4.13. Full Disclosure; Absence of Certain Changes. No statement
of fact made by or on behalf of any Person other than the Lenders in this
Agreement, the Security Documents, the Transaction Documents or in any
certificate or schedule furnished to the Lenders pursuant hereto or thereto
contains any untrue statement of a material fact or omits to state any material
fact necessary to make statements contained therein or herein not misleading.
There is no fact presently known to the Borrower which has not been disclosed to
the Lenders in writing which has had or, as far as the Borrower can reasonably
foresee, could have a Material Adverse Effect, other than facts and
circumstances generally known within the broadcast television and DBS
industries. Except (i) for liabilities incurred in connection with this
Agreement or the transactions contemplated hereby, (ii) as disclosed by the SEC
Reports or (iii) as set forth in Schedule 4.01, 4.02, 4.04, 4.05, 4.11, 4.13,
4.16, 4.17 or 4.20 to this Agreement, since December 31, 2002 (A) none of the
Companies or PCC have suffered any change, condition, event or development that
has had, or could reasonably be expected to have, a Material Adverse Effect, (B)
each of the Companies and PCC have conducted in all material respects their
respective businesses only in the ordinary course consistent with past practice,
except for the negotiation and execution and delivery of this Agreement and (C)
no Consolidated Company has (i) incurred any Indebtedness or Guarantee, (ii)
granted any Lien to any Person, (iii) made any Restricted Payment or Investment
or (iv) entered into any transaction (including any merger or consolidation)
with any Person, except, in each case, as would be permitted under this
Agreement.
Section 4.14. Margin Stock. As of the Agreement Effective Date, except
for (i) common stock of SpectraSite, Inc. owned by the Operating Companies on
the Agreement Effective Date and (ii) common stock of PCC owned by the Parent on
the Agreement Effective Date, the Companies and PCC do not own any "margin
stock" within the meaning of Regulation U (12 CFR Part 221), of the Board of
Governors of the Federal Reserve System (herein called "Margin Stock"). The
Borrower does not own or have any present intention of acquiring any Margin
Stock.
Section 4.15. Tax Returns. Each of the Companies and PCC has filed all
federal, state and local tax and information returns required to be filed, and
has paid or made adequate provision for the payment of all material federal,
state and local taxes, franchise fees, charges and assessments shown thereon.
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Section 4.16. Pension Plans, Etc.
(a) Except as described in Schedule 4.16, neither the Borrower
nor any member of the Controlled Group has any pension, profit sharing or other
similar plan providing for a program of deferred compensation to any employee.
(b) Neither the Borrower nor any member of the Controlled
Group has any material liability (i) under Section 412 of the Code for failure
to satisfy the minimum funding requirements for pension plans, (ii) as the
result of the termination of a defined benefit plan under Title IV of ERISA,
(iii) under Section 4201 of ERISA for withdrawal or partial withdrawal from a
multiemployer plan, or (iv) for participation in a prohibited transaction with
an employee benefit plan as described in Section 406 of ERISA and Section 4975
of the Code.
Section 4.17. Material Agreements. Except as disclosed on Schedule
4.17, all agreements, if any, among the equityholders of PCC, and the Companies
and all material, acquisition, construction, engineering, management,
consulting, film rental, time brokerage, local marketing network affiliation,
employment and other agreements, if any, which are reasonably necessary for the
operation of the business of PCC and the Companies, including without limitation
the acquisition, construction, extension and/or operation of the Stations, the
distribution of DBS services and all such agreements filed as an exhibit or
otherwise described or disclosed in any SEC Report, are in full force and effect
and no material default by any party thereto has occurred and is continuing
thereunder.
Section 4.18. [Intentionally omitted.]
Section 4.19. Brokers, Etc. None of the Companies or PCC has dealt with
any broker, finder, commission agent or other similar Person in connection with
the Loans or the transactions contemplated by this Agreement or is under any
obligation to pay any broker's fee, finder's fee or commission in connection
with such transactions.
Section 4.20. Capitalization. Attached as Schedule 4.20 is a
description of the ownership relationships among the Companies and PCC, showing,
as to the Companies and PCC, accurate ownership percentages of the equityholders
of record and accompanied by a statement of authorized and issued Equity
Securities for each such entity as of the date hereof. Such Schedule 4.20 also
states, as of the date hereof (a) which Equity Securities, if any, carry
preemptive rights; (b) to the best of the Borrower's knowledge whether there are
any outstanding subscriptions, warrants or options to purchase any Equity
Securities; (c) whether any Company or PCC is obligated to redeem or repurchase
any of its Equity Securities, and the details of any such committed redemption
or repurchase; and (d) any other agreement, arrangement or plan to which any
Company or PCC is a party or participant or of which any Company or PCC has
knowledge which will directly or indirectly affect the capital structure of the
Companies or PCC. All such Equity Securities of the Companies and PCC are
validly issued and fully paid and non-assessable, and owned as set forth on such
Schedule 4.20. All such Equity Securities of the Companies and PCC are owned,
legally and beneficially, free of any Lien, except for Permitted Liens and
restrictions on transfer imposed by applicable securities laws indicated on the
certificates evidencing such shares or as may be imposed by the FCC or local
franchising authorities.
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Section 4.21. Environmental Compliance. Except for matters that,
individually and in the aggregate, would not reasonably be expected to have a
Material Adverse Effect:
(a) To the best of the Borrower's knowledge, all real property
leased, owned, controlled or operated by the Companies or PCC (the "Properties")
and the existing and, to the best of the Borrower's knowledge, prior uses and
activities thereon, including, but not limited to, the use, maintenance and
operation of each of the Properties and all activities in conduct of business
related thereto comply and have at all times complied in all material respects
with all Environmental Laws.
(b) None of the Companies or PCC and, to the best of the
Borrower's knowledge, no previous owner, tenant, occupant or user of any of the
Properties or any other Person, has engaged in or permitted any operations or
activities upon any of the Properties for the purpose of or in any way involving
the handling, manufacture, treatment, storage, use, generation, release,
discharge, refining, dumping or disposal of a material amount of any Hazardous
Materials the removal of which is required by, or the maintenance of which
constitutes a violation of, Environmental Laws.
(c) To the best of the Borrower's knowledge, no Hazardous
Material has been or is currently located in, on, under or about any of the
Properties in a manner which materially violates any Environmental Law or which
requires cleanup or corrective action of any kind under any Environmental Law.
(d) No notice of violation, lien, complaint, suit, order or
other notice or communication concerning any alleged violation of any
Environmental Law in, on, under or about any of the Properties has been received
by any Company or PCC or, to the best of the Borrower's knowledge, any prior
owner or occupant of any of the Properties which has not been fully satisfied
and complied with in a timely fashion so as to bring such Property into full
compliance with all Environmental Laws.
(e) The Companies and PCC have all permits and licenses
required under any Environmental Law to be issued to them by any Governmental
Authority on account of any or all of its activities on any of the Properties,
except to the extent that the absence of any such permit or license has had, or
could have, a Material Adverse Effect, and are in material compliance with the
terms and conditions of such permits and licenses. To the best of the Borrower's
knowledge, no change in the facts or circumstances reported or assumed in the
application for or granting of such permits or licenses exist, and such permits
and licenses are in full force and effect.
(f) No portion of any of the Properties has been listed,
designated or identified in the National Priorities List (NPL) or the CERCLA
information system (CERCLIS), both as published by the United States
Environmental Protection Agency, or any similar list of sites published by any
Federal, state or local authority proposed for or requiring cleanup, or remedial
or corrective action under any Environmental Law.
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Section 4.22. Investment Company Act. None of the Companies or PCC is
an "investment company" within the meaning of the Investment Company Act of
1940, as amended, or a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company," or of a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
Section 4.23. Labor Matters. No Company or PCC is experiencing any
strike, labor dispute, slow down or work stoppage due to labor disagreements
which has had, or could reasonably be expected to have, a Material Adverse
Effect; there is no such strike, dispute, slow down or work stoppage threatened
against any Company or PCC, to the best of the Borrower's knowledge, none of the
Companies or PCC is subject to any collective bargaining or similar
arrangements.
Section 4.24. Delaware Code Provisions. None of the Organizational
Documents of the Companies or PCC contains any provision similar to those set
forth in Section 102(b)(2) of Title 8 of the Delaware Code.
ARTICLE V
FINANCIAL COVENANTS.
--------------------
The Borrower covenants and agrees that, from and after the Agreement
Effective Date, so long as any Lender has any obligation (whether or not subject
to any conditions) to extend credit to the Borrower hereunder, and for so long
thereafter as there remains outstanding any portion of any Obligation, whether
now existing or arising hereafter:
Section 5.01. Leverage.
(a) PSC Leverage. At all times, the Parent will maintain a PSC
Leverage Ratio which is less than 7.00:1.00.
(b) Borrower Leverage. At all times, during each period
indicated below, the Consolidated Companies will maintain a ratio of Total
Funded Debt to Annualized EBITDA (the "Borrower Leverage Ratio") of not more
than the following:
Period Maximum Ratio
------ -------------
The Agreement Effective Date through and including 2.50:1.00
June 30, 2005
Thereafter 3.00:1.00
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For purposes of this covenant, Annualized EBITDA shall be determined on a pro
forma basis after giving effect to all Acquisitions and Dispositions made by the
Operating Companies at any time during the applicable fiscal periods, in each
case as if such Acquisitions and Dispositions had occurred at the beginning of
such fiscal period and calculated in a manner reasonably satisfactory to the
Agent.
Section 5.02. Restricted Payments. The Consolidated Companies will not
directly or indirectly declare, order, pay or make any Restricted Payment or set
aside any sum or property therefor except as follows:
(a) The Consolidated Companies may pay monthly Management Fees
to the Manager; provided that such payments shall not exceed, during any period
of twelve (12) consecutive months, the lesser of (i) the actual cost of
providing management and administrative support services to the Consolidated
Companies (other than the Special Purpose Subsidiary) for such period and (ii)
120% of Management Fees paid to the Manager for the 12 month period immediately
preceding such period.
(b) The Subsidiaries of PM&C may (A) pay dividends and make
distributions to PM&C or other Subsidiaries of PM&C holding equity interests in
the payor, (B) repay indebtedness owed to PM&C or to Subsidiaries of PM&C and
(C) make intercompany loans to one another subject to the limitations set forth
in Section 7.05.
(c) PM&C may make intercompany loans to, and may repay
intercompany loans made to it by, Subsidiaries of PM&C.
(d) PM&C may (A) make regularly scheduled payments (but not
prepayments) of interest under the Original Subordinated Notes and (B)
repurchase or redeem the Original Subordinated Notes in full or in part as
provided in Section 2.01 with the proceeds of Loans permitted under Section 3.02
or with the proceeds of loans made under the Credit Agreement (to the extent
such use is permitted thereunder), provided that no Default shall exist as of
the date of any such payment or repurchase or after giving effect thereto
(calculated both as of such date and on a pro forma basis as of the end of and
for the fiscal period(s) most recently ended prior thereto for which financial
statements are required to be provided under Section 6.05).
(e) PM&C may pay dividends or distributions to the Borrower
from time to time solely for the purpose of making payments of principal,
interest, fees or other Obligations in respect of the Notes and the other
Obligations under this Agreement and the other Loan Documents.
(f) PM&C may make Tax Sharing Payments to the Borrower
provided that the same shall reflect adjustments for all credits and deductions
enjoyed by the Borrower.
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(g) PM&C may pay dividends or distributions to the Borrower
(and, prior to the Closing Date, directly to the Parent) to permit the Borrower
to make further dividends and distributions to the Parent permitted to be made
by the Borrower under this Section 5.02, provided that no Default shall exist as
of the date of the proposed payment or after giving effect thereto (calculated
both as of such date and on a pro forma basis as of the end of and for the
fiscal period(s) most recently ended prior thereto for which financial
statements are required to be provided under Section 6.05).
(h) Borrower may pay dividends or distributions to the Parent
solely for the purpose of financing regularly scheduled payments of interest
(but not prepayments) due and payable within 30 days of the date of such
dividend or distribution under the PSC 1997 Senior Notes, the PSC 1998 Senior
Note, the PSC 2001 Senior Notes, the PSC Exchange Notes, the Golden Sky Exchange
Notes and any other Indebtedness of the Parent permitted under Section 7.01,
provided that no Default shall exist as of the date of the proposed payment or
after giving effect thereto (calculated both as of such date and on a pro forma
basis as of the end of and for the fiscal period(s) most recently ended prior
thereto for which financial statements are required to be provided under Section
6.05).
(i) Borrower may pay dividends or distributions to the Parent
from time to time solely for the purpose of (A) funding out-of-pocket legal fees
and expenses incurred in connection with (1) the litigation encaptioned Pegasus
Development Corporation et al. v. DirecTv Inc. et al., pending in the United
States District Court for the District of Delaware (the "Patent Litigation") and
(2) the litigations involving the NRTC or DirecTV as named parties that are
reasonably related to the enforcement or interpretation of the Operating
Companies' DBS Rights, including the consolidated cases encaptioned Pegasus
Satellite Television Inc. et. al. v. DirecTV Inc., et al. pending in the United
States District Court for the Central District of California (the "DBS Rights
Litigation," and, collectively with the Patent Litigation, the "Litigation") and
any appeals in the Litigation, in an aggregate amount in any fiscal year not to
exceed the lesser of (x) the actual out-of-pocket legal fees and expenses
incurred by the Companies, PCC or any of its Subsidiaries other than the
Companies in connection with the Litigation in such fiscal year and (y)
$22,000,000 and (B) funding non-recurring transition costs relating to
efficiency initiatives intended to reduce operating costs and improve financial
performance of any Company or PCC in an aggregate amount during the term of this
Agreement not to exceed $13,000,000; provided that no Default shall exist as of
the date of the proposed payment or after giving effect thereto (calculated both
as of such date and on a pro forma basis as of the end of and for the fiscal
period(s) most recently ended prior thereto for which financial statements are
required to be provided under Section 6.05); provided, further that (I) the Net
DBS Rights Litigation Proceeds of any judgment or settlement of the DBS Rights
Litigation shall first be used to reimburse the Operating Companies for all such
out-of-pocket legal costs and expenses funded under this clause (I) and
thereafter (A) the lesser of fifty percent (50%) or $50,000,000 of such Net DBS
Rights Litigation Proceeds shall be applied by the Operating Companies to
permanently retire principal of, or permanently reduce any commitments in
respect of, Indebtedness of the Borrower or PM&C (other than the Original
Subordinated Notes) and (B) the remaining Net DBS Rights Litigation Proceeds
shall be used by the Operating Companies for
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Permitted Acquisitions or the acquisition, within 180 days of the receipt of
such Net DBS Rights Litigation Proceeds (or, if one or more definitive
agreements with respect to Permitted Acquisitions are entered into within such
180 day period, within 360 days following the receipt of such Net DBS Rights
Litigation Proceeds), of tangible assets or the payment of other capitalized
costs used or useful in the DBS Business or broadcast business of any Operating
Company and (II) the proceeds of any judgment or settlement of the Patent
Litigation shall be used to reimburse the Operating Companies for all such
out-of-pocket legal costs and expenses incurred by the Operating Companies in
connection with the Patent Litigation funded under this clause (II).
(j) Borrower may pay dividends or distributions to the Parent
from time to time solely for the purpose of funding (or reimbursing the Parent
for funding) the repurchase of Indebtedness and Equity Securities of the Parent
or PCC solely with the proceeds of the Loans to the extent permitted by Section
2.01, provided that no Default shall exist as of the date of the proposed
payment or after giving effect thereto (calculated both as of such date and on a
pro forma basis as of the end of and for the fiscal period(s) most recently
ended prior thereto for which financial statements are required to be provided
under Section 6.05).
(k) In addition to the foregoing, the Borrower may pay further
dividends or distributions to the Parent from time to time, provided that (i) no
Default shall exist as of the date of the proposed payment or after giving
effect thereto (calculated both as of such date and on a pro forma basis as of
the end of and for the fiscal period(s) most recently ended prior thereto for
which financial statements are required to be provided under Section 6.05) and
(ii) the aggregate amount of all such dividends or distributions paid by
Borrower (or, after the Agreement Effective Date but prior to the Closing Date,
PM&C) to the Parent from and after the Agreement Effective Date minus the
aggregate amount of all cash equity contributions made by the Parent to the
Borrower (or, after the Agreement Effective Date but prior to the Closing Date,
PM&C) which the Borrower contributes to PM&C from and after the Agreement
Effective Date shall not exceed an amount equal to the sum of (x) $50,000,000
plus (y) an amount equal to $15,000,000 for each anniversary of the Closing Date
to occur on or after the second anniversary of the Closing Date; provided,
further, that the aggregate amount of all such dividends and distributions paid
from and after the Agreement Effective Date pursuant to this subsection (k) for
the purpose of (x) purchasing, redeeming or making principal or any other
payments to or on account of any Indebtedness or Equity Securities of the Parent
or PCC or (y) making accrued or current dividend payments on any Equity
Securities of the Parent or PCC shall not exceed $50,000,000 in the aggregate.
(l) The L/C Subsidiary may pay dividends and make
distributions to the Borrower to be held in the L/C Collateral Account and
disbursed in accordance with Section 6.12.
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ARTICLE VI
AFFIRMATIVE COVENANTS.
----------------------
The Borrower hereby covenants and agrees to and with each of the
Lenders that, from and after the Agreement Effective Date, so long as any Lender
has any obligation (whether or not subject to any conditions) to extend credit
to the Borrower hereunder, and for so long thereafter as there remains
outstanding any portion of any Obligation, whether now existing or hereafter
arising, each of the Companies shall:
Section 6.01. Preservation of Assets; Compliance with Laws, Etc.
(a) Do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its corporate, partnership or limited
liability company existence, as the case may be, all material rights, licenses,
permits and franchises (including all material FCC Licenses and DBS Agreements)
and comply in every material respect with all laws and regulations applicable to
it (including without limitation the Communications Act of 1934, as amended, and
all other rules, regulations, administrative orders and policies of the FCC and
the FAA) and all material agreements to which it is a party, including without
limitation all material DBS Agreements, and all agreements with its
equityholders the violation of which could have a Material Adverse Effect;
(b) at all times maintain, preserve and protect all material
trade names and proprietary rights;
(c) at all times maintain in full force and effect a License
Agreement between each Subsidiary holding Station assets and the related License
Subsidiary, and provide a true and complete copy thereof to the Agent; and
(d) preserve all the remainder of its material property used
or useful in the conduct of its business and keep the same in good repair,
working order and condition (reasonable wear and tear and damage by fire or
other casualty excepted), and from time to time, make or cause to be made all
needful and proper repairs, renewals, replacements, betterments and improvements
thereto, so that the business carried on in connection therewith may be
conducted at all times in the ordinary course in a manner substantially
consistent with past practices.
Section 6.02. Insurance.
(a) Keep all of its insurable properties now or hereafter
owned adequately insured at all times against loss or damage by fire or other
casualty to the extent customary with respect to like properties of companies
conducting similar businesses; maintain public liability, business interruption,
broadcasters' liability and workers' compensation insurance insuring such
Company to the extent customary with respect to companies conducting similar
businesses; maintain at all times an aggregate of at least $25,000,000 in key
man life insurance insuring Xxxxxxxx X. Xxxxx, all by financially sound and
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reputable insurers, and, in each case, furnish to the Lenders satisfactory
evidence of the same (including certification by an Authorized Officer of the
Borrower of timely renewal of, and timely payment of all insurance premiums
payable under, all such policies, which certification shall be included in the
next succeeding Compliance Report delivered pursuant to Section 6.05(d)); notify
each of the Lenders of any material change in the insurance maintained on its
properties after the date hereof and furnish each of the Lenders satisfactory
evidence of any such change; maintain insurance with respect to its tower,
transmission and/or studio facilities and related equipment in an amount equal
to the full replacement cost thereof.
Section 6.03. Taxes, Etc. Pay and discharge or cause to be paid and
discharged all taxes, assessments and governmental charges or levies imposed
upon it or upon its income and profits or upon any of its property, real,
personal or mixed, or upon any part thereof, before the same shall become in
default, as well as all lawful claims for labor, materials and supplies or
otherwise, which, if unpaid, might become a lien or charge upon such properties
or any part thereof; provided that no Company shall be required to pay and
discharge or cause to be paid and discharged any such tax, assessment, charge,
levy or claim so long as the validity thereof shall be contested in good faith
by appropriate proceedings and it shall have set aside on its books adequate
reserves with respect to any such tax, assessment, charge, levy or claim, so
contested; and provided, further that, in any event, payment of any such tax,
assessment, charge, levy or claim shall be made before any of its property shall
be seized or sold in satisfaction thereof.
Section 6.04. Notice of Proceedings, Defaults, Adverse Change, Etc.
Promptly (and in any event within five (5) days after the discovery by the
Borrower thereof) give written notice to each of the Lenders of (a) any
proceedings instituted or threatened against it by or in any federal, state or
local court or before any commission or other regulatory body, whether federal,
state or local (including without limitation any Specified Authority), which, if
adversely determined, could have a Material Adverse Effect; (b) any notices of
default received by any Company (together with copies thereof, if requested by
any Lender) with respect to (i) any alleged default under or violation of any of
its material licenses, permits or franchises, including any FCC License or under
any DBS Agreement or other material agreement to which it is a party, or (ii)
any alleged default with respect to, or redemption or acceleration or other
action under, the Credit Agreement, the PSC Preferred Stock Designation, the PSC
Subordinated Notes Indenture, the PSC Subordinated Notes, the Subordinated Debt
Documents, the PSC Exchange Indenture, the PSC Exchange Notes, the PSC 1997
Senior Notes, the PSC 1998 Indenture, the PSC 1998 Senior Notes, the PSC 2001
Indenture, the PSC 2001 Senior Notes, the Golden Sky Exchange Indentures, the
Golden Sky Exchange Notes, any material Acquisition Agreement, any L/C Facility,
any PM&C L/C Facility or any evidence of material Indebtedness of any Company or
any mortgage, indenture or other agreement relating thereto; (c) (i) any notice
of any material violation or administrative or judicial complaint or order filed
or to be filed against any Company and/or any real property owned or leased by
it alleging any violations of any law, ordinance and/or regulation or requiring
it to take any action in connection with the release and/or clean-up of any
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Hazardous Materials, or (ii) any notice from any governmental body or other
Person alleging that any Company is or may be liable for costs associated with a
release or clean-up of any Hazardous Materials or any damages resulting from
such release; (d) any change in the condition, financial or otherwise, of any
Company or PCC which has, or could have, a Material Adverse Effect; (e) the
occurrence of any Default; or (f) any transaction with any Affiliate other than
any transaction with an Affiliate permitted under clause (a), (b) or (c) of
Section 7.12.
Section 6.05. Financial Statements and Reports. Furnish to the Agent
(with multiple copies for each of the Lenders, which the Agent shall promptly
provide to the respective Lenders):
(a) As soon as available but, in any event, within one hundred
twenty (120) days after the end of each fiscal year, (i) the Consolidated
balance sheets and statements of income, equity and cash flows of the Parent and
(ii) the Consolidated and Consolidating balance sheets and statements of income,
equity and cash flows of the Operating Companies, together with supporting
schedules in form and substance satisfactory to the Agent (and accompanied by an
unaudited breakdown of revenues, expenses and EBITDA for each Operating
Company), audited by, and delivered with the opinion of, independent certified
public accountants selected by the Borrower and reasonably acceptable to the
Agent (the "Accountants"), which opinion (A) shall not be qualified as to going
concern or scope of audit, (B) shall be to the effect that such financial
statements present fairly the Consolidated financial condition and results of
operation of the Parent or the Operating Companies, as the case may be, as of
the dates and for the periods indicated, in accordance with GAAP applied on a
basis consistent with that of the preceding year, and shall otherwise be in form
reasonably satisfactory to the Agent, and (C) shall be accompanied by a report
by the Accountants to the effect that the Accountants have examined the
provisions of this Agreement and that, to the best of their knowledge, no Event
of Default has occurred under Section 5.1 (or, if such an event has occurred, a
statement explaining its nature and extent); provided, however, that in issuing
such statement, the Accountants shall not be required to exceed the scope of
normal auditing procedures conducted in connection with their opinion referred
to above;
(b) Within forty-five (45) days after the end of (A) each of
the first three quarters in each fiscal year and (B) to the extent required to
be delivered under the Credit Agreement, the fourth quarter in each fiscal year
(i) the Consolidated balance sheets and statements of income, equity and cash
flows of the Parent and (ii) the Consolidated and Consolidating balance sheets
and statements of income, equity and cash flows of the Operating Companies,
together with supporting schedules, setting forth in each case in comparative
form the corresponding figures from the preceding fiscal period of the same
duration, prepared by the Parent or PM&C, as the case may be, in accordance with
GAAP (except for the absence of notes) and certified by an Authorized Officer of
the Borrower or PM&C, as the case may be, such balance sheets to be as of the
close of such quarter, and such statements of income, equity and cash flow to be
for the quarter then ended and the period from the beginning of the then current
fiscal year to the end of such quarter (in each case subject to normal audit and
year-end adjustments) and to include, in the case of the Operating Companies'
financial statements, (i) a comparison of actual results to results for the
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comparable period of the preceding fiscal year (if available) and projected
results set forth in the Budget for such period, (ii) a breakdown of Location
Cash Flow for the DBS Subsidiaries and for PM&C's other Subsidiaries and (iii)
if and to the extent prepared by the Parent or PM&C, a breakdown of revenues,
expenses and EBITDA for each Operating Company;
(c) Within forty-five (45) days after the end of each month,
the Consolidated and Consolidating balance sheets and statements of income of
the Operating Companies, together with supporting schedules, prepared by PM&C in
accordance with GAAP (except for the absence of notes) and certified by an
Authorized Officer of the Borrower or PM&C, as the case may be, such balance
sheets to be as of the end of such month and such income statements to be for
the period from the beginning of the then current fiscal year to the end of such
month (subject to normal audit and year-end adjustments);
(d) Concurrently with the delivery of any annual financial
statements required by Section 6.05(a) and any quarterly financial statements
required by Section 6.05(b), a certified report (hereafter, a "Compliance
Report") in form and substance reasonably satisfactory to the Agent, with
appropriate calculations, including a detailed breakout of Subscriber
Acquisition Costs, signed on behalf of the Borrower by an Authorized Officer of
the Borrower, setting forth the calculations contemplated in Article V of this
Agreement and certifying as to the fact that such Person has examined the
provisions of this Agreement and that no Default has occurred and is continuing
(or if a Default exists, a statement explaining its nature and extent);
(e) (i) On or before February 15 of each fiscal year, an
updated quarterly budget approved by the Board of Directors of the Borrower,
including planned capital expenditures and projected borrowings for such fiscal
year, with updated projections showing financial covenant compliance
(collectively, the "Budget"), for the operation of the Operating Companies'
businesses during the current fiscal year, setting forth in detail reasonably
satisfactory to the Agent the projected results of operations of the Operating
Companies and stating underlying assumptions, and (ii) within five (5) days
after the effective date thereof, notice of any material changes or
modifications in the Budget (which shall not include changes resulting from
non-material adjustments to the timing of any proposed borrowings);
(f) As soon as reasonably possible and in any event within
forty-five (45) days after the end of each fiscal quarter and each month, one or
more certificates of a responsible officer of the Borrower (collectively, the
"Subscriber Reports"), setting forth in reasonable detail as to the operations
of the DBS Subsidiaries, (A) each of the Xxxxxxx designated market areas in the
DBS Subscriber Areas and the number of homes, subscribers and Paying Subscribers
in each, as of the most recent month end, (B) the penetration percentage for the
most recently ended month and the most recently ended period of six (6)
consecutive months for which such information is available, (C) the average
monthly aggregate revenues per subscriber as at the end of such month, (D) rate
changes, if any, on core programming packages and (E) the number of subscribers
more than fifty-four (54) days delinquent measured from the date of original
billing;
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(g) Promptly upon their becoming available, and in any event
within 45 days after the end of each month, copies of the monthly executive
package materials substantially in the form delivered to the Agent on or prior
to the Agreement Effective Date delivered by any Company to its management;
(h) Within ten (10) days after the receipt or filing thereof
by any Company, as applicable, copies of any periodic or special reports filed
by any Company with the FCC or any state or local governmental body having
jurisdiction over any Station or FCC License, and copies of any material notices
and other material communications from the FCC or any such state or local
governmental body which specifically relate to any Company, any Station or any
FCC License, but in each case only if such reports or communications indicate
any material adverse change in such Company's standing before the FCC or in
respect of any License or if copies thereof are requested by the Agent;
(i) Promptly, and in any event within five (5) days, after the
Borrower or any member of the Controlled Group (i) is notified by the Internal
Revenue Service of its liability for the tax imposed by Section 4971 of the
Code, for failure to make required contributions to a pension, or Section 4975
of the Code, for engaging in a prohibited transaction, (ii) notifies the PBGC of
the termination of a defined benefit pension plan, if there are or may not be
sufficient assets to convert the plan's benefit liabilities as required by
Section 4041 of ERISA, (iii) is notified by the PBGC of the institution of
pension plan termination proceedings under Section 4042 of ERISA or that it has
a material liability under Section 4063 of ERISA, or (iv) withdraws from a
multiemployer pension plan and is notified that it has withdrawal liability
under Section 4202 of ERISA which is material, copies of the notice or other
communication given or sent;
(j) Promptly upon receipt or issuance thereof, and in any
event within five (5) Business Days after such receipt, copies of all audit
reports submitted to any Company by its accountants in connection with each
yearly, interim or special audit of the books of any Company made by such
accountants, including any material related correspondence between such
accountants and any Company's management;
(k) Promptly upon circulation thereof, and in any event within
five (5) Business Days after such circulation, copies of any material written
reports issued by any Company to any of its equityholders or material creditors
relating to the Notes or any material change in any Company's financial
condition;
(l) Within ten (10) days after the receipt or filing thereof
by any Company, PCC or any other Affiliate of the Borrower, copies of (i) any
registration statements, prospectuses and any amendments and supplements
thereto, and any regular and periodic reports (including without limitation
reports on Form 10-K, Form 10-Q or Form 8-K), if any, filed by any Company, PCC
or such Affiliate with any securities exchange or with the United States
Securities and Exchange Commission (the "SEC"); and (ii) any letters of comment
or correspondence with respect to filings or compliance matters sent to any
Company, PCC or such Affiliate by any such securities commission or the SEC in
relation to any Company, PCC or such Affiliate and its respective affairs; and
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(m) As soon as reasonably possible after request therefor,
such other information regarding its operations, assets, business, affairs and
financial condition or regarding any of the Companies or (to the extent
available to the Borrower without undue effort and expense) their equityholders
or other Affiliates (including without limitation PCC) as any Lender may
reasonably request, including without limitation copies of any and all material
agreements to which any Company or PCC is a party from time to time.
Section 6.06. Inspection. Permit employees, agents and representatives
of the Lenders to inspect, during normal business hours, its premises and any
other facilities and systems of the Companies and its books and records and to
make abstracts or reproductions thereof. In connection with any such
inspections, the Lenders will use reasonable efforts to avoid an unreasonable
disruption of the Companies' businesses and, to the extent possible or
appropriate absent any Default, will give reasonable notice thereof.
Section 6.07. Accounting System. Maintain a system of accounting in
accordance with generally accepted accounting principles and maintain a fiscal
year ending December 31 for each of the Companies.
Section 6.08. Additional Assurances. From time to time hereafter:
(a) execute and deliver or cause to be executed and delivered,
such additional instruments, certificates and documents, and take all such
actions, as the Agent or the Lenders shall reasonably request for the purpose of
implementing or effectuating the provisions of this Agreement and the other Loan
Documents;
(b) at the request and direction of the Agent, cooperate with
the Agent and the Lenders from time to time in preparing, executing and/or
filing and recording such (i) timely continuation statements under the Uniform
Commercial Code with respect to financing statements filed pursuant to the
Security Documents, (ii) new financing statements and (iii) conforming
amendments to the Security Documents as shall be necessary from time to time to
reflect the passage of time and other changed circumstances and to assure
continued compliance with the Loan Documents; and
(c) upon the exercise by the Agent or the Lenders of any
power, right, privilege or remedy pursuant to this Agreement or any other Loan
Document which requires any consent, approval, registration, qualification or
authorization of any Governmental Authority (including any Specified Authority),
execute and deliver all applications, certifications, instruments and other
documents and papers that the Agent or Lenders may be so required to obtain.
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Nothing contained in this Section 6.08 shall constitute a waiver of any Event of
Default arising from the Borrower's failure to locate, deliver and/or file or
record any Security Document, any consent of any Governmental Authority or other
Person or any other document required under Article III or otherwise under this
Agreement.
Section 6.09. Renewal of DBS Agreements and FCC Licenses. Renew all DBS
Agreements and FCC Licenses in a timely manner and in accordance with all
applicable provisions thereof.
Section 6.10. Compliance with Environmental Laws.
(a) Comply, and cause all tenants of PCC or any Company of any
of the Properties to comply in all material respects with all Environmental Laws
and not generate, store, handle, process, dispose of or otherwise use and not
permit any such tenant of any of the Properties to generate, store, handle,
process, dispose of or otherwise use Hazardous Materials in, on, under or about
the Property in a manner that could lead or potentially lead to imposition on
any Company, PCC or the Agent or any Lender or any of the Properties of any
liability or lien of any nature whatsoever under any Environmental Law.
(b) Notify the Agent promptly in the event of any spill or
other release of any Hazardous Material in, on, under or about any of the
Properties which is required to be reported by PCC or any Company to a
Governmental Authority under any Environmental Law, promptly forward to the
Agent copies of any notices received by any Company or PCC relating to any
alleged violation of any Environmental Law and promptly pay when due any fine or
assessment against the Lenders, any Company, PCC or any of the Properties
relating to any Environmental Law.
(c) If at any time it is determined by any Governmental
Authority that the operation or use of any of the Properties by PCC or any
Company violates any applicable Environmental Law or that there is any Hazardous
Material located in, on, under or about the Properties which under any
Environmental Law requires any form of cleanup or remedial or corrective action,
then, within thirty (30) days after receipt of notice thereof from a
Governmental Authority (or such other time period as may be specified in the
notice sent by such Governmental Authority) or from the Lenders, take, at its
sole cost and expense, such actions as may be necessary to fully comply in all
respects with all Environmental Laws, subject to any good faith assertion by PCC
or any Company of defenses against the Governmental Authority, provided,
however, that if such compliance cannot reasonably be completed within such
thirty (30) day period, the Borrower shall commence such necessary action within
such thirty (30) day period and shall thereafter diligently and expeditiously
proceed to fully comply in all respects and in a timely fashion with all
Environmental Laws. Nothing herein shall prohibit the Borrower from asserting
any good faith defenses against any Governmental Authority in any governmental
demands.
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(d) If a lien is filed against any of the Properties by any
Governmental Authority resulting from the need to expend or the actual expending
of monies arising from an action or omission, whether intentional or
unintentional, of any Company or PCC or for which any Company or PCC is
responsible, resulting from the releasing, spilling, leaking, leaching, pumping,
emitting, pouring, emptying or dumping of any Hazardous Material, then, within
thirty (30) days from the date that such Company or PCC is first given notice
such lien has been placed against the Properties, subject to any good faith
assertion by PCC or any Company of defenses against such Governmental Authority,
either (i) pay the claim and remove the lien or (ii) furnish a cash deposit,
bond or such other security with respect thereto as is satisfactory in all
respects to the Agent and is sufficient to effect a complete discharge of such
lien on the Properties.
Section 6.11. Maintenance of Corporate Identity. Operate its
businesses, and will cause its Subsidiaries to operate their respective
businesses, and maintain their records, independently from any Person (a
"Control Entity") which, directly or indirectly, is in control (as defined in
Rule 12b-2 under the Securities Exchange Act of 1934, as amended) of any Company
and independently from any Subsidiary of such Company; and each Company will
maintain bank accounts separate from the bank accounts of each Control Entity or
Subsidiary of such Company and act solely in its own corporate name and through
its own authorized officers and agents. Without limiting the generality of the
foregoing, the Borrower shall also:
(A) maintain its own separate books and records and bank
accounts and not permit any Affiliate independent access to such bank accounts;
(B) at all times hold itself out to the public and all
other Persons as a legal entity separate from PCC, the Parent, any Operating
Company (including, but not limited to, PM&C) and any other Person;
(C) have a Board of Directors separate from (but which
may include members in common with) that of PCC, the Parent, any Operating
Company (including, but not limited to, PM&C) and any other Person;
(D) file its own tax returns, if any, as may be required
under applicable law, to the extent it is (1) not part of a consolidated group
filing a consolidated return or returns or (2) not treated as a division for tax
purposes of another taxpayer, and pay any taxes so required to be paid under
applicable law;
(E) not commingle its assets with assets of any other
Person and hold all of its assets in its own name;
(F) conduct its business in its own name and strictly
comply with all organizational formalities to maintain its separate existence;
(G) maintain separate financial statements;
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(H) pay its own liabilities and expenses only out of its
own funds;
(I) allocate fairly and reasonably any overhead for
shared office space;
(J) use separate invoices and checks;
(K) correct any known misunderstanding regarding its
separate identity;
(L) maintain adequate capital in light of its
contemplated business purposes, transactions and liabilities;
(M) cause its Board of Directors to act pursuant to
written consent and keep minutes of such actions and observe all other general
corporation formalities;
(N) cause the officers, agents and other representatives
of the Borrower to act at all times with respect to the Borrower consistently
with, and in furtherance of, the foregoing and in the best interests of the
Borrower.
Section 6.12. Prepayment of Loans with Excess L/C Cash Collateral. In
the event Excess L/C Cash Collateral shall exceed $1,000,000 at any time (an
"Excess L/C Collateral Event"), cause (i) the Borrower to make an optional
prepayment of the Loans in accordance with Section 1.05 or (ii) to the extent
(A) such Excess L/C Cash Collateral exists solely under the PM&C L/C Facility or
(B) such Excess L/C Cash Collateral is in an amount equal to the entire L/C Cash
Collateral, PM&C to permanently retire, or permanently reduce any commitments in
respect of, any Indebtedness of PM&C (other than the Original Subordinated
Notes), in each case, in an amount equal to the amount of Excess L/C Cash
Collateral within three (3) Business Days after an Authorized Officer obtains
knowledge of such Excess L/C Collateral Event.
ARTICLE VII
NEGATIVE COVENANTS.
-------------------
The Borrower covenants and agrees that, from and after the Agreement
Effective Date, so long as any Lender has any obligation (whether or not subject
to any conditions) to extend credit to the Borrower hereunder, and for so long
thereafter as there remains outstanding any portion of any Obligation, whether
now existing or arising hereafter, unless the Required Lenders shall otherwise
consent in writing in accordance with the terms of Article XI, none of the
Companies will, directly or indirectly:
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Section 7.01. Indebtedness and Guarantees. Incur, create, assume,
become or be liable, directly, indirectly or contingently, in any manner with
respect to, or permit to exist, any Indebtedness or Guarantee except:
(a) Indebtedness of the Borrower to the Lenders hereunder and
under the Notes;
(b) Indebtedness of PM&C existing on the Agreement Effective
Date under the Credit Agreement;
(c) any of the following: (i) Capitalized Leases and purchase
money obligations that conform to Section 7.02(f), (ii) Rate Hedging Obligations
in favor of lenders under the Credit Agreement or other Permitted Indebtedness
incurred by PM&C solely for the purpose of protecting against fluctuations of
interest rates under the Credit Agreement or any other Permitted Indebtedness,
(iii) Permitted Seller Debt, (iv) Indebtedness under the PM&C L/C Facility and
the L/C Facility in an aggregate amount not to exceed the Permitted L/C Amount,
and (v) Permitted Indebtedness of PM&C, if, in the case of clauses (i) through
(v) above, and at the time of incurrence of such Indebtedness, (A) the Borrower
Leverage Ratio as of the date on which such Indebtedness is incurred would have
been (1) 2.50 to 1.0 or less during the period from and after the Agreement
Effective Date to and including June 30, 2005 and (2) 3.00 to 1.0 or less
thereafter, in each case, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom) as if the additional Indebtedness had
been incurred as of the date of such calculation and (B) no Default or Event of
Default has occurred and is continuing or would occur as a consequence thereof.
(d) Guarantees by Subsidiaries of PM&C of Indebtedness of PM&C
permitted under Section 7.01(b) and Section 7.01(c)(v);
(e) Guarantees by the Borrower (or, prior to the Closing Date,
the Parent) of Indebtedness of PM&C permitted under Section 7.01(b) and Section
7.01(c)(v), provided that recourse under such Guarantees is limited to the
Equity Securities of PM&C owned by the Borrower (or, prior to the Closing Date,
the Parent) and the Borrower Collateral Account;
(f) Indebtedness of the Parent existing on the Agreement
Effective Date under the PSC Exchange Notes, the PSC Exchange Indenture, the PSC
1997 Indenture, the PSC 1997 Senior Notes, the PSC 1998 Indenture, the PSC 1998
Senior Notes, the PSC 2001 Indenture, the PSC 2001 Senior Notes, the Golden Sky
Exchange Indentures, the Golden Sky Exchange Notes and the PSC Preferred Stock
Designation (or the PSC Subordinated Notes Indenture and PSC Subordinated Notes,
as applicable) (all of the foregoing existing Indebtedness, the "Existing PSC
Indebtedness"), provided, however, that the terms of such Existing PSC
Indebtedness shall not be modified or amended, and no Indebtedness shall be
issued in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund such Existing PSC Indebtedness, to
(i) shorten the average weighted life to maturity of such Existing PSC
Indebtedness and any Indebtedness issued in exchange for or any Indebtedness the
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net proceeds of which are used to extend, refinance, renew, replace, defease or
refund such Existing PSC Indebtedness (the "Replacement PSC Indebtedness"), to
prior to June 19, 2007, (ii) increase the weighted average cash interest rate
(including in the determination of the cash interest rate, without limitation,
all fees and other cash payments paid or payable to the holders thereof, other
than customary amendment or consent fees payable to the holders of the Existing
PSC Indebtedness and the Replacement PSC Indebtedness) payable in respect of the
Existing PSC Indebtedness and the Replacement PSC Indebtedness to greater than
11.737%, or (iii) make any other changes or modifications which are prohibited
under this Agreement, without the prior written consent of the Required Lenders;
(g) Indebtedness in respect of endorsements of negotiable
instruments for collection in the ordinary course of business;
(h) customary indemnities set forth in the Acquisition
Agreements and agreements for Dispositions permitted hereunder;
(i) intercompany loans permitted under Section 7.05;
(j) Indebtedness of PM&C to the Subordinated Noteholders
existing on the Agreement Effective Date under the Subordinated Debt Documents;
(k) Guarantees by Subsidiaries of PM&C of Indebtedness of PM&C
to the Subordinated Noteholders existing on the Agreement Effective Date under
the Subordinated Debt Documents; and
(l) Indebtedness of the Parent if, at the time of incurrence
of such Indebtedness, (a) the PSC Leverage Ratio as of the date on which such
Indebtedness is incurred would have been 7.0 to 1.0 or less, determined on a pro
forma basis (including a pro forma application of the net proceeds therefrom) as
if the additional Indebtedness had been incurred as of the date of such
calculation and (b) no Default or Event of Default has occurred and is
continuing or would occur as a consequence thereof; provided, that after giving
effect to the issuance of any Replacement PSC Indebtedness pursuant to this
Section 7.01(l), the Existing PSC Indebtedness and Replacement PSC Indebtedness
then outstanding shall not, in the aggregate, (i) have an average weighted life
to maturity prior to June 19, 2007 or (ii) have a weighted average cash interest
rate (including, in the determination of the cash interest rate, without
limitation, all fees and other cash payments paid or payable to the holders
thereof) payable in respect of such Replacement PSC Indebtedness greater than
11.737 % or (iii) have any other terms or provisions which are prohibited under
this Agreement.
Section 7.02. Liens. Create, incur, assume, suffer or permit to exist
any Lien of any nature whatsoever on any of its assets or ownership interests,
now or hereafter owned, other than the following (collectively, "Permitted
Liens"):
(a) liens securing the payment of taxes, assessments or
government charges or levies either not yet due or the validity of which is
being contested in good faith by appropriate proceedings, and as to which it
shall have set aside on its books adequate reserves;
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(b) liens against property of the Operating Companies securing
deposits under workers' compensation, unemployment insurance and social security
laws, the performance of bids, tenders, contracts (other than for the repayment
of borrowed money) or leases, statutory obligations or surety or appeal bonds,
or indemnity, performance or other similar bonds arising in the ordinary course
of business of the Operating Companies;
(c) liens existing on the date hereof and described on
Schedule 7.02 attached hereto;
(d) liens against property of the Operating Companies imposed
by law, such as vendors', carriers', lessors', warehousers' or mechanics' liens,
incurred in the ordinary course of business;
(e) liens arising out of a prejudgment attachment, a judgment
or award against it with respect to which it shall currently be prosecuting an
appeal, a stay of execution pending such appeal having been secured, except any
such lien arising in connection with a judgment, attachment or proceeding which
gives rise to an Event of Default under paragraph (n) or (o) of Article VIII;
(f) liens against property of the Operating Companies under or
securing Capital Leases and liens or mortgages against the Operating Companies
securing purchase money Indebtedness, provided that the obligation secured by
any such lien shall not exceed one hundred percent (100%) of the lesser of cost
or fair market value as of the time of the acquisition of the property covered
thereby and that each such lien or mortgage shall at all times be limited solely
to the item or items of property so acquired;
(g) restrictions, easements and minor irregularities in title
on assets of the Operating Companies which do not and will not interfere in any
material respect with the occupation, use and enjoyment by any Operating Company
of such properties and assets in the normal course of its business as presently
conducted or materially impair the value of such properties and assets for the
purpose of such business;
(h) liens on any assets of the Borrower in favor of the Agent
or the Lenders securing the Notes and the other Obligations hereunder;
(i) liens on any assets of the Operating Companies securing
obligations in respect of Indebtedness or Guarantees of Indebtedness permitted
by Sections 7.01(b), 7.01(c)(ii) and (v) and 7.01(d);
(j) liens on the Equity Securities of PM&C owned by the
Borrower (or, prior to the Closing Date, the Parent) and the Borrower Collateral
Account securing obligations in respect of Guarantees of Indebtedness permitted
by Section 7.01(e) in respect of Indebtedness permitted under Section 7.01(b)
and Section 7.01(c)(v);
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(k) liens on the L/C Cash Collateral of the L/C Subsidiary in
favor of the L/C Lender securing Indebtedness under the L/C Facility permitted
by Section 7.01(c)(iv); and.
(l) Liens on the PM&C L/C Cash Collateral of any Operating
Company in favor of the L/C Lender securing Indebtedness under the PM&C L/C
Facility permitted by Section 7.01(c)(iv).
Section 7.03. Disposition of Assets; Mergers, Etc. Merge or enter into
a consolidation or sell, lease, exchange, sell and lease back, sublease or
otherwise dispose of any of its assets (hereinafter a "Disposition") (including
without limitation the transfer of any assets to the Special Purpose Subsidiary
and Dispositions in exchange for similar assets and properties and commonly
referred to as "asset swaps"), except the following:
(a) Dispositions by any Operating Company of (i) inventory and
cash equivalents in the ordinary course of business and (ii) tangible assets to
be replaced in the ordinary course of business within twelve (12) months by
other tangible assets of equal or greater value or (iii) tangible assets that
are no longer used or useful in the business of any Operating Company.
(b) Any wholly owned Subsidiary of PM&C may merge or be
liquidated into PM&C or any other wholly owned Subsidiary of PM&C so long as,
after giving effect to any such merger to which PM&C is a party, PM&C shall be
the surviving or resulting Person.
(c) Licensing of and leasing of intangible assets of any
Operating Company for fair value in the ordinary course of business.
(d) The Disposition of any other assets of any Operating
Company; provided, however, that (i) the selling Operating Company shall have
received payment in cash or cash equivalents of at least eighty-five percent
(85%) of gross proceeds from any such disposition of assets (other than
like-kind exchanges under Section 1031 of the Code) and (ii) except for the
Disposition of the Station located in Jackson, Mississippi on substantially the
terms previously disclosed to the Agent, the Net Cash Proceeds of such
Disposition have been applied to (i) permanently retire principal of, or
permanently reduce any commitments in respect of, any Indebtedness of the
Borrower or PM&C (other than the Original Subordinated Notes) or (ii) to the
extent the PM&C L/C Cash Collateral is less than 105% of the Permitted L/C
Amount minus any amounts outstanding under the L/C Facility, to fund the PM&C
L/C Cash Collateral under the PM&C L/C Facility and not for any other use
prohibited by this Agreement.
(e) Dispositions by the Parent of any assets of the Parent in
a transaction or series of related transactions which do not constitute a Change
of Control unless the provisions of Section 1.06 are complied with.
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Section 7.04. Fundamental Changes.
(a) Form any subsidiary (other than (i) upon satisfaction of
the L/C Facility Conditions, the L/C Subsidiary and (ii) any Subsidiary of any
of the Operating Companies (including the Finance Subsidiaries)) or otherwise
change the corporate structure or organization of the Companies from that set
forth in Schedule 4.20, except (i) as permitted under Section 7.09 and (ii) in
connection with, and in accordance with the conditions to, any Permitted
Acquisition.
(b) Permit or suffer any amendment of its Organizational
Documents which could have a Material Adverse Effect or an adverse effect on the
condition (financial or other) or prospects of the Borrower or the Parent
individually (it being expressly agreed that (i) the inclusion in any such
Organizational Documents of any provision similar to those set forth in Section
102(b)(2) of Title 8 of the Delaware Code and (ii) the deletion from any such
Organizational Documents of the provisions required by Section 3.01(n) is
prohibited under this Section).
Section 7.05. Investments and Acquisitions.
(a) Permitted Investments. Acquire, repurchase, make, have
outstanding or hold any Investment (including any Investment consisting of the
acquisition of any business or any Indebtedness or Equity Securities of the
Parent or PCC), except the following:
(i) Existing Investments of PM&C in other Operating
Companies, as reflected in Schedule 4.20 and in other wholly-owned Subsidiaries
formed or acquired after the Agreement Effective Date;
(ii) Investments by the Borrower in PM&C on the Closing
Date pursuant to Section 3.01(m);
(iii) Intercompany loans and advances from any wholly
owned Subsidiary of PM&C to PM&C;
(iv) Intercompany loans and advances from PM&C to
Subsidiaries of PM&C;
(v) Investments by the Borrower in PM&C after the Closing
Date which do not result in any Default;
(vi) Investments by the Borrower in the Parent in
connection with the repurchase by the Parent of Indebtedness and Equity
Securities of the Parent with the proceeds of the Loans to the extent permitted
by Section 2.01 which do not result in any Default, provided, no Default shall
exist as of the date of such Investment;
(vii) Investments by the Borrower in the Parent in
connection with the repurchase by the Parent of common and/or preferred Equity
Securities of PCC with the proceeds of the Loans to the extent permitted by
Section 2.01 which do not result in any Default, provided, no Default shall
exist as of the date of such Investment;
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(viii) Equity Investments by the Borrower in the L/C
Subsidiary in an aggregate amount not to exceed 105% of the Permitted L/C Amount
minus any amounts outstanding under the PM&C L/C Facility for purposes of
funding the L/C Cash Collateral under the L/C Facility which do not result in
any Default.
(ix) Intercompany loans and advances from the Parent to
PCC;
(x) Investments by the Companies in Cash Equivalents;
(xi) Short-term loans and advances by the Operating
Companies to employees of the Operating Companies in the ordinary course of
business for the payment of bona fide, properly documented, business expenses to
be incurred on behalf of the Operating Companies, provided that the aggregate
outstanding amount of all such loans and advances shall not exceed $500,000 in
the aggregate at any time;
(xii) Guarantees permitted by Section 7.01; and
(xiii) Any Acquisition by any of the Operating Companies
(including Acquisitions by way of transfers to the Borrower of property acquired
by the Parent for further transfer to an Operating Company as capital
contributions, free and clear of any Liens, other than Permitted Liens) made in
accordance with the conditions set forth in Section 7.05(b) below (in each case,
a "Permitted Acquisition").
(b) Conditions to Acquisitions. Consummate any Acquisition
unless, in the case of the Operating Companies only, the following conditions
shall have been satisfied in full:
(i) The prior written approval of the Required Lenders, in
their sole and absolute discretion, shall be required for (A) any such
Acquisition of DBS Businesses involving consideration in excess of $50,000,000
and (B) any such Acquisition of broadcast television properties involving
consideration in excess of $20,000,000.
(ii) If such Acquisition involves the purchase of stock or
other ownership interests, the same shall be effected in such a manner as to
assure that the acquired entity becomes a direct or indirect Subsidiary of PM&C
and that the parent of such Subsidiary shall own all of such ownership
interests.
(iii) If such Acquisition involves the acquisition of
broadcast television properties, each of the related FCC Licenses shall be held
after the Acquisition in a License Subsidiary and each such License Subsidiary
shall enter into an appropriate License Agreement with the Subsidiary holding
the operating assets for the related Station.
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(iv) The Borrower shall have delivered to the Agent (in
sufficient copies for all the Lenders) the following:
(A) no later than ten (10) Business Days after the
execution and delivery of the related Acquisition Agreement, copies of
executed counterparts of such Acquisition Agreement, together with all
Schedules thereto, the forms of any additional agreements or
instruments to be executed at the closing thereunder (to the extent
available), and all applicable financial information, including (1) as
soon as practicably available following any fiscal quarter with respect
to which the aggregate consideration paid or payable with respect to
Permitted Acquisitions in such fiscal quarter exceeds $50,000,000, new
projections through December 31, 2009 (updated to reflect such
Acquisition and any related transactions and showing compliance with
all financial covenants), and (2) Subscriber Reports;
(B) promptly following a request therefor, copies of
such other information or documents relating to such Acquisition as any
Lender shall have reasonably requested; and
(C) promptly following the consummation of such
Acquisition, certified copies of the agreements, instruments and
documents referred to above to the extent the same has been executed
and delivered at the closing under such Acquisition Agreement.
(v) The aggregate amount of all consideration payable by
any Operating Company in connection with such Acquisition (other than
noncompetition and consulting agreements, earn-outs and customary post-closing
adjustments, escrows, holdbacks and indemnities and Indebtedness permitted under
Section 7.01) shall be payable on the date of such Acquisition.
(vi) Neither the Parent, the Borrower nor any Operating
Company shall, in connection with any such Acquisition, assume or remain liable
with respect to any indebtedness (including any material tax or ERISA liability)
of the related Seller(s), except, in the case of the Operating Companies only,
obligations of such Seller(s) incurred in the ordinary course of business and
necessary or desirable to the continued operation of the underlying properties
and permitted under Section 7.01, and any other such liabilities or obligations
not permitted to be assumed or otherwise supported by any of the Operating
Companies hereunder shall be paid in full or released as to the assets being so
acquired on or before the consummation of such Acquisition.
(vii) All other assets and properties acquired in
connection with any such Acquisition shall be free and clear of any Liens other
than Permitted Liens.
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(viii) Immediately prior to any such Acquisition and after
giving effect thereto, no Default shall have occurred and be continuing.
(ix) Without limiting the generality of the foregoing,
after giving effect to such Acquisition the Borrower shall be in compliance with
the provisions of Article V, (A) calculated on a pro forma basis as of the last
day of the most recently ended fiscal quarter for which financial statements are
required to be provided, and have been so delivered, under Section 6.05 and (B)
under the Borrower's updated projections referred to in Section 7.05(b)(iv), if
required to be provided thereunder. The Borrower shall provide to the Agent a
certificate signed on behalf of the Borrower by an Authorized Officer
demonstrating such compliance in reasonable detail.
(x) On or before the consummation of each such
Acquisition, the Borrower shall deliver to the Agent (in sufficient copies for
all the Lenders) and to the Agent's counsel a compliance certificate, in form
and substance reasonably satisfactory to the Agent, duly executed by an
Authorized Officer of the Borrower, certifying as to the matters set forth above
with respect to such Acquisition.
Section 7.06. [Intentionally Omitted.]
Section 7.07. Management. Turn over the management of its properties,
assets, rights, licenses and franchises to any Person other than the Manager or,
in the case of the Operating Companies, a full-time employee of the Operating
Companies.
Section 7.08. Sale and Leaseback. Enter into any arrangements, directly
or indirectly, with any Person whereby it shall sell or transfer any property,
real, personal or mixed, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property; provided,
however, that the Operating Companies may engage in such transactions to the
extent structured as Capital Leases and subject to the limitations in Section
7.01(c).
Section 7.09. Repurchase or Issuance of Equity Securities.
(a) Repurchase or redeem any Equity Securities, except for
repurchases and redemptions by the Parent of the PSC Preferred Stock and common
and/or preferred Equity Securities of PCC with the proceeds of the Loans to the
extent permitted under Section 2.01 or with Restricted Payments to the extent
permitted under Section 5.02(k) and which, in either case, do not result in any
Default; or
(b) Issue any additional Equity Securities, except for
securities (A) issued by (i) the Parent to any Person in a transaction or series
of related transactions which does not constitute a Change of Control unless the
provisions of Section 1.06 are complied with, (ii) the Borrower to the Parent,
(iii) PM&C to the Borrower, (iv) the L/C Subsidiary to the Borrower or (v) any
Subsidiary of PM&C to PM&C or any wholly-owned Subsidiary of PM&C, (B) which in
the case of Equity Securities of PM&C and the L/C Subsidiary, are pledged and,
if certificated, delivered to the Agent (or, in the case of Equity Securities of
PM&C, an agent for the holders of Permitted Indebtedness of PM&C which agrees to
hold the Equity Securities of PM&C as bailee for the Lenders pursuant to the
Intercreditor Agreement) in accordance with the applicable Security Document and
(C) the issuance of which does not result in any Default.
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Section 7.10. Change in Business, Ownership of Special Purpose
Subsidiary and L/C Subsidiary. Engage, directly or indirectly, in any business
other than the DBS Business and the broadcast business in which it is currently
engaged. The Special Purpose Subsidiary shall at all times remain a direct or
indirect wholly-owned Subsidiary of PM&C. The L/C Subsidiary shall at all times
after its formation remain a direct wholly-owned Subsidiary of the Borrower.
Section 7.11. Accounts Receivable. Sell, assign, discount or dispose in
any way of any accounts receivable, promissory notes or trade acceptances held
by any Company, with or without recourse, except for collection (including
endorsements) in the ordinary course of business and except to the extent
permitted under Section 7.03.
Section 7.12. Transactions with Affiliates. Except (a) for transactions
solely among the Operating Companies otherwise permitted under this Agreement,
(b) in the case of the Operating Companies only, for the payment of permitted
Management Fees and the License Agreements as in effect on the Agreement
Effective Date and (c) for Restricted Payments permitted under Section 5.02,
enter into any transaction, including, without limitation, the purchase, sale or
exchange of property or assets or the rendering or accepting of any service with
or to any Affiliate of any Company unless (i) such transaction is in the
ordinary course of business, pursuant to the reasonable requirements of its
business and otherwise not prohibited under this Agreement and upon terms not
less favorable to such Company than it could obtain in a comparable arm's-length
transaction with a third party other than such Affiliate and (ii) except for
Permitted Cost Sharing Transactions and the Disposition of the Station located
in Jackson, Mississippi on substantially the terms previously disclosed to the
Agent, the Borrower delivers to the Agent, an acceptable appraisal or an opinion
as to the fairness to such Company from a financial point of view issued by an
unaffiliated third party investment banking firm or appraisal firm of national
standing with respect to any such transaction or series of related transactions
involving aggregate consideration in excess of $5,000,000.
Section 7.13. Amendment of Certain Agreements, Negative Pledges, Etc.
(a) Amend, modify, reform or terminate or permit the
amendment, modification, reform or termination of, or waive compliance with any
provision of or consent to any variance from the requirements of any FCC
License, any DBS Agreement, the Subordinated Debt Documents, any agreement or
instrument evidencing the PM&C Subordinated Debt, the L/C Facility or the PM&C
L/C Facility or any material agreement to which any Operating Company is a party
(other than the Credit Agreement or any agreement relating to Permitted
Indebtedness, to which the provisions of subsections (d) and (e) shall apply),
in each case, if the effect thereof would be (i) to confer additional rights
upon the other parties thereto which could have a Material Adverse Effect, (ii)
to reduce the compensation payable by any party to any Operating Company
thereunder if the same could have a Material Adverse Effect, (iii) to increase
materially the obligations of any Operating Company thereunder if the same could
have a Material Adverse Effect or (iv) with respect to the PM&C Subordinated
Debt, to effect any material change to the terms or conditions thereof which is
adverse to the obligor thereunder or to the Lenders or the Agent.
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(b) Except as required by Section 3.01(l), amend, modify,
reform or terminate or permit the amendment, modification, reform or termination
of, or waive compliance with any provision of or consent to any variance from
the requirements of, or issue any Indebtedness in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund, the Existing PSC Indebtedness, in each case, to (i) shorten the average
weighted life to maturity of such Existing PSC Indebtedness and any Replacement
PSC Indebtedness to prior to June 19, 2007, (ii) increase the weighted average
cash interest rate (including in the determination of the cash interest rate,
without limitation, all fees and other cash payments paid or payable to the
holders thereof, other than customary amendment or consent fees payable to the
holders of the Existing PSC Indebtedness and the Replacement PSC Indebtedness)
payable in respect of the Existing PSC Indebtedness and the Replacement PSC
Indebtedness to greater than 11.737% or (iii) make any other changes or
modifications which are prohibited by this Agreement.
(c) In any event, subject to applicable law, elect to
terminate or amend any License Agreement.
(d) Enter into or be bound by any agreement (including
covenants requiring the maintenance of specified amounts of net worth or working
capital) restricting the right of any Operating Company to make distributions or
extensions of credit to the Borrower (directly or indirectly through another
Subsidiary) except for such restrictions existing under (i) this Agreement, (ii)
the Credit Agreement as in effect on the Agreement Effective Date and (iii) the
terms of any Permitted Indebtedness permitted to be incurred under Section 7.01
so long as such Permitted Indebtedness permits the payment of cash dividends to
the Borrower in an amount sufficient to enable the Borrower to make (A) payments
of interest, fees, expenses and all other amounts required to be paid under this
Agreement and the other Loan Documents and (B) to the extent such Permitted
Indebtedness has a revolving commitment that terminates or a maturity date
beyond the Maturity Date, payments of principal on the Loans required to be paid
under this Agreement on the Maturity Date.
(e) Enter into any agreement (excluding this Agreement or any
other Loan Document and including any amendment or modification to the Credit
Agreement after the Agreement Effective Date) (A) prohibiting the Borrower from
amending or otherwise modifying this Agreement or any other Loan Document, or
(B) prohibiting the creation or assumption of any Lien in favor of the Agent,
the Lenders or their successors as holders of senior indebtedness upon the
properties, revenues or assets of the Borrower, whether now owned or hereafter
acquired or (C) in the case of any Permitted Indebtedness or any amendment to
the Credit Agreement entered into after the Agreement Effective Date,
prohibiting or restricting the Borrower from incurring any Indebtedness,
granting any Liens on its properties, making any Disposition or Investment or
taking any other actions or conducting any other business.
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(f) Enter into any agreement to effect a transaction that is
prohibited under this Agreement or any other Loan Document, unless such
agreement is expressly subject to the written consent of the Required Lenders
hereunder.
Section 7.14. ERISA. (a) Fail to make contributions to pension plans
required by Section 412 of the Code, (b) fail to make payments required by Title
IV of ERISA as the result of the termination of a single employer pension plan
or withdrawal or partial withdrawal from a multiemployer pension plan, or (c)
fail to correct a prohibited transaction with an employee benefit plan with
respect to which it is liable for the tax imposed by Section 4975 of the Code.
Section 7.15. Margin Stock. Except as permitted by Section 2.01, use or
permit the use of any of the proceeds of the Loans, directly or indirectly, for
the purpose of purchasing or carrying, or for the purpose of reducing or
retiring any indebtedness which was originally incurred to purchase or carry,
any Margin Stock or for any other purpose which might constitute the
transactions contemplated hereby a "purpose credit" within the meaning of
Regulation U (12 CFR Part 221) of the Board of Governors of the Federal Reserve
System, or cause any Loan, the application of proceeds thereof or this Agreement
to violate Regulation U, Regulation T or Regulation X of the Board of Governors
of the Federal Reserve System or any other regulation of such Board or the
Securities Exchange Act of 1934, as amended, or any rules or regulations
promulgated under such statutes. The Borrower will not acquire, purchase or
carry any Margin Stock.
Section 7.16. Limitations on Borrower(a). Permit the Borrower to (i)
hold any assets other than Cash Equivalents (to the extent held in the Borrower
Collateral Account or the L/C Collateral Account and pledged to the Agent under
the Security Documents), the Equity Securities of PM&C and, after its formation,
the Equity Securities of the L/C Subsidiary, (ii) have any liabilities other
than (A) any Indebtedness of the Borrower permitted pursuant to Section 7.01
hereof, (B) tax liabilities in the ordinary course of business, (C) corporate or
administrative expenses in the ordinary course of business and (D) other
liabilities under (1) the Loan Documents and (2) the Transaction Documents and
(iii) engage in any business other than (A) owning Cash Equivalents (to the
extent held in the Borrower Collateral Account or the L/C Collateral Account and
pledged to the Agent under the Security Documents), the Equity Securities of
PM&C and, after its formation, the Equity Securities of the L/C Subsidiary, and
activities incidental or related thereto, (B) acting as a guarantor for any
Indebtedness under the Credit Agreement or other Permitted Indebtedness of PM&C
in effect from time to time and permitted under Section 7.01 and (C) acting as a
borrower in respect of Indebtedness under the Loan Documents.
Section 7.17. Limitations on L/C Subsidiary. Permit the L/C Subsidiary
to (i) hold any assets other than the L/C Cash Collateral, (ii) have any
liabilities other than (A) any Indebtedness of the L/C Subsidiary permitted
pursuant to Section 7.01 hereto, (B) tax liabilities in the ordinary course of
business, (C) corporate or administrative expenses in the ordinary course of
business and (D) other liabilities under the L/C Facility and (iii) engage in
any business other than (A) owning the L/C Cash Collateral, and activities
incidental or related thereto, and (B) acting as a borrower for any Indebtedness
under the L/C Facility, and activities incidental or related thereto.
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Section 7.18. Limitations on Payments on Account of Indebtedness(a) .
Allow any of the Consolidated Companies to, directly or indirectly, defease, or
make or commit to make any principal prepayment of, or issue any Indebtedness in
exchange for, or otherwise repurchase, any Indebtedness of any Affiliate (other
than any Subsidiary of the applicable Consolidated Company).
ARTICLE VIII
DEFAULTS.
---------
In each case of happening of any of the following events (each of which
is herein sometimes called an "Event of Default"):
(a) any representation or warranty made by or on behalf of any
Company or any of its Affiliates (including without limitation those of PCC in
the Warrant Agreements) in this Agreement or any other Loan Documents or Warrant
Agreements, or in any report, certificate (including certificates as to
financial matters), financial statement or other instrument furnished in
connection with this Agreement or the borrowings hereunder, shall prove to be
false or misleading in any material respect when made or reconfirmed;
(b) default in the payment or mandatory prepayment of any
installment of the principal of any Note or any payment of any installment of
the principal of any other indebtedness of any Company to the Agent or any
Lender, when the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment or by acceleration or otherwise;
(c) default in the payment of any interest on any Note, or any
premium, fee or other indebtedness of any Company to the Agent or any Lender for
more than five (5) calendar days after the date when the same shall become due
and payable, whether at the due date thereof or at a date fixed for prepayment
or by acceleration or otherwise;
(d) default by any Person other than the Agent or any Lender
in the due observance or performance of, or compliance with, any covenant or
agreement contained in Article III or V, Sections 6.02, 6.03 (but only if the
same involves any seizure or property), 6.04, 6.05, 6.06, 6.07, 6.09 and 6.11 or
Article VII of this Agreement; provided, however, that a default in the delivery
of financial or other information under paragraphs (b) through (e) of Section
6.05 shall not constitute an Event of Default unless and until the same
continues unremedied for thirty (30) days after (i) written notice thereof from
the Agent or any Lender to the Borrower or (ii) if earlier, the occurrence
thereof (provided that such thirty (30) day period shall be available for the
remedy of any such default only once in any period of twelve (12) consecutive
months and three (3) times during the term of this Agreement);
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(e) default by any Person other than the Agent or any Lender
in the due observance or performance of, or compliance with, any other covenant,
condition or agreement to be observed or performed pursuant to the terms of this
Agreement or pursuant to the terms of any Loan Document or Warrant Agreement,
which default is not referred to in paragraphs (a) through (d), inclusive, of
this Article VIII and which default shall continue unremedied for thirty (30)
days after the earlier to occur of (i) the Borrower's discovery of such default,
or (ii) written notice thereof from the Agent or any Lender to the Borrower,
provided, however, that if any such default cannot be remedied, then such
default shall be deemed to be an Event of Default as of the date of the
occurrence thereof;
(f) (i) any Subordinated Indenture Default; (ii) any "event of
default" under and as defined in the Credit Agreement, any L/C Facility, any
PM&C L/C Facility or any other Permitted Indebtedness of PM&C incurred under
Section 7.01(c); or (iii) any default with respect to any Indebtedness of any
Company for borrowed money (other than the Loans), or default under any
agreement giving rise to monetary remedies, in each case which, when aggregated
with all other such defaults of the Companies, exceeds $2,000,000, if the effect
of such default is to permit the holder of such Indebtedness to accelerate the
maturity of such Indebtedness, unless such holder shall have permanently waived
the right to accelerate the maturity of such Indebtedness on account of such
default;
(g) (i) any Company shall lose, fail to keep in force, suffer
the termination, suspension or revocation of or terminate, forfeit or suffer a
material adverse amendment to any material FCC License; (ii) any governmental
regulatory authority shall conduct a hearing on the renewal of any material FCC
License and the result thereof is reasonably likely to be the termination,
revocation, suspension or material adverse amendment of such FCC License; or
(iii) any governmental regulatory authority shall commence an action or
proceeding seeking the termination, suspension, revocation or material adverse
amendment of any material FCC License and the result thereof is likely to be the
termination, suspension, revocation or material adverse amendment of such FCC
License;
(h) (i) any NRTC Member Agreement or other DBS Agreement shall
be terminated, shall expire or shall be amended in a manner reasonably likely to
have a Material Adverse Effect, (ii) any DirecTV Agreement (including the HCG
Agreement) shall terminate, shall expire or shall be amended in a manner
reasonably likely to have a Material Adverse Effect or (iii) any default shall
occur under the HCG Agreement, and NRTC shall take action to terminate the HCG
Agreement;
(i) the loss, termination, suspension, revocation or amendment
(in a manner reasonably likely to have a Material Adverse Effect) of any license
issued to HCG, any Company or DirecTV or any other party by the FCC in
connection with the delivery of DIRECTV or other DBS Rights under any DirecTV
Agreement or any NRTC Member Agreement;
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(j) DBS services provided to any of the Subscribers shall be
interrupted or terminated, whether due to satellite damage or destruction or
other circumstances, if the same has or could have a Material Adverse Effect;
(k) any default with respect to any Indebtedness of the Parent
which, when aggregated with all other such defaults of Indebtedness of the
Parent, exceeds $15,000,000, if the effect of such default is to permit the
holder of such Indebtedness to accelerate the maturity of such Indebtedness,
unless such holder shall have permanently waived the right to accelerate the
maturity of such Indebtedness on account of such default;
(l) any Company or group of Companies generating in the
aggregate more than five percent (5%) of EBITDA for any period shall discontinue
its or their respective business(es) or any Company, PCC or the Manager shall
(i) apply for or consent to the appointment of a receiver, trustee, custodian or
liquidator of it or any of its property, (ii) be unable, or admit in writing its
inability, to pay its debts as they mature, (iii) make a general assignment for
the benefit of creditors, (iv) be adjudicated a bankrupt or insolvent or be the
subject of an order for relief under Title 11 of the United States Code or (v)
file a voluntary petition in bankruptcy, or a petition or an answer seeking
reorganization or an arrangement with creditors or to take advantage of any
bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or
liquidation law or statute, or an answer admitting the material allegations of a
petition filed against it in any proceeding under any such law or corporate
action shall be taken for the purpose of effecting any of the foregoing;
(m) there shall be filed against any Company, PCC or the
Manager an involuntary petition seeking reorganization of such company or the
appointment of a receiver, trustee, custodian or liquidator of such company or a
substantial part of its assets, or an involuntary petition under any bankruptcy,
reorganization or insolvency law of any jurisdiction, whether now or hereafter
in effect and such involuntary petition shall not have been dismissed within
sixty (60) days thereof;
(n) final judgment for the payment of money which, when
aggregated with all other outstanding judgments against any of the Companies or
PCC, exceeds $5,000,000 (exclusive of amounts covered by insurance or actually
contributed in cash by third party obligors with respect to such judgments)
shall be rendered against any Company or PCC, and the same shall remain
undischarged (unless fully bonded upon terms satisfactory to the Required
Lenders) for a period of thirty (30) consecutive days, during which execution
shall not be effectively stayed;
(o) the occurrence of any attachment of any deposits or other
property of any Company or PCC in the hands or possession of the Agent or any of
the Lenders, or the occurrence of any attachment of any other property of any
Company or PCC in an amount which, when aggregated with all other attachments
against the Companies or PCC, exceeds $1,000,000 and which shall not be
discharged within sixty (60) days of the date of such attachment;
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(p) for any reason (other than the gross negligence of the
Agent or the Lenders, but without limiting in any way the Borrower's obligations
under Section 6.08(b)), any material Security Document or other Loan Document
shall not be in full force and effect in all material respects or shall not be
enforceable in all material respects in accordance with its terms, or any
security interest(s) or lien(s) granted pursuant thereto which is, or are in the
aggregate, material shall fail to be perfected, or any party thereto other than
the Agent or the Lenders shall contest the validity of any material lien(s)
granted under, or shall disaffirm its obligations under, any material Security
Document or other Loan Document;
(q) for any reason, the Original Subordinated Notes shall not
have been repurchased or repaid by PM&C in full on or prior to July 1, 2003;
provided, however, that the Original Subordinated Notes will not be deemed to be
"outstanding" and will be deemed to have been "paid in full" if (i) PM&C shall
have given notice of redemption of all of the Original Subordinated Notes to the
Original Subordinated Note holders pursuant to the Subordinated Indenture (or
shall have irrevocably instructed the trustee under the Subordinated Indenture
to give such notice of redemption with a redemption date to occur no later than
the earlier of thirty-one (31) days after the Closing Date and July 31, 2003),
and (ii) PM&C shall have irrevocably transferred to such trustee cash in an
amount equal to the aggregate outstanding amount of the Original Subordinated
Notes plus all interest accrued and to accrue on the Original Subordinated Notes
to the redemption date specified in the notice of redemption (which shall be no
later than the earlier of thirty-one (31) days after the Closing Date and July
31, 2003), and instructed such trustee to apply such cash to the redemption of
the Original Subordinated Notes on such redemption date;
(r) for any reason, less than $70,000,000 of Original
Principal of the Loans shall be outstanding on or prior to July 1, 2003;
then and upon every such Event of Default and at any time thereafter during the
continuance of such Event of Default, at the election of the Required Lenders as
provided in Article XI, the Commitments shall terminate and (i) the entire
principal amount of the Notes plus all accrued and unpaid interest on the Notes
and (ii) any and all other Indebtedness of the Borrower to the Lenders shall
immediately become due and payable, both as to principal and interest, without
presentment, demand, prior notice, or protest, all of which are hereby expressly
waived, anything contained herein or in the Notes or other evidence of such
indebtedness to the contrary notwithstanding (except in the case of an Event of
Default relating to the Borrower under clause (iv) or (v) of paragraph (l) or
under paragraph (m) of this Article VIII, in which event the Commitments shall
automatically terminate and (i) the entire principal amount of the Notes plus
all accrued and unpaid interest on the Notes and (ii) any and all other
Indebtedness of the Borrower to the Lenders shall automatically become due and
payable).
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ARTICLE IX
REMEDIES ON DEFAULT, ETC.
-------------------------
In case any one or more Events of Default shall occur and be
continuing, the Agent and the Lenders may proceed to protect and enforce their
rights by an action at law, suit in equity or other appropriate proceeding,
whether for the specific performance of any agreement contained in this
Agreement or any Loan Document, or for an injunction against a violation of any
of the terms hereof or thereof or in and of the exercise of any power granted
hereby or thereby or by law, all subject to the provisions of Article XI. IN THE
EVENT THAT THE AGENT SHALL APPLY FOR THE APPOINTMENT OF, OR TAKING POSSESSION
BY, A TRUSTEE, RECEIVER OR LIQUIDATOR OF THE BORROWER OR ANY OF ITS SUBSIDIARIES
OR OF ANY OTHER SIMILAR OFFICIAL, TO HOLD OR LIQUIDATE ALL OR ANY SUBSTANTIAL
PART OF THE PROPERTIES OR ASSETS OF THE BORROWER OR SUCH SUBSIDIARY FOLLOWING
THE OCCURRENCE OF A DEFAULT IN PAYMENT OF ANY AMOUNT OWED TO THE AGENT OR ANY
LENDER HEREUNDER, THE BORROWER, FOR ITSELF AND ON BEHALF OF ITS SUBSIDIARIES
(WITH ALL DUE AND PROPER AUTHORIZATION OF THE BOARDS OF DIRECTORS, PARTNERS OR
MEMBERS, AS THE CASE MAY BE, OF EACH OF THE SUBSIDIARIES), HEREBY JOINTLY AND
SEVERALLY CONSENT TO SUCH APPOINTMENT AND TAKING OF POSSESSION AND AGREE TO
EXECUTE AND DELIVER ANY AND ALL DOCUMENTS REQUESTED BY THE AGENT RELATING
THERETO (WHETHER BY JOINING IN A PETITION FOR THE VOLUNTARY APPOINTMENT OF, OR
ENTERING NO CONTEST TO A PETITION FOR THE APPOINTMENT OF, SUCH AN OFFICIAL OR
OTHERWISE, AS APPROPRIATE UNDER APPLICABLE LAW). No right conferred upon the
Agent or the Lenders hereby or by any Loan Document shall be exclusive of any
other right referred to herein or therein or now or hereafter available at law,
in equity, by statute or otherwise.
ARTICLE X
THE AGENT.
----------
Section 10.01. Appointment, Powers and Immunities.
(a) Each Lender hereby irrevocably (subject to Section 10.08)
designates and appoints DBS Investors Agent, Inc., which designation and
appointment is coupled with an interest, as the Agent of such Lender under this
Agreement and the other Loan Documents, acting in the capacity of an
administrative agent, and each such Lender irrevocably authorizes DBS Investors
Agent, Inc., as the Agent of such Lender, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Agent by the terms of this Agreement and the other Loan Documents, together with
such other powers as are reasonably incidental thereto.
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(b) The Agent (which term as used in this sentence and in
Section 10.05 and the first sentence of Section 10.06 shall include reference to
its affiliates and its own and such affiliates' officers, directors, employees
and agents) shall not: (i) have any duties or responsibilities to be a trustee
or other fiduciary for any Lender; (ii) be responsible to the Lenders for any
recitals, statements, representations or warranties contained in this Agreement,
or in any certificate or other document referred to or provided for in, or
received by either of them under, this Agreement, or for the value, validity,
effectiveness, genuineness, enforceability, perfection or sufficiency of this
Agreement, any Note, any Security Document or any other document referred to or
provided for herein or for any failure by any Company or any other Person to
perform any of its obligations hereunder or thereunder; (iii) be required to
initiate or conduct any litigation or collection proceedings hereunder except to
the extent requested by the Required Lenders; and (iv) be responsible for any
action taken or omitted to be taken by it hereunder or under any other document
or instrument referred to or provided for herein or in connection herewith,
except for its own gross negligence or willful misconduct.
(c) The Agent may employ agents and attorneys-in-fact and
shall not be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact it selects with reasonable care.
(d) Subject to the foregoing, to Article XI and to the
provisions of any intercreditor agreement among the Lenders in effect from time
to time, the Agent shall, on behalf of the Lenders, (i) hold and apply any and
all Collateral, and the proceeds thereof, at any time received by it, in
accordance with the provisions of the Security Documents and this Agreement;
(ii) exercise any and all rights, powers and remedies of the Lenders under this
Agreement, the Security Documents and the other Loan Documents, including the
giving of any consent or waiver or the entering into of any amendment, subject
to the provisions of Article XI; (iii) execute, deliver and file UCC Financing
Statements and other such agreements, and possess instruments on behalf of any
or all of the Lenders; and (iv) in the event of acceleration of the Borrower's
Indebtedness hereunder, sell or otherwise liquidate or dispose of any portion of
the Collateral held by it and otherwise exercise the rights of the Lenders
hereunder and under the Security Documents.
(e) The Lenders hereby authorize the Agent, at its option and
in its discretion, to release any Lien granted to or held by the Agent upon any
Collateral (i) upon termination or expiration of the Commitments and payment in
full of all of the Obligations, (ii) constituting property sold or to be sold or
disposed of as part of or in connection with any Disposition expressly permitted
hereunder or under any other Loan Document or to which the requisite number of
Lenders have consented as provided herein or (iii) otherwise pursuant to and in
accordance with the provisions of any applicable Loan Document. Upon request by
the Agent at any time, the Lenders will confirm in writing the Agent's authority
to release Collateral pursuant to this Section.
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Section 10.02. Reliance by Agent. The Agent shall be entitled to rely
upon any certification, notice or other communication (including any
communication by telephone, telex, telegram or cable) believed by it to be
genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Agent. As to any
matters not expressly provided for by this Agreement, the Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder in
accordance with instructions signed by the Required Lenders or the Lenders, as
the case may be, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on the Lenders.
Section 10.03. Events of Default. The Agent shall not be deemed to have
knowledge of the occurrence of an Event of Default (other than the non-payment
of principal of or interest on the Notes) unless it has received written notice
from any Lender or the Borrower specifying such Event of Default and stating
that such notice is a "Notice of Default". In the event that the Agent receives
such a notice of the occurrence of an Event of Default, the Agent shall give
prompt notice thereof to the Lenders (and shall give each Lender prompt notice
of each such non-payment). The Agent shall (subject to Section 10.07) take such
action with respect to such Event of Default as shall be directed by the
Required Lenders, as provided under Article XI, provided that, unless and until
the Agent shall have received such directions, the Agent may (but shall not be
obligated to) take such action on behalf of the Lenders, or refrain from taking
such action, with respect to such Event of Default as it shall deem advisable in
the best interest of the Lenders.
Section 10.04. Rights as a Lender. With respect to its Commitment, if
any, and the Loans made by DBS Investors Agent, Inc. hereunder, if any, DBS
Investors Agent, Inc. shall have the same rights and powers hereunder as any
other Lenders and may exercise the same as though it were not acting as the
Agent. The Agent and its affiliates may, without having to account therefor to
the Lenders and without giving rise to any fiduciary or other similar duty to
any Lender, accept deposits from, lend money to and generally engage in any kind
of banking, trust or other business with the Borrower and any of its Affiliates
as if it were not acting as an Agent and as if it were not a Lender, and the
Agent may accept fees and other consideration from any Company or PCC for
services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
Section 10.05. Indemnification. The Lenders agree to indemnify the
Agent (to the extent not reimbursed under Section l3.02, but without limiting
the obligations of the Borrower under such Section 13.02), ratably in accordance
with the aggregate principal amount of the Notes and Commitments held by the
Lenders (or, if no such principal or interest is outstanding, ratably in
accordance with their respective Commitments) for any and all liabilities,
obligations, losses, damages, penalties, action, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Agent any way relating to or arising out
of this Agreement or any other Loan Document contemplated by or referred to
herein or the transactions contemplated by or referred to herein or therein
(including, without limitation, the costs and expenses which the Borrower is
obligated to pay under Section 13.02) or the enforcement of any of the terms of
this Agreement or of any other Loan Document or of any such other documents,
provided that no Lender shall be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of the party to be
indemnified.
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Section 10.06. Non-Reliance on Agent and Other Lenders. Each Lender
agrees that it has, independently and without reliance on the Agent or any other
Lenders, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Companies and its own decision
to enter into this Agreement and that it will, independently and without
reliance upon the Agent or any other Lenders, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under this Agreement. The
Agent shall not be required to keep itself informed as to the performance or
observance by the Companies of this Agreement or any other Loan Document or to
inspect the properties or books of the Companies. Except for notices, reports
and other documents and information expressly required to be furnished to the
Lenders by the Agent hereunder, the Agent shall have no duty or responsibility
to provide any Lender with any credit or other information concerning the
affairs, financial condition or businesses of the Companies or PCC (or any of
their Affiliates) which may come into the possession of the Agent or any of its
affiliates. Notwithstanding the foregoing, the Agent will provide to the Lenders
any and all information reasonably requested by them and reasonably available to
the Agent promptly upon such request.
Section 10.07. Failure to Act. Except for action expressly required of
the Agent hereunder, the Agent shall in all cases be fully justified in failing
or refusing to act hereunder unless it shall 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.
Section 10.08. Resignation of Agent. DBS Investors Agent, Inc. (or any
other Agent hereunder), may resign as the Agent at any time by giving ten (10)
days' prior written notice thereof to the Lenders and the Borrower. Any such
resignation shall take effect at the end of such ten (10) day period or upon the
earlier appointment of a successor Agent by the Required Lenders as provided
below. Upon any resignation of DBS Investors Agent, Inc. (or any other Agent
hereunder), and subject to the Borrower's approval (which approval shall not be
unreasonably withheld or delayed and shall not be required with respect to any
such appointment made during the existence of any Event of Default) the Required
Lenders shall appoint a successor agent from among the Lenders or, if such
appointment is deemed inadvisable or impractical by the Required Lenders,
another financial institution with a combined capital and surplus or net
tangible assets of at least $50,000,000. Upon the acceptance of any appointment
as Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent. After the effective date of the resignation of an Agent
hereunder, the retiring Agent shall be discharged from its duties and
obligations hereunder, provided that the provisions of this Article X shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Agent. In the event that there shall
not be a duly appointed and acting Agent, the Borrower agrees to make each
payment due to the Agent hereunder and under the Notes, and the other Loan
Documents if any, directly to each Lender entitled thereto, pursuant to written
instructions provided by the resigning Agent or, after such resignation, the
Lenders, and to provide copies of each certificate or other document required to
be furnished to the Agent hereunder, if any, directly to each Lender.
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Section 10.09. Cooperation of Lenders. Each Lender shall (a) promptly
notify the other Lenders and the Agent of any Event of Default known to such
Lender under this Agreement and not reasonably believed to have been previously
disclosed to the other Lenders; (b) provide the other Lenders and the Agent with
such information and documentation as such other Lenders or the Agent shall
reasonably request in the performance of their respective duties hereunder,
including, without limitation, all information relative to the outstanding
balance of principal, interest and other sums owed to such Lender by the
Borrower; and (c) cooperate with the Agent with respect to any and all
collections and/or foreclosure procedures at any time commenced against the
Borrower or otherwise in respect of the Collateral by the Agent in the name and
on behalf of the Lenders.
ARTICLE XI
ENTIRE AGREEMENT; AMENDMENTS AND
--------------------------------
WAIVERS; SEPARATE ACTIONS BY THE LENDERS.
-----------------------------------------
(a) This Agreement (including the Schedules hereto) and the
other Loan Documents constitute the entire agreement of the parties herein and
supersede any and all prior agreements, written or oral, as to the matters
contained herein, and no modification or waiver of any provision hereof or of
the Notes or any other Loan Document, nor consent to the departure by any
Company therefrom, shall be effective unless the same is in writing, and then
such waiver or consent shall be effective only in the specific instance, and for
the purpose, for which given. Except as hereafter provided, the consent of the
Required Lenders shall be required and sufficient (i) to amend, with the consent
of the Borrower, any term of this Agreement, the Notes or any other Loan
Document or to waive the observance of any such term (either generally or in a
particular instance or either retroactively or prospectively); (ii) to take or
refrain from taking any action under this Agreement, the Notes, any other Loan
Document or applicable law, including, without limitation, (A) the acceleration
of the payment of the Notes, (B) the termination of the Commitments, (C) the
exercise of the Agent's and the Lenders' remedies hereunder and under the
Security Documents and (D) the giving of any approvals, consents, directions or
instructions required under this Agreement or the Security Documents; provided
that no such amendment, waiver, consent or other action shall, without the prior
written consent of each Lender (other than a Defaulting Lender and, with respect
to matters addressed in clause (1) below, only such Lenders holding Obligations
directly affected thereby),
(1) extend the final scheduled maturity of any Loan
or Note beyond the Maturity Date (it being understood that no waiver or
modification of any condition precedent, covenant or Default shall
constitute any such extension), or reduce the rate or extend the time
of payment of interest or fees thereon, or reduce the principal amount
thereof;
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(2) release any of the Equity Securities of PM&C or
all or substantially all of the other Collateral (except as expressly
provided in this Agreement or the Security Documents) under the
Security Documents;
(3) amend, modify or waive any provision of Section
1.05(b) or this Article XI;
(4) reduce any percentage specified in the definition
of Required Lenders (it being understood that, with the consent of the
Required Lenders, additional extensions of credit pursuant to this
Agreement may be included in the determination of the Required Lenders
on substantially the same basis as the Commitments are included on the
Closing Date); or
(5) consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Agreement;
and provided, further, that no such amendment, waiver, consent or other action
shall (x) increase the Commitment of any Lender over the amount thereof then in
effect without the consent of such Lender (it being understood that no waiver or
modification of any condition precedent, covenant or Default shall constitute an
increase in the respective Commitment of any Lender) and (y) without the consent
of the Agent, amend, modify or waive any provision of Article X as same applies
to the Agent or any other provision of any Loan Document as same relates to the
rights or obligations of the Agent.
(b) Any amendment or waiver effected in accordance with this
Article XI shall be binding upon each holder of any Note at the time
outstanding, each future holder of any Note and the Borrower. The Lenders'
failure to insist (directly or through the Agent) upon the strict performance of
any term, condition or other provision of this Agreement, any Note, or any of
the Security Documents or other Loan Documents, or to exercise any right or
remedy hereunder or thereunder, shall not constitute a waiver by the Lenders of
any such term, condition or other provision or Default in connection therewith,
nor shall a single or partial exercise of any such right or remedy preclude any
other or future exercise, or the exercise of any other right or remedy; and any
waiver of any such term condition or other provision or of any such Default
shall not affect or alter this Agreement, any Note or any of the Security
Documents or other Loan Documents, and each and every term, condition and other
provision of this Agreement, the Notes and the Security Documents or other Loan
Documents shall, in such event, continue in full force and effect and shall be
operative with respect to any other then existing or subsequent Default in
connection therewith. An Event of Default hereunder and under any Note or
Security Document shall be deemed to be continuing unless and until cured or
waived in writing by the applicable Lenders, as provided in subsection (a)
above.
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ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS.
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(a) This Agreement shall be binding upon and inure to the
benefit of the Borrower, the Lenders and the Agent and their respective
successors and permitted assigns, and all subsequent holders of any of the Notes
or any portion thereof.
(b) Each Lender may assign its rights and interests under this
Agreement, the Notes and the Security Documents and/or delegate its obligations
hereunder and thereunder, in whole or in part, and sell participations in the
Notes and the Security Documents as security therefor, provided as follows:
(i) Any such assignment, other than an assignment in
whole, made other than to (A) another Lender, (B) a separately organized branch
of a Lender or (C) a Related Lender Party, shall reflect an assignment of such
assigning Lender's Notes and Commitments which is in an aggregate principal
amount of at least $1,000,000, unless each of the Borrower and the Agent
otherwise consents to a lesser amount.
(ii) Notwithstanding any provision of this Agreement to
the contrary, (A) each Lender may at any time pledge all or any portion of its
rights under this Agreement and each of the other Loan Documents, including
without limitation its Loans and the Notes held by such Lender, to a Federal
Reserve Bank (or equivalent thereof in the case of Lenders chartered outside of
the United States) in support of borrowings made by such Lender from such
Federal Reserve Bank and (B) any Lender that is a fund that invests in bank
loans may, without the consent of the Agent or the Borrower, pledge all or any
portion of its Notes or Loans to any holders of obligations owed, or securities
issued, by such fund, as security for such obligations or securities, or to any
trustee for, or any other representative of, such holders; provided that any
foreclosure or similar action by such trustee shall be subject to the provisions
of this Section concerning assignments. No pledge pursuant to this subsection
(ii) shall release the transferor Lender from any of its obligations and
liabilities under the Loan Documents.
(iii) Any assignments and/or delegations made hereunder
shall be pursuant to an instrument of assignment and acceptance (the "Assignment
and Acceptance") substantially in the form of Schedule 12 and the parties to
each such assignment shall execute and deliver to the Agent for its acceptance
the Assignment and Acceptance together with any Note or Notes subject thereto.
Upon such execution and delivery, from and after the effective date specified in
each Assignment and Acceptance, which effective date shall be at least five (5)
Business Days after the execution thereof unless otherwise permitted by the
Agent, (A) the assignee thereunder shall become a party hereto and, to the
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extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with applicable Commitments as set forth
therein and (B) the assigning Lender thereunder shall, to the extent provided in
such assignment, be released from its obligations under this Agreement as to
that portion of its obligation being so assigned and delegated. The Assignment
and Acceptance shall be deemed to amend this Agreement to the extent, and only
to the extent, necessary to reflect the addition of the assignee as a Lender and
the resulting adjustments of the Commitments arising from the purchase by and
delegation to such assignee of the rights and obligations of such assigning
Lender under this Agreement.
(iv) The Agent, on behalf of the Borrower, shall maintain
at the address of the Agent referred to in Section 13.03 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 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.
(v) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and the assignee together with the Note or Notes
subject to such assignment (or a standard indemnity letter from the respective
assigning Lender in respect of any lost Note or Notes) and payment by the
assigning Lender or the assignee to the Agent of registration and processing
fees of $3,500 in the aggregate (except with respect to assignments (A) to any
Related Lender Party or another Lender or (B) by the Agent, in its capacity as
Lender), the 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 subparagraph (iv) above.
(vi) Within five (5) Business Days after receipt of such
notice, the Borrower shall execute and deliver to the Agent in exchange for
evidence of the delivery to the Agent of a copy of each such surrendered Note,
marked "Superseded", one or more new Notes payable to the order of such assignee
in an amount equal to the portion of the applicable Commitment assumed and/or
Loans purchased by such assignee pursuant to such Assignment and Acceptance and
a new Note payable to the order of the assigning Lender in an amount equal to
the portion of the applicable Commitments and/or Loans retained by it hereunder.
Such new Notes shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form provided in Section
1.01. Copies of the superseded Notes shall be delivered to the Borrower upon
execution and delivery of such new Notes and the original superseded Notes shall
be returned to the assignors thereof.
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(vii) Each Lender may sell participations in all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment and the Notes held by it);
provided, however, that, no Lender shall transfer or grant any participation
under which the participant shall have rights to approve any amendment to or
waiver of this Agreement or any other Loan Document, except to the extent such
amendment or waiver would (A) extend the final scheduled maturity of any Loan or
Note in which such participant is participating, or reduce the rate or extend
the time of payment of interest or fees thereon (except in connection with a
waiver of applicability of any post-default increase in interest rates) or
reduce the principal amount thereof, or increase the amount of the participant's
participation over the amount thereof, or increase the amount of the
participant's participation over the amount thereof then in effect (it being
understood that no waiver or modification of any condition precedent, covenant
or Default or of any mandatory reduction in the aggregate Commitments shall
constitute a change in the terms of such participation, that an increase in any
Commitment or Loan shall be permitted without the consent of any participant if
the participant's participation is not increased as a result thereof and that
any amendment or modification to the financial definitions in this Agreement
shall not constitute a reduction in any rate of interest or fees for purposes of
this clause (A)), (B) consent to the assignment or transfer by the Borrower of
any of its rights and obligations under this Agreement or (C) release any of the
Equity Securities of PM&C or all or substantially all of the other Collateral
under all of the Security Documents (except as expressly provided in the
Security Documents) supporting the Loans hereunder in which such participant is
participating. In the case of any such participation, the participant shall not
have any rights under this Agreement or any of the other Loan Documents (the
participant's rights against such Lender in respect of such participation to be
those set forth in the agreement executed by such Lender in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Lender had not sold such participation.
(viii) Except for an assignment made to (i) another
Lender, (ii) a separately organized branch of a Lender or (iii) a Related Lender
Party, and except during the existence of a Default, no assignment referred to
above shall be permitted without the prior written consent of the Agent and the
Borrower, which consent shall not be unreasonably withheld or delayed.
(ix) If DBS Investors, LLC intends to assign or grant a
participation in all or a portion of its Loan, or if Pegasus Partners II, L.P.
intends to assign any portion of its membership interests in DBS Investors, LLC,
or if DBS Investors, LLC intends to issue any membership interests to any Person
other than Pegasus Partners II, L.P., such that after giving effect to any such
assignment, participation or issuance, DBS Investors, LLC and its Affiliates
would own, directly or indirectly, less than a majority of the aggregate
outstanding principal amount of the Loans and unutilized Commitments (it being
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understood that for purposes of this clause (ix) only, DBS Investors, LLC shall
be deemed to own only that portion of the Loans and Commitments held by DBS
Investors, LLC which is equal to the ownership interest of Pegasus Partners II,
L.P. and its Affiliates in DBS Investors, LLC at such time), then, prior to any
such assignment, participation or issuance, DBS Investors, LLC will provide the
Borrower with at least three (3) Business Days prior notice to afford the
Borrower an opportunity to introduce DBS Investors, LLC to prospective assignees
or participants of such Loans or prospective assignees or purchasers of such
membership interests.
(x) In the event Avenue Special Situations Fund II, LP or
its Affiliates (collectively, "Avenue") refuse to consent to any amendment,
waiver or other modification of any Loan Document requested by the Borrower that
requires the consent of Avenue pursuant to clause (ii) of the definition of
Required Lenders and such amendment, waiver or other modification has previously
been consented to by Lenders, excluding Defaulting Lenders, holding more than
fifty percent (50%) of the aggregate outstanding principal amount of the Loans
and unutilized Commitments, the Borrower shall have the right, at its sole
expense and effort, so long as no Event of Default then exists, to replace
Avenue with one or more new lenders (each, a "New Lender") reasonably acceptable
to the Agent, provided that:
(A) at the time of any replacement pursuant to this
paragraph, the New Lender shall enter into one or more Assignment and
Acceptances pursuant to paragraph (b) of Article XII (with all fees
payable pursuant to such paragraph (b) to be paid by the Borrower or
the New Lender), pursuant to which the New Lender shall acquire the
Commitment and outstanding Loans of Avenue, and in connection therewith
(i) the New Lender shall pay to Avenue an amount equal to the principal
amount of, and all accrued interest on, all outstanding Loans of Avenue
and (ii) the Borrower shall pay to Avenue an amount equal to the
difference (if any) between the Fixed Early Payment Amount and the
principal amount of all outstanding Loans of Avenue; and
(B) all obligations of the Borrower owing to Avenue
under the Loan Documents (other than those expressly described in the
preceding subparagraph (A) in respect of which the assignment purchase
price has been, or is concurrently being, paid) shall be paid in full
to Avenue by the Borrower concurrently with such replacement.
Upon the execution of the respective Assignment and Acceptance, the payment of
the amounts referred to in subparagraphs (A) and (B) above and delivery to the
New Lender of the appropriate replacement Notes executed by the Borrower, the
New Lender shall become a Lender hereunder and Avenue shall cease to constitute
a Lender hereunder, except with respect to indemnification provisions applicable
to Avenue under this Agreement, which shall survive as to Avenue.
(xi) The Borrower may not assign any of its rights or
delegate any of its duties or obligations hereunder.
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(xii) Any Lender may, in connection with any assignment or
participation pursuant to this Section, disclose to the assignee or participant
any information relating to the Companies furnished to such Lender by or on
behalf of the Borrower and such assignee or participant shall treat such
information as confidential. Notwithstanding anything herein to the contrary,
any party to this Agreement (and each employee, representative, or other agent
of any party to this Agreement) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
contemplated by this Agreement, and all materials of any kind (including
opinions or other tax analyses) related to such tax treatment and tax structure;
provided, that this sentence shall not permit any person to disclose the name
of, or other information that would identify, any party to such transactions or
to disclose confidential commercial information regarding such transactions.
ARTICLE XIII
MISCELLANEOUS.
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Section 13.01. Survival. This Agreement and all covenants, agreements,
representations and warranties made herein and in the certificates delivered
pursuant hereto, shall survive the making by the Lenders of the Loans and shall
continue in full force and effect so long as any Obligation is outstanding and
unpaid or any Lender has any obligation to advance funds to the Borrower
hereunder. In addition, notwithstanding anything herein or under applicable law
to the contrary, the provisions of this Agreement and the other Loan Documents
relating to indemnification or payment of fees, costs and expenses, including
without limitation the provisions of Sections 1.08, 1.09, 10.05, 13.02 and
13.14, shall survive the payment in full of all Loans, the termination or
expiration of the Commitments and any termination of this Agreement or of any
other Loan Document.
Section 13.02. Fees and Expenses; Indemnity; Etc. The Borrower agrees:
(a) to pay or reimburse the Agent for all its reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation, negotiation, interpretation and execution of, and any amendment,
supplement or modification to, this Agreement, the Notes and any other
Transaction Documents and the consummation and administration of the
transactions contemplated hereby, including without limitation the reasonable
fees and disbursements of (i) counsel to the Agent (including, without
limitation, the fees and expenses of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
LLP or similar counsel), and (ii) such agents of the Agent not regularly in its
employ, and accountants, other auditing services, consultants and appraisers
engaged by or on behalf of the Agent or by the Borrower at the request of the
Agent (collectively, "Third Parties");
(b) to pay or reimburse the Agent for all its reasonable costs
and expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the Notes and any other Loan Documents, including,
without limitation, the reasonable fees and disbursements of (i) counsel to the
Agent and (ii) Third Parties;
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(c) in the event of the occurrence of an Event of Default
hereunder, to, immediately upon request of any Lender from time to time, pay or
reimburse the Lenders for the reasonable fees and disbursements of counsel for
the respective Lenders engaged for the preservation or enforcement of such
Lender's rights under this Agreement or any other Loan Documents relating to
such Event of Default;
(d) to pay, indemnify, and hold each Lender and the Agent
harmless from, any and all recording and filing fees and taxes, lien discharge
fees and taxes, intangible taxes 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 Notes and any other Loan
Documents; and
(e) to pay, indemnify, and hold each Lender and the Agent (and
their respective directors, officers, employees, agents and other affiliates)
harmless (including, without limitation, for the fees and disbursements of
counsel) 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, or any transaction contemplated
by, any Loan Document or the use or proposed use of the proceeds of the Loans or
the refinancing or restructuring of the credit arrangement provided under this
Agreement in the nature of a "work-out" or any proceedings with respect to the
bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or
liquidation of any Company or any other party other than the Lender or the Agent
to any Loan Document or in connection with any pending or future litigations
involving any Company or PCC, including the Litigation (all the foregoing in
this clause (e), collectively, the "indemnified liabilities");
(f) not, without the Agent's prior written consent, settle,
compromise, consent to the entry of any judgment in or otherwise seek to
terminate any action, claims, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not any Lender or the Agent
is a party thereto) unless such settlement, compromise, consent or termination
includes a release of each Lender and the Agent from any liabilities arising out
of such action, claim, suit or proceeding;
provided, that the Borrower shall have no obligation hereunder to the Agent or
any Lender with respect to indemnified liabilities arising from the gross
negligence or willful misconduct of the Agent or any such Lender. The agreements
in this Section shall survive repayment of the Notes and all other amounts
payable hereunder.
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Section 13.03. Notice.
(a) All notices, requests, demands and other communications
provided for hereunder (including without limitation Loan Requests) shall be in
writing (including telecopied communication) and mailed or telecopied or
delivered to the applicable party at the addresses indicated below.
If to the Agent:
DBS Investors Agent, Inc.
c/o Pegasus Partners II, L.P.
00 Xxxxx Xxxx
Xxx Xxx, XX 00000-0000
Attention: Xxxxxxxx Xxxxxx
Telecopy No.: (000) 000-0000
and if to any Lender, at the address set forth on the appropriate signature page
hereto or, with respect to any assignee of the Notes under Article XII, at the
address designated by such assignee in a written notice to the other parties
hereto.;
in each case (except for routine communications), with a copy to:
Xxxxxxx X. Xxxx, Esq.
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy No.: (000) 000-0000
If to the Borrower:
Pegasus Media & Communications Finance Corporation
000 Xxxx Xxxx Xxxxxx
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxx
with a required copy to Xxxxx X. Blank, Esq. at the immediately
foregoing address
and
with a copy (except for routine communications) to:
Xxxxxxx X. Xxxxxx, Esq.
Drinker Xxxxxx & Xxxxx LLP
One Xxxxx Square
00xx xxx Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Telecopy No.: (000) 000-0000
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or, as to each party, at such other address as shall be designated by
such parties in a written notice to the other party complying as to delivery
with the terms of this Section. All such notices, requests, demands and other
communication shall be deemed given upon receipt by the party to whom such
notice is directed.
(b) The address of the Agent for payment hereunder is as
follows:
DBS Investors Agent, Inc.
c/o Pegasus Partners II, L.P.
00 Xxxxx Xxxx
Xxx Xxx, XX 00000-0000
Attention: Xxxxxx Xxxxx-Xxxxxx
Telecopy No.: (000) 000-0000
Wire Instructions:
JPMorgan Chase Bank 1211 Avenue of the Xxxxxxxx, 00xx
Xxxxx Xxx Xxxx, XX 00000-0000 ABA #: 021-000021 For
credit to: Pegasus Partners II, LP for further credit
to DBS Investors Agent, Inc. Account #000-000-000
Section 13.04. Governing Law. This Agreement and the Notes shall be
construed in accordance with and governed by the internal laws of the State of
New York (without giving effect to any conflicts or choice of laws provisions
that would cause the application of the domestic substantive laws of any other
jurisdiction).
Section 13.05. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THE BORROWER, TO THE EXTENT THAT IT MAY LAWFULLY DO SO,
HEREBY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, AS WELL AS TO THE JURISDICTION OF ALL COURTS TO WHICH AN APPEAL MAY BE
TAKEN FROM SUCH COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING
ARISING OUT OF ANY OF ITS OBLIGATIONS ARISING HEREUNDER OR UNDER THE NOTES OR
THE SECURITY DOCUMENTS OR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY,
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AND EXPRESSLY WAIVES ANY AND ALL OBJECTIONS IT MAY HAVE AS TO VENUE, INCLUDING,
WITHOUT LIMITATION, THE INCONVENIENCE OF SUCH FORUM, IN ANY OF SUCH COURTS. IN
ADDITION, TO THE EXTENT THAT IT MAY LAWFULLY DO SO, THE BORROWER CONSENTS TO THE
SERVICE OF PROCESS BY PERSONAL SERVICE OR U.S. CERTIFIED OR REGISTERED MAIL,
RETURN RECEIPT REQUESTED, ADDRESSED TO THE BORROWER AT THE ADDRESS PROVIDED
HEREIN. TO THE EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWER
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS TO THE MAXIMUM EXTENT PERMITTED BY LAW.
(b) WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENT AND
THE LENDERS HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY
ACTION BROUGHT ON OR WITH RESPECT TO THIS AGREEMENT, THE NOTES, THE SECURITY
DOCUMENTS OR ANY OTHER AGREEMENTS EXECUTED IN CONNECTION HEREWITH.
Section 13.06. Severability. Any provision of this Agreement, the Notes
or any of the Security Documents or other Loan Documents 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 or affecting the validity or enforceability of such
provision in any other jurisdiction.
Section 13.07. Section Headings, Etc. Any Article and Section headings
in this Agreement are included herein for convenience of reference only and
shall not constitute a part of this Agreement for any other purpose.
Section 13.08. Several Nature of Lenders' Obligations. Notwithstanding
anything in this Agreement, the Notes or any of the Security Documents to the
contrary, all obligations of the Lenders hereunder shall be several and not
joint in nature, and in the event any Lender fails to perform any of its
obligations hereunder, the Borrower shall have no recourse against any other
Lender(s) who has (have) performed its (their) obligations hereunder. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement, subject to the provisions of Article XI or
Article XII, and it shall not be necessary for any other Lender to be joined as
an additional party in any proceeding for such purpose.
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Section 13.09. Counterparts. This Agreement may be executed by the
parties hereto in several counterparts hereof and by the different parties
hereto on separate counterparts hereof, each of which shall be an original and
all of which counterparts shall together constitute one and the same agreement.
Delivery of an executed signature page of this Agreement by facsimile
transmission shall be effective as an in-hand delivery of an original executed
counterpart hereof.
Section 13.10. Knowledge and Discovery. All references in this
Agreement to "knowledge" of, or "discovery" by, the Borrower shall be deemed to
include, without limitation, any such knowledge of, or discovery by, the
Borrower or any executive officer of the Borrower.
Section 13.11. Amendment of Other Agreements. All references in this
Agreement to other documents and agreements to which the Lenders are not parties
(including without limitation the Credit Agreement, the Acquisition Agreements,
the PSC Preferred Stock Designation, the PSC Subordinated Notes Indenture, the
PSC Exchange Indenture, the PSC 1997 Indenture, the Golden Sky Exchange
Indentures, the PSC 1998 Indenture, the PSC 2001 Indenture, the Management
Agreement, the Subordinated Debt Documents, the NRTC Member Agreements and any
other DBS Agreements) shall be deemed to refer to such documents and agreements
as presently constituted and, except for any amendments and modifications not
prohibited under Section 7.13, not as hereafter amended or modified unless the
Lenders shall have expressly consented in writing to such amendment(s) or
modification(s).
Section 13.12. FCC and Municipal Approvals. Notwithstanding anything
herein or in any of the Security Documents to the contrary, but without limiting
or waiving in any way the Borrower's obligations under the applicable provisions
of the Security Documents, the Agent's and the Lenders' rights hereunder and
under the Security Documents are subject to all applicable rules and regulations
of the FCC and other Specified Authorities. The Agent and the Lenders will not
take any action pursuant to this Agreement or the Security Documents which would
constitute or result in any assignment or transfer control of any FCC License,
whether de jure or de facto, if such assignment or transfer of control would
require under then existing law (including the written rules and regulations
promulgated by the FCC), the prior approval of the FCC or other Specified
Authority, without first obtaining such approval. The Agent and the Lenders
specifically agree that (a) voting rights in the ownership interests of the
Companies will remain with the holders thereof even in an Event of Default
unless any required prior consent of the FCC or other Specified Authority shall
be obtained to the transfer of such voting rights; (b) in an Event of Default,
there will be either a private or public sale of the ownership interests of the
Companies; and (c) prior to the exercise of member or other equityholder rights
by a purchaser at such sale, the prior consent of the FCC, pursuant to 47 USC
ss. 310(d), in each case only if required, will be obtained prior to such
exercise. The Borrower agrees to take any action which the Agent or any Lender
may reasonably request in order to cause the Agent and the Lenders to obtain and
enjoy the full rights and benefits granted to by this Agreement and the other
Loan Documents, including specifically, at the cost and expense of the Borrower,
the use of its best efforts to assist in obtaining approval of the FCC or any
state or municipality or other governmental authority for any action or
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transaction contemplated by this Agreement or any Security Document which is
then required by law, and specifically, without limitation, upon request
following an Event of Default, to prepare, sign and file (or cause to be filed)
with the FCC or such state or municipality or other governmental authority the
assignor's, transferor's or controlling person's portion of any application or
applications for consent to (i) the assignment of any FCC License or transfer or
control thereof, (ii) any sale or sales of property constituting any Collateral
by or on behalf of the Lenders or (iii) any assumption by the Agent or the
Lenders or their designees of voting rights or management rights in property
constituting any Collateral effected in accordance with the terms of this
Agreement.
Section 13.13. Disclaimer of Reliance. The Borrower has not relied on
any oral representations concerning any of the terms or conditions of the Loans,
the Notes, this Agreement or any of the Security Documents in entering into the
same. The Borrower acknowledges and agrees that none of the officers of the
Agent or any Lender has made any representations that are inconsistent with the
terms and provisions of this Agreement, the Notes and the Security Documents,
and neither the Borrower nor any of its Affiliates has relied on any oral
promises or representations in connection therewith.
Section 13.14. Environmental Indemnification. Without limiting the
generality of Section 13.02, in consideration of the execution and delivery of
this Agreement by the Lenders and the making of the Loans, the Borrower hereby
indemnifies, exonerates and holds the Lenders and each of their respective
officers, directors, employees and agents (collectively, the "Indemnified
Parties") free and harmless from and against any and all actions, causes of
action, suits, losses, costs, liabilities and damages, and expenses incurred in
connection therewith (irrespective of whether any such Indemnified Party is a
party to the action for which indemnification hereunder is sought), including
reasonable attorneys' fees and disbursements (collectively, the "Environmental
Liabilities"), incurred by the Indemnified Parties or any of them as a result
of, or arising out of, or relating to:
(a) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to the
protection of the environment or the release by any Company or PCC of any
Hazardous Material; or
(b) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real property
owned or operated by any Company or PCC of any Hazardous Material (including any
losses, liabilities, damages, injuries, costs, expense or claims asserted or
arising under any Environmental Law), regardless of whether caused by, or within
the control of, any Company or PCC;
except, in each case, for any such Environmental Liabilities arising for the
account of a particular Indemnified Party by reason of the relevant Indemnified
Party's negligence or misconduct, and if and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Borrower agrees to make the
maximum contribution to the payment and satisfaction of each of the
Environmental Liabilities which is permissible under applicable law.
Notwithstanding anything to the contrary herein contained, the obligations and
liabilities under this Section shall survive and continue in full force and
effect and shall not be terminated, discharged or released in whole or in part
irrespective of whether all the Obligations have been paid in full or the
Commitments have been terminated.
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Section 13.15. Effectiveness. This Agreement shall become
binding upon the parties hereto (the "Agreement Effective Date"), and the
Borrower shall be irrevocably obligated to perform all of its obligations
hereunder from and after the Agreement Effective Date, when (a) the Agent shall
have received one or more counterparts of this Agreement, executed by a duly
authorized officer of each party hereto or, in the case of any Lender,
telecopier confirmation to the Agent that a duly authorized officer of such
Lender has executed a counterpart of this Agreement and that such counterpart
has been sent to the Agent, (b) the Agent, for the ratable benefit of the
Lenders, has received the fees referred to in Section 1.07(a), (c) the Borrower
shall have executed and delivered to the Agent, the Notes and the Security
Agreement, and all Uniform Commercial Code Financing Statements required by the
Agent or its counsel shall have been filed on or before the Agreement Effective
Date, (d) the Borrower shall have executed and delivered to the Agent, a
certificate as to financial matters with respect to the operations of the
Companies' and PCC's businesses, certified by an Authorized Officer of the
Borrower in form and substance reasonably satisfactory to the Agent, (e) PCC
shall have executed and delivered to the Agent, the Warrant Agreements, (f) the
Parent shall have executed and delivered to the Agent, the Indemnity Agreement
and (g) all of the fees and expenses payable or reimbursable pursuant to Section
13.02(a) shall have been paid in full.
ARTICLE XIV
DEFINITIONS.
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As used herein the following terms have the following
respective meanings:
Accountants. See Section 6.05.
Acquisition. The acquisition by any Operating Company, whether
by way of the purchase of assets or stock, by merger or consolidation or
otherwise, of (i) exclusive (or, with the prior written consent of the Required
Lenders, non-exclusive) DBS Rights for the delivery of DIRECTV or (ii) any
broadcast television business, including without limitation a swap of any such
existing DBS Rights or business for any other such DBS Rights or any other such
business or an equity contribution of any such DBS Rights or business to a
Subsidiary of PM&C by any Affiliate of any Operating Company.
Acquisition Agreements. With respect to any Permitted
Acquisition, the respective acquisition, purchase or other agreement which sets
forth the terms and conditions of such acquisition.
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Affiliate(s). With respect to any Person, any other Person
that would be considered to be an affiliate of any Company under Rule 144(a) of
the Rules and Regulations of the Securities and Exchange Commission, as in
effect on the date hereof, if such Company were issuing securities.
Agent. See the Preamble.
Agreement. See the Preamble.
Agreement Effective Date. See Section 13.15.
Annualized EBITDA. For any date, (a) Location Cash Flow
derived from the DBS Subsidiaries for the most recently ended fiscal quarter
multiplied by four (4), plus (b) Location Cash Flow derived from the other
Consolidated Companies for such fiscal quarter and the immediately preceding
three (3) fiscal quarters minus (c) corporate overhead charges for all of the
Consolidated Companies for such fiscal quarter and the immediately preceding
three (3) fiscal quarters (including Management Fees), all determined on a
Consolidated basis in accordance with GAAP.
Approved Institution. See the definition of "Cash
Equivalents".
Assignment and Acceptance. See Article XII.
Audited Financial Statements. See Section 1.03.
Authorized Officer. With respect to any certificate, agreement
or other document to be executed by or on behalf of any Company, the chairman,
president, chief executive officer, chief operating officer, chief financial
officer, vice president, treasurer or director (serving as an officer) of such
entity, who shall, in any event, be an officer duly authorized by all required
action of such entity to execute and deliver such document.
Avenue. See Article XII.
Borrower. See the Preamble.
Borrower Collateral Account. The "Borrower Collateral
Account", as defined in the Security Agreement.
Borrower Leverage Ratio. See Section 5.01.
Borrowing Date. With respect to any Loans requested hereunder,
the date such Loans are to be made.
Budget. See Section 6.05.
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Business Day. Any day other than a Saturday, Sunday or legal
holiday on which banks in New York, New York are open for the transaction of a
substantial part of their commercial banking business.
Capital Lease. Any lease of property (real, personal or mixed)
which, in accordance with GAAP and Statement No. 13 of the Financial Accounting
Standards Board would be capitalized on the lessee's balance sheet.
Capital Lease Obligations. All obligations of the Consolidated
Companies to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) property (real, personal or mixed) to the extent
such obligations are required to be classified and accounted for as a capital
lease on any such Consolidated Company's balance sheet under GAAP, and, for
purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP.
Cash Equivalents. (a) Investments (of one year or less) in
direct or guaranteed obligations of the United States, or any agency thereof;
(b) investments (of 90 days or less) in certificates of deposit of the Lenders
or any other domestic commercial bank of recognized standing having capital,
surplus and undivided profits in excess of $100,000,000, membership in the
Federal Deposit Insurance Corporation ("FDIC") and senior debt carrying one of
the two highest ratings of Standard & Poor's Ratings Service, A Division of
McGraw Hill, Inc., or Xxxxx'x Investors Service, Inc. (an "Approved
Institution"); (c) investments (of 90 days or less) in commercial paper given
one of the two highest ratings by an Approved Institution; (d) investments
redeemable at any time without penalty in money market instruments placed
through a Lender or an Approved Institution;(e) repurchase agreements fully
collateralized by United States government securities; and (f) deposits fully
insured by the FDIC.
CERCLA. The Comprehensive Environmental Response, Compensation
and Liability Act of 1989 (42 USC 9601, et. seq.).
Change of Control. The occurrence of any of the following
events: (i) PM&C shall cease to own directly or indirectly all of the issued and
outstanding capital stock of each of its Subsidiaries; (ii) the Borrower shall
cease to own from and after the Closing Date all of the issued and outstanding
shares of capital stock of PM&C or, after its formation, the L/C Subsidiary;
(iii) the Parent shall cease to own all of the issued and outstanding shares of
capital stock of the Borrower and, prior to the Closing Date, all of the issued
and outstanding shares of capital stock of PM&C, (iv) PCC shall cease to own at
least 51% of all of the issued and outstanding shares of common stock (or other
securities entitled to vote in ordinary circumstances and without regard to the
happening of any contingency in the election of members of the board of
directors) of the Parent, (v) PCC shall cease to retain the voting power to
elect a majority of the board of directors of the Parent or (vi) a "Change of
Control" (as defined in the Subordinated Indenture, the PSC Preferred Stock
Designation, the PSC Subordinated Notes Indenture, the PSC Exchange Indenture,
the PSC 1997 Indenture, the Golden Sky Exchange Indentures, the PSC 0000
Xxxxxxxxx or the PSC 2001 Indenture) shall occur.
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Closing Date. See Section 3.01.
Code. The Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder.
Collateral. Collectively, any and all collateral referred to
herein and in the Security Documents.
Collateral Account Control Agreement. The control agreement in
respect of the Borrower Collateral Account dated the Closing Date among the
Agent, the Borrower and the agent under the Credit Agreement in form and
substance reasonably satisfactory to the Agent, as amended, supplemented or
otherwise modified from time to time.
Commitment Period. The period from and including the Closing
Date to but not including the later of (a) December 31, 2003 and (b) the date
which is 180 days from the Closing Date.
Commitments. See Section 1.01.
Commitment Termination Date. June 1, 2003; provided, that the
Commitment Termination Date shall be extended to July 1, 2003 if the Borrower
shall have paid to the Agent the Extension Fee in immediately available funds on
or prior to 5:00 p.m. (New York time) on June 1, 2003.
Companies. Collectively, the Parent, the Borrower, the L/C
Subsidiary, PM&C and each Subsidiary of PM&C.
Compliance Report. See Section 6.05.
Consolidated and Consolidating. When used with reference to
financial or accounting terms, that term as applied to the accounts of the
Borrower (or other specified Person) and all of its Subsidiaries, or such of its
Subsidiaries as may be specified, consolidated (or combined) or consolidating
(or combining), as the case may be, in accordance with GAAP and with appropriate
deductions for minority interests in Subsidiaries; provided, that, prior to the
Closing Date, such term shall apply to the accounts of the Borrower and the
Operating Companies on a consolidated basis notwithstanding that the Operating
Companies are not Subsidiaries of the Borrower at such time.
Consolidated Companies. Collectively, the Borrower, the L/C
Subsidiary and the Operating Companies.
Controlled Group. All trades or businesses (whether or not
incorporated) under common control that, together with the Borrower, are treated
as a single employer under Section 414(b) or 414(c) of the Code or Section 4001
of ERISA.
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Xxxxxxxxx Xxxxxx. Xxx Xxxxxx Xxxxxx Copyright and Trademark
Office or any other federal government agency which may hereafter perform its
functions.
Credit Agreement. The First Amended and Restated Credit
Agreement dated as of January 14, 2000 by and among PM&C, Bankers Trust Company,
as administrative agent, and others, as agents, and the lenders named therein,
as the same may be amended, restated, supplemented or otherwise modified from
time to time in accordance with this Agreement.
DBS. See the Recitals.
DBS Agreements. The NRTC Member Agreements and any and all
other agreements entered into by PM&C or any of its Subsidiaries from time to
time (as amended from time to time with the Required Lenders' consent, if
required under this Agreement), to license the right to deliver DBS Services.
DBS Business. The Operating Companies' business of marketing
of video and audio programming and data information services that are provided
through transmission media consisting of space-based satellite broadcasting
services, excluding the terrestrial television broadcasting business.
DBS Rights. Any rights to market, sell, deliver and retain
revenues from direct broadcast television programming initially transmitted over
satellite frequencies, and all rights to distribute services of the type known
as "DBS Services" under the NRTC Member Agreements, including without limitation
all such rights with respect to DIRECTV and DBS under the DirecTV Agreements or
the NRTC Member Agreements.
DBS Rights Litigation. See Section 5.02.
DBS Subscriber Areas. On any date, all of the geographic areas
in which the Operating Companies, or any of them, have the right to distribute
DIRECTV and other DBS services, as described in the NRTC Member Agreements.
DBS Subsidiaries. Any Subsidiary of PM&C which now or
hereafter holds DBS Rights.
Default. (a) An Event of Default or (b) an event or condition
that, but for the requirement that time elapse or notice be given, or both,
would constitute an Event of Default.
Defaulting Lender. Any Lender with respect to which a Lender
Default is in effect.
DirecTV. DirecTV, Inc., an affiliate of HCG, and any successor
thereof.
DIRECTV. The video, audio and data services provided over
satellite frequencies by DirecTV.
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DirecTV Agreements. The HCG Agreement (as defined in the NRTC
Member Agreements) whether or not assigned to DirecTV by HCG, and any other
material agreements under which NRTC has obtained rights to distribute DBS
services covered by any of the NRTC Member Agreements or has obtained any other
DBS Rights granted to any of the Operating Companies by NRTC.
Disposition. See Section 7.03.
Dollars and $. Lawful money of the United States of America.
EBITDA. For any period with respect to any Consolidated
Company, Net Income for such period, plus, to the extent deducted in the
determination of Net Income and not otherwise restored in accordance with the
definition of such term, (a) Subscriber Acquisition Costs, (b) Total Interest
Expense, (c) depreciation, (d) amortization, (e) taxes in respect of income and
profits expensed during such period, including without limitation but without
duplication payments paid under the Tax Sharing Agreement as permitted in
Section 5.02, (f) Transaction Costs, and (g) other non-cash expenses (including
the amortization of television program license and rental fees) minus (h)
television program license and rental fees actually paid in cash; all determined
on a Consolidated basis in accordance with GAAP.
Effective Date. See Section 1.08.
Environmental Laws. Any and all present and future Federal,
state, local and foreign laws, rules or regulations, and any orders or decrees,
in each case as now or hereafter in effect, relating to the regulation or
protection of human health, safety or the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes into the indoor or outdoor
environment, including, without limitation, ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or toxic or
hazardous substances or wastes.
Equity Securities. With respect to any Person that is a
corporation, the authorized shares of such Person's capital stock, including all
classes of common, preferred, voting and nonvoting capital stock, and, as to any
Person that is not a corporation or an individual, the ownership interests in
such Person, including, without limitation, the right to share in profits and
losses, the right to receive distributions of cash and property, and the right
to receive allocations of items of income, gain, loss, deduction and credit and
similar items from such Person, whether or not such interests include voting or
similar rights entitling the holder thereof to exercise control over such
Person.
ERISA. The Employee Retirement Security Act of 1974, as
amended.
Event of Default. See Article VIII.
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Excess L/C Cash Collateral. As of any date of determination,
the amount, if any, by which the L/C Cash Collateral exceeds 105% of the amount
of Indebtedness then outstanding under the L/C Facility or the PM&C L/C Cash
Collateral exceeds 105% of the amount of Indebtedness then outstanding under the
PM&C L/C Facility.
Excess L/C Collateral Event. See Section 6.12.
Exemption Certificate. See Section 1.09.
Extension Fee. A non-refundable extension fee in the amount of
$500,000, payable to the Agent, for the ratable benefit of the Lenders, on or
prior to June 1, 2003 in immediately available funds.
Existing PSC Indebtedness. See Section 7.01.
FAA. The Federal Aviation Administration or any other federal
governmental agency which may hereafter perform its functions.
FCC. The Federal Communications Commission or any other
federal governmental agency which may hereafter perform its functions.
FCC Consents. In connection with any Acquisition of broadcast
television properties, all consents of the FCC to such Acquisition.
FCC Licenses. Any Licenses issued by the FCC to any of the
Operating Companies.
Finance Subsidiary. A Subsidiary formed and wholly owned by
the Special Purpose Subsidiary, (a) to which the Special Purpose Subsidiary
contributes all SAC Commissions (as defined in the Credit Agreement) received in
exchange for its financing of Subscriber Acquisition Costs for the DBS
Subsidiaries, and (b) all shares of capital stock of which the Special Purpose
Subsidiary dividends to PSTH immediately after such contribution.
Financial Statements. See Section 4.01.
Fixed Early Payment Amount. An amount in cash expressed as a
percentage of the principal amount (which includes any capitalized interest with
respect thereto) of the Notes to be prepaid as follows: (a) 103% if such
prepayment occurs after the Closing Date but prior to the first anniversary of
the Closing Date; (b) 102% if such prepayment occurs on or after the first
anniversary of the Closing Date but prior to the second anniversary of the
Closing Date; (c) 101% if such prepayment occurs on or after the second
anniversary of the Closing Date but prior to the third anniversary of the
Closing Date and (d) 100% if such prepayment occurs on or after the third
anniversary from the Closing Date.
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GAAP. Generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other entity
as may be approved by a significant segment of the accounting profession, as in
effect on December 31, 2002, applied on a basis consistent with (a) the
application of the same in prior fiscal periods, (b) that employed by the
Accountants in preparing the financial statements referred to in Section 6.05(a)
and (c) the accounting principles generally utilized in the cable television,
broadcast television or direct broadcast satellite industry, as the case may be.
Golden Sky Exchange Indentures. The Indentures, each dated May
31, 2001, between the Parent and First Union National Bank, as Trustee, pursuant
to which the Golden Sky Exchange Notes were issued.
Golden Sky Exchange Notes. Collectively, (a) the Parent's
12-?% Senior Notes Due 2006 in the aggregate principal amount of $195,000,000
and (b) the Parent's 13-1/2% Senior Subordinated Discount Notes Due 2007 in the
aggregate principal amount at maturity of $193,100,000; issued on May 31, 2001.
Governmental Authority. Any nation or government, any state or
other political subdivision thereof and any entity exercising any executive,
legislative, judicial, regulatory or administrative functions of, or pertaining
to, government and any self-regulating organization, including the NASDAQ.
Gross Subscriber Additions. For any period, the total amount
of Paying Subscribers for DBS services of the DBS Subsidiaries added in the
ordinary course of operations of such Operating Companies, excluding (a) any
Paying Subscribers which resubscribe to the Operating Companies' DBS services
during such period, (b) any Paying Subscribers purchased, acquired or swapped
during such period and (c) any Paying Subscribers sold or otherwise disposed of
during such period.
Guarantee. With respect to the Borrower or a specified Person:
(a) any guarantee by the Borrower (or such specified Person)
of the payment or performance of, or any contingent obligation by the Borrower
(or such specified Person) in respect of, any Indebtedness or other obligation
of any primary obligor;
(b) any other arrangement whereby credit is extended to a
primary obligor on the basis of any promise or undertaking of the Borrower (or
such specified Person), including any binding "comfort letter", "makewell
agreement" or "keepwell agreement" written by the Borrower (or such specified
Person), to a creditor or prospective creditor of such primary obligor, to (i)
pay the Indebtedness of such primary obligor, (ii) purchase an obligation owed
by such primary obligor, (iii) pay for the purchase or lease of assets or
services regardless of the actual delivery thereof or (iv) maintain the capital,
working capital, solvency or general financial condition of such primary
obligor;
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(c) any liability of the Borrower (or such specified Person),
as a general partner of a partnership in respect of Indebtedness or other
obligations of such partnerships;
(d) any liability of the Borrower (or such specified Person)
as a joint venturer of a joint venture in respect of Indebtedness or other
obligations of such joint venture;
(e) any liability of the Borrower (or such specified Person)
with respect to the tax liability of others as a member of a group (other than a
group consisting solely of the Borrower and its Subsidiaries) that is
Consolidated for tax purposes; and
(f) reimbursement obligations, whether contingent or matured,
of the Borrower (or such specified Person) with respect to letters of credit
(including, without limitation, under the L/C Facility or the PM&C L/C
Facility), bankers acceptances, surety bonds, other financial guarantees and
Rate Hedging Agreements,
in each case whether or not any of the foregoing are reflected on the balance
sheet of the Borrower (or such specified Person) or in a footnote thereto,
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The amount of any
Guarantee and the amount of Indebtedness resulting from such Guarantee shall be
the maximum amount that the guarantor may become obligated to pay in respect of
the obligations (whether or not such obligations are outstanding at the time of
computation).
Hazardous Materials. (a) any petroleum or petroleum products,
flammable materials, explosives, radioactive materials, asbestos, urea
formaldehyde foam insulation, and transformers or other equipment that contain
polychlorinated biphenyls ("PCB's"), (b) any chemicals or other materials or
substances that are now or hereafter become defined as or included in the
definition of "hazardous substances", "hazardous wastes", "hazardous materials",
"extremely hazardous wastes", "restricted Hazardous wastes", "toxic substances",
"toxic pollutants", "contaminants", "pollutants" or words of similar import
under any Environmental Law and (c) any other chemical or other material or
substance, exposure to which is now or hereafter prohibited, limited or
regulated under any Environmental Law.
HCG. Xxxxxx Communications Galaxy, Inc. and any successor
thereof.
Indebtedness or indebtedness. With respect to the Borrower or
any specified Person, all obligations, contingent or otherwise, which in
accordance with GAAP are required to be classified upon the balance sheet of the
Borrower (or other specified Person) as liabilities, but in any event including
(without duplication):
(a) borrowed money;
(b) indebtedness evidenced by notes, debentures or similar
instruments,
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(c) Capital Lease Obligations;
(d) the deferred purchase price of assets, services or
securities, including related noncompetition, consulting and stock repurchase
obligations (other than ordinary trade accounts payable within 60 days after the
incurrence thereof in the ordinary course of business);
(e) mandatory redemption or cash dividend rights on capital
stock (or other Equity Securities), other than the Parent's Series A and Series
B preferred stock,
(f) reimbursement obligations, whether contingent or matured,
with respect to letters of credit (including, without limitation, under the L/C
Facility or the PM&C L/C Facility), bankers acceptances, surety bonds, other
financial guarantees and Rate Hedging Agreements (without duplication of other
Indebtedness supported or guaranteed thereby);
(g) unfunded pension liabilities;
(h) obligations that are immediately and directly due and
payable out of the proceeds of or production from property;
(i) liabilities secured by any Lien existing on property owned
or acquired by the Borrower (or such specified Person), whether or not the
liability secured thereby shall have been assumed; and
(j) all Guarantees in respect of Indebtedness of others.
Indemnified Parties. See Section 13.14.
Indemnity Agreement. The Indemnity Agreement dated the
Agreement Effective Date among the Parent, the Borrower and the Agent in
substantially the form attached as Schedule 14(a), as amended, supplemented or
otherwise modified from time to time.
Intercreditor Agreement. The Intercreditor Agreement to be
dated the Closing Date among the Agent, the agent under the Credit Agreement,
and the Borrower in the form attached as Schedule 14(b) (or such other form as
shall have been expressly agreed to by the Agent), as subsequently amended,
supplemented or otherwise modified from time to time.
Interest Expense. For any period with respect to the
Consolidated Companies, the aggregate amount (determined on a Consolidated basis
in accordance with GAAP) of interest, commitment fees, letter of credit fees and
net payments under Rate Hedging Agreements accrued (whether such interest is
reflected as an item of expense or capitalized, but excluding interest paid in
kind) during such period (including without limitation the fees payable pursuant
to Section 1.08), by the Consolidated Companies in respect of all Indebtedness
for borrowed money.
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Investment. With respect to the Borrower or any specified
Person and whether made or acquired by purchase, exchange, issuance of stock or
other Equity Securities, merger, consolidation, reorganization or otherwise:
(a) any share of capital stock, partnership, membership or
other equity interest, evidence of Indebtedness or other security issued by any
other Person (other than securities acquired in connection with the satisfaction
or enforcement of, or as security for, Indebtedness or claims due to the
Borrower (or such specified Person));
(b) any loan, advance or extension of credit to, or
contribution to the capital of, any other Person (other than trade and customer
accounts receivable for property leased, goods furnished or services rendered in
the ordinary course of business and payable on a current basis in accordance
with customary trade terms);
(c) any Guarantee of the Indebtedness of any other Person;
(d) any acquisition of all, or any division or similar
operating unit of, the business of any other Person or the assets comprising
such business, division or unit; and
(e) any other similar investment.
L/C Cash Collateral. The cash collateral of up to 105% of the
Permitted L/C Amount maintained in an account of the L/C Subsidiary with the L/C
Lender which is subject to a Lien in favor of the L/C Lender securing
reimbursement of stand-by letters of credit (including, without limitation,
interests, fees and expenses in respect thereof) issued by the L/C Lender under
the L/C Facility in favor of the NRTC, as beneficiary, for the account of the
Operating Companies in accordance with the NRTC Member Agreements.
L/C Collateral Account. The "L/C Collateral Account", as
defined in the Security Agreement.
L/C Facility. A limited recourse letter of credit facility
established by the L/C Subsidiary with the L/C Lender on or after the Closing
Date upon satisfaction of the L/C Facility Conditions pursuant to which the L/C
Lender issues stand-by letters of credit in Dollar denominations in favor of the
NRTC, as beneficiary, for the account of the Operating Companies fully secured
by, limited in recourse to, and in a stated amount that does not exceed the
aggregate amount of, the L/C Cash Collateral, the documentation evidencing which
shall be in form and substance reasonably satisfactory to the Agent.
L/C Facility Conditions. The satisfaction of each of the
following conditions: (i) the Borrower shall have formed the L/C Subsidiary
pursuant to documentation in form and substance reasonably satisfactory to the
Agent, free and clear of any Liens, (ii) the Borrower shall have delivered to
the Agent a certificate of an Authorized Officer of the Borrower in form and
substance reasonably satisfactory to the Agent certifying that all of the Equity
Securities of the L/C Subsidiary have been duly registered in the name of the
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Borrower and pledged to the Agent pursuant to the Security Agreement, (iii) the
Agent has possession of the certificates evidencing all of the Equity Securities
of the L/C Subsidiary owned by the Borrower, together with stock powers executed
in blank by the Borrower, (iv) the L/C Subsidiary shall have delivered to the
Agent a certificate of an Authorized Officer of the L/C Subsidiary in form and
substance reasonably satisfactory to the Agent certifying that all of the Equity
Securities of the L/C Subsidiary have been duly transferred to the Borrower, the
Agent has a valid and enforceable first-priority Lien on all of the Equity
Interests of the L/C Subsidiary and that the L/C Subsidiary shall make all cash
dividends and distributions in respect of the Equity Securities of the L/C
Subsidiary only to the L/C Collateral Account, (v) the Agent shall have received
(a) the favorable written opinion of counsel to the Borrower addressed to the
Agent and the Lenders in scope and substance reasonably satisfactory to the
Agent, (b) copies of the Organizational Documents of the L/C Subsidiary,
certified by an Authorized Officer of the L/C Subsidiary, (c) certificates of
legal existence and good standing issued as of a recent date by the applicable
state of organization and (d) such other supporting documents and certificates
as the Agent may reasonably request and (vi) the documentation evidencing (x)
the L/C Facility and (y) the pledge of all of the Equity Securities of the L/C
Subsidiary owned by the Borrower to the Agent and the control agreement in
respect of the L/C Collateral Account shall have become effective and binding on
the parties thereto and shall be in form and substance reasonably satisfactory
to the Agent.
L/C Lender. Any financial institution or institutions
reasonably acceptable to the Agent which issues stand-by letters of credit in
favor of the NRTC, as beneficiary, for the account of the Operating Companies
under the L/C Facility or the PM&C L/C Facility.
L/C Subsidiary. A newly formed Delaware corporation
wholly-owned by the Borrower and formed for the sole purpose of establishing the
L/C Facility with the L/C Lender that engages in no other business activities.
Lender Default. (a) The refusal (which has not been retracted)
of a Lender to make available its portion of any Loan or (b) a Lender having
notified the Borrower and/or the Agent in writing that it does not intend to
lend under this Agreement; in either case, other than by reason of any failure
of the Borrower to meet any material condition precedent thereto hereunder.
Lenders. See the Preamble.
License Agreements. The several Operating Agreements dated as
of October 31, 1994 between PBT and each of the License Subsidiaries, as the
same are in effect as of the date hereof, and all similar Operating Agreements
entered into after the date hereof in connection with the acquisition of new
Stations.
License Subsidiaries. WDBD License Corp., WDSI License Corp.,
HMW, Inc., Pegasus Broadcast Associates, L.P., and WOLF License Corp., each a
Subsidiary of Pegasus Broadcast Television, Inc. formed for the sole purpose of
owning one or more FCC Licenses.
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Licenses. A license, authorization or permit to construct, own
or operate any Station granted by the FCC or any other Governmental Authority.
Lien. Any mortgage, pledge, hypothecation, deposit
arrangement, encumbrance, assignment, lien (statutory or other), charge, option
or other security interest, any restriction or any preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement and any Capital Lease having substantially the same economic effect as
any of the foregoing).
Litigation. See Section 5.02.
LMA. A local marketing agreement, program service agreement or
time brokerage agreement between a broadcaster and a television station licensee
pursuant to which the broadcaster provides programming to, and retains the
advertising revenues of, such station in exchange for fees paid to licensee.
LMA Purchase Option. Any option to purchase the broadcast
station or assets subject thereto which is binding upon any one or more of the
Operating Companies.
Loan Documents. This Agreement, the Notes, the Security
Documents, the PCC Letter Agreement, the Indemnity Agreement, the Intercreditor
Agreement and all other agreements, instruments and certificates contemplated
hereby and thereby.
Loan Request. See Section 1.03.
Loans. Section 1.01.
Location Cash Flow. With respect to any Consolidated Company
(other than the Special Purpose Subsidiary), for any fiscal period, EBITDA for
such period derived from such Consolidated Company, after restoring thereto
amounts deducted for corporate overhead charges, determined on a Consolidated
basis in accordance with GAAP.
Management Fees. Amounts due and payable by the Consolidated
Companies (other than the Special Purpose Subsidiary) to the Manager in
consideration for management and administrative support services.
Manager. Pegasus Communications Management Company, a
Pennsylvania corporation which is wholly owned by the Parent.
Margin Stock. See Section 4.14.
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Material Adverse Effect. (a) An adverse effect on the validity
or enforceability of this Agreement or any of the other Loan Documents in any
material respect, (b) an adverse effect on the condition (financial or other),
business, results of operations, prospects or properties of the Companies, taken
as a whole, in any material respect or (c) an impairment of the ability of the
Companies to fulfill their obligations under this Agreement or any other Loan
Document to which any Company is a party, in any material respect.
Maturity Date. The date which is the sixth anniversary of the
Closing Date.
NASDAQ. The NASDAQ Stock Market, Inc.
Net Cash Proceeds. With respect to any Disposition, the
aggregate amount of all cash payments received by (a) any Company or (b) any
Qualified Intermediary, as defined in the United States Treasury Regulations
promulgated under Section 1031 of the Code and as used in connection with a
like-kind exchange under such Section 1031, directly or indirectly, in
connection with such Disposition, whether at the time thereof or after such
Disposition under deferred payment arrangements or investments entered into or
received in connection with such Disposition, minus the aggregate amount of any
legal, accounting, regulatory, title and recording tax expenses, commissions and
other fees and expenses actually paid by any Company in connection with such
Disposition, and minus any income taxes payable by any Company in connection
with and as a result of such Disposition.
Net DBS Rights Litigation Proceeds. With respect to the DBS
Rights Litigation, the aggregate amount of cash awarded to any Operating Company
by any judgment or settlement of the DBS Rights Litigation, whether at the time
thereof or under any deferred payment arrangement minus the aggregate amount of
cash any Operating Company is obligated to pay to any Person as a result of any
judgment or settlement of the litigation encaptioned DIRECTV, Inc. v. Pegasus
Satellite Television, Inc. and Golden Sky Systems, Inc., Case No. 01-06220,
Central District of California (Xxx. Xxxxxxx X. Xxxxx), consolidated with
National Rural Telecommunications Cooperative, et al vs. DIRECTV, Inc., et al,
Xxxx Xx. XX-00-0000, Xxxxxxx Xxxxxxxx of California (Xxx. Xxxxxxx X. Xxxxx) (the
"Seamless Litigation"); provided, that for a period not to exceed 360 days from
the date of the receipt for such proceeds, the Borrower may deposit any cash
proceeds, received in connection with the DBS Rights Litigation in the PM&C
Collateral Account pending final determination of the Seamless Litigation.
Net Income. For any period with respect to any Consolidated
Company, net income of such Consolidated Company (other than the Special Purpose
Subsidiary) from their respective operations, after deducting all operating
expenses, provisions for all taxes and reserves (including Management Fees and
reserves for deferred income taxes) and all other proper deductions (including
Interest Expense), but excluding (a) any gains or losses derived from any sales
of assets made during such period, to the extent such gains or losses are
properly includable in the determination of Net Income for such period, or any
gains derived from any judgment in or settlement of the Litigation (except to
the extent properly includable as a result of the adjustment of programming
costs solely for the fiscal quarter in which such judgment or settlement is
properly reflected in the Companies' financial statements in accordance with
GAAP) (b) the effect of Trades, and (c) non-cash restructuring charges, provided
that subsequent cash payments made in respect of such charges shall be deducted
in determining Net Income for the relevant period, all determined on a
Consolidated basis in accordance with GAAP.
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New Lender. See Article XII.
Notes. See Section 1.02.
NRTC. The National Rural Telecommunications Cooperative, a
District of Columbia corporation, and any successor thereto under the NRTC
Member Agreements.
NRTC Member Agreements. The NRTC/Member Agreements for
Marketing and Distribution of DBS Services between any Operating Company and the
NRTC, as amended through the date hereof, as originally executed and delivered
and as amended in accordance with Section 7.13, pursuant to which the DBS
Subsidiaries hold the exclusive rights to provide cable programming services and
all other video, audio and data packages transmitted by DirecTV over the DirecTV
frequencies (as defined therein) to residential and commercial subscribers in
specified service areas, and any other NRTC/Member Agreements for Marketing and
Distribution of DBS Services or other agreements between any Operating Company
and the NRTC for the provision of DBS services in any other specified service
areas not covered by the existing NRTC Member Agreements referred to above.
Obligations. The Loans and the other obligations of the
Borrower under this Agreement and the other Loan Documents, including without
limitation any and all future loans, advances, debts, liabilities, obligations,
covenants and duties owing by the Borrower to the Agent and the Lenders, or any
of them, of any kind or nature, whether or not evidenced by any note, mortgage
or other instrument, whether arising by reason of an extension of credit, loan,
guarantee, letter of credit, indemnification or in any other manner, whether
direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and however
acquired. The term "Obligations" also includes, without limitation, all
interest, charges, expenses, fees (including attorneys', accountants',
appraisers', consultants' and other fees) and any other sums chargeable to the
Borrower under this Agreement or any other Loan Documents.
Opening Balance Sheet. See Section 4.01.
Operating Companies. Collectively, PM&C and each Subsidiary of
PM&C.
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Organizational Documents. (a) With respect to any corporation,
its certificate or articles of incorporation and by-laws, (b) with respect to
any partnership, its partnership certificate and partnership agreement, (c) with
respect to any limited liability company, its certificate of formation and
operating agreement and (d) with respect to any other entity, the documents
pursuant to which such entity was formed and organized.
Original Principal. With respect to any Loan, the original
principal of the Loan without giving effect to any increase in the principal
amount of such Loan attributable to the capitalization of interest with respect
thereto in accordance with Section 1.03(c) hereof.
Original Subordinated Notes. The 12 1/2% Series B Senior
Subordinated Notes due 2005 of PM&C, in the aggregate principal amount of
$85,000,000, issued to the Subordinated Noteholders under the Subordinated
Indenture on November 14, 1995, in exchange for the 12 1/2% Series A Senior
Subordinated Notes due 2005 of PM&C in the same aggregate principal amount
issued under the Subordinated Indenture on July 7, 1995.
Parent. Pegasus Satellite Communications, Inc., a Delaware
corporation of which the Borrower is a wholly-owned Subsidiary.
Participant. See Section 1.11.
Patent Litigation. See Section 5.02.
Paying Subscriber. Any subscriber to DBS services provided by
a DBS Subsidiary (a) from whom such DBS Subsidiary has received at least one
payment for programming service, (b) whose account balance is not more than
sixty (60) days past due, measured from the invoice due date thereof, without
giving effect to any extensions thereof, and (c) who shall not have disconnected
service.
PBT. Pegasus Broadcast Television, Inc., a Pennsylvania
corporation wholly owned by the Borrower.
PCC. Pegasus Communications Corporation, a Delaware
corporation of which the Parent is a wholly-owned Subsidiary.
PCC Letter Agreement. The letter agreement dated the Closing
Date between PCC and the Agent relating to the prohibition from and after the
Agreement Effective Date on the sale, license, transfer, assignment or any other
migration of subscribers of DBS Services offered by the Operating Companies to
competing services offered by any Affiliate of PCC other than the Operating
Companies in form and substance reasonably satisfactory to the Agent, as
amended, supplemented or otherwise modified from time to time.
Permitted Acquisitions. See Section 7.05.
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Permitted Cost Sharing Transactions. Any transaction among any
Company and an Affiliate of such Company which involves exclusively the
arm's-length sharing of operational costs and expenses (and does not involve the
sale, license, transfer, assignment or any other migration of any customers of
the DBS Business or the payment of Management Fees) among the parties to such
transaction, provided that (i) all payments required to be made under any
Permitted Cost Sharing Transaction by any Company to any Affiliate shall not
exceed the actual cost of providing such services to such Company and (ii) such
Permitted Cost Sharing Transaction is in the ordinary course of business,
pursuant to the reasonable requirements of such Company's business and upon
terms not less favorable to such Company than it could obtain in a comparable
arm's-length transaction with a third party other than such Affiliate.
Permitted Indebtedness. Indebtedness of PM&C under the Credit
Agreement, other Indebtedness of PM&C or any portion or tranche of any such
Indebtedness under the Credit Agreement or other Indebtedness of PM&C which
would constitute "Bank Facilities" under the PSC 2001 Indenture and, in each
case, (i) is secured by a first-priority Lien on substantially all of the assets
of the Operating Companies (such Lien to secure each portion or tranche of all
such Indebtedness on an equal and ratable basis) and provides for pari passu or
equal and ratable payments among the holders of all portions or tranches of all
such Indebtedness and (ii) which does not have an effective interest rate (after
taking into account the stated interest rate of such Indebtedness, all fees
payable under such Indebtedness and the fair market value of any other
consideration paid or payable in respect of such Indebtedness) in excess of
12.5% per annum, provided that, in the case of Indebtedness bearing interest at
a floating rate based upon a spread over Libor or any other recognized index
rate, the stated interest rate of such Indebtedness shall be deemed to be equal
to such floating rate calculated on the first date of the incurrence of such
Indebtedness under the relevant agreement, so long as the spread in respect of
such Indebtedness may not increase during the term of such Indebtedness other
than by reason of provisions under which the spread is calculated by reference
to leverage or other measures of financial condition or performance so long as
the highest spread achievable by reference thereto (as if it had been in effect
on the first date of incurrence of such Indebtedness) would not violate clause
(ii) of this definition.
Permitted Investments. Investments permitted under Section
7.05(a).
Permitted L/C Amount. Initially, $60,000,000, as such amount
may be increased from time to time in accordance with the terms of the NRTC
Member Agreements in effect on the Agreement Effective Date.
Permitted Liens. See Section 7.02.
Permitted Seller Debt. Indebtedness of the Operating Companies
to Sellers incurred in connection with Permitted Acquisitions of DBS Businesses
in an aggregate amount outstanding at any time not to exceed $10,000,000 which
(a) has terms and conditions satisfactory to the Agent and (b) is not secured
other than by a letter of credit issued under an agreement governing Permitted
Indebtedness of PM&C.
Person or person. Any individual, corporation, partnership,
limited liability company, joint venture, trust, business unit, unincorporated
organization, or other organization, whether or not a legal entity, or any
government or any agency or political subdivision thereof.
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PM&C. See Preamble.
PM&C L/C Cash Collateral. The cash collateral of up to 105% of
the Permitted L/C Amount maintained in an account of any Operating Company with
the L/C Lender which is subject to a Lien in favor of the L/C Lender securing
reimbursement of stand-by letters of credit (including, without limitation,
interest, fees, and expenses in respect thereof) issued by the L/C Lender under
the PM&C L/C Facility in favor of the NRTC, as beneficiary, for the account of
the Operating Companies in accordance with the NRTC Member Agreements.
PM&C L/C Facility. A limited recourse letter of credit
facility established by any Operating Company with the L/C Lender on or after
the Agreement Effective Date pursuant to which the L/C Lender issues stand-by
letters of credit in Dollar denominations in favor of the NRTC, as beneficiary,
for the account of the Operating Companies fully secured by, limited in recourse
to, and in a stated amount that does not exceed the aggregate amount of, the
PM&C L/C Cash Collateral, the documentation evidencing which shall be in form
and substance reasonably satisfactory to the Agent.
PM&C Subordinated Debt. (a) Indebtedness of PM&C and any of
its Subsidiaries to the Subordinated Noteholders under the Subordinated
Indenture and the Original Subordinated Notes and (b) any Indebtedness which is
subject to an Affiliate Subordination Agreement (as defined in the Credit
Agreement) pursuant to the Credit Agreement.
Prepayment Notice. See Section 1.05.
Properties. See Section 4.21.
PSC Exchange Indenture. The Indenture dated as of November 19,
1999 between the Parent and First Union National Bank, as trustee, providing for
the issuance of the PSC Exchange Notes.
PSC Exchange Notes. The Parent's 12 1/2% Series A Senior Notes
Due 2007 in the aggregate principal amount of $155,000,000 issued on November
19, 1999.
PSC Leverage Ratio. The meaning given to the term
"Indebtedness to Adjusted Operating Cash Flow Ratio" (as applied to indebtedness
classified as having been incurred on the basis of such ratio) in the PSC 1998
Senior Indenture, as in effect on the date hereof, without giving effect to any
amendment thereto after the date hereof (unless the Required Lenders agree in
writing, in their sole discretion, that any such amendment shall be given effect
for purposes of this Agreement); provided, however, that the Indebtedness under
the Original Subordinated Notes will not be deemed to be "outstanding" and will
be deemed to have been "paid in full" if (i) PM&C shall have given notice of
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redemption of all of the Original Subordinated Notes to the Original
Subordinated Note holders pursuant to the Subordinated Indenture (or shall have
irrevocably instructed the trustee under the Subordinated Indenture to give such
notice of redemption with a redemption date to occur no later than the earlier
of thirty-one (31) days after the Closing Date and July 31, 2003), and (ii) PM&C
shall have irrevocably transferred to such trustee cash in an amount equal to
the aggregate outstanding amount of the Original Subordinated Notes plus all
interest accrued and to accrue on the Original Subordinated Notes to the
redemption date specified in the notice of redemption (which shall be no later
than the earlier of thirty-one (31) days after the Closing Date and July 31,
2003), and instructed such trustee to apply such cash to the redemption of the
Original Subordinated Notes on such redemption date.
PSC 2001 Indenture. The Indenture dated as of December 19,
2001 between the Parent and X.X. Xxxxxx Trust Company, National Association, as
trustee, as originally executed and delivered.
PSC 2001 Senior Notes. The Parent's 11.25% Senior Notes due
2010 in aggregate principal amount of $175,000,000, issued pursuant to the PSC
2001 Indenture.
PSC 1998 Indenture. The Indenture dated as of November 30,
1998 between the Parent and First Union National Bank, as trustee, as amended
pursuant to the First Supplemental Indenture dated as of April 9, 1999.
PSC 1998 Senior Notes. The Parent's 9 3/4% Senior Notes due
2006 in the aggregate principal amount of $100,000,000, issued pursuant to the
PSC 1998 Indenture.
PSC 1997 Indenture. The Indenture dated October 21, 1997
between the Parent and First Union National Bank, as Trustee, as originally
executed and delivered.
PSC 1997 Senior Notes. The Parent's 9 5/8% Senior Notes due
2005 issued on October 21, 1997 in the aggregate face amount of $115,000,000,
pursuant to the PSC 1997 Indenture.
PSC Preferred Stock. The Parent's 12.75% Series A Cumulative
Exchangeable Preferred Stock issued on February 22, 2001, on the terms and
conditions set forth in the PSC Preferred Stock Designation.
PSC Preferred Stock Designation. The Certificate of
Designation, Preferences and Relative, Participating, Optional and Other Special
Rights of Preferred Stock and Qualifications, Limitations and Restrictions
thereof of 12.75% Series A Cumulative Exchangeable Preferred Stock of the Parent
filed with the office of the Secretary of State of the State of Delaware on
February 22, 2001, as amended by the Certificate of Amendment of Certificate of
Designation, Preferences and Relative, Participating, Optional and Other Special
Rights of Preferred Stock and Qualifications, Limitations and Restrictions
thereof of 12.75% Series A Cumulative Exchangeable Preferred Stock of the Parent
filed with the office of the Secretary of State of the State of Delaware on June
2, 1998.
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PSC Subordinated Debt. Indebtedness of the Parent under (a)
the PSC Subordinated Notes and the PSC Subordinated Indenture and (b) the
Parent's 13 1/2% Senior Subordinated Discount Notes Due 2007 issued on May 31,
2001 and the applicable Golden Sky Exchange Indenture.
PSC Subordinated Notes. The Parent's 12.75% Senior
Subordinated Exchange Notes due 2007 issuable in exchange for PSC Preferred
Stock pursuant to the PSC Preferred Stock Designation under the PSC Subordinated
Notes Indenture.
PSC Subordinated Notes Indenture. The Indenture filed as an
exhibit to the PSC Preferred Stock Designation which would govern the PSC
Subordinated Notes if issued.
PSTH. PST Holdings, Inc., a Delaware corporation which is
wholly owned by PM&C and is the parent of the DBS Subsidiaries.
Put Offer. See Section 1.06(b).
Quarterly Dates. The last day of March, June, September and
December of each fiscal year.
Rate Hedging Agreements. Any written agreements evidencing
Rate Hedging Obligations.
Rate Hedging Obligations. Any and all obligations of the
Companies, whether direct or indirect and whether absolute or contingent, at any
time created, arising, evidenced or acquired (including all renewals,
extensions, modifications and amendments thereof and all substitutions
therefor), in respect of: (a) any and all agreements, arrangements, devices and
instruments designed or intended to protect at least one of the parties thereto
from the fluctuations of interest rates, exchange rates or forward rates
applicable to such party's assets, liabilities or exchange transactions,
including without limitation dollar-denominated or cross currency interest rate
exchange agreements, forward currency exchange agreements, interest rate cap or
collar protection agreements, forward rate currency or interest rate options,
puts and warrants and so-called "rate swap" agreements; and (b) any and all
cancellations, buy-backs, reversals, terminations or assignments of any of the
foregoing.
Recovering Party. See Section 1.12.
Recovery. See Section 1.12.
Register. See Article XII.
Regulation D. Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be amended or supplemented from time to
time.
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Regulatory Change. With respect to any Lender, any change
after the date of this Agreement in any law, rule or regulation (including
without limitation Regulation D) of the United States, any state or any other
nation or political subdivision thereof, including without limitation the
issuance of any final regulations or guidelines, or the adoption or making after
the date of this Agreement of any interpretation, directive or request, applying
to a class of banks in which such Lender is included under any such law, rule or
regulation (whether or not having the force of law and whether or not failure to
comply therewith would be unlawful) by any court or governmental or monetary
authority charged with the interpretation thereof.
Related Lender Party. With respect to any Lender, such
Lender's parent company and/or any affiliate of such Lender which is at least
fifty percent (50%) owned by such Lender or its parent company or, in the case
of any Lender which is a fund investing in bank loans, any other fund that
invests in bank loans and is managed by the same investment advisor of such
Lender or by a controlled affiliate of such investment advisor.
Required Lenders. At any time, Lenders, excluding Defaulting
Lenders, holding more than fifty percent (50%) of the aggregate outstanding
principal amount of the Loans and unutilized Commitments; provided, that
Required Lenders shall include: (i) DBS Investors, LLC, in the event DBS
Investors, LLC and its Affiliates collectively hold at such time (after giving
effect to any participations) at least 66-2/3% of the aggregate principal amount
of Loans and Commitments held by DBS Investors, LLC on the Agreement Effective
Date (provided, however, that for purposes of this definition only, DBS
Investors, LLC shall be deemed to own only that portion of the Loans and
Commitments held by DBS Investors, LLC which is equal to the ownership interest
of Pegasus Partners II, L.P. and its Affiliates in DBS Investors, LLC at such
time) and (ii) Avenue Special Situations Fund II, LP, in the event Avenue
Special Situations Fund II, LP and its Affiliates collectively hold at such time
(after giving effect to any participations) at least 25% of the aggregate
principal amount of Loans and Commitments held by all Lenders on the Agreement
Effective Date.
Replacement PSC Indebtedness. See Section 7.01.
Required Payment. See Section 1.13.
Restricted Payment. Any distribution or payment of cash or
property, or both, directly or indirectly (a) in respect of any PM&C
Subordinated Debt, or (b) to any partner, stockholder or other equityholder of
any of the Companies, PCC or of any of their respective Affiliates for any
reason whatsoever, including without limitation, salaries, loans, debt
repayment, consulting fees, Management Fees, expense reimbursements and
dividends, distributions, put, call or redemption payments and any other
payments in respect of equity interests; provided, however, that Restricted
Payments shall not include the following:
(i) Permitted Cost Sharing Transactions that comply with
Section 7.12; and
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(ii) other transactions that comply with Section 7.12 and
do not include or involve any dividend, interest or other distribution (whether
in cash, securities or other property) with respect to any Equity Securities in,
or any Indebtedness of, any Company or any payment (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation or termination
of any Equity Securities in, or any Indebtedness of, any Company or any option,
warrant or other right to acquire any such Equity Securities in, or Indebtedness
of, any Company.
SEC. See Section 6.05.
Security Agreement. The Security and Pledge Agreement signed
by the Borrower in favor of the Agent, for the benefit of the Lenders, as of the
Agreement Effective Date in substantially the form attached as Schedule 14(c),
as amended, supplemented or otherwise modified from time to time.
Security Document(s). The Security Agreement and any other
agreement or instrument granting a security interest in any assets of any Person
to secure the Obligations.
Seller. With respect to any Acquisition permitted hereunder,
the owner of the stock (or other ownership interests) to be acquired, or the
entity the assets and properties of which are to be acquired by the related
respective Operating Company pursuant to such Acquisition.
Special Purpose Subsidiary. Pegasus Satellite Development
Corporation, a Delaware corporation wholly owned by PSTH and formed for the sole
purpose of reimbursing the DBS Subsidiaries for Subscriber Acquisition Costs.
Specified Authorities. (a) With respect to broadcast
television properties, the FCC, the FAA and all other Governmental Authorities
having jurisdiction over the Companies and/or any FCC License; and (b) with
respect to DBS Rights, all Governmental Authorities, if any, having jurisdiction
over the Companies and/or any such DBS Rights.
Stations. All of the television stations owned or programmed
by the Operating Companies, where each such station consists of all of the
properties and operating rights constituting a complete, fully integrated system
for transmitting broadcast television signals from a transmitter licensed by the
FCC, together with any subsystem ancillary thereto, without payment of any fee
by the Persons receiving such signals.
Subordinated Debt Documents. The Subordinated Indenture, the
Original Subordinated Notes, the Subsidiary Guarantees executed as required
under the Subordinated Indenture, the Stockholders Agreement executed by the
Subordinated Noteholders in connection with the issuance to them of 8,500 shares
of PM&C's Class B Common Stock and any and all other agreements and instruments
executed pursuant thereto.
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Subordinated Indenture. The Indenture dated as of July 7, 1995
among PM&C, as Issuer, certain of the Subsidiaries, as Guarantors, and First
Union National Bank (successor to First Fidelity Bank, National Association), as
Trustee, providing for the issuance of the Original Subordinated Notes, as
amended pursuant to the First Supplemental Indenture dated as of September 26,
1997.
Subordinated Indenture Default. Any "Event of Default", as
defined in the Subordinated Indenture.
Subordinated Noteholders. The registered holders from time to
time of the Subordinated Notes.
Subscriber Acquisition Costs. For any period, those expenses
(excluding capitalized costs) incurred in the generation of Gross Subscriber
Additions, such as sales commissions, advertising expenses and promotional
expenses, including the amount (other than the amount capitalized), if any, by
which the cost of equipment sold to subscribers to the DBS Services offered by
the DBS Subsidiaries (including rebates, subsidiaries and the like) exceeds the
revenue generated from such sale(s).
Subscriber Reports. See Section 6.05.
Subsidiary. (a) Any corporation, association, joint stock
company, business trust or other similar organization of which more than 50% of
the ordinary voting power for the election of a majority of the members of the
board of directors or other governing body of such entity is held or controlled
by the Borrower or a Subsidiary of the Borrower; (b) any other such organization
the management of which is directly or indirectly controlled by the Borrower or
a Subsidiary of the Borrower through the exercise of voting power or otherwise;
or (c) any joint venture, association, partnership, limited liability company or
other entity in which the Borrower or a Subsidiary of the Borrower has a 50%
equity interest.
Tax Sharing Agreement. The Amended and Restated Tax Sharing
Agreement dated as of July 1, 1997 among the Parent and its subsidiaries.
Tax Sharing Payments. Payments under the Tax Sharing Agreement
arising solely as a result of the operations of the Operating Companies.
Taxes. See Section 1.09.
Third Parties. See Section 13.02.
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Total Funded Debt. As of any date, all Indebtedness of the
Consolidated Companies described in paragraphs (a) through (f) of the definition
of "Indebtedness" set forth above and, without duplication, Guarantees by the
Consolidated Companies of such Indebtedness plus the aggregate amount payable by
the Consolidated Companies (whether or not due) in respect of any and all LMA
Purchase Options, determined on a Consolidated basis, in accordance with GAAP;
provided, however, that the Indebtedness under the Original Subordinated Notes
will not be deemed to be "outstanding" and will be deemed to have been "paid in
full" if (i) PM&C shall have given notice of redemption of all of the Original
Subordinated Notes to the Original Subordinated Note holders pursuant to the
Subordinated Indenture (or shall have irrevocably instructed the trustee under
the Subordinated Indenture to give such notice of redemption with a redemption
date to occur no later than the earlier of thirty-one (31) days after the
Closing Date and July 31, 2003), and (ii) PM&C shall have irrevocably
transferred to such trustee cash in an amount equal to the aggregate outstanding
amount of the Original Subordinated Notes plus all interest accrued and to
accrue on the Original Subordinated Notes to the redemption date specified in
the notice of redemption (which shall be no later than the earlier of thirty-one
(31) days after the Closing Date and July 31, 2003), and instructed such trustee
to apply such cash to the redemption of the Original Subordinated Notes on such
redemption date.
Total Interest Expense. For any period with respect to the
Consolidated Companies, Interest Expense for such period which is payable, or
currently paid, in cash.
Trades. Those items of income and expense of the Companies
which do not represent the right to receive payment in cash or the obligation to
make payment in cash and which arise pursuant to so-called trade or barter
transactions.
Transaction Costs. For any period, nonrecurring out-of-pocket
expenses (including attorneys' fees, investment banking fees and facility fees,
but excluding recurring costs such as commitment and agency fees) accrued by any
Consolidated Company (other than the Special Purpose Subsidiary) to Persons who
are not Affiliates of any Company during such period in connection with the
closing of the transactions under this Agreement, any Permitted Acquisition and
any other transactions occurring after the Closing Date which are consented to
in writing by the Required Lenders.
Transaction Documents. See Section 4.03.
Warrant Agreements. The Warrant and Investor Rights Agreement
dated the Agreement Effective Date among the Parent, the Borrower and the Agent
in substantially the form attached as Schedule 14(c) and any other agreement or
instrument delivered or executed pursuant thereto, in each case, as amended,
supplemented or otherwise modified from time to time.
[The next pages are the signature pages]
-96-
IN WITNESS WHEREOF, the Agent, the Lenders and the Borrower
have caused this Agreement to be duly executed by their duly authorized
representatives, as a sealed instrument, all as of the day and year first above
written.
BORROWER:
PEGASUS MEDIA &
COMMUNICATIONS FINANCE
CORPORATION
By: /s/ Xxx X. Lodge
----------------------------------------
Name: Xxx. S. Lodge
Title: President and Chief Operating
Officer
AGENT (in an Administrative capacity):
-------------------------------------
DBS INVESTORS AGENT, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President and Secretary
LENDERS:
-------
DBS INVESTORS, LLC
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President and Secretary
Address for Notices:
c/o Pegasus Partners II, L.P.
00 Xxxxx Xxxx
Xxx Xxx, XX 00000-0000
Attention: Xxxxxxxx X. Xxxxxx
Telecopy no.: (000) 000-0000
AVENUE SPECIAL SITUATIONS FUND II, LP
By: Avenue Capital Partners II, LLC,
General Partner
By: GLS Partners II, LLC,
Managing Member of the General Partner
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Member
Address for Notices:
c/o Avenue Capital Partners II, LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
Telecopy No.: (000) 000-0000
SPCP GROUP, LLC
By: /s/ Xxxxxx X. Mule
----------------------------------------
Name: Xxxxxx X. Mule
Title: Principal
Address for Notices:
c/o Silverpoint Capital, LP
0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telecopy No.: (000) 000-0000
